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Secret Home Office policies


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I have come across four secret Home Office policies since I returned at the start of September. Normally the Home Office has been quite good at disclosing the policies that officials apply to cases. There is a large section on the BIA website devoted to this. Legal challenges in the past, such as Rashid, exposed the existence of secret policies, but these had been concealed through gross incompetence rather than conspiracy. Probably.

These new ones are secret because the Home Office has deliberately concealed their existence. The non-disclosure of the first one in particular is quite shocking and is the subject of a number of legal proceedings now. This is because a legal case can win where it is shown that the Home Office have not followed their own policy. It is made rather difficult to win where one doesn’t even know the policy exists, never mind what it says. Is the Home Office, then, concealing these policies so that claimants cannot win cases when in fact, in law, they should win them? Is this a gross abuse of process? Answers on postcards, please.

  1. Presumption of detention in deportation cases. This policy existed since April 2006 and is entirely in conflict with the declared policy of a presumption of liberty in all cases. There are several test cases going forward now. Those detained under this policy (a LOT of people) may have quite considerable claims for compensation for unlawful detention.
  2. Effect of the House of Lords cases of EB (Kosovo), Chikwamba and Beuko-Betts, covered earlier on this blog. These judgments necessitate a radical re-think about ECHR Article 8 cases by immigration lawyers, judges and the Home Office. Are individual officials following Home Office policy on this? There’s no way of knowing, as we don’t know what the policy is.

  3. How (or maybe whether) asylum support should be continued while an appeal is pending, even in certain cases were it is out of time, pending an appeal to the Asylum Support Tribunal. Again, there is currently no way of checking whether this policy is being applied as we don’t know what it says. presumably it is more generous than the law strictly requires, though, otherwise the policy would not exist.

  4. How to treat cases where there was a delay in decision such that case was outstanding on 1 January 2001 and at that time there was a four years ELR policy that applied to the country from which the person came. This policy may or may not be in force at the moment, apparently, and it is the very belated Home Office response to R(S) (Afghanistan).

The Home Office never ceases to amaze me.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


15 Responses

  1. I have a feeling I heard the secret policy regarding Beoku-Betts in Taylor House last week while waiting to be called on. As the whole family now needs to be taken into consideration in an Art. 8 case, the HOPO proposed that the whole family be removed to the home country of the appellant, irrespective of the fact that the appellant’s spouse was not a native of that country, was now a British citizen and their two children were British nationality. Once I got back on my chair……

    That case went part-heard as the IJ, quite rightly, asked for further information as to whether the home country of the Appellant would accept his wife and kids, so I know not the potential outcome.

    Imaginative of the Home Secretary, though, eh?

  2. I think that the presumption of detention is contrary to the governments obligations as Convention signatories to the UN and the European Court- Article 8 of ECHR and specifically UN CRC in regards to young children.

    If these are internal rules that are kept private, they must surely exist in writing, given the size of the organisation.

    I notice a distinct ‘detain first, ask questions later’ approach. Even families with a few young children are affected. Worryingly in particular is when the Home Office detain overstayers only recently brought to their attention, then set removal directions on the basis of old and obsolete information. (eg. NONE appearing in the children category on the Factual Summary being used as a pretext for removal, despite a client having 2 children since UKBA last knew about him).

    For example, one client was detained with his 3 children while his pregnant wife was in hospital suffering from bleeding and had removal directions set before they even knew where she was. The Home Office then had the audacity to accuse his wife of neglecting her temporary release restrictions by not being at the address on what they described as ‘numerous occasions’ but in reality could have been as little as twice.

    If this is the reality of the application of ‘presumed detention awaiting deportation’ then the UK Border Agency can’t even pretend that they give a damn about families and children.

    The desire to feel in control of events often leads to overreactions and illogical decision making which inevitably damage the families affected. These hamfisted approaches by UKBA to seem in control are a symptom of the crisis of confidence it has after so much criticism and so much high-profile incompetence.

    I’m sure the public feel much safer when the Border Agency locks up children and leaves a pregnant wife stranded in the UK, unable to speak the language wondering how on earth she would cope with her husband and children deported.

    But where do you start with trying to get compensation? As far as I know, there is one Jamaican case where they received detention but only after the children were detained for over 30 days.

  3. Jack, it is possible to secure compensation, and sometimes in large doses. If you can secure a finding of unlawful detention from a high court judge, the going rate is around £2,000-3,000 for the first two or three days, but there is no set tariff thereafter. The Home Office tends to argue for something around £300 per day for long periods of detention, and claimant’s argue for the same level per day as for the first few days, and judges apparently go for something in between.

    I’ve started a few such claims but none of them have yet gone to completion for various reasons.

  4. BB, you surprise me not! HOPOs can be relied on for such odd flights of fancy. Betts isn’t going to make cases easy as such, as very strong evidence on why the rest of the family cannot relocate will always be needed, especially if the relationship was entered into knowing the immigrant was subject to immigration control. It will take a lot more than just inconvenience.

  5. As an outsider to the immigration game it all appears a bit shocking. Laws that change seemingly on a whim like basis (usually it seems to be where the HO got a bloddy nose in court). How do you guys keep up?

    BB’s example reminds me of a case I found on the appeals website with a man who originally came from Nigeria, now a UK citizen, travelled quite a bit, lived in other countries and married a Ugandan overstayer (this case was pre-Betts etc etc etc.); the IJ ruled… (excuse my informal narrative)….well the fact that you’ve travelled around means you’re capable of pitching up a tent anywhere. Go make an entry clearence and stay with your wife, your family life will not be disrupted then………………………….

    The article 8 policy makes very interesting reading.

  6. Also as an outsider,it looks to me like we have highly skilled,intelligent lawyers/barristers trying to reason with rules as opposed to laws.The clearance officers being akin to nightclub doormen picking and choosing who to let into their private club(sorry,not tonight lads etc).They only seem to be constrained by european laws like that bothersome human rights act…and they’re even working round that now apparently.

  7. I think we’re all agreed then: what a shambles! Well done Alisha for fining the policies, though. I think you got them literally immediately after they appeared. I haven’t even had a chance to read them yet (not tonight either, too much work to do) but will post on them ASAP. I understand the R(S) Afghanistan one is surprisingly generous – probably as a backlog clearing tactic, though. More to follow on this…