- BY Colin Yeo
Yashika Bageerathi and the Family Returns Process
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The story of Yashika Bageerathi has touched many. A bright student brought to the UK by her mother with her siblings to escape domestic violence at home in Mauritius, she has a promising future here if allowed to remain. Because she has turned 18 and is no longer a child, though, the Home Office has apparently separated her case from that of her mother and siblings and is trying to enforce her return independently.
I’m seeing some pretty odd reports on Twitter, though, so thought a bit of legal background might be useful. Basically, I can’t see how an airline can refuse to take someone who would be leaving voluntarily, albeit under huge pressure from the immigration authorities.
Just spoke to the Home Office, they are refusing to give comment on @airmauritius becoming the second ariline to refuse to deport #Yashika
— Vincent McAviney (@VinnyMcAv) March 30, 2014
Originally, reports suggested she was detained at Yarl’s Wood detention centre and that her departure was to be enforced. A British Airways flight refused to take her, it is reported. It now seems that she is instead being asked to leave the UK. The BBC reports
She was given plane tickets by the Home Office and told to leave or “removal may be enforced”.
That sound a lot like the Family Returns Process, as it is known. This follows a sequence of encouraging a family with dependent children to depart (“assisted return”), if that fails requesting the family to leave and arranging a flight (“required return”) and if that fails then enforcing departure (“ensured return”).
While it is ultimately a velvet glove over an iron fist, the process is nevertheless a far more humane one than that of the previous Government. Dawn raids and long periods of immigration detention were previously used by default.
If the Family Returns Process is indeed being applied, or some sort of cobbled together simulacrum of it, it is a mystery why it was not being applied from the start and why it is still being applied to Ms Bageerathi alone. The process is supposed to apply to all families where there is a dependent child under the age of 18. Ms Bageerathi’s siblings both seem to meet this description and Ms Bageerathi seems to be part of the family unit as any normal human would understand that term. The Home Office policy certainly seems quite inclusive, applying to
“all families with a dependent child or children (aged under 18) where an adult family member is liable to be removed”
The policy also states that “Immigration Enforcement will seek to ensure that the family remain together” other than in certain narrow circumstances such as where there is disruptive behaviour.
The policy (p3) seems to recognise that “family” might be wider than parents and minor children, stating that:
It is for an individual to demonstrate that there are sufficiently close family ties and dependencies to constitute ‘family life’ within the meaning of Article 8. If this has not been established via an Article 8 application, or no such evidence is forthcoming and detention and removal is going ahead then there is no need to seek authority for a family separation.
Aside from the Home Office’s apparent misapplication of the concept of “family”, it would be interesting to know if the effect of Ms Bageerathi’s removal on her siblings has been assessed by the Home Office. It hardly seems consistent with their best interests and the Home Office duty to promote and safeguard the welfare of children to wrench the family apart.
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24 responses
I just noticed this too and did wonder what was going on exactly. Thank you.
Is Theresa May as SSHD the only one who has the authority to exercise discretion here, to let Yashika and others like her stay? Interesting to see tweet from David Hanson yesterday saying he’d speak with May.
So much for this governments policy of wanting the ‘brightest and the best’. If she had a £1million she would qualify. Total disgrace by Cameron May and the Tory nasty party. Seems Brazilian rent boys can get to stay.
The SSHD has authority but it can also be exercised by officials with powers delegated to them.
HO reference to family life means “Appendix FM”: not outside the rules. But would outside the rules actually help here? Adult siblings generally do not have family life with minor siblings, nor with their parents- according to case law. The case law predates Section 55 IIRC, so maybe it should be revised vis-à-vis minor siblings (at the very least their best interests must be taken into account).
What I don’t understand is why the SSHD isn’t removing the mother and children. They are (so reports say) failed asylum seekers and have been in the UK around a year. Remove them at the same time as their sibling and there is no longer a story. Of course, the SSHD is ridiculously unwilling to remove people without giving them a chance to return voluntarily, but this case seems particularly absurd. Unless some clever lawyer separated the two applications…
Cheers Philip. Who are these other officials with such powers delegated to them? Presumably the PM is one of them.
Perhaps there is a minimum period after asylum approval has been refused before can remove, hence the mum and siblings not being presented with a plane ticket just yet.
The amount of money wasted on this must be ridiculous…should just let the girl remain to complete the school year. Its common sense.
Erm, they would be Home Office officials: the SSHD doesn’t take every removal decision herself. People whom the SSHD can delegate to- she can’t delegate to the PM because he is her superior. (He could of course, order her to exercise her discretion in the girl’s favour- and sack her if she refused).
Possibly the rest of the family’s asylum claim has not yet been appeal rights exhausted (the press say it was refused but it could be still in the appeals system)- or there is a JR going on (as indeed there is no a JR in respect of the school girl. There is no minimum period- as the unfortunate victims of the “Fast Track swiftly find out- but HO would probably wait a little bit in a non Fast Track case to see if they went home voluntarily. Maybe Yashika was fast-tracked and her family weren’t.
But in that case the HO simply needed to wait until the family procedure was finished and it wouldn’t have got into this mess. But then if the HO acted rationally we would all be out of a job :)
Thats got to be the quote of the day. “..if the HO acted rationally we would all be out of a job :) ” said by presumably a lawyer. Though with the path of legal aid going as it is…
My impression is that the SSHD has more power than PM; as you say he could sack her, but for him to sack ppl just because they dont listen to him wont have him last long as leader I reckon. Im amazed that the opposition appears to hold no cards; shadow HS not speaking out or holding HS accountable is poor.
I suggest Cameron cannot / will not sack the SSHD because she would be a greater danger to him as a back bencher than in her current post. The old saying – ‘better to have your enemy in the tent Peeing out than outside the tent Peeing in’. Cameron’s committed himself to keeping her in post until 2015. Then its anyone’s guess.
Why did family not claim asylum on day one of arriving in a safe country why wait until the tourist visa they entered in had expired?
If I was in danger and needed asylum I would lodge a claim on day one not wait in exess of 1 year
That’s what people don’t understand otherwise this case looks like voluntary migration using asylum as an excuse to remain in uk and recieve education
I think we have to be wary of speculating about people’s motives: this is Home Office reasoning. Why would you assume that a person fleeing danger suddenly knows all about the UK asylum system? For many people the dominant idea in their minds is – How can I make myself safe (possibly just for what they at first think might be a short time). They may not have a concept of asylum and are certainly unlikely to see the obscure notices at airports about claiming asylum now. (I always make a point of imagining being a newcomer to the country and looking for these notices. Very often I do not see anything at all even in spite of knowing about such notices.) In my experience, people often come on a visa in their own name if it is possible, and they expect to have to support themselves. It may be only a few days or it may take months before they find out about the option of asylum and work out that it could be appropriate for them. Many people do not expect or want to live in another country permanently, but need to be safe for a period of time. Claiming asylum is obviously a desperate measure with far reaching consequences in terms of being able to see your relatives or home country again. I can imagine that in this case the Home Office have asserted that this family could relocate and that they could be protected by the state authorities, but I can also imagine that with all the publicity surrounding the case, this could no longer be possibe (if it ever was).
I have known UKBA to split families up in order to make sure they return – send the weakest member (female) first and then anyone else will have to follow.
The UKBA also deny visas to the husbands of British women with young children leaving the young mothers to struggle bring up her family on her own. If that young mother had the support of her husband then life would be far easier for mother and child / children.
There are also British pensioners whose spouses have been denied a UK visa making their lives difficult.
But the UKBA / Home Office / Ms May are only interested in reducing net immigration numbers for their own political ambitions. This policy is a complete failure because the vast number come from the EEA and Ms May’s rules are not applicable to them. Ms May and Cameron only discriminates against British families!
Yashika’s claim for asylum is, unfortunately, unfounded. Her grandfather has said in a Mauritian newspaper that he does not know of any persecution but he said that Yashika told him that she is in the school of her dream in the UK! Whilst this case may not have been handled properly by the UKVisas ( removal of all the family would have been appropriate if they were to be removed) however Yashika should have claimed asylum on arrival and the sad thing about this case is that the British government may now speed up the fact that Mauritians citizens may need to apply for for entry clearance before coming to the UK and hence will be visas nationals as they had threatened in the past!!
I do not know about the situation in Mauritius but would smell a rat about a newspaper article like that…. How do we know what pressure might have been put on the grandfather to say that? It is impossible to judge without knowing more of the facts, though I do agree that on the face of it, it would have seemed to have been a difficult case in the first place.
I think I would prefer to believe the responses and recommendations of the Head Teacher and other students at Yashika’s English school who have openly spoken out and demonstrated in her favour just what an outstanding student she is and how they want her to remain in the UK at that school.
The voice of the British people has spoken out. Personally I prefer to listen to those British voices and not some Mauritanian newspaper.
i do not think that there was any wrongdoing by the press! But claiming asylum after encountering an immigration officer will probably make her case incredible. Normally you are asked how long you intend to spend in the country upon arrival and then they grant you the automatic 6 months leave to enter once that immigration officer is satisfied of your intention. These things matter. Many Mauritians are upset that this case would cause the British government to change their policy on making Mauritians visa nationals!
I did not mean wrongdoing by the press but possible pressure exerted by the relations who were said to be carrying out the abusing. (as in a recent tv interview in Sri Lanka where someone returned had to say no torture had happened – I can’t remember all the details but things get put into the media for all kinds of reasons.)
If you claim asylum post arrest everything you say is incredible? Are you really suggesting that?
Yes I felt disheartened by that opinion … thinking I might as well give up on several people. I have already mentioned one reason why someone might not claim asylum immediately (lack of knowledge of the option) but the DFT system has generated another: the need to prove ahead of claiming asylum that you should not be detained and put in the fast track system, the possibility of being asked to produce evidence within days and the need for a really good solicitor. (I am replying to the general assertion about credibility rather than the particular case of Yashika.) There are of course many others as people’s lives, particularly when they have to resort to fleeing their country, do not follow a text book pattern. It is possible that the threat of detention makes some people too scared to claim at all.
The Home Office has been refusing children who have been born here and spent 7 years whilst Yashika has only been here for 3 years and is an adult! Outstanding or not she may apply for entry clearance and come back as the same outstanding student she may be!All those students voicing out do not pay taxes and based on cases like that this is why Cameron and May are ruthless when it comes to changes in immigration laws!
harris Cameron and May are only being ‘ruthless’ because they see their policy as a political vote winner for 2015. They are trying to ‘out UKIP’ UKIP!
But they are targeting the wrong immigrants because their pledge to reduce net immigration into the UK does not / cannot include EEA nationals – which are the biggest group entering the UK..
What they have done is target NON EU nationals. That includes the spouses of 17,800 British citizens who have had their family life destroyed leaving wives, children, parents and grandparents without their sons and daughters. This same policy of May and Cameron does not include . affect EEA citizens.
Equally concerning is that the Middlesex University School of Law has done an ‘impact analysis’ on Cameron and May’s policy. The MU School of Law result calculated the May / Cameron policy would cost the UK in lost revenues £850million over ten years.
So Cameron and Mays policy is a complete costly flop because they are not reducing net immigration plus the cost average a loss of £85million per year.
Cameron and May’s net immigration policy is based on emotional xenophobia not calm rational thinking and action which has been properly costed and independently reviewed and analysed.
Yes, allowing Yashika to stay would be completely destructive of the government’s attempts to hold its finger in the dike with regard to, as you say, children born here etc etc. Which would be a good thing, but it isn’t likely to happen.
Yashika has now left the UK but I feel that she was ill advised about her asylum claim which has caused all this stir! She was never going to be granted asylum for fleeing Mauritius!Not in a million years!Same as this young girl who was removed from France to Kosovo last year. The French authorities found that her father lied about the asylum claim but she paid the price. However France was willing to take only her back to complete her studies but she refused as she wanted her parents to be with her. Unfortunately not in Yashika’s case! However those advising her should have advised her to return to Mauritius and apply for entry clearance under Tier 4. All these samaritans who signed the petition to stop her removal could then have shown their true colours by supporting her.The ill advice has caused the said disruption of family life/education etc but nevertheless it is in the best interest of the UKBA to revise their policy on removal when a family unit is concerned.
She arrived in the country on a holiday visa in 2011 (her mother came here on a holiday visa in 2009 with her other kids) all of them overstayed and in summer 2013 claimed asylum citing aggressive relatives. Now if they were to allow her to stay then the country would have to allow any Tom, Dick and Harry to stay under such pretence.
She claimed asylum and under the laws of the UK and conventions of the United Nations she had no basis for that claim. The Law must be fair and should treat everyone equally otherwise there is no point. The courts made the right decision on this case.
Asylum is a sacred principle and must be afforded to the most vulnerable of people who fled from war and persecution.
She made an application that was found to have no merit, she exercised her right to appeal, that was denied and she was sent home.
Any domestic abuse or ‘aggressive relative’ threat can be properly dealt with under Mauritius own laws.