Human Rights in Ukraine

Mihaela Arabadji reviews how Russia’s invasion has impacted human rights in Ukraine and how various countries have responded.

‘We will win the war and then we will go to the sea in Crimea,’ this is what a pupil from Ukraine wrote in his essay about his plans for spring.¹ This child, like many others in Ukraine, want the war to end as the rights of children and all citizens of Ukraine are violated. Let us remember the massacres in the Ukrainian city, Bucha, where the Russian army tortured civilians, shot on the streets, and threw them into wells. Women, men, and children were killed and the Russian army tried to burn their corpses. The president of Ukraine asked the United Nations to hold Russia accountable by investigating the massacres committed by Russia in Ukraine, creating an international tribunal for the defence rights and the conviction of the guilty, like the Nüremberg trials.² 

On January 30th 2023, the Office of the High Commissioner U.N. published that a total of 7,110 civilians were killed, 438 of these fatalities were children, and 11,547 were injured, 842 of these were children.³ The Russia’s ongoing aggression against Ukraine, is a deliberate contravention of the United Nations Charter by the massive human rights violations, crimes against humanity and war crimes. A recent report from the Office of Commissioner for Human Rights indicates that innocent people are being killed and their homes and lives are destroyed.⁴ Many speakers, during a UN discussion on the Ukrainian situation said that Russia has violated international human rights law and international humanitarian law. Even if the latest violations were condemned, quite a few speakers expressed the importance of the strongest condemnations from all United Nations Members: Estonia on behalf of European Union and Denmark on behalf Norway, Republic of Korea, Slovenia, Switzerland, Germany, Ireland, France, North Macedonia, Australia, Luxembourg, Lithuania, Venezuela, Russia, Netherlands, Syria, Czech Republic, Bosnia and Herzegovina, Iceland, Estonia, United States, United Kingdom, Belarus, Italy, Montenegro, Denmark, Republic of Moldova, Slovakia, Belgium, Poland, Bulgaria, Portugal, Sweden, Georgia, Malawi, Albania, Latvia, Türkiye, Austria, China, Romania, Japan, Finland and Liechtenstein. They emphasised that ‘all the perpetrators must be held accountable.’⁵  

The U.N. rights chief, Volker Tuerk, declared on December 15, 2022, the actual numbers of injured and deceased are likely to grow higher as U.N. monitors still registers crimes against civilians. This has a horrendous impact on children as an estimated of 1.5 million are at risk of anxiety, post-traumatic stress disorder and other mental conditions.⁶  

Additionally, the commission documented evidence of summary executions, rape, unlawful confinement, torture, ill-treatment, and other sexual violence. Although, Moscow denied deliberately targeting the civilians, the Commission found that war crimes, violations of human rights and international humanitarian law have been committed in Ukraine. ⁷ 

The day of February 24, 2022, when the Russian leadership started a war against Ukraine, will not be forgotten by both Ukrainians and the entire world, who hoped that such a day would never come. Since August 24, 1991, when Ukraine won its independence, it has always oscillated between the West and Russia, with which it had intense and long economic connections. The ongoing crisis has deeper roots, arising from the troubled history of this state, which failed to find its own way and quickly became a “pawn” in the ongoing dispute between Russia and the West, “dependency” being the key word of the dispute.⁸ 

What are Russia’s interests?

The biggest Russia’s disapproval was the entry into NATO not only of the former allies (Poland and Romania) but also of the 3 Baltic Republics, former members of the Soviet Union (Latvia, Lithuania, and Estonia). The last straw for Russia was the European Union’s attempt to draw Ukraine closer to the West; this triggered a chain of events which led to the annexation of Crimea.⁹ 

Ukraine has an important geostrategic interest for Russia. Accordingly, Russia is doing everything it can to keep Ukraine as a ‘buffer state’ between Russian territory and NATO by re-placing it in Moscow’s circle of dominance to prevent Ukraine from joining NATO or growing relations with EU. In addition, Russia is trying to build the Eurasian Union – as a rival to the EU, NATO, and the USA, which without Ukraine are no longer interested.¹⁰ 

EU interests 

The EU and its Member States are united in their firm support for Ukraine and strongly condemn Russia’s unprovoked and unjustified military aggression. EU leaders have repeatedly asked Russia to immediately stop its military actions, unconditionally withdraw all military forces and equipment, and fully respect Ukraine’s territorial integrity, sovereignty, and independence.¹¹ In response to the military aggression, the EU has shown unity and strength and provided Ukraine with humanitarian, political, financial, and military support. 

Great Britain has provided significant military aid to Ukraine since the beginning of the Russian invasion. ‘Britain has the necessary resistance to be with Ukraine ‘until victory’’, promised foreign minister, James Cleverly, in his speech before the annual conference of the Conservative Party.¹² The head of British diplomacy declared: ‘We believe in freedom, in the rule of law. We believe that an aggressor cannot invade his neighbour with impunity. […] For this reason, we stand with the brave Ukrainians who defend their homeland.’¹³  

The United Kingdom government acted quickly to help protect the most vulnerable people, children, women, the elderly, and people with disabilities in Ukraine and in the regions around Ukraine. The UK provided £220 million for humanitarian assistance, including setting up 4 health facilities which provide medical supplies and aid; providing clean water and food; partnering with UNICEF to cater Water, Sanitation and Hygiene services and education to children and families; contributing towards UNFPA programmes for people affected by  gender-based violence and for sexual health provision; funding frontline medical assistance to provide specialist training,  while establishing mobile health clinics to help the people in need.¹⁴  

The EU’s help has also been crucial. It provides child support, humanitarian aid, helps refugees through temporary protection mechanisms like the UK and macro-financial assistance to foster stability.¹⁵ Following from the EU-Ukraine Summit, EU is providing nearly 50 billion euros for humanitarian, emergency, budgetary and military support.¹⁶ At the summit, Ursula von der Leyen introduced the modern childcare strategy where children, without parental care due to the war, can grow up in a loving environment that makes them confident and strong. This includes capacity building and a twinning project to provide the best possible care for orphans.¹⁷ 

Who is still ‘pro’ war? 

At the same time, some countries refused to condemn Russia’s military actions that have already cost the lives of hundreds of civilians, deciding not to quit their historical or commercial ties with Russia. 141 countries voted for the UN Security Council Resolution condemning the invasion, with only 5 against. China decided to abstain from voting on the resolution and has since offered to negotiate peace between the nations in conflict. Belarus supports the invasion of Russia, which promised supporting Putin, claiming that West is the one who provoked him. Many geopolitical analysts consider that Alexander Lukashenko and Belarus are just puppets of the Kremlin regime.¹⁸ The president of Syria, Bashar al-Assad, praised Putin for his deadly invasion, blaming, at the same time, the Western ‘hysteria.’ Likewise, the leaders of Venezuela and Cuba offered strong support to Putin, accusing the US and the West.¹⁹ 

In conclusion the path chosen by Moscow, of aggressing Ukraine and the entire Western world, will eventually end in catastrophe. Later, Russia may have a chance for a new beginning. But for the moment, the Ukrainian people are to be congratulated for the courage they show in defending their country. As Roman Goncharenko stated, ‘Ukraine has the right to choose its own destiny’.²⁰ 

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References

1. Anatol Cibotari,’’We will win the war and then we will go to sea in the Crimea.’ A pupil from Ukraine wrote an essay about his plans for spring’ (Replica, 16 March 2022) <https://replicamedia.md/ro/article/N0XQ8zPK2/vom-castiga-razboiul-si-dupa-vom-pleca-la-mare-in-crimeea-un-elev-din-ucraina-a-scris-o-compunere-despre-planurile-sale-pentru-primavara.html&gt; accessed 10 December 2022
2. Ibid.
3. Office of the High Commissioner for Human Rights, ‘Ukraine: civilian casualty update 30 January 2023’ (United Nations Human Rights, 30 January 2023) <https://www.ohchr.org/en/news/2023/01/ukraine-civilian-casualty-update-30-january-2023#_ftn1 > accessed 1 February 2023
4. Ibid.
5. Human Rights Council, ‘Human Rights Council Discusses the Situation of Human Rights in Ukraine and in the Democratic Republic of Congo under its Technical Assistance and Capacity Building Agenda Item’ (United Nations Human Rights, 4 October 2022) < https://www.ohchr.org/en/press-releases/2022/10/human-rights-council-discusses-situation-human-rights-ukraine-and-democratic&gt; accessed 27 November 2022
6. Lisa Schlein, ‘UN: Gross Human Rights Violations Mark Ukraine War’ (VOA, 15 December 2022) < https://www.voanews.com/amp/gross-human-rights-violations-mark-ukraine-war/6877702.html&gt; accessed 17 December 2022
7. RFE/RL,’UN Says Russia Responsible for ‘Vast Majority’ Of Human Rights Violations Documented in Four Regions of Ukraine’ (RadioFreeEurope RadioLiberty, 18 October 2022) < https://www.rferl.org/amp/ukraine-un-report-war-crimes-russia/32090144.html&gt; accessed 27 November 2022
8. Ibid.
9. Arthur Elisei, ‘Russia-Ukraine Conflict’ < https://www.academia.edu/7683899/CONFLICTUL_RUSIA_UCRAINA > accessed 15 December 2022
10. Ibid.
11. European Council, ‘EU response to Russia’s invasion of Ukraine’ (16 December 2022) < https://www.consilium.europa.eu/en/policies/eu-response-ukraine-invasion/ > accessed 18 December 2022
12. AGERPRES, ’Great Britain promises to stand by Ukraine ‘until victory’’ (Economica, 4 October 2022) < https://www.economica.net/marea-britanie-promite-sa-fie-alaturi-de-ucraina-pana-la-victorie_616461.html&gt; accessed on 10 December 2022
13. Ibid.
14. GOV.UK, ‘UK government’s humanitarian response to Russia’s invasion of Ukraine’ (GOV.UK, 14 December 2022) < https://www.gov.uk/government/publications/uk-governments-humanitarian-response-to-russias-invasion-of-ukraine-facts-and-figures/uk-governments-humanitarian-response-to-russias-invasion-of-ukraine-facts-and-figures > accessed 3 February 2023
15. European Council, ’EU response to Russia’s invasion of Ukraine’ (European Council, 3 February 2023)< https://www.consilium.europa.eu/en/policies/eu-response-ukraine-invasion/#support > accessed on 3 February 2023
16. President of Ukraine | Volodymyr Zelensky, ‘Joint statement following the 24th EU-Ukraine Summit’ (3 February 2023) < https://www.president.gov.ua/en/news/spilna-zayava-za-pidsumkami-24-go-samitu-ukrayina-yes-80765 > accessed on 4 February 2023
17. European Commission, ‘Statement by President von der Leyen at the joint press conference with Ukrainian President Zelenskyy’ (2 February 2023) <https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_23_546 > accessed on 4 February 2023
18. Stefan Dragomir, ‘Which countries support Russia in the war in Ukraine?’ (Click!, 3 March 2022) < https://click.ro/actualitate/international/new-content-412312.html&gt; accessed 1 December 2022
19. Ibid.
20. Roman Goncharenko,’Comment: Ukraine will Survive, but the West should be ashamed!’ (DW, 24 February 2022) < https://www.dw.com/ro/comentariu-ucraina-va-supravieţui-dar-vestul-ar-trebui-să-se-ruşineze/a-60906533&gt; accessed 1 December 2022

Photo Credit: Ukrainian Presidential Press Office via AP.

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‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’

Migrants Crossing the Channel: ‘You won’t be saved […] I didn’t ask you to leave’

Sarah Chua explores the experience of migrants crossing the Channel, how their human rights have been impacted and discusses the solutions which could help those seeking asylum.

‘You won’t be saved […] I didn’t ask you to leave’^[1].

These were among words recorded in emergency calls, said by the operator after the line was cut. Is that mockery we hear? Some underlying discrimination? Or the jaded response of emergency workers dealing with ever increasing Channel crossings? Or perhaps frustration at their own inability to do anything?

A year after the tragedy of 24 November 2021, in which 27 migrants^[2] drowned in the English Channel and four others remain missing, the French newspaper Le Monde obtained extracts from the ongoing French investigation and published an investigative report critical of the response from French authorities.

The French government vowed that punishment would be meted out should the French responders be found wanting. While civil liability for negligence exists in English and French law, French law additionally imposes criminal liability for omissions^[3].

Across the channel, the Marine Accident Investigation Branch published an interim report that confirmed that ‘some of the events’ indeed occurred within UK waters^[4]. It would seem, then, that there may have been failings on both sides of the Channel.

Clearly, there is no one solution.

Both French and UK governments are adopting a firm stance based on deterrence, dissuasion, and destroying the ‘business model of people-smugglers’^[5]. Suella Braverman is venturing to go further with a new law preventing illegal entrants from applying for asylum.

Meanwhile, on the ground, rescue workers in the Channel are clearly facing challenges in both logistics and coordination. Although it is laudable that British and French coastguards are seeking to improve cooperation, red tape can cause delays where minutes make a substantial difference for someone drowning or freezing to death.

Utopia 56, a French association which coordinates volunteer efforts especially in Calais, published a chronology of the events which took place in the early hours of 14 December 2022 when at least four perished^[6]. It took about an hour to dispatch the first rescue boat after the distress call; this hour does not include the time required to locate the migrants and arrive at where the waves might have carried them.

While political deliberations are going on, organisations such as Utopia 56^[7] and Amnesty International UK^[8] are renewing their call for safe passage and legal routes for asylum seekers, which thus far has been limited to specific nationalities and circumstances. Additionally, the current routes exclude migrants who do not have a passport or equivalent travel papers, who are all the more vulnerable to propositions from smuggling gangs and human traffickers. The British Red Cross tweeted on 14 December:

‘Nobody puts their life at risk like this unless they feel they have no other option, and until we have more accessible safe routes for people to claim asylum, there is a danger we may see more such incidents.’

‘They feel they have no other option’

What complicates the migrant crisis is that there is no fixed migrant profile. The Home Office has noted an increase in Albanians in the recent months^[9]. In addition, with Albania considered as a safe country, there does not appear prima facie to be grounds for an asylum claim. Why then would they attempt the perilous journey?

Based on data released by the Home Office, the BBC estimates around 45,000 people would have made the crossing on small boats last year up to early December^[10]. According to The Guardian, at least five deaths were recorded last year^[11]. Statistically, this puts the risk of death around 0.01% – certainly a reassuring promise that opportunistic smugglers could make in exchange for anything from £2,000 to £5,000 per person.

The Big Issue spoke to migrants in various parts of Calais for a feature^[12]. They estimate that 70% of these migrants meet the criteria for asylum but have no legal alternatives to claim asylum. Among the remaining 30% would certainly be those who believe that the West is the paradise portrayed in the media. Forum shopping of a different kind also exists – a migrant found it too cold in Stockholm, saw too many homeless people in Paris and was persuaded that the UK would be a more welcoming place.

The volunteers working with them struggle with the idea of giving them a reality check. One of them shared that it would have been too late by the time the migrants arrive at Calais. When news of the Rwanda plan intended to deter migrants reached the camp, the volunteers saw suicides^[13].

What are Human Rights?

Right to life. Right to liberty and security. Right to respect for private and family life. These are among the rights listed in the European Convention on Human Rights^[14], a convention that the UK was among the first States to ratify. But is there a right to choose where to live?

It is hardly in question whether individuals fleeing peril in their own countries should be allowed to claim asylum, even if these countries are otherwise considered safe. The issue arises when refugees wish to choose where they seek asylum, whether because of perceived rates of success or because they believe it would be a better cultural fit.

Although there is no specific prohibition against choosing, section 16 of the Nationality and Borders Act 2022 provides for asylum claims to be declared inadmissible where the applicant has a ‘connection’ to a ‘safe third State’. The impact of this provision remains to be seen, but it would not implausible to declare a claim were inadmissible in the case of an illegal crossing from France. In addition, the Rwanda plan could see migrants hoping to begin life anew in the UK finding themselves in a different culture on a different continent.

The question of choice also applies to migrants who leave their own countries in hope of a better opportunities. History tells us of many migrations. Certainly, the majority of us have ancestors who lived in a different town, country or continent from us, and our ancestors surely had their share of perilous journeys in search of a better life. How different are opportunistic migrants from our grandparents and great-grandparents?

We are certainly appreciative that migrants on the verge of drowning in the Channel are being rescued, but which side of the Channel should they be brought to? Could migrants be threatened by traffickers if rescued by French authorities and brought back to France? How quickly should rescue teams intervene? How much manpower can we afford to actively patrol the Channel? What is a fair standard to impose on rescue workers? We can speak of human rights for refugees and migrants, and what of the rights of emergency workers operating in difficult conditions?

Who are they?

In a certain sense, the UK is a victim of its own success and migrants are drawn to the paradise they imagine Great Britain to be that they would not stop along the way – and certainly not opposite the white cliffs of Dover. Who are they? Albanians, Afghans, Iranians, Iraqis, Syrians, they are refugees, they are migrants. They are human.

Law is retrospective; it punishes wrongdoers or awards damages after the event. Law also looks to the future, whether to deter migrants or traffickers. It is a challenge to have adequate legislative safeguards to allay fears of a migrant influx, and yet to make allowances for the migrants without appropriate travel papers, all the while cracking down on modern slavery and human trafficking. But, above all, may the law be human. Just as the law protected us and our ancestors, may the law protect others to come.

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References

^[1] Julia Pascual, ‘L’enquête sur la mort de 27 migrants dans la Manche en 2021 accable les secours’ Le Monde (13 November 2022) < https://www.lemonde.fr/societe/article/2022/11/13/migrants-morts-en-traversant-la-manche-le-24-novembre-2021-l-enquete-accablante-pour-les-secours_6149691_3224.html > accessed 18 December 2022

^[2] The term ‘migrant’ is used in a general sense to encompass all persons who seek to migrate. While there is a legal distinction between refugees and migrants, this is hardly helpful in our context – one can only tell apart the two when their asylum claims are considered.

^[3] Article 223-6 of the French Penal Code defines the imprisonable offence of not rendering assistance to a person in danger.

^[4] Marine Accident Investigation Branch, ‘Interim Report’ (Current Investigations, November 2022) < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1119949/MigrantVessel-InterimReport.pdf > accessed 16 December 2022

^[5]  Home Office, ‘UK and France joint statement on small boat incident in the Channel’ (14 December 2022) < https://www.gov.uk/government/news/uk-and-france-joint-statement-on-small-boat-incident-in-the-channel > accessed 18 December 2022

^[6] Utopia 56, ‘Au moins 4 personnes décédées dans la Manche – 1 an après, l’histoire se répète’ (16 December 2022) < https://utopia56.org/au-moins-4-personnes-decedees-dans-la-manche-1-an-apres-lhistoire-se-repete/ > accessed 16 December 2022

^[7] Utopia 56, ‘Au moins 4 personnes décédées dans la Manche – 1 an après, l’histoire se répète’ (16 December 2022) < https://utopia56.org/au-moins-4-personnes-decedees-dans-la-manche-1-an-apres-lhistoire-se-repete/ > accessed 16 December 2022

^[8] Amnesty International UK, ‘The Right to Asylum’ (Amnesty International UK, 20 April 2021) < https://www.amnesty.org.uk/right-asylum > accessed 18 December 2022

^[9] Home office, ‘Irregular Migration to the UK, Year Ending September 2022’ (Official Statistics, 24 November 2022) < https://www.gov.uk/government/statistics/irregular-migration-to-the-uk-year-ending-september-2022/irregular-migration-to-the-uk-year-ending-september-2022 > accessed 18 December 2022

^[10] BBC, ‘How many migrants cross the English Channel in small boats?’ (14 December 2022) < https://www.bbc.com/news/explainers-53734793 > accessed 18 December 2022

^[11] The Guardian, ‘A timeline of migrant Channel crossing deaths since 2019’ (14 December 2022) < https://www.theguardian.com/uk-news/2022/dec/14/a-timeline-of-migrant-channel-crossing-deaths-since-2019 > accessed 18 December 2022

^[12] Steven MacKenzie, ‘One Day in Calais’ The Big Issue (14 December 2022, no. 1539) 22-27

^[13] This was before the High Court’s decision of 19 December 2022, ruling that the plan to send migrants to Rwanda did not contravene the UN Refugee Convention or other laws on human rights.

^[14] It should also be noted that UN conventions apply to the treatment of refugees and the right to asylum.

Picture credit: A small boat carrying a group of migrants across the Channel in the direction of Dover, Kent. PA Media.

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‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’

Legally Challenging the Government on a Piece-meal Basis is not Enough; Long Term Protection of Human Rights Requires Democratic Change 

Anna Bielenberg discusses our current voting system’s role in the ‘Rights Removal Bill’ coming to fruition.

On the 14th of June, the European Court of Human Rights (ECtHR) granted an urgent interim measure to prevent the immediate removal of eight asylum-seekers from the UK to Rwanda.^[1] The ruling means that these individuals have the right to remain whilst the legality of the Secretary of State’s Rwanda Removal policy undergoes Judicial Review. Preventing the individuals from leaving that same night was a huge triumph, however any hope that this decision might offer a lasting protection for the rights of displaced people was soon crushed: less than a week later — as though in direct response to the ECtHR decision — the government announced its’ intention to replace the current Human Rights Act 1998 (HRA) with a Bill of Rights.

To understand why the new Bill of Rights Bill was quickly coined the ‘Rights Removal Bill’ it is necessary to briefly outline what protections the HRA previously afforded individuals in the UK.  The HRA incorporates the European Convention of Human Rights (ECHR) into domestic law, and thereby allows the ECtHR to safeguard these same rights. As it currently stands, the HRA allows any individual to seek justice in a British court if they feel that the courts, police, local authorities, hospitals, or publicly funded schools, have denied them any right outlined in the articles.^[2] It also obliges the courts to interpret all new legislation passed by Parliament in a way that is compatible with the ECHR. The caveat however, is that many of these rights — the right to liberty and security; the right to a fair trial; the right to respect for privacy and family life; the right to freedom of thought, conscience and religion; freedom of expression; and freedom of assembly and association – are conditional and may be withdrawn if the government considers it is necessary for national security, public safety, the economic wellbeing of the country, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others. Therefore, although the HRA has always been discretionary in this sense, the ECtHR has until now offered a last-resort protection for individuals who feel their rights have been denied by a domestic court. The effect of the new Bill of Rights will be to limit the influence of the ECtHR in the UK, and the ability of the UK Courts to uphold Convention Rights.^[3]

The Bill of Rights Bill should also be considered within the context of three recent Parliamentary Acts. The Police, Crime Sentencing and Courts Act lowers the threshold for the Police’s power to restrict any sort of protest that might ‘disturb, shock or offend others’, and thereby criminalises the very purpose of legitimate protest. ^[4]The Nationality and Borders Act criminalises most asylum-seekers based on their mode of arrival into the UK, or the timing of their asylum claim. This gives the British government the legal authority to deny them access to public funds, their right to stay in the UK, or have their family members join them, which UNCHR states is directly in contravention with obligations that the UK is under as part of the Refugee Convention ^[5]. Thirdly, the Election Bill undermines several democratic principles, through allowing for parliamentary oversight of the Electoral Commission.^[6]As the purpose of this commission is to protect free and fair elections through being entirely independent, it is believed that the overall effect of the Act will be to cement Conservative Power further.^[7] What we see today therefore is a government that takes away freedoms, whilst at the same time chipping away at the ways in which it can be held legally or politically accountable for its own failures. Gina Miller – well known for R(Miller) v Secretary of State for Leaving the European Union – believes that the current government strategy is to diminish the rights in the places that have previously offered a space to hold the government to account in different ways: the courts, the media, the streets, and the ballot box^[8].

Meanwhile, the current government has also demonstrated a dangerous lack of respect for the Rule of Law, having broken the law itself no less than five times. Lord Paddick insists that this sense that the law operates with favour to the powerful threatens to undermine public trust in the police and the wider criminal justice system^[9]. Whilst this less than adequate leadership could superficially be attributed to Pandemic – and subsequent alternative emergencies (the war in Ukraine, the cost-of-living crisis) — there could also be a more deep-rooted, long-term cause for the current political landscape. In an interview with LBC, Zach Polanski – London Assembly Member and Green Party MP – argues that the irreverence, corruption, and lobbying we see by politicians today is the result of a broken voting system. More specifically, he argues that the First Past the Post System (FPTP) is the reason that those who sit in the House of Commons are so out of touch with the general population. Indeed, a growing movement in the UK demands a reformation of the voting system towards a system of Proportional Representation. One leading voice is the cross-party pressure group, Make Moves Matter.

Historically, advocates of the FPTP system have argued that it excludes radical politics, provides a strong mandate to govern and preserves the MP-Constituency link. The flip side of these benefits is that FPTP is actively biased towards major parties with a concentrated following and arguably excludes millions of minor-party supporters from democracy: indeed, 68% of votes didn’t affect the outcome of the last general election.^[10] There is also a huge discrepancy between the public support for a party, and the amount of power they are able to wield in the commons. In the 2019 General Election, the Conservatives share of the vote was 43.6%, however their share of the seats is 56.2%.^[11] Conversely, the Liberal Democrats and the Green Party won 11.5% and 2.7% of the vote respectively, while only obtaining 1.7% and 0.2% of the seats. These statistics highlight how votes for the Conservative and Labour Parties have greater relative value than their competitors. 

The troubling consequence of this is highlighted by political activist and commentator Femi Oluwole: because women, ethnic minorities and working-class people are more likely to feel represented by, and therefore vote for, opposition parties, the votes of women, ethnic minorities and working-class people are more likely to count for less than those who are not members of these demographic groups^[12]. It therefore follows that the MPs who sit in Parliament are less likely to enact legislative change in the areas which are needed. Make Votes Matter insists that ‘Democracy Loves Diversity’^[13]: this reflects the belief that proportional representation will ultimately give a voice to those who have traditionally been excluded from politics, and more importantly allow for the creation of a political landscape that reflects the significant presence of these groups within UK society.

A product of the First Past the Post System, the current constitution of the House of Commons allows the Conservative government to pursue a conservative agenda which is not in the interests of these demographic groups. In a powerful article for The Guardian, Afua Hirsch reflects that ‘the most sinister, perverse consequences of [George] Floyd’s murder are the new laws that put both the actual bodies of black people and anti-racist activism at risk’^[14]. This powerful sentence highlights the pincer movement tactic, whereby the government is steaming ahead in its agenda, whilst simultaneously disarming the electorate of its tools to hold the government to account. The same stands true for progress for the rights of women, the LGBTQ+ community, the disabled, and those fleeing conflict and persecution.  

Whilst the FPTP system has indeed for many years prevented minor extremist parties to gain a foothold in the Commons, the Rwanda Removal Policy is one example of what can happen when extreme right-wing ideologies manage to permeate a party which benefits from this voting system. The consequences of Parliamentary Sovereignty are that if a party holding most seats in the Commons begins to adopt policies which are usually preserved for radical parties on the margins, there is little the general population can do. The fact that Belarus is the only other country in Europe which still uses the FPTP system reveals a lot about the democratic process in the UK.

Overall therefore, it is important to remember despite the fact that the government may declare itself globally to be a flagship of ‘justice’ and ‘democracy’, this not mean that either of those things have been delivered in reality. On the contrary, we need to remain critically aware and look to the likely consequences of the legislation which has been passed: namely, a more unjust society. When I read that protests by Home Office staff were met by assurances from Patel that the Rwanda Removal Policy is entirely ‘legal’, I was reminded of the Martin Luther King quote that we should “never forget that everything that Hitler did in Nazi Germany was legal.”^[15] The authoritarian tendencies which the government is displaying is inconsistent with the ‘enduring commitment to liberty under the rule of law’  evoked in the Bill of Rights Bill.^[16] The reality is that our rights are at risk and changing the voting system is the first step in protecting them. 

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^[1]  “European Court of Human Rights grants interim measures preventing removal of asylum seeker to Rwanda pending judicial review of Rwanda Policy”, Blackstone Chambers, 15th July 2022. Accessed 3 July 2022.

^[2] [2]  “The UK’s (New) Bill of Rights.” Public Law For Everyone, June 22 2022. Accessed 3 July 2022.

^[3]  Ibid

^[4] UNHCR Observations on the Nationality and Borders Bill, Bill 141, 2021-2022. October 2021

^[5] Ibid

^[6]  The Elections Bill is about undermining democracy, not shoring it up. Alina Rocha Menocal, 18 April 2022, Open Democracy.

^[7]  The Government Poisonous Elections Bill is designed to cement Tory rule. David Howarth, 6 September 2021, Open Democracy. Accessed 8 June 2022.

^[8] “The Rules on MPs’ standards are hopeless. Here’s how to clean up Parliament”. Gina Miller, The Guardian, 11 November 2021. Accessed 26 May 2022.

^[9] “The Law Must Apply Fairly to All”. The Good Law Project, 25 May 2022.

^[10] Make Votes Matter Factsheet. Accessed 3 July 2022.

^[11]  House of Commons Library, 10 January 2020. Accessed 12 June 2022.

^[12] How Britain Voted in the 2019 Election, Ipsos. Accessed 13 July 2022.

^[13] Democracy Loves Diversity, Make Votes Matter. Accessed 24^th May 2022.

^[14] George Floyd’s murder should have been a watershed, but Britain has learned nothing. Afua Hirsch, The Guardian, 25 May 2022. Accessed 1 July 2022.

^[15] Home Office staff worry they may be asked to act illegally in a culture of fear. Diane Taylor and Amelia Gentleman, The Guardian, 25 May 2022. Accessed 26 May 2022. 

^[16]  Human Rights Act Reform: A Modern Bill of Rights – consultation. gov.uk. Accessed 4 June 2022.

Photo Credit:”Brexit” by Ungry Young Man is licensed under CC BY 2.0.

‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’ 

Have we failed to give them hope? Implications of the ‘New Plan for Immigration’

Paris DiPersico discusses the Home Office’s ‘New Plan for Immigration’ and considers whether proposed measures, penalising asylum seekers and introducing a “one-stop process”, remove safeguards from a system that is already punitive and antagonistic.

On March 24th 2021, the Home Office published its policy statement on a new plan for immigration. The statement puts forth three main aims:

1. To increase the fairness and effectiveness of the immigration system to better protect and support those genuinely seeking asylum.
2. To deter illegal entry into the United Kingdom (UK), to break down criminal trafficking networks and protecting those endangered.
3. To remove more easily those with no right to be in the UK.

In her oral statement to Parliament on 24 March 2021, the Home Secretary, The Rt Hon Priti Patel MP stated that the proposals represented “the most significant overhaul of our asylum system in decades. A new comprehensive, fair but firm, long-term plan…At the heart of our New Plan for Immigration is a simple principle: fairness…our new system will be faster and fairer and will help us better support the most vulnerable…and will fix our broken system”.^[1]

Yet, despite emphasis on this notion of ‘fairness’ almost 200 human rights, refugee, faith and legal organisations have labelled the six week consultation on the proposed changes as “vague, unworkable, cruel and potentially unlawful”.^[2] The plan seeks to introduce tougher criminal offences for those attempting to enter the UK illegally, including increased penalties for illegal entry. Although aimed at disrupting criminal networks, the proposed plan penalises vulnerable people seeking asylum if they arrive in Britain via unauthorised routes; their legal right to claim asylum will be denied, they will be held in warehouse style refugee ‘reception centres’, could be deported to third countries, and will be forced to reapply for protection every 30 months. For those who cannot be removed immediately, their benefits would be stripped, placing them in the No Recourse to Public Funds (NRPF) category. Such measures present a violation of the fundamental rights of the most underrepresented, vulnerable, and marginalised individuals in our society, including the right to private and family life, the right to liberty, and the absolute right against torture, inhuman and degrading treatment. Rights that were recognised directly by both the Court of Appeal in R (Sivasubramaniam) v Wandsworth County Court^[3] and the Supreme Court in R (Cart) v Upper Tribunal.^[4]

The UK is also a party to the 1951 Convention relating to the Status of Refugees (Refugee Convention) and to its 1967 Protocol. Article 31 of the 1951 Convention provides as follows:

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees’ restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

Of the Refugee Convention, Lord Bingham in the House of Lords observed “three broad humanitarian aims.” First, that contracting states would “afford a safe refuge to those genuinely fleeing their home countries to escape persercution” ensuring such refugees were not returned. Second, “to ensure reasonable treatment of refugees” within the country where refuge is sought and, finally, to prevent imposition of penalties for criminal acts “reasonably or necessarily committed in the course of flight from persecution or threatened persecution.”^[5]

By any reading there seems little, if any, compatibility between the core aims of the Refugee Convention and the new Home Office proposals. The government’s precarious and unfair proposal denies automatic right to asylum, poses risk of removal and increases penalties for refugees arriving in Britain via unauthorised routes. These measures not only amount to a blatant violation of Article 31 but fail, in all respects, to align with the spirit of the Convention.

The Home Office’s proposal further introduces “a new ‘one-stop’ process which will require people to raise all protection related issues upfront and have these considered together and ahead of an appeal hearing where applicable.”^[6] The Home Office will also introduce “new powers that will mean decision makers, including judges, should give minimal weight to evidence that a person brings after they have been through the ‘one-stop’ process, unless there is good reason.”^[7]

Immigration and asylum cases are often highly complex and require emotionally strenuous work. Claimants face many difficulties that include, but are not limited to, language barriers, understanding the legal process and navigating the legal system. Individuals at risk, those who have experienced violence, discrimination and hatred and individuals with mental health issues and/or physical disabilities may find it extremely challenging and difficult to disclose all protection-related issues up front during the ‘one-stop process’. This could result in violation of their right to a fair trial which is protected under Article 6 of the European Convention on Human Rights (ECHR). Moreover, the consultation itself has been branded as “poorly designed” and “inaccessible”, giving no opportunity for people to share their experiences of fleeing persecution or seeking refuge in the UK and is only available in English and Welsh, arguably excluding those who will be most affected by the proposed changes from responding.^[8]

The Home Office states that the new plan aims to “tackle the practice of making multiple and sequential claims and appeals which frequently frustrate removal from the UK”. The fast-track system is proposed to make quicker decisions and tackle meritless claims “which clog up the courts with last minute claims and appeals” but fails to persuade or convince us how this new system “will be faster and fairer and will help us better support the most vulnerable”.^[9] In Lord Chancellor v Detention Action, the court emphasised that “speed and efficiency must not trump justice and fairness.” ^[10]

Chai Patel, legal policy director at the Joint Council for the welfare of immigrants brands the proposals as “radical and dangerous changes to the UK’s refugee protection system, which needs serious considerations” labelling the new plan as “a sham intended to mislead parliament into believing there is merit to plans which will deny safety to people feeling war and persecution.”^[11] In order to address immigration and asylum policy in a way which genuinely protects those at risk, in the words of Tim Noar Hilton, chief executive at Refugee Action: “the government must scrap its proposed changes to refugee policy and work properly with stakeholders to create a system that is fair, effective and compassionate.”^[12]

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[1] Home Office, ‘Home Secretary’s statement on the New Plan for Immigration’(Parliament, 24 March 2021) <https://www.gov.uk/government/speeches/home-secretarys-statement-on-the-new-plan-for-immigration&gt;

[2] ‘Sham’: 200 groups criticise UK government consultation on refugee policy <https://www.theguardian.com/world/2021/apr/30/sham-200-groups-criticise-uk-government-consultation-on-refugee-policy&gt; accessed 22 June 2021

[3] (2003) 1 WLR 475.

[4] (2011) UKSC 28.

[5] R v Asfaw [2008] UKHL 31, 9.

[6] Home Office, ‘New Plan for Immigration: policy statement (updated 18 April 2021) <https://www.gov.uk/government/consultations/new-plan-for-immigration/new-plan-for-immigration-policy-statement-accessible&gt;

[7] Ibid.

[8] n2.

[9] Home Office, ‘Home Secretary’s statement on the New Plan for Immigration’(Parliament, 24 March 2021) <https://www.gov.uk/government/speeches/home-secretarys-statement-on-the-new-plan-for-immigration&gt;

[10] (2015) EWCA Civ 840.

[11] n2.

[12] Ibid.

Image credit: Yarl’s Wood Protest (EYE DJ/CC BY-NC-ND 2.0 via Flickr)

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

Difference in treatment: the High Court rules to remove discrepancies between financial support for survivors of trafficking

Emily Hobhouse covers a recent High Court ruling that considered whether asylum-seeker survivors of trafficking should be entitled to extra childcare support

The Modern Slavery Act Guidance (MSA), created under s.49(1) of the Modern Slavery Act, implements the obligations of the United Kingdom as a signatory under the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT). There is a duty under ECAT to reduce the vulnerability of victims so that they are not re-trafficked.¹ As part of this commitment, the UK supports survivors of trafficking with payments and services that go beyond the regular receipt of other mainstream support (for example, Universal Credit or Asylum Support). Victims of trafficking also receive psychological, medical and legal counselling as part of their recovery and reintegration into society.

A key provision within the MSA guidance is the Victim Care Contract (VCC). The VCC allows survivors of trafficking to claim money to help care for dependent children. This is a payment of £39.60 a week to cover the cost of childcare when a survivor of trafficking is attending counselling or other support services.² However, within Annex F, para 15.38, there is an exception, namely that those in receipt of Asylum Support, are not entitled to this Victim Care Contract payment for dependent children.³

Therefore, under this guidance, there is a discrepancy between the financial support provided to survivors of trafficking and modern slavery, depending on the survivor’s immigration status. The recent case R (on the application of MD) v Secretary of State of the Home Department [2021] EWHC 1370 (Admin) considered whether this was discriminatory under the European Convention on Human Rights (ECHR).

Facts of the case

The two claimants are survivors of sexual trafficking and are also asylum seekers. As part of their recovery as survivors of trafficking, they undertake counselling appointments where specific details about their trafficking are discussed. Due to receiving Asylum Support, the claimants were unable to access childcare support for their dependent children through the Victim Care Contract. This meant that the claimants’ children would often be brought along to such appointments. The negative psychological effects of this on the child and mother were strongly evidenced by the claimants’ legal team.⁴

Breach of Article 14 ECHR

The claimants challenged the policy as being in contravention of Article 14 of the ECHR, which prohibits discrimination, for two reasons. Firstly, because the policy directly discriminated against asylum-seeker survivors of trafficking. This is because there is a difference in treatment between asylum-seeker victims of trafficking with dependent children, who do not receive the VCC payment, and non-asylum-seeker survivors of trafficking with dependent children who do receive the VCC payment.

Secondly, because the policy indirectly discriminated against women, as women are much more likely to have a dependent child and to be single parents than men. By being denied the VCC payment, women asylum-seeker survivors of trafficking are much more likely to be burdened to pay the cost of childcare through their asylum support than male asylum seeker survivors of trafficking. In 2012, the Salvation Army found that 24% of women survivors of trafficking had dependent children compared with 3% of men. From these statistics, the women were usually single parents whereas men were often accompanied by their female partners.⁵

The Defence

The Defence admitted that there was a difference in treatment between survivors of trafficking and their asylum seeker counterparts. However, they characterised the VCC payment as a “windfall” for those survivors of trafficking rather than a shortfall for those who did not receive it. They submitted that this is an incredibly complex issue that stems down to the allocation of public funds and that it is a matter for the “state’s considerable margin of appreciation”, adding that the ECHR is not a guarantee of administrative perfection.⁶

Judgment

The High Court found that by denying the VCC payment to asylum-seeker victims of trafficking, there was undeniable direct and indirect discrimination. The Court thus declared a breach of Article 14 ECHR. The intention of the Home Secretary, who claimed it was a mistake, was immaterial to the fact that differential treatment exists without any reasonable foundation, and thus must be corrected.

Mr Justice Kerr was unimpressed by the latter assertion of the Defence that the ECHR was not a guarantee of administrative perfection, stating that it seemed “little more than an institutional shrug of the shoulders”.⁷ He affirmed the continued existence of the ECHR in UK law and thus applied it accordingly, underlining the fact that it is the court’s duty to apply the law that exists.

Commentary

An assertion of the court’s constitutional duty

In his judgment, Mr Justice Kerr was forceful in stating that the ECHR is still very much a part of UK law and it is therefore the court’s duty to have regard to the Convention. It is arguable that the Home Secretary’s arguments of the institutional incompetence of the courts on such matters appeared a little lazy, and this was recognised by Mr Justice Kerr who said that the Home Secretary’s calls for the court to not “tinker” with the MSA guidance, although good-natured, were constitutionally wrong. As Parliament decided that Article 14 should be part of the law, not the Home Secretary, it is the courts’ duty to enforce the ECHR.

Recognition of the vulnerability of victims of trafficking

The Defence argued that the offending paragraph in the MSA guidance should remain in place until the government gets around to wholesale reform, including individualised assessments to childcare support. This was rejected by Mr Justice Kerr as the court could not rely on such a promise to provide swift action in the face of the incredible vulnerability of the claimants.

The vulnerability of survivors of trafficking has been consistently recognised as an incredibly important factor in the decision-making process of the courts. In 2018, a High Court case reversed cuts of up to 40% in benefits for asylum seekers who were victims of trafficking, due to the incredible detrimental effect these cuts would have on their recovery.⁸ The argument by the representatives of the claimants underlined that the key to defeating modern slavery is to reduce the vulnerability of victims so that they can escape the influence of their traffickers⁹, a sentiment that was echoed in this judgment.

Future developments

Support for survivors of modern slavery has dramatically increased since the UK became a signatory of the ECAT in 2009, and the passing of the Modern Slavery Act 2015 and other legislation, including the Criminal Injuries Compensation Scheme (CICS). Nonetheless there are still huge barriers blocking the financial support that should be available to survivors of trafficking.

Barriers to support are compounded by policies which are often too narrow to encompass the incredibly complex lives and experiences of survivors of modern slavery. Certain restrictive provisions end up excluding many survivors of trafficking from the support they arguably are entitled to. For example, the CICS allows survivors of trafficking to receive compensation from their traffickers for the injuries sustained during trafficking. However, to access this compensation, a survivor must show that they have suffered a crime of violence or been threatened with violence. This is particularly burdensome for survivors of trafficking in domestic servitude who typically do not suffer from crimes of physical violence.¹⁰

Another barrier to redress through the CICS is that survivors are not entitled to compensation if they have an unspent conviction. This policy is currently the subject of a Supreme Court case, awaiting judgment, as it excludes the huge amounts of survivors who are trafficked to the UK to work in illegal trades, for example in cannabis farms, from obtaining compensation.¹¹

What policy changes can we expect from the outcome of this case?  

While the court awarded compensation to the victims, it also gave the government discretion on how to change the discriminatory nature of the VCC policy. A potential eventuality is that the government could end up dropping the VCC payments completely to remove the discrimination instead of providing the extra estimated £5 million required to allow asylum-seeker survivors of trafficking with dependent children to access the VCC.¹² A more beneficial outcome for the appellants and all survivors of trafficking with dependent children would be for the UK government to stay true to its pledges under ECAT and work to fulfil its support duty. This will allow survivors to recover successfully and reduce the risk of them being re-trafficked. Childcare support for asylum seeker survivors of trafficking is a step in the right direction.

If you are interested to find out more about human slavery/trafficking in the UK, here are some useful links:

1. ATLEU: https://atleu.org.uk/
2. Anti-Slavery international: https://www.antislavery.org
3. Online YLAL event: Access to justice for victims of trafficking (2 parts): http://www.younglegalaidlawyers.org/meeting-minutes
4. https://www.survivoralliance.org/survivors-overview
5. https://www.helenbamber.org/

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[1] Article 12 “Assistance to victims”, European Convention against on Action against Trafficking in Human Beings

[2] R (on the application of MD) v Secretary of State of the Home Department [2021] EWHC 1370 (Admin [18]

[3] “Potential victims or victims of modern slavery receiving NRM [National Referral Mechanism] support who are receiving asylum support will not receive any financial support through the VCC [Victim Care Contract] in respect of any dependents, or pregnancy payments as these will be met through the asylum support system.” 


[4] Silvia Nicolaou Garcia from Simpson Millar’s Public Law team: “not possible or safe to conduct an effective psychological assessment with a child present” and “children are negatively affected when they accompany their parents to interviews where their parents’ trafficking is discussed”, quoted Taylor, D ‘Home Office must compensate trafficked women for lack of childcare, court rules – The Guardian’ https://www.theguardian.com/uk-news/2021/may/24/home-office-must-compensate-trafficked-women-for-lack-of-childcare-court-rules accessed Tuesday 15th June

[5] R (on the application of MD) v Secretary of State of the Home Department [2021] EWHC 1370 (Admin [51]

[6] R (on the application of MD) v Secretary of State of the Home Department [2021] EWHC 1370 (Admin) [40], [46], [52]

[7] ibid [54]

[8] K & AM, R v Secretary of State for the Home Department [2018] EWHC 2951

[9] Anti-Slavery International ‘High court reverses cuts to victim support’ https://www.antislavery.org/high-court-reverses-cuts-to-victim-support/ accessed 15^th June

[10] ATLEU, Survivors of Trafficking and the Criminal Injuries Compensation Scheme, November 2021, p.12 https://drive.google.com/file/d/1l7OUqUgyMnSYy6FsndAdPlLfJkgq5pFp/view accessed 24th June

[11] A&B v CICS UKSC 2019/0055 https://www.supremecourt.uk/cases/uksc-2019-0055.html accessed 15th June

[12] A. Schymyck, ‘Home Office Accidently Discriminates against trafficking victims with kids’ https://www.freemovement.org.uk/home-office-accidentally-discriminates-against-trafficking-victims-with-kids/ accessed 15^th June

Image credit: A photo of shackled hands © sammisreachers/Global Panorama/Flickr

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

BPP HRU Event: Reframing the Rights of Refugees

On 4 February 2021, the BPP Human Rights Unit hosted refugee rights experts for a virtual panel on asylum, detention and the ‘hostile environment’, Ellen Alde reports. Guests heard from Toufique Hossain (Duncan Lewis), Pierre Makhlouf (Bail for Immigration Detainees), Marina Brizar (Talent Beyond Boundaries) and Ruvi Mutyambizi (For Her Child).

Setting the tone for the evening, host Hannah Anson brought attention to the stories emerging from the Home Office’s new emergency asylum accommodation sites in former military barracks. In the week prior, the High Court had ordered that an asylum seeker and potential victim of human trafficking be urgently rehoused from the Napier barracks, finding the accommodation inadequate and the ‘prison-like’ conditions and COVID-19 risks wholly unsuitable. The first portion of the event addressed these developments within the asylum and immigration landscape, simultaneously highlighting the work undertaken by our speakers’ organisations. In the second portion, students had the opportunity to hear from two former refugees working to improve the experience for asylum seekers in the UK.

Immigration and Asylum Law Q&A – Laura Gardner, Unity Street Chambers

BPP HRU Representative Bartholomew Scholefield; Laura Gardner of Unity Street Chambers

BPP Bristol Human Rights Unit Representative Bartholomew Scholefield interviews Laura Gardner of Unity Street chambers about her practice and the challenges facing asylum law. This is the first in a series of interviews by Barty which should be of interest to any aspiring immigration and asylum law barristers or solicitors.

Hi Laura, thanks for talking to me today. If I may I’ll start with an overview of your practice and the challenges facing asylum law more generally, and then move on the to particular difficulties raised by coronavirus.

Good morning, yes sure, go ahead.

Could you please give an overview of your practice.

I am a junior tenant at Unity Street Chambers. We are a small set with 14 tenants currently. It is predominantly a civil set. I undertook a mixed common law pupillage at Unity Street Chambers and so my practice has been very varied.

ECtHR legitimises mass pushback of migrants

13th February 2020 – Grand Chamber

Bartholomew Scholefield assesses the significance of Strasbourg’s long-awaited Grand Chamber judgement in the case of ND & NT v Spain, published on 13 February 2020. The judgement is available in full here.

The Facts

The Spanish enclave of Melilla is a 12sq. km autonomous city located on the north coast of Africa and surrounded by Moroccan territory. The border between Morocco and Melilla is an external border to the Schengen area and thus provides access to the EU, making it a destination for many asylum seekers.

ND and NT were Malian asylum seekers who had made reached Morocco by August 2014. Early in the morning of the 13th August ND and NT, along with approximately 600 other migrants, stormed the fences surrounding Melilla. ND and NT made it over the exterior 6m ‘climb-proof’ fence, a “three dimensional network of cables” followed by a second fence, and finally to the top of the third and final 6m fence. They waited atop this fence for approximately 8 hours with 80 other migrants.

Seeking Asylum in the Time of COVID-19

Susana Ferrín Pérez outlines concerns that the protections put in place for the benefit of the UK population will not extend to those with insecure immigration status.

Stay at home.

The catchphrase has been repeated again and again on television, the radio or on social media platforms, to remind the population of the vital social distancing measures implemented by the UK government to contain the spread of COVID-19.

By definition, however, an asylum seeker is a person who flees their home country, enters another country, and seeks international protection there. The asylum seeker may be granted refugee status under Article 1.A.2 of the UN 1951 Refugee Convention if they can demonstrate a “well-founded fear of being persecuted for reasons of race, religion, nationality, or membership of a particular social group or political opinion.”

For the majority of the population, staying at home is a matter of choice and collective responsibility. For those in the asylum system, there is no such choice.