An asylum-seeker caught steering a boat across the English Channel was cleared of smuggling charges after spending 17 months in jail. Immigrants and trafficking victims were also detained in solitary confinement for prolonged periods of time in prisons due to Covid-19 measures. Meanwhile, a Judicial Review Bill will strip refugees and asylum-seekers’ right to challenge deportation orders as the government’s New Plan for Immigration comes under heavy criticism from UNHCR.

The Court of Appeal overturned the conviction of Fouad Kakaei, an Iranian asylum-seeker jailed for 17 months on smuggling charges for helping to pilot a boat with other migrants on board in the English Channel. He was rescued by UK Border Force officials while crossing the Channel in December 2019 and was sentenced to two years and two months in prison in January 2021 by the Canterbury Crown Court, after admitting that he had taken a turn steering the defective boat as he “didn’t want to die at sea”. At his retrial before the Court of Appeal this week, his lawyers successfully argued that “he should not have been found guilty of breaking immigration laws because he was intending to be rescued at sea so he could claim asylum”. The verdict brings hope that other asylum-seekers currently jailed on smuggling charges will be able to challenge their detention and be freed.

The Queen’s speech to Parliament on 11 May disclosed the government’s plan to publish a Judicial Review Bill that will deprive immigrants and refugees of the right to challenge deportation orders in the High Court, overturning a decade-old Supreme Court ruling allowing tribunal decisions to be appealed  before the Court. The government said the Judicial Review aims to prevent last-minute challenges to decisions which “frustrate removals at the last minute”. The reform has been criticised for limiting important supervisory checks on the immigration tribunal and for hindering asylum-seekers’ right to challenge deportation decisions. Around 700 appeals are brought to the High Court every year.

Testimonies from immigrants, trafficking and torture survivors show that individuals spent more than 23 hours a day in solitary confinement for periods of up to one year during the pandemic. The Home Office detained around 500 individuals in the UK prison network as part of its Covid-19 measures, leading to inmates experiencing distressing mental health breakdowns, including self-harm and suicide attempts. New data from the Home Office’s Detention Gatekeeper function, a safeguarding system meant to prevent victims of trafficking, torture and slavery from being detained, shows that it prevented only 3% of its referrals from being incarcerated.

These developments come amidst UNHCR publishing its observations on the UK’s New Plan for Immigration policy, presented by the government in March. The New Plan includes over 40 suggested changes to UK law, policies and procedures concerning immigration and asylum matters. UNHCR noted that “the Plan, if implemented as it stands, will undermine the 1951 Convention and international protection system, not just in the UK, but globally”. At the heart of UNHCR’s criticism is the fact that the Plan establishes a “two-tiered approach to asylum” whereby a distinction is made between those who arrive through legal pathways, such as resettlement or family reunion visas, and those who arrive to the UK irregularly, including by boat, and for whom access to asylum and protection would be more difficult. UNHCR also expressed concern at the fact that the Plan proposes to create an inferior ‘temporary protection status’ for asylum-seekers who entered the UK irregularly, effectively creating a “sub-class of refugees denied the full set of rights afforded to them under the 1951 Convention”. UNHCR called on the UK to reconsider this proposal as it would impermissibly penalise asylum-seekers and push them into “precarious and potentially exploitative limbo situations in the UK”. Finally, the observations denounce the Plan’s proposal that an asylum claim will be rejected if an asylum-seeker passes through ‘safe countries’ before entering the UK and notes that “asylum should not be refused solely on the ground that it could be sought from another State”. UNHCR did, however, welcome the Plan’s commitment to “protecting children and vulnerable people”, including by making the age assessment process more consistent.

In Glasgow, Eid al-Fitr was marked by two Indian nationals being freed from an immigration enforcement van after crowds swamped the street to prevent their detention. A member of the city’s No Evictions Network, now nicknamed ‘Van Man’, laid underneath the vehicle to prevent it from driving away, and hundreds of locals blocked the street in an act of protest against immigration raids.

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Photo: (CC) Jeff Djevdet, February 2016

This article appeared in the ECRE Weekly Bulletin. You can subscribe to the Weekly Bulletin here.