In a landmark ruling, refugee status has been granted relating to a person’s non-binary identity for the first time in a UK Court. This comes amidst critique of the Home Office for failing to compensate Windrush victims despite plans to fast-track payments. The Home Office has also ruled out officially investigating the impact of deportations of parents on children and families. The UK’s exit from the EU as of 1 January 2021, will affect migrants wishing to settle there.

The Upper Tribunal concluded that Arthur Britney Joestar from El Salvador, who identifies as non-binary and uses the pronouns: they, them, their, would face persecution if returned to their home country. Joestar’s first claim for asylum was dismissed by the first-tier tribunal which found an attack by the Salvadorian police “amounted to no more than discrimination.” Judge Bruce criticised the decision and commented “Without more detailed explanation I am at a loss to understand how that evidence was logically capable of underpinning that conclusion.” She further noted that previous hearings had used the wrong pronouns without good reason, using “he” instead of correctly using “they”. Following the judgment, Joestar commented on the way the judge handled the case, “she just understood me – all the tiny details … she saw the whole picture.” They said: “At the end, she turned to look at me and started speaking to me in Spanish, to tell me she granted me the right to stay in this country and the right to be who I want to be. I just started to cry. I felt like I was born again.” Nancy Kelley, chief executive at Stonewall, said: “We’re incredibly pleased for Mx Joestar, whose landmark case is likely to make it easier for non-binary people to seek asylum in the UK. No one should be subject to attacks and violence simply because of who they are, and it is vital that the UK offers refuge to those for whom their own country is not safe.”

Windrush victims are yet to receive compensation despite announcements made by the Home Office that payments would be fast-tracked. On 14 December 2020, Priti Patel, the Home Secretary, announced the fast-tracking scheme which would pay £10,000 to any claimant who could demonstrate that they suffered as a result of the scandal, describing it as an “an important step in rebuilding trust and moving forward together.” However, many claimants on the scheme have not received any compensation and Home Office caseworkers have been unable to provide any information about when they will receive it.  A letter to Priti Patel, signed by 31 Windrush expressed concerns that the ‘overhaul’ promised “was no more than a publicity stunt.” The signatories have said they have “no confidence” in the Home Office to deliver them justice and called for an independent external body to administer the compensation scheme. So far, nine Windrush victims have died without receiving compensation for their losses and hardship suffered.

The Home Office has also refused to formally investigate the impact of deportations of parents on children and families. The current law allows individuals who are not British citizens and receive a prison sentence of more than 12 months to be automatically targeted for deportation. The policy that campaigners say is systematically racist, has seen hundreds of people, mainly men, put on charter flights to Jamaica, leaving their British children behind in the UK. A campaign group, Families for Justice made a statement to the Home Office: “Our children have been professionally neglected and inexplicably made to feel unwelcome in the country we call home. Our children’s British birth rights have been disregarded. We are saddened about the systematic disregard for the mental health of our children and the unassessed separation they are put through.” A previous letter to the Home Office expressing a similar sentiment about the law “tearing apart British families and communities” received no response.

Details of the effect of the last-minute UK separation deal with the EU in relation to migrants are not fully known, but changes can be expected. The UK’s departure from the EU will not change the fact that the UK remains a signatory of the 1951 Convention relating to the status of refugees, guaranteeing their protection. However, the Dublin III Regulation which establishes which European nation is responsible for examining an asylum request, will no longer apply to the UK. An accord to replace Dublin III has yet to be drawn up and as such, there is uncertainty surrounding UK’s handling of asylum seekers arriving in the country which is likely to persist for several months. Moreover, UK’s domestic laws regarding family reunification will make it more difficult for family members to be reunited with persons already living in the UK. It seems the situation for migrants making their way from Calais to Britain will remain largely unchanged as the Tourquet agreements remain intact. The Tourquet agreements between Britain and France aim to prevent non-EU nationals from entering non-Schengen countries without a visa. In the run up to Brexit, security has been stepped up in the Calais region, and surveillance has been increased for UK-bound Channel crossings.

Reportedly, at least 8,417 people in small boats reached Britain in 2020, quadruple the number in the previous year.

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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.