On Monday 21 May, we will once again be taking part in the London Legal Support Trust’s annual 10km Legal Walk, raising money for legal advice charities.

The advice centres supported by the Walk help people including families facing homelessness, older people requiring community care, trafficked women and children, people with disabilities, refugees, people who are facing employment problems and those with mental health issues.

The need for these charities has grown in recent years because of significant cuts to legal aid. The funds we raise are therefore more important than ever.

We ask those who can to support our team and help to improve access to justice by donating online.

 

On Saturday 19 May, we will be running a free advice session for Europeans and their family members at the Waterloo Action Centre.

The aim of the event is to give an overview of the rights of European nationals in the UK and to outline steps they may wish to take to prepare for Brexit.

We hope that those attending will come away with the knowledge and confidence to make an application if they need to.

In preparation for the meeting, we have prepared a self-help guide for those looking to understand their current rights and how these might be affected by the UK’s exit from the EU. The guide also includes information and guidance about how to make a successful application.

You can download the guide by clicking here.

There are a limited number of spaces still available to attend the event itself. We ask that those wishing to attend the meeting register their interest via Eventbrite.

We have been reading with interest today’s news that the government might be seeking to abolish civil partnerships altogether in order to ensure that opposite-sex couples, who cannot presently enter into a civil partnership, are not discriminated against when compared with same-sex couples, who can enter into civil partnerships. This follows a challenge by an opposite-sex couple to the current civil partnership rules which is before the Supreme Court this week.

History, it seems, tends to repeat itself. Back in the 1990s, while it was possible for certain opposite-sex partners of British nationals to obtain leave to remain based upon their unmarried relationship, it was not possible for same-sex partners to do so. Wesley Gryk, our senior partner, assisted a gay couple to challenge this discriminatory situation in a case before the then Immigration Appeal Tribunal (nowadays the Upper Tribunal (Immigration and Asylum Chamber)) called Lizarzaburu v Secretary of State for the Home Department 19 April 1994 (unreported). The Tribunal urged the Home Office to extend the unmarried partners concession to same-sex relationships.

In its wisdom, on 22 February 1996, the Home Office decided to withdraw the unmarried partners concession altogether, thereby maintaining “equality” by preventing both gay and straight couples from benefiting from the provision. Everyone was equally shut out from this route until the following year when the concession was restored following tireless campaigning by the Stonewall Immigration Group (now the UK Lesbian and Gay Immigration Group).

Wesley is writing a detailed account of the history of the battle for equality in immigration law during the 1990s to be published later this month which in fact is the 25^th anniversary of the first meeting of the Stonewall Immigration Group. For now, though, we think that the most important lesson the government should take from this “mirror image” situation of that prevailing in the 1990s is that the best way to promote equality is not to restrict the choices we have in life but rather to extend them as widely as possible. The only hint of progress one can perhaps deduce from the present situation is that, this time around, gay men, lesbians and bisexual people find themselves with more rights than their straight counterparts, which rights are now under threat, a situation which would have been unthinkable 25 years ago.

10 May 2018 sees the official launch of the LexisNexis publication ‘Surrogacy, Law, Practice and Policy in England and Wales’ . The book is an essential guide for those advising on surrogacy law.

The book is edited by Ruth Cabeza of Field Court Chambers and she has been ably assisted by fellow barristers from her chambers and Lillian Odze of the Cafcass High Court Team.

I am the author of the chapter ‘International Surrogacy and British Nationality and Immigration Law’.

The book is an important step towards informing both advisors and parents as to the British nationality and immigration law issues that arise in international surrogacy cases. Given the restriction on commercial surrogacy arrangements in the UK, UK-based commissioning parents frequently enter into international surrogacy agreements which lead to the birth of their children abroad. The birth of a child outside the UK inevitably leads to questions concerning British nationality and immigration law.

The fact that there is any nationality or immigration issue at all can come as something of a shock to many commissioning parents. Those who are British from birth have often not come into contact with the British nationality and immigration system before and understandably assume that their child will be born British whatever the circumstances.

Furthermore, British nationality law will often be at odds with the law in which the child will be born. In that country, the British commissioning parents may be the legal parents at the date of birth and named on the birth certificate. This does not mean that they will be the parents for the purposes of British nationality law.

Commissioning parents are well-advised to consider the immigration and nationality matters in advance. Ideally, they should take immigration and nationality law advice before entering into the surrogacy agreement. That said, there is an immigration and nationality law solution to most situations and parents who obtain advice during the pregnancy can usually prepare in time for the birth. We can, of course, also give initial advice after the birth but parents are well-advised not to leave obtaining advice until then.

In my chapter, I have set out the different circumstances that can arise and the immigration and nationality law solutions. The aim is to have these issues more widely known. Of course, we remain happy to advise parents on their particular case.

 

I spoke with John Humphrys on the Today Programme on Radio 4 this morning. The interview is here at 1:16:05: https://www.bbc.co.uk/radio/player/b09zt3fj.

On behalf of the Law Society, I raised the Data Protection Bill, currently making its way through Parliament, and the clear link with the ‘Windrush cases’. In those cases, the Home Office has apologised because individuals who have been in the UK lawfully for many years have been treated as if they had no status at all. This is clearly a scandal.

However, if the Data Protection Bill is passed in its current form, it will increase the chance of such injustices happening again in the future, and to a much wider group of individuals.

The main purpose of the Data Protection Bill is to strengthen individuals’ data protection rights but it contains an ‘immigration control exemption’ which means that the Home Office can ignore data protection rights if they think such rights will ‘undermine immigration control’.

There are a number of concerns with this part of the Bill (explained in detail in Liberty’s briefing below) but we are most concerned with the impact on Subject Access Requests (SARs), that is the right to see what information the Home Office holds about an individual.

We often make SARs to the Home Office for the release of our clients’ files because these files can provide crucial information. The Home Office cannot be relied upon to provide this information without a SAR, and the Home Office often does not act in accordance with its own records when making life-changing decisions. As the Windrush cases show, the Home Office frequently make serious mistakes.

The immigration control exemption means the Home Office will be able to refuse SARs and withhold information. This will remove an important tool in holding the Home Office to account when they ignore or misrepresent facts, it will fundamentally undermine access to justice and the effective operation of the rule of law in the UK.

We have gathered examples from many immigration lawyers to show when SARs are crucial. These examples have been used in the Parliamentary briefings by the Immigration Law Practitioners Association, The Law Society, and The Bar Council (see below). The examples bring home forcefully how important SARs are.
In response, the Home Office has stated:

“It is wrong to say that the proposed narrow exemption in the Data Protection bill is an attempt to deny people access to their data. People will still be able to request data as they can now and will be met in all cases except where we to do so could undermine our immigration control. They will have the right to complain to the information commissioner if they disagree with any use of the immigration exemption and we would always want to assist those whose claims are in question.”

This is simply not good enough. The exemption is not narrow; there is no definition of ‘undermine immigration control’ and the Bill gives the Home Office wide-ranging powers to ignore data protection rights. Furthermore, access will be all in their power. If the Home Office make a mistake and say an individual is unlawfully present when they are not, that individual will not have access to the information required to show a mistake had been made because the Home Office can legally deny that access on the basis of ‘immigration control’.

The right to complain against denial of access is of no comfort. Such complaints can take many months to be resolved, meaning the individual may have been removed or deported from the UK or may have been denied access to essential services, such as health care. Also, such complaints may well be unsuccessful as this Bill will make lawful the denial of access to information. The Information Commissioner’s hands may be tied.

If the government has learned anything from the Windrush cases, it must remove this exemption from the Bill. If they do not, they have learned nothing.

If individual MPs vote for this bill in in its current form, then despite their professed disgust at the Windrush cases, they will be complicit in future injustices.

 

 

Links:

https://www.libertyhumanrights.org.uk/sites/default/files/Liberty%27s%20Briefing%20on%20the%20Data%20%20Protection%20Bill%202017%20for%20Second%20Reading%20in%20the%20House%20of%20Commons.pdf

http://www.ilpa.org.uk/resources.php/34023/ilpa-briefing-for-second-reading-of-the-data-protection-bill-2017-in-the-house-of-commons-2-march-20

https://publications.parliament.uk/pa/cm201719/cmpublic/DataProtection/memo/dpb20.pdf

https://www.barcouncil.org.uk/media/641717/180228_immigration_control_exemption_hoc_2r_briefing_data_protection_bill_bar_council.pdf