4.1 Case 1: The contribution of expert evidence in asylum appeals

Asylum applicants have left their country of origin and applied for political asylum in the UK. Asylum applicants are foreign nationals about whom many negative stereotypes exist, notable among them that they are ‘bogus’ and seek to enter the UK to access benefits, education and work. Asylum appeals are made against the HO's initial decision to refuse an applicant protection. The HO refuses approximately 90 per cent of all applications,Footnote ¹² which triggers a right of appeal for most applicants. While they await a decision on their appeal, they are dispersed across the UK and allocated poor-quality housing and given food coupons.

‘GA’ was born in Ethiopia in 1998Footnote ¹³ and managed to reach the UK in 2015 when he applied for asylum. His case-worker identified me as a recognised country expert and instructed me to write an expert reportFootnote ¹⁴ for his client's 2017 appeal.

GA claimed that he was born in Ethiopia in 1998 to a father who was Eritrean and a mother who was Ethiopian, and that both of his parents were deceased. Without support, he and his sister had lived rough on the streets and, because of their Eritrean ethnicity, they were discriminated against. In 2012, a stranger trafficked them to Sudan, where they were compelled to do unpaid work; GA escaped and travelled to Libya and, using a boat, arrived in the UK via Italy, where he claimed asylum aged seventeen.

HO officials refused to grant him Discretionary Leave to Remain and they refused his asylum claim because they did not accept that he was an Eritrean national; instead, they argued that he was Ethiopian and that he could claim Ethiopian nationality through his mother. The HO also argued that, if he were returned to Ethiopia, he could ‘avail himself of the protection’ of the authorities and would not be at risk of being re-trafficked.Footnote ¹⁵ Officials argued that, since he attended school in Ethiopia, albeit for one year, he must be an Ethiopian national. Furthermore, he was interviewed in Amharic, an ‘Ethiopian language’, and provided no evidence that he could speak Tigrinya, the language spoken by his father. Finally, it was asserted that, because he had not made ‘a bona fide’ application to the Ethiopian embassy to secure a travel document to Ethiopia, his claim should be refused.

During the hearing, legal argument by GA's barrister and evidence from my expert report were relied upon to counter arguments by the HO. On the issue of nationality, my report showed that Ethiopian law did not support the argument that GA was entitled to Ethiopian nationality or indeed that he could access it if he were returned to Ethiopia. The judge stated: ‘I must have regard to the opinions of experts when interpreting foreign law. I have not been referred to any contrary authority to that of Dr “Campbell” as to the appellant's ability to acquire Ethiopian nationality’ (¶33, emphasis added).

My report made it clear that: (1) both parents of an individual seeking nationality must be Ethiopian ‘by descent’ and that being born in Ethiopia does not entitle an individual to Ethiopian nationality; (2) the appellant could not avail himself of Ethiopian laws promulgated in 2003 and 2004 to regularise the status of resident Eritreans because the registration period had ended; (3) viewed against relevant background evidence, the appellant's claim that he is an Eritrean national was consistent and plausible; (4) seen against relevant British case-law, the appellant had made a ‘bona fide’ application to the Ethiopian embassy that had been refused because he could not provide the required documentation; (5) if he were forcibly returned to Ethiopia, the authorities would not recognise him as a national and he would be imprisoned or placed in a refugee camp; finally (6) I concluded that, if he were returned to Ethiopia, as a young adult who had no familial or social support, he was vulnerable and might, once again, be trafficked.

My expert report also addressed two ‘cultural’ issues. First, I argued that GA had ‘clearly distinguished between his ability to speak Amharic, a language spoken in Ethiopia, and his ethnicity, which was Tigrinya and that there is no direct relation between language and ethnicity’. Second, I concluded that GA's account of being a street child was ‘plausible’.

The judge accepted my evidence and decided that GA was an Eritrean national who could not be returned to Ethiopia; he recognised him as a refugee. The judge discounted the entire HO case against the appellant. Two points are worth making. First, with regard to the legal evidence provided to the court, the Home Office Presenting Officer failed to provide a ‘contrary authority’, namely rebuttal evidence, that could contest or undermine my evidence. This point is critical: judicial decisions depend upon weighing arguments against counter-arguments in a process that leaves it to the judge to decide whose evidence to accept. It is important to recognise that the adversarial process is NOT a zero-sum game in which judges automatically exercise their hegemony to control experts. Second, the provision of evidence – legal and cultural – requires experts to carefully document their reports and demonstrate how they arrived at their conclusions.

4.2 Case 2: The role of experts in ‘foreign’ adoption proceedings

This case looks at the pivotal role of expert evidence in the adoption of foreign children in the UK. Adoption is one of a myriad of legal statuses defined and regulated by the UK's growing list of immigration rules that are designed to regulate the entry of foreign nationals into the UK.Footnote ¹⁶ Specifically, Immigration Rule 309A states:

British courts and Home Office Entry Clearance Officers who decide applications for inter-country adoption require clear evidence about foreign adoption procedures, which in turn requires a report from a ‘country expert’ who, per force, is required to adopt an interstitial position between different legal jurisdictions. This is necessary when the state from which a child is adopted is not a signatory to the Hague Convention (1980)Footnote ¹⁸ – that is, where a recognised system of international adoption does not exist.

‘Mekdes’ was adopted in Ethiopia by a British couple living in Abu Dhabi who sought to bring her to Scotland, where the relevant legislation is the Adoption Recognition of Overseas Adoption (Scotland) Regulations 2013/310. This legislation was modified by Cobb J. in G (Children) [2014] EWHC 2605, which sets out the common-law test that requires three questions to be answered in order to recognise a foreign adoption:

In 2014, following an unsuccessful approach to the Ethiopian embassy for assistance, a British lawyer instructed me to identify relevant foreign law and procedures in Ethiopia where the child was adopted from and to assess whether the child's adoption met the conditions set out by the immigration rules/Cobb 2014. This task required me to identify and interpret relevant Ethiopian and British law and procedure, and to write a report for the Scottish Court of Sessions to confirm whether the process used by the adoptive couple followed the correct procedure for adoption in Ethiopia. I was also required to assess whether the documents that the couple submitted to the court were ‘genuine and authentic’.

The couple's lawyer sent me the case bundle that contained documents identifying the adoptive parents and the child they wished to adopt, the death certificate of the adopted child's father,Footnote ¹⁹ translations and original copies of the Ethiopian adoption contract, a document issued by the Federal First Instance Court, a request to the Federal First Instance Court to issue a decision on the adoption and the decision of the Federal First Instance Court. I identified the Revised Family Code of Ethiopia (1992) as the legislation regulating adoption.

What was missing, however, was a statement from the adopted parents regarding the specific steps they had taken to secure adoption in Ethiopia. Their lawyer took further witness statements from both parents and sent them to me. My report addressed Scottish and Ethiopian law and established that the documents provided by the adoptive family clearly indicated that they had followed the procedures set out in Articles 190, 193 and 194 of the Ethiopian Family Code (1999), that they were eligible to adopt,Footnote ²⁰ that the child was under the age of eighteen when adoption occurred, that relevant Ethiopian identity documents had been issued to the child in Ethiopia and that the Browns had provided long-term support for the child prior to bringing her to the UK. My report concluded that Ethiopian law and policy conformed with Scottish law.

The report was submitted to the Scottish Court of Session for a decision along with an application for a grant and relevant affidavits from the parents. In 2015, Lord Brailsford sitting in the Court of Session considered the evidence before him, including my expert report, and recognised the common-law adoption of the child. This was the first ‘foreign adoption’ recognised in Scottish lawFootnote ²¹ and set the standard for the provision of expert evidence in subsequent inter-country adoption procedures.

4.3 Case 3: When is a refugee not a refugee?

The case of ‘ST’Footnote ²² provides a window into the way that lawyers and judges construct a case and view evidence; it illustrates how a legal case was transformed from an argument about the facts of the case – did the tribunal/FTT grant ‘ST’ refugee status or not – to an arcane point of law, namely an analysis of Article 32 of the 1951 Refugee ConventionFootnote ²³ that took lawyers and judges fourteen years to ‘decide’, during which time the asylum applicant led a physically, economically and legally precarious existence.

The applicant was an Ethiopian-born ethnic Eritrean who fled Ethiopia at a time when that country was arresting and deporting ethnic Eritreans during a bitter war with Eritrea (Campbell, Reference Campbell2014). She arrived in the UK in 1998 and claimed asylum as an Eritrean national; however, the HO failed to assess her claim until 2004,Footnote ²⁴ when they refused it. She appealed against that decision to the FTT, which, in March 2005, upheld the HO decision refusing her protection. In an appeal to the Upper Tribunal in February 2005, the UT decided that her case should be reconsidered due to a serious error of law made by the IJ who had decided to return her to Ethiopia. In January 2006, the FTT reconsidered her case and found that she was a refugee and granted her protection.

Surprisingly, in May 2006, and well after the five days allowed for the SSHD to appeal against a decision by the FTT, the HO issued a new refusal letter overturning the tribunal's decision. In July 2006, ST's legal team filed a JR asking the High Court to overturn the HO decision on the basis that it was ‘unreasonable’.Footnote ²⁵ The JR, which substantially narrowed the grounds of appeal, was granted by the High Court in December 2008, which decided that the FTT had ‘made a finding’ that the applicant ‘was entitled to the protection of the 1951 Convention’.Footnote ²⁶

However, counsel for the HO appealed against the High Court decision to the CoA, which, in June 2010, reversed the decision against ST.Footnote ²⁷ In February 2012, that CoA decision was appealed to the Supreme Court, which refused the appeal against the HO on the basis that Article 32Footnote ²⁸ of the Refugee Convention could not be given ‘extended and autonomous meaning’ because ’ST’ was not ‘lawfully present’ in the UK as a refugee.Footnote ²⁹ The Supreme Court decided that ‘ST’ had been granted ‘temporary admission’ into the UK until such a time as her case was finally decided (cf. Sawyer and Turpin, Reference Sawyer and Turpin2005).

During the fourteen years over which this case wound its way through the courts, the central issue moved away from objective evidence about whether ST would be persecuted in Eritrea or Ethiopia, to whether the HO had unreasonably delayed assessing her case and taken an unreasonable and therefore illegal decision to overturn a tribunal decision, to an arcane question of law: was ‘ST’ ‘lawfully present’ in the UK.Footnote ³⁰ The case provides an excellent illustration of Bourdieu's concept of the ‘judicial field’ in which lawyers contend with each other in lengthy litigation that ultimately went to the Supreme Court to decide the issue (in a process that failed to address the protection needs of ‘ST’).

Indeed, the situation facing asylum seekers deteriorated rapidly during this period because the government eliminated their right work, their right to access social security and their ability to resist removal. This was a period when legal-aid budgets were slashed and more experienced lawyers stopped practising asylum and immigration law, which left asylum applicants with fewer options to challenge HO decisions.

4.4 Case 4: The limitations of litigation and the ‘Windrush scandal’

This case concerns who has the right to reside in the UK – a right that is set out in the immigration rulesFootnote ³¹ but that is very complex and varies in relation to the legal status of an individual. The key issue I address here concerns the extent to which litigation, in this case numerous successful JRs against the HO, failed to force the government to change its policy. Indeed, it was belated parliamentary pressure, together with media reports, that finally made clear how inequitable HO policies were, which put pressure on the government to change its policies.

The ‘Windrush’ scandal emerged in relation to new immigration rules created in 2010Footnote ³² and the way that HO officials implemented these rules, which were part of a strategy to reduce UK immigration to the levels promised by government in the 2010 Conservative Party Election ManifestoFootnote ³³ (which was given a statutory basis in the Immigration Act 2014). It is now widely agreed that the government's ‘implacable opposition to immigrants’ and human rights, combined with a wilful disregard of evidence and of those who urged caution caused untold suffering for ‘the Windrush generation, and all other immigrants and ethnic minorities placed in a comparable position’ (JCWI, 2018, p. 3).

In 2010, following its victory in national elections, the Conservative Party (in conjunction with the Liberal Democrats) put into place new and more complex immigration rules aimed at preventing entry into the UK by asylum seekers and migrantsFootnote ³⁴ and creating greater ‘post-entry control’ over ‘migrants’ already in the UK (White, Reference White2019). In 2013, the government was told that its ‘hostile climate’ against ‘illegal migrants’ was causing distress to hundreds of Caribbean migrants who were being told to leave the UK and that the implementation of the immigration rules was giving rise to serious legal problems. However, the government carried on in the face of a growing number of JRs. Official statistics on the number of JRs filed against asylum and immigration decisions indicate a sharp rise to 10,000 in 2010, the year the ‘hostile-policy environment’ came into force, rising to over 15,500 per year by 2013 followed by a decline to about 4,000 claims per annum in subsequent years.Footnote ³⁵

At least one-third of these JRs were successful (these include cases in which the government ‘settled’ without going to trial; cf. Bondy and Sunkin, Reference Bondy and Sunkin2009).Footnote ³⁶ In one JR proceeding in 2016, Lord Turnbull ([2016] CSOH 73) in the Scottish House of Sessions found that the SSHD's order that an applicant should leave the UK was based on an incorrect assessment of his right of Indefinite Leave to Remain (he entered the UK in 1959 and, in 1973, his Pakistani passport was endorsed by the HO granting him Indefinite Leave to Remain). The Home Office sought to remove him when he applied to have a new passport endorsed by the HO indicating his right to remain in the UK; it refused to endorse the passport and stated that he had lost this ‘right’ even though officials provided no evidence for their decision. The JR against the HO was granted.

In a JR filed against NHS regulations that were introduced in 2017 that forced people who cannot prove UK residency to pay for their treatment in advance, ‘Albert Thompson’, who had legally resided in the UK for forty years, failed in his attempt to quash the regulations and was refused access to cancer treatment.Footnote ³⁷ The case hinged on his inability to provide documentation of his right to remain (though it is now clear that the HO had shredded/disposed of official documents, including the landing cards issued to Windrush migrants who entered the UK between 1959 and 1973). It was only when MPs raised his case in Parliament that Prime Minister May was forced to announce that ‘he would get the treatment he needs’.Footnote ³⁸

However, it was not until 2018 that MPs began to raise questions in Parliament about the immigration status of their constituents – some had been deported, some were threatened with deportation, some had their access to housing and health benefits removed, etc. – and had begun to demand information from the HO about the human cost of its ‘hostile environment’ policies that the government began to backtrack on its position. What appears to have sparked a growing public controversy was not litigation or growing media attention, but demands by MPs for an investigation into the situation and their demand that HO officials should be held accountable for wrongful decisions.

The scale and complexity of problems that confronted the ‘Windrush generation’, who number at least 600,000 persons,Footnote ³⁹ arose from a blanket denial of their civil and human rights as a direct result of policies devised by the former Home Secretary Teresa May, which were implemented by UK Visas and Immigration, Immigration Enforcement, the Border Force, the Department for Work and Pensions, the Driver and Vehicle Registration Agency and the National Health Service, not to mention private organisations and individuals who were required to check on the right of individuals to rent accommodation.

In 2018, the Joint Council for the Welfare of Immigrants (JWCI, 5-6) outlined its understanding of the situation in the following terms:

1. 1. ‘Windrush migrants, other Commonwealth nationals, and other groups were turned into undocumented migrants or undocumented citizens by the creation of a system of immigration control, which was not accompanied by the creation of universal identity documents …

2. 2. The later introduction and, post-2012, massive expansion of outsourced immigration enforcement under what became known as the “hostile environment” created most of the problems faced by Windrush nationals. The Hostile Environment requires businesses, public services and ordinary citizens to target those without documents, and its structure encourages the targeting of ethnic minorities and those who look or sound “foreign”.

3. 3. It requires those people to be denied access to housing, healthcare, employment, benefits, or assistance and encourages reporting them to the authorities if they attempt to access assistance such as police protection as victims of crime. The idea is to force those without documents into destitution and homelessness, outside of the normal protections of police, housing law, employment rights [so] that they “voluntarily” leave the country without the Home Office having to spend money on enforcing their removal: hence “Hostile”. Given that most people in the UK without documents have a right to be here, it inevitably causes huge amounts of harm to people who cannot and should not be termed “illegal”.

4. 4. This was combined with a focus from the highest levels of politics on denying visa applications and reducing net-migration at all costs which combined with a desire to make short term costs savings in Government, led to the following issues:

   1. (i) Extremely poor decision making by Home Office staff who are underpaid, undertrained and under cultural and formal pressure to refuse applications;

   2. (ii) The removal of appeal rights from most immigration cases at a time when high numbers of appeals were successful;

   3. (iii) The introduction of out of country appeals after removal or deportation greatly reduced the chance of a successful appeal;

   4. (iv) The removal of legal aid from immigration cases;

   5. (v) The extraordinary rise in immigration application fees and citizenship fees;

   6. (vi) The continued rise in complexity of immigration rules and particularly the deliberate overcomplication of assessments made under Article 8 of the European Convention on Human Rights’. (Emphasis added)

The National Audit Office (NAO)'s (2018, p. 17) review of how the HO handled ‘the Windrush situation’ revealed that policy enforcement resulted in the seizure/revocation of driving licences, the closure of bank accounts, stopping benefit payments, individuals lost access to their homes, landlords refused to rent accommodation to individuals who did not have immigration papers, employers refused to hire individuals and individuals were refused access to health care (which meant that they had to meet the full costs of health care). The NAO's anodyne conclusion was that:

It was the documentation of extensive discrimination against individuals who had the right to remain in the UK that undermined public confidence in HO policies, forced the Home Secretary to resign and led to a commission of inquiry into the HO and the establishment of a compensation scheme for those affected by the hostile-policy environment. Litigation, in the form of thousands of JRs against officials implementing the ‘hostile’ policies, played a limited role in changing government policy. Indeed, litigation can at best only address injustices experienced by individuals because, as White (Reference White2019, p. 13) has noted, the problem facing the ‘Windrush generation’ ‘is exacerbated by … the extraordinarily complicated changes in nationality and immigration law … rigorous Home Office enforcement of the policy; enforcement by private citizens … and reliance upon documentation created for an entirely different system’.

In short, the supposed ‘bright line’ that is assumed to clearly differentiate between the rights of citizens and non-nationals was, in this case, substantially blurred, if not obliterated, by a raft of legislation beginning with the Commonwealth Immigrant Act 1962, which, step by step and year by year, stripped away the rights of residence of Commonwealth citizens. The process ended with the Immigration Act 2014 that imposed post-entry controls on individuals who were legally resident in the UK, but who did not have the required documentation to prove their right, in an attempt to force them out of the UK.