MISTREATMENT of asylum seekers continues to descend hidden depths of an immoral, grotesque and inhumane quagmire created by the UK government.

The proposed Illegal Migration Bill will see anyone entering the UK through an irregular route – small boats or lorries - being detained for 28 days.

Such human beings will be denied the right to apply for asylum in the UK under the Bill and instead would be deported to a safe third country or their country of origin – even if they’re fleeing persecution from war at home.

Given we’re an island state how do you enter the UK lawfully? Some 210,000 visas were issued to Ukrainians last year but if you’re poor, black or brown and fleeing persecution you won’t get a visa; so, you could never apply for UK asylum through any route.

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The Home Secretary can’t certify the Bill as complying with human rights or international law, because it doesn’t. However, that won’t stop the Conservative government from steaming ahead.

If you’re a high-profile public figure and challenge the inhumanity of the UK government’s position you’ll get the Gary Lineker treatment.

He’s effectively suspended by the BBC because Tory Ministers and cronies want to silence criticism of their unlawful policies. A cleaning of the Augean stables is well overdue at Westminster.

Nothing here is new. The current UK government have been devising all sorts of unlawful practices for many years now. They do it until they are legally challenged and lose.

Besides asylum and refugee law, there is no better example of pernicious attacks on financially vulnerable people than social security law.

Last month, the Secretary of State for Work and Pensions (SSWP) lost an English High Court case on the overpayment of Universal Credit (UC). Until 2013, the SSWP could only recover overpayments if they had been obtained through misrepresentation or non-disclosure. Overpayments can now be recovered even if they occur due to repeated mistakes by the SSWP – known as “official error”.

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That said, there are grounds to challenge the recovery of overpayments and ask for a waiver on cause.

What came out in the case of R (K) v. SSWP [2023] EWHC 233 was quite staggering. The SSWP had formal guidance on its waiver policy but never published it – that was found to be unlawful.

In 2020/21, there were 447,000 claimants overpaid UC with a value of £347.5 million. Of this, 337,000 claimants were overpaid UC where the cause was classified as official error, with a value of £228,355,000.

The SSWP only granted 10 waivers that year – write-offs – for across the whole of the UK.

In R (K) the claimant had two disabled sons. The SSWP wrongly treated her youngest son as being in full-time education, when he was undertaking an apprenticeship, and so mistakenly paid her almost £9,000 of the “children and disabled children element” of UC.

The SSWP’s complaints team apologised to her for “this profound lapse in service” but refused to waive the overpayment.

In upholding the judicial review, the court said: “Given the claimant’s family, health and financial circumstances, and having regard to how the overpayment arose, and the strenuous efforts the claimant made to clarify and query her entitlement, it would be unfair and unjust for the defendant to repudiate the claimant’s legitimate expectation”.

Last week, Govan Law Centre was successful in a UK social security test case concerning the payment of Universal Credit (UC) to workers.

In JN v. Secretary of State for Work and Pensions [2023] UT 49 (AAC) the claimant was a hospital worker who was paid monthly on the last Wednesday of each month. This meant that on four occasions in 2020, two of her salaries were counted within the same UC monthly cycle.

She was treated as earning double which was clearly untrue. This resulted in nil claims and ineligibility for UC for one third of the year – because UC was assessed on real time information from HMRC which didn’t consider earnings over the salary cycle.

In SSWP v Johnson and others [2020] EWCA Civ 778, the English Court of Appeal declared that the UC earned income calculation was irrational and unlawful as it applied to workers like Ms JN.

 

 

The UK Government remedied this irrationality by introducing the Universal Credit Earned Income Amendment Regulations 2020. These came into force on 16 November 2020, but amendments weren’t retrospective. JN was a legacy case concerning the legal effect of the court’s declaration of unlawfulness in Johnson.

The Upper Tribunal considered in detail the relevant case law on the legal effect of a declaratory order in the UK. The appeal was allowed and it was held that the legal impact of Johnson took effect from when the income calculation was challenged as unlawful in 2019.