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Entries for July 2013:

New Country Guidance for Sri Lanka: GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC)

30 Jul 2013, 10:12 by Priya Bakshi

Labels: civil-war, detention, determination, international-protection, sri-lanka

The Upper Tribunal issued new Country Guidance for Sri Lanka on 5 July 2013.  This guidance is for deciding asylum cases in the UK and sets out the following;

1. This determination replaces all existing country guidance on Sri Lanka.

2. The focus of the Sri Lankan government's concern has changed since the civil war ended in May 2009.

3. The government's present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism.

4. If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.

5. Internal relocation is not an option within Sri Lanka for a person at real risk from the Sri Lankan authorities.

6. There are no detention facilities at the airport.  Only those whose names appear on a "stop" list will be detained from the airport.  

7. The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:

(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state.

(b)  Journalists or human rights activists.

(c) Individuals who have given evidence to the Lessons Learned and
Reconciliation Commission.

(d) A person whose name appears on a computerised "stop" list
accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant.  

8. The Sri Lankan authorities' approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora.  

9. The authorities maintain a computerised intelligence-led "watch" list. A person whose name appears on a "watch" list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return.

10. Consideration must always be given to whether, in the light of an
individual's activities and responsibilities during the civil war, the
exclusion clauses are engaged.

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Guidelines issued on crimes involving social media

29 Jul 2013, 15:15 by Priya Bakshi

Labels: barrister, breach, communication, court-order, crown-prosecution-service, prosecutors, social-media-offences, stalking, threats

The Crown Prosecution Service has issued final guidelines for prosecutors where cases involve communications sent via social media. These guidelines came into effect on 20 June 2013. 

The guidelines cover offences that involve both the sending and resending of communications via social media. It has been highlighted within the guidelines that the context in which the communications are sent will be highly material. The age and maturity of those who send the communications will also be considered.  

Communications capable of amounting to criminal offences

1. Credible threats of violence to the person or damage to property.

The threat must be credible and must create fear of apprehension in
those to whom it is communicated. Evidence of hostility and prejudice will
aggravate the offence.

2. Targeting an individual or individuals which may constitute     harassment of stalking.

Harassment can include repeated attempts to impose unwanted communications or contact upon an individual in a manner that could be expected to cause distress or fear in any reasonable person.

Stalking can include contacting, or attempting to contact, a person by any means.

The conduct in question must have occurred on at least two occasions and must form a sequence of events.

Communications sent on the basis of race, religion, disability and sexual orientation will aggravate the offence. 

3. Breach of a court order.

Court orders can apply to those communicating via social media in the same way as they apply to others. Therefore communications that breach court orders must be considered. Communications may have also breached other orders such as a Restraining Order or may have breached bail conditions. 

4. If the communications do not fall within these categories they must be considered separately; whether they are grossly offensive, indecent, obscene or false.

There must be an intention to cause distress or anxiety to the
recipient.

There is no legal requirement that the recipient must receive or see the
communication or is offended by it; only that the communication is sent,
delivered or transmitted. 

There are millions of communications sent via social media every month and so in order for the criminal law to step in, the communications must be grossly offensive. The test is "whether a message is couched in terms liable to cause gross offence to those to whom it relates." Communications that are in bad taste, controversial or unpopular is not enough.

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Pre-termination negotiations to remain confidential

13 Jul 2013, 09:04 by Priya Bakshi

Labels: breach-of-contract, compromise-agreements, contract, discriminaton, employee, employer, employment-contract, employment-rights-act, unfair-dismissal

From 29 July 2013 section 111A of the Employment Rights Act 1996 will come into force. Employers will be able to negotiate and agree with the employee terms to end the employment contract without these conversations being admissible in a subsequent unfair dismissal claim. Such negotiations will therefore remain confidential. These compromise agreements, a legally binding contract, will be renamed ‘settlement agreements'.

However the change in the law, namely the confidentiality provisions, is conditional and will not apply to the following types of claims: 

  • Automatic unfair dismissals, such as whistleblowing, trade union membership or asserting a statutory right.
  • Claims of discrimination, harassment, victimisationbreach of contract or wrongful dismissal.

The ACAS Code of Practice on Settlement Agreements is set out to assist and guide both employers and employees with regards to this law reform. In particular, it sets out that confidentiality provisions will only apply where there is no "improper behaviour" by either of the parties. Where there is improper behaviour, confidentiality will only attach to evidence to the extent that the tribunal considers just. Examples of what constitutes "improper behaviour" have been provided in the ACAS Code of Practice.

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Family visitor visa appeals abolished

02 Jul 2013, 09:45 by Priya Bakshi

Labels: appeal, barrister, human-rights, immigration, lawyer, race-discrimination, visa-appeal, visa-application

Applicants refused entry to the UK as a family visitor can no longer appeal the decision as of 25 June 2013. There will be no right to appeal
unless the appeal is on human rights or race discrimination grounds. 

Where a visa application is refused the entry clearance officer will send or give the notice of refusal to the applicant, which will list the reasons for the refusal. Prior to the change in the law, applicants could appeal the refusal decision and submit further information to support their visa application. Under the new law, any applicant refused entry can only now reapply for the visa. It must be ensured that this is supported by additional documents or a written explanation fully addressing the reasons why the previous application was refused. 

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