RESHARE: ŠID: BRUTALITY, TRAUMA, AND HOPE AT THE HARD BORDERS OF FORTRESS EUROPE

This peice was written by Law Clinic alumn, Murray Kemp, after volunteering as a ‘Border Violence Reporter’ for No Name Kitchen from September to November 2021. Murray reports on his time at the Serbian-Croatian border, particularly his time in the town of Šid.

*some graphic images are contained in this piece.

An eyewitness report on the forgotten Afghan men stranded along the Western Balkan Route.

The transient nature of the squats is evident as soon as you arrive. Piles of rubbish are strewn everywhere, mosquitoes and flies taking their pick of the scabies-ravaged skin and discarded refuse on offer. The men wear a mix of traditional Afghan clothes and handouts, swapping the former for the latter when wear sets in. It’s lunchtime in an informal refugee settlement in Serbia, hidden in the forests just a few kilometres from the border with Croatia. Apart from the well-kept tents that the men sleep in, or the matted prayer area facing east towards Mecca, the place is a mess. To clean up would mean admitting defeat, the men accepting that they are going to be staying there longer than the few days they all hope and pray for. Yet many do stay for much longer.  One young man, 19-year-old Mirhab*, has just returned from a three-month absence after he was run over by a truck, leaving him in a coma. He receives a hero’s welcome when he returns from hospital, smiles and long sleeves hiding the shredded skin of his arms and legs. He hopes this is just a minor setback, and that he won’t join the number that have seemingly been there forever. Armed police, drones, dogs, every tool in the vast arsenal of the EU border regime stands between them and their goal. The longest staying resident we spoke to had been there for over four years.

Sid Picture 2

In May 2021, after the bloody collapse of the Islamic Republic of Afghanistan, the European Union’s flimsy reassurances of safety evaporated along with their Joint Way Forward deal facilitating the return of refugees. For a select few within the country, crammed aboard evacuation flights from Kabul Airport, this meant salvation. But for those who had already left, halfway to Europe in the human flow of international migration routes, salvation was still a long way off. Despite assurances from European Commissioner for Home Affairs, Ylva Johansson, that Europe had a “moral duty” to help Afghan refugees, the political consensus of ‘Fortress Europe’ remains, keeping them as far from EU borders as possible. With most of Afghanistan’s Central Asian neighbours struggling under their own socioeconomic problems and unwilling to accept the burdens imposed upon them by the EU, this leaves the long journey to Europe by land as the only realistic chance of escape for the millions of Afghans fleeing war and persecution. The myriad of pathways that make up this route are treacherous. One such passage, commonly termed the ‘Western Balkan Route’, consists of the cross-land journey through Greece, Macedonia, Serbia, into the EU border at Croatia, through Slovenia, to the relative safety of Italy or Austria. In the early years of this pathway, crossings were relatively easy. But in 2016, amidst media uproar over the so-called ‘migrant crisis’ and cowed by the rise of far-right populist parties, the widespread closure of borders and the hasty agreement of a €6 billion deal between the EU and Turkey led the then President of the European Council, Donald Tusk, to proclaim that “irregular flows of migrants along the Western Balkan Route have come to an end”. According to the politicians of the West, the Balkan Route was closed. Yet thousands still attempt it to this day, through tougher and less well travelled pathways. One such route leads through a medium-sized town on the Serbia-Croatia border, a town called Šid.

I went to Šid (pronounced Sheed) from September to November 2021 as a volunteer with No Name Kitchen, a horizontally-structured NGO providing aid to displaced people throughout the Balkans. Based out of a living and working space in the centre of town, volunteers come from far and wide to provide daily food, showers, and medical support to the hundreds of people camped in informal settlements in the surrounding area. Though inspiring and powerful, this sense of international solidarity is met with steely resistance. From the moment of their arrival, volunteers live under the overbearing, ominous presence of the Serbian police force. Tailing them in their van, lying in wait for them at distribution sites, the threat is constant. Although the provision of aid is not illegal, the proximity to the border and a prevailing anti-immigrant sentiment give the dark blue uniformed authorities an effective carte blanche to criminalise actions as they see fit. In the past, volunteers had been prosecuted on falsified charges, expelled from the country, even physically attacked. Intimidation is the order of the day. “We felt that we were doing nothing wrong, but they were treating us like a threat,” Mariona, one of the volunteers, recounted. She was arrested along with two others during my stay while assessing reports of a mass influx of cold, desperate refugees into Majdan, a tiny border town in the agricultural heartlands of northern Serbia. After being detained, frisked, and interrogated by special police units, their IDs and notebooks were inspected and photographed before they were driven out of town and told never to return. “It made me think how the people must feel this way, from the moment they leave their countries and begin their life on the move”.

Parallel with the state, much of the dirty work in Šid is done by a less visible, shadowy network of far-right organisations. Fascist paramilitary units from the ultra-nationalist Chetnik movement guard the areas surrounding official camps, stopping people from leaving and preventing access for aid organisations. A group called Omladina Šida (Youth in Šid) posts online statements and holds regular flag-waving protests against the town’s refugee population. One statement on Facebook warned that “neither migrants nor volunteers should be able to walk the streets”, and that locals should call the police if they saw them. Another, issued after the arrival of eight busloads of people to the official camps in Šid following evictions in northern Serbia, warned that people would have “nothing better to do than expel migrants from their homes and gardens” and that they could “resist or not exist”. An atmosphere of fear surrounds the town. Nationalist graffiti is common, swastikas and skulls spray-painted on crumbling walls alongside traditional Serbian crosses. Refugees seldom enter alone, preferring the safety in numbers afforded by travelling in groups.

Sid Picture 3

As well as general duties preparing for distributions, my role within No Name Kitchen was a Border Violence Reporter. As part of the wider Border Violence Monitoring Network, I conducted interviews, took photographs, and compiled reports on incidents of police violence. There was a lot to cover. Each night, hundreds try ‘the game’ – a deceptively cheerful codeword created by refugees for the often-harrowing border crossing attempts. Those who play are known as ‘passengers’, and whether by sneaking into trucks, taxis, trains, or walking if they have no money to pay smugglers, the game presents their only road to safety and freedom. But the idyllic planes and forests around Šid hold hidden brutality. The flat ground and open fields make it easy to spot groups of passengers walking around. Police and the paramilitaries work in tandem, patrolling the lands in search of their prey. In forests and fields far from town they launch their attacks. Tents are slashed, belongings destroyed, batons reign down on defenceless bodies. Smoke regularly fills the air where informal encampments have been doused with petrol and set alight. Guns are pointed in faces, bullets shot through water tanks and into the air. Dogs tear chunks out of malnourished limbs. On the other side of the border, the threat continues far into the EU. Croatian special police forces patrol deep into the interior, picking up passengers and dumping them illegally back over the border into Serbia in what are known as push-backs. After every attack, once the men had returned we did our best to help pick up the pieces, dressing wounds, taking reports, and replacing belongings that had been destroyed. The stories all painted a similar, chilling picture, differing only in the levels of brutality exercised in them. “They beat you. They smash your phones. They take your money, your clothes, your bags,” 22-year-old Javad told us. “They leave you to freeze. They punish you in different ways”.

Far from the relative comfort of the town’s three government-run camps, which although cramped and underfunded, provide a roof, healthcare and three daily meals to anyone willing to register and help out with cleaning duties, the best chance at the game means a move to the informal settlements. Here, passengers sleep in tents or abandoned buildings just a few hundred metres from the border. The network of migration channels funnel people by their nationality, depending on personal connections and the ethnicity of those in charge. In Šid, this meant mainly Afghans. Men are usually sent ahead, braving the dangerous journey alone in the hope of reaching their destination and applying for reunion visas for their family. The journey isn’t safe for lone women. Only one was ever witnessed by the volunteers I met, and her brief stay soon became the stuff of legend. The atmosphere when we arrived at the squats each day was one of welcoming and happiness. But the horrors of home were never too far from conversation. Messy war wounds and infected cuts interspersed with neat rows of knife wounds, self-harm scars betraying an alternate reality. Mention of the wars brought a solemn mood. One young man, 19-year-old Mohammed, lost a brother in the Kabul Airport terror attack when we were there. He took a knife to his arm afterwards, sticking it so deep that it broke through each layer of skin. When we dressed the wound the day after he laughed it off, mimicking stabbing himself. He shrugged in resignation, as if to say, this is just the normal way of things. Throughout my stay Mohammed slowly deteriorated, each failed border attempt, each push-back, and each beating drawing him further and further inside himself.

Sid Picture 4

For the other tough yet damaged men of the squats, the scars of the past were worn inside. Stuck in a pressure cooker with border police creeping in from every side, the memories of home take on new dimensions of trauma. One young man, Abdul, was known as the greatest dancer in the squats. Always smiling, on his own or with a willing partner he would dance for hours, spinning and twisting beautifully to the sound of Pashto music pumping out of a beaten-up old speaker. One day, after knowing him for a while, he beckoned me over to look at his phone. Flicking through light-hearted TikToks – a common replacement for conversation to account for language difficulties – he paused on one. Different from the others, it showed bodies wrapped in sheets being loaded into a 4×4 in the dusty desert of Afghanistan. A man walked into the frame, a dazed and distant look on his face. “This is my brother”, Abdul remarked, staring intently at the screen. I noticed something strange about the brother’s arm. Looking closer, I realised it had been severed just below the shoulder. He was holding it, drenched in blood, in a cross-armed position. Abdul looked on in silence. After this there was no more dancing for the day, and he retreated into the bushes, no longer smiling. One of his friends told us, “for one hour each day, he is happy. The rest, like this.”

Good news in Šid came in rare but big doses. After countless attempts, the lucky and determined amongst the passengers began to evade capture and make it across the borders. On video calls back to the friends who had yet to make it, their faces showed pure elation, optimism at the chance of a new life that had been their foremost desire for years. Most went to Belgium, Germany, or France. I asked one group if any of them planned to go to the UK. “No”, they laughed in unison, explaining the difficulties of crossing the English Channel. “This border, big problem”. After so long spent locked outside the gates of the EU, the relief after reaching a safe haven and the endpoint of their long, harrowing journey was overpowering. Yet for some, Šid remains their final destination. One evening, stuck in a traffic jam on the way back from Novi Sad, I got the call that one of the men at the squats, 22-year-old Khalid, had been run over by a train. Exhausted and with nowhere comfortable to sleep, he had lain down on the tracks before attempting to sneak into an adjacent line of trucks heading out of town. After receiving a message of distress from his friends, some of the other volunteers went along to assist. They found the Serbian police lying in wait along the road leading to the tracks, more concerned with catching the others than helping. The officers demanded that they go first. When they found Khalid, moved to the side of the tracks and covered with a blood-soaked jacket, he was no longer breathing. “This migrant is kaput,” the officers said, kicking his lifeless body like a discarded plastic bag. Facing hostility up until his final breaths, he joins the countless number of displaced people who have died before reaching their promised destinations. Khalid had survived the war zones of Afghanistan, but he couldn’t survive Šid.

Sid Picture 5

Šid is far from an anomaly. The small snapshot outlined above, although bleak, presents a familiar story played out daily in the thousands of other border focal points spread across the world. A few weeks after I returned home to Glasgow, I saw on the news that thirty people had died in one attempt at crossing the English Channel, just kilometres from British Soil. Far from the unfamiliar expanses of the Balkans, these deaths are occurring right in the heartlands of wealthy Europe. The international border regime, designed to keep people in their place and profits on the move, is massacring people right on our doorstep. The blame may be heaped on smugglers, but they are merely a symptom of the wider rot that has spread across the world, a rot slowly eroding our humanity with the creeping rise of the far right, the militarisation of borders, and the criminalisation of humanitarian aid. In the name of the UK, the EU, and other hallowed institutions that so many liberals and leftists defend, these ramparts show the hard face of the relative comfort which they enclose. After being bitten by a police dog and unable to walk, one young man, an Afghan army soldier who had fled after being abandoned by coalition forces, voiced to me his anguish at the harshness of it all. “I want to go to Europe. I want to study. I want to sing”. For other Afghans like him, other Syrians, and the many other victims of war, climate change, and economic ruin who are spread across the world, journeys along routes such as the one through Šid show no sign of ending anytime soon. The people I met there are amongst the most inspiring I have ever met, far stronger and more resourceful than any right-wing politician, CEO, or business leader spouting the supposed benefits of anti-immigrant politics. Despite the vast defences encircling it, despite the states united against them, Europe still offers a safe haven for them and their families. But first, they have to get there.

*Names have been changed to protect identities.

By Murray Kemp, Law Clinic Alumn and Volunteer ‘Violence Border Reporter’ for No Name Kitchen

AN ASYLUM SEEKER’S CHRISTMAS

The Destitute Asylum Seeker Service (DASS) project came to an end on 30 November 2021. The law clinic was a partner of the project since it began in 2015. The partnership was led by Refugee Survival Trust and included Scottish Refugee Council and British Red Cross, among others.

The law clinic’s role within the partnership was to help people get a better understanding of their legal position and empower them to progress their claims with their solicitors.

Over the duration of the project, the clinic met with over 250 referrals and opened over 70 cases. Many new claims were submitted, granting 31 people status. A further 11 claims have been submitted and await an outcome.

During the project, many student advisers volunteered their time, including six project coordinators. They ran public legal education sessions on Scots law for asylum seekers and refugees. They performed forum theatre at the Edinburgh Fringe to raise public awareness of the problems facing destitute asylum seekers in the UK. During lockdown, they adapted the forum theatre into a short film for St Andrews Fair Saturday. Above all, they all worked incredibly hard to secure the best outcomes for clients. Many have continued working with refugees at home and abroad.

While we celebrate the successes for some of our clients, we also remember their difficult journeys to get there, and the many people who remain in limbo. This is particularly the case at Christmas, knowing that while many prepare to spend time with loved ones, many others face another year of poverty and isolation.

One way to help people in this situation over Christmas, and in the New Year, would be to donate to Refugee Survival Trust’s Winter Travel Appeal. This gives people in this situation some respite by helping them connect with others:

These aren’t just tickets for buses – they are tickets to meet basic needs, safety and companionship for refugees and asylum seekers who are separated from family and for those who face long journeys through Scotland’s notorious winter weather; and they are tickets to integration into the Scottish community, all things that we wish for every human being.

If you are able to donate, please do so here: https://localgiving.org/appeal/rstwinterappeal/?fbclid=IwAR1I-Poi6fdFfkVhoIUnc9-gXxTzslboEwigpfyYOP0HOeUTcLRlAR1PqIU

We wish everyone a happy and peaceful holiday season, and a happy new year.

We have also shared a piece written by Paul Laverty, who has recently spent time at the Siberian border where there are several unofficial sites of refugees. Please see this piece, ‘Dear President Ursula Von Der Leyen’, below.

Gillian Melville, Clinic Supervisor

Reshare: Dear President Ursula Von Der Leyen

OPEN LETTER.

 

C/O The European Commission,

B – 1049

Brussels

Belgium

 

2nd of December 2021

 

FOR THE ATTENTION OF PRESIDENT OF THE EUROPEAN COMMISSION URSULA VON DER LYEN

 

REF: “GOING TO THE GAME”. 

 

Dear President Ursula Von Der Leyen

 

I notice that you have been awarded “the global citizen prize for world leader” in December 2020.  

 

I also notice from your twitter feed that you are a President of action; photos of you making calls to world leaders in every sphere, from politics, medicine, world business, security, and much besides. 

 

I note too your vociferous support for sanctions against Belarus after the brutal treatment of civilians by dictator Lukashenka.  

 

I also notice from your CV that you are a physician and a mother seven children. 

 

Given all of the above I thought you might be the right person to write to on the following matter. 

 

Could you pick up your phone once again and use your considerable influence to stop the systematic punishment beatings by Border Patrol forces of several European countries that are part of the European Union?  

 

During the last week of November 2021, I was privileged to accompany Doctor Marco Aparicio, a top flight Professor of law from Girona University specialising in human rights, and a dynamic Serbian NGO called ClikActiv, as they brought aid and legal advice to six unofficial sites of refugees on the Serbian border with Croatia, Hungary, (both EU members) and Romania.  Most of the refugees we met were fleeing the chaos and violence of Syria and Afghanistan.  

 

In the woods, around simple fires and make shift tents, we spoke to people in small groups of 2 or 3,  and in some places up to a dozen at at a time. 

 

One moment was particularly memorable; after hearing their stories I asked one group if they had all been beaten by border patrol forces.  Several burst out laughing.  What a strange question it seemed to them.  Of course they had all been beaten up, and many many times.  They looked at me as if I was an alien from another planet…..how could I not know?  

 

Too many faces come to mind but Ali’s was particularly grey and drained.  As we talked about his attempts to cross into Hungary from Serbia, he told me of his experience at a previous border as he crossed from Turkey into Greece.  They were on a little boat on the River Evros.  Greek commandos threw them into the water.  Ali made it to the Greek side, but his cousin Sarbast Mustafa disappeared and has not been heard of since, presumed drowned.  The commandos smashed Ali’s phone,  stole his money, and then to humiliate the young man even more stripped off his clothes and sent him back to Turkey again in his pants.  

 

But Ali came back, made it through Greece, Macedonia, Kosovo, Serbia,  and now confronted the latest barrier, the triple barbed wire fence to Hungary, its Patrol Forces, and their dogs.  

 

As the sun set and the freezing cold swept over everyone, many would prepare for the next attempt at the border.  A tell tale sign were groups huddling together, plastic bags in their arms, and many sipping on a high energy drink for the battle ahead.  

 

They called it “going to the game”.  

 

“Are you going to the game?” echoed around camp fires,  repeated in multiple languages from Arabic to Pashto. 

 

George, 21, from Cameroon, was fleeing Boko Haran.  How he made it across half the African continent, deserts, and the Mediterranean Sea, I do not know, but as we contemplated the freezing river at dusk it seemed like an unbearable task.  “I’m going to swim it tonight” he said.  He was chuffed I knew of the famous Cameroon footballer Samuel Eto’o considered one of the best strikers in the world who had once graced the Nou Camp of Barcelona.   He seemed to appreciate a little idle chat before going to the game of a more deadly kind. 

 

He too had been regularly beaten up, had his phone smashed, money stolen, but for him the most frightening experience was having guns pointed at him at close range by screaming patrol guards shouting they were going to shoot him. 

 

Do you think this is an exaggeration?

 

On consecutive nights I spoke to young activists from two inspiring NGOs, No Name Kitchen, (founded by Spanish activists)  and Collective Aid.  Three young women from Italy one night, and then 3 young women from the UK the next.  One was a young doctor from Florence and she described the misery of scabies for the refugees and how it was impossible to keep clean.  The itch would drive them mad, and the constant scratching would lead to infections.  Libby, a young Geography graduate from Bristol, described the difficulty of trying to treat the wounds from the barbed wire, the flailing tails of which were so sharp they would slice through flesh and leave deep flapping wounds. Infections from dog bites was another grave concern. 

 

Again, both organisations confirmed the systematic nature of violence against the refugees; from casual beatings, to smashed phones, to robbing their money and destroying their documents. ( I noticed several young men in totally inappropriate plastic sandals.  Many had lost their boots after having them slit open by the Border Patrols looking for hidden cash.  No Name Kitchen and Collective Aid did their best to find boots that would fit the travellers; each item of clothing gratefully accepted like a precious gift.) 

 

Each phone destroyed, or money stolen, has catastrophic consequences for the refugee and their families back home who would once again have to borrow, sell possessions, or beg for more funds to send to their isolated son, daughter, or partner; the cruelty and consequences multiplied in distant lands. 

 

All of the above has made me wonder President Von der Leyen if you and all your colleagues in the European Commission know this is going on at your borders?  

 

I see from your CV that you were once the Minister of Defence in Germany from 2013 to 2019.  I hazard a guess that your connections to the security forces and intelligence are of the highest order.  

 

A cursory glance at the net shows an impressive array of evidence backing the assertions of the refugees we met at the border last week.  

 

In particular the work of the Border Violence Monitoring Network (https://www.borderviolence.eu) made up of several NGOs working on the ground at the border hotspots.  As someone like you with your finger on the pulse would probably know they published a Black Book of Pushbacks in December 2020 collating the experience of 12,654 cases of abuses along the borders of Greece, Croatia, Slovenia, and Hungry on the so called infamous Balkan Route. 

 

Evidence from other bone fide human rights organisations support the above. Since you are such a frequent user of twitter you will have seen footage of Border Patrol beatings put up on the net taken by brave witnesses, and inventive investigators.   

 

I think we can take it President that you and your colleagues know of the systematic nature of European state violence? Or do you have the brass neck of a Luckashenka to do a Pontius Pilate?

 

This begs some simple questions. 

 

What is the chain of command? 

 

It would be naive to expect to find a live trail, but it is a fascinating question. 

 

Perhaps it all resorts to the time honoured “nod and a wink”.  You know, I know….we don’t have to ask any questions. 

 

Hierarchical organisations have order in their DNA.  Somebody has to give the commands to the Border Patrol, Police, Army, Commandos, that turn up for their shifts each day and night, of what is allowed and what is not.  Commanders must be in contact with their national politicians, and national politicians are in constant contact with their European partners.  Or do you expect us to believe that thousands of security forces in multiple countries  have spontaneously transformed themselves into thugs? What a sense of impunity these forces must feel if they can abuse so many so casually.  How many have been murdered like Sarbast Mustafa? 

 

A nod and wink? Of course it suits the civilised capitals of Europe and the European Commission, and the UK too, when all the dirty work can be outsourced to the woods, the rivers, the seas, and the mountains under night fall.  

 

But there is something you, and all the nodders and winkers, and the designers of the barbed wire, the night visions, the batons and the entire billion-dollar infrastructure of intra-state cruelty do not understand. 

 

You can see it in the glint of George’s eye as he snaps open an energy drink as he goes to the game.   It is courage beyond words, it is hope beyond the evidence, it is desperation as deep as the oceans they cross; it’s the life force itself.  They will not be deterred.  Yasser from Syria told me as he shivered in the freezing night on the 24th of November by an abandoned milk factory with the Hungarian border fence in view.  “If I go back to Syria they kill me…. what choice do I have, so I go to the game.” 

 

What happens on our borders is a microscope on our changing world. How we treat the refugees is a microscope on ourselves.  Tens of thousands flee war, and now many more will flee the effects of climate change. Already on the African Sahel many are on the move after drought has destroyed their crops. They move or they die.  

 

Cop 26 in Glasgow made it crystal clear the world faces the interconnected challenge of climate change and mass migration; gargantuan risks of multi-layered complexity. 

 

We face a self-defining choice.   Do we have a rational humane plan, (many organisations are working hard on practical policies) co-operate between nations share resources, imagine solutions, respect international law, or do we pointlessly inflict more cruelty and misery on our most vulnerable fellow human beings, victims many times over.   Dear President Von Der Leyen, when the numbers of refugees increase, as they will, how long before the game becomes more deadly? How long before shoot to kill?  

 

Unimaginable, isn’t it? 

 

Time to pick up that phone.   

 

Yours,

Paul Laverty

 

PS.  If any reader would like to know more about the organisations mentioned or donate, their sites are below.)

MY FIRST YEAR IN THE CLINIC

(Judith Raskin, Student Advisor)

Student advisor, Judith Raskin, briefly reflects on her first year in the law clinic.

I wanted to join the Law Clinic after hearing the amazing things that it was achieving for people seeking access to justice. The initial advisor training taught us how to conduct interviews and draft documents that would be necessary for any case we worked on; it was extremely beneficial and the advisors who ran it were very helpful.

In November 2020, I was assigned an employment case that dealt with race discrimination, unfair dismissal, and unlawful deduction of wages. When I was first made aware of the details of the case, I was overwhelmed because of its content and the thought of representing an actual client at a Tribunal was daunting yet exciting! Every meeting with our client, I was more and more comfortable discussing the case; I now know that this will help me during my traineeship.

In September, my co-advisor, Carmen, and I represented our client at a 5-day Tribunal Hearing which was exhilarating! Carmen led the questioning whilst I oversaw taking notes and finding the relevant documentation for our questions and cross-examination. Carmen is an experienced advisor, and she was most helpful throughout the entire process; she broke everything down for me so that I understood fully the ins and outs of the law surrounding the case. The Judge that presided over our case pointed out where our arguments were strong and where they were not. We are now awaiting judgment and we really hope that it is in our client’s favour. The Hearing was all conducted online which was a surreal experience. I never thought I would be representing my first ever client from my desk in my bedroom!

Joining the Law Clinic has been one of the best decisions I ever made, and I feel very privileged to be a part of it. Since finishing my first case, I have participated in a few of the Initial Advice Clinics which has been a really great experience overseeing a qualified solicitor conduct an interview with a client. I am hoping to get another case soon as I really enjoyed the first one.

Judith Raskin, Student Advisor.

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My first case – a SSSC case

(Melissa McKillen, Student Advisor and Elected Member, and Ronan Leslie, Student Advisor and Deputy TAP Coordinator)
 

Student advisor, Melissa McKillen, reflects on her first case with the Law Clinic. Melissa considers what she has learned from working on the case and from her experience of representing a client at a virtual hearing. 

 

At the beginning of this academic year, I represented one of the Law Clinic’s clients at the SSSC Fitness to Practise Panel impairment hearing along with my co-advisor, Ronan Leslie. This was the culmination of six months of casework (and all of the interviews, research, phone calls, Zoom meetings and letter-drafting that casework entails), and it would be the end of my first ever case with the Clinic. 

 

For law students, the opportunity to represent clients in forums like the SSSC hearing is invaluable. While hearings in these strange times are somewhat removed from what we might have imagined as we applied to university – this particular hearing took place on Microsoft Teams, rather than at the SSSC’s offices in Dundee – it could well be said that the lessons to be taken from such experiences remain the same.

 

I believe that two of these lessons were particularly important.

 

The first is that the outcome of a case will not necessarily fit into the binary of an outright ‘loss’ or an unmitigated ‘win’. Sanctions imposed by the SSSC are numerous and varied; each is located along a spectrum and may be combined with further sanctions. As far as a client appearing at the hearing is concerned, the imposition of any sanction short of a removal order may fit their definition of a successful outcome; or, a client may consider the imposition of even the lightest of sanctions to be an injustice. Therefore, a client’s conception of a successful outcome, rather than a representative’s own definition of a ‘win’, is paramount. At the same time, however, we as advisors have a duty to manage our clients’ expectations as to what the Panel might decide, so that they might instruct us accordingly.

 

The second lesson is that the representation that the Law Clinic provides to our clients really can, and often does, make a significant difference to the outcome of a given case. As the hearing went on, Ronan and I remarked during several of the adjournments that we felt as though the case was on a knife-edge. It is worth considering, then, how our client’s case might have fared had they attended the hearing without representation. While we are not lawyers, the Law Clinic and our supervisor, Gillian Melville, had equipped us with the acumen and the knowledge to secure the best outcome that we could possibly have hoped for in this case. The experience of representing a client at a hearing in which they stood to lose their livelihood has thrown into bold relief something that previously I had known only in theory: that law clinics such as ours serve to level the legal playing field between those whom we represent, and their opponents.

 

I am immensely proud of the work that Ronan and I did on this case, and I am delighted with the outcome of the hearing. Of equal importance to me, however, are the lessons that I have taken from my experience at this hearing, which I can apply to my next case.

 

Melissa McKillen, Student Advisor and Elected Member

 

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Review: Francisco Sindico, ‘Paris, Climate Change, and Sustainable Development’

Two of the longstanding tensions (on mitigation/adaptation and on loss and damage) in international discussions around climate change stem, ultimately, from the same source: the significant disparities between the Global North and Global South. The enduring principle of ‘common but differentiated responsibilities’ (one of the highlights from the 1992 Earth Summit held in Rio de Janeiro) pre-dates and informs the present COP system, including the new Glasgow Climate Pact agreed just days ago. At the heart of this principle is an acknowledgement that different states have different capacities to respond to climate change, especially while simultaneously developing economically. Indeed, even today, addressing historical emissions and centring climate justice remain contentious.

As many will know, the University of Strathclyde Law School hosts the Strathclyde Centre for Environmental Law and Governance, founded by Dr Francesco Sindico, who remains one of its co-directors. With COP26 having just ended its two-week presence in Glasgow, and with the city giving its name to the resulting Glasgow Climate Pact, it seems only fitting to turn to local experts for guidance on understanding and navigating these tensions.

For context, 2015 marked both the adoption of the Sustainable Development Goals (SDGs) and the Paris Agreement (130-131). Dr Sindico’s article draws out and expounds upon the linkages between the two, providing excellent background from which to understand how the Glasgow Climate Pact must also weave sustainable development through its text. The importance of sustainable development to ‘mitigating and adapting to climate change’ (131) and addressing ‘loss and damage’ (ibid) cannot be overstated. The wealth of the Global North was built on colonialism, industrialisation, resource extraction, and, yes, slavery; there is a reason why Dr Walter Rodney’s How Europe Underdeveloped Africa is a seminal text in contemporary African studies.

Dr Sindico’s discussions from section 3 to the end of section 4.1 (133-139) should be mandatory reading for anyone seeking to understand the decisions taken at COP26 and their relationship to the SDGs. In addition to the Glasgow Climate Pact, the plenary session of CMA3 (Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement) adopted a more concrete package for the operation of the mechanisms and rules in Article 6 of the Paris Agreement on mitigation/adaptation. On loss and damage, however, COP26 disappointed, acknowledging the concept, but failing to provide a framework for making it material and meaningful. Ensuring that implementation of COP26 and the SGDs occur both intertwined and in parallel is vital, as Dr Sindico rightly expressed in relation to the Paris Agreement: ‘For this mandate to be successful, an integrated approach to the implementation of the Paris Agreement and the SGDs needs to take place’ (140).

It would be impossible to conclude this review without remarking on India’s last-minute amendment of the Glasgow Climate Pact to change the language in paragraph 20 from a phase-out of coal to a phase-down. This is a particular nexus of the apparent conflict between development and sustainability, giving rise to internal issues in sustainable development itself. It is no surprise that Tina Stege, the Climate Envoy for the Marshall Islands, referred to this change by saying, ‘It hurts to see that bright star dimmed’.

Maybe that ends up being the final tagline for the whole of COP26 and the Glasgow Climate Pact. There is something of a star, but like the hope of restricting global warming to 1.5 degrees, it is dim, indeed, and fading. For Indigenous peoples, for small island states, and for vulnerable people globally, the need for coordination on climate change and sustainable development could not be more stark.

Exemplary quotations:

‘If we agree that sustainable development and poverty eradication are central to the SDGs, and also that sustainable development provides the context in which the Paris Agreement operates, it is crucial that the implementation of the Agreement operates in the context of the SDGs.’ (132-133)

‘Loss and damage and disaster-risk management raise a further complexity in the relationship between the Paris Agreement and SDGs. The latter will sometimes point directly, but often indirectly, to other international legal instruments, institutions, and governance schemes that need to be considered when implementing the Paris Agreement. In other words, when dealing with the relationship between the Agreement and the SDGs, a much more complex and sophisticated legal and institutional framework, made up of links and regime overlaps, must be considered.’ (137-138)

‘The Paris Agreement and the SDGs must walk hand-in-hand and support one another.’ (141)

Review by Arün Smith, Student Advisor

Full citation:(2016) 6 Climate Law 130 <https://pureportal.strath.ac.uk/files/47008323/Sindico_CL_2016_Paris_climate_change_and_sustainable.pdf> (Open Access)

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Discussion on The UK Government’s New Immigration Bill – The ‘Nationality and Borders Bill’

(Image from UK Parliament, https://bills.parliament.uk/bills/3023)

Student Advisor and TAP Deputy Coordinator, Ronan Leslie, discusses what the bill means and the possible effects it could have to those in need.

The UK government’s flagship immigration bill has recently passed its second reading in parliament and is heading towards committee stage scrutiny. As it stands, the Nationality and Borders Bill contains provisions which seem to contrast with the UK’s international obligations. The stated aim of the legislation is that it will streamline the asylum process and help clear a backlog of cases. However, in reality, it seems likely to make the system more hostile and inaccessible to those in need

Differential Treatment

Section 10 of the bill is entitled ‘differential treatment of refugees’ and, in essence, creates a tiered system of refugees in the UK. A refugee can be treated as ‘Group 1’ if (1) they have come to the United Kingdom directly from a country or territory where their life or freedom was threatened and (2) have presented themselves without delay to the authorities. Additionally, if entry to the UK is deemed unlawful a further good cause condition is to be satisfied. Any person who does not satisfy these conditions is to be treated as a ‘Group 2’ refugee.

Why is this important? Firstly, the bill allows for immigration officers, tribunal judges, and the Home Office generally, to treat Group 2 refugees and their families ‘differently’. Differently, in this context, almost certainly means status as a Group 2 refugee will be treated as an aggravating factor in your claim for asylum, whilst limiting leave to remain given on arrival. But not only this, the bill makes mention of a difference in treatment with respect to section 3(1)(c)(ii) of the Immigration Act 1971, or as commonly known, ‘no recourse to public funds’. This means the bill will aim to stop Group 2 refugees from accessing any sort of welfare funding while awaiting their decision.

Conditions for Group 2 refugees

Condition 1 states that a refugee must arrive directly from their home country. This is concerning not only because this means that refugees who wish to be treated as Group 1 must either fly to the UK legally and directly, but also in regards to a further provision, section 14, ‘Asylum claims by persons with connection to a safe third State: inadmissibility’. This section allows judges to find asylum claims inadmissible if they have a relationship with a safe third country. The bill goes on to detail some very wide conditions that qualify this relationship. Most notably, s14(80C)(4) qualifies the sufficient relationship as having been ‘present in, and eligible to make a relevant claim to, the safe third State’. This condition appears so wide it would see almost all Group 2 refugees have their asylum claims deemed inadmissible, as it is almost certain that a refugee, not arriving directly, will at some point travel through, and may have been able to claim in, what is deemed to be a ‘safe third country’. Whilst ‘safe third country’ rules are already in place as immigration casework guidance this will be the first time they are placed on a stronger statutory footing.

Condition 2 states that a refugee should present themselves to the authorities without delay, a condition which taken alone may seem reasonable. However, further provisions in section 12 of the bill detail the creation of a requirement to make claims at ‘designated places’ selected by the Secretary of State and give relatively broad discretion as to where these might be. Worryingly, it is not clear what level of delay would lead to a contravention of this condition, and whether refugees may be allocated into Group 2 status for simply taking the time to find an appropriate place to claim.

Legality 

The bill, which passed unamended, seems almost certain to face litigation in many areas, not least for its seeming violation of article 31 of the 1951 Refugee Convention (see legal opinion obtained by Freedom from Torture at https://www.freedomfromtorture.org/sites/default/files/2021-07/Nationality%20and%20Borders%20Bill_second%20reading%20briefing_Freedom%20from%20Torture_0.pdf ), and contravention of the UN Global Compact for Safe, Orderly and Regular Migration (Marrakesh Compact) which prohibits regression of asylum laws (see https://rli.blogs.sas.ac.uk/2021/09/08/from-the-consultation-for-a-new-plan-for-immigration-to-the-nationality-and-borders-bill/).

What shouldn’t be relied upon, however, is the notion that litigation will save us from the intentions of this bill once implemented. The impacts will be felt by a great many already vulnerable people and there is a risk that quashing aspects of it through litigation may create a backlash, feeding the culture war, and potentially triggering a removal of Britain’s obligations to other international treaties.

Conclusion

In the bill’s introduction, the Home Secretary states:

‘The rapid intake of asylum claims has outstripped any ability to make asylum decisions quickly meaning caseloads are growing to unsustainable levels’

The  solution to clearing the backlog should not, however, be one that makes more cases inadmissible, especially given that there are other ways of clearing the backlog whilst still complying with international obligations (see https://www.unhcr.org/uk/609123ed4.pdf).

There are many provisions to fear in this bill (such as a section that seems to outlaw the Royal National Lifeboat Institution (RNLI) from saving drowning migrants in the channel) and it is encouraging that many organisations are seeking to challenge it. In the meantime, we should continue to help and support as many people as we can before this bill makes what is already a merciless process a whole lot worse.

Ronan Leslie, Student Advisor and TAP Deputy Coordinator.

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review: Goldburn P Maynard, Jr, ‘Black Queers in Everyday Life’

For those of us who straddle the transatlantic divide, front foot cautiously stepping onto these islands, back foot beginning to lift from the lands of Turtle Island (colonised as North America), October itself marks a month of intersections. In the UK, October is Black History Month, marked in February on the other side of the Atlantic; conversely, there, October is LGBT History Month, marked here in February. This week’s review seeks to honour Black queer/trans communities, exploring the tensions that result from failing to forever recognise the multiplicity of intersecting and overlapping identities.

Following on from the last review, it is important for me to situate my own social location here: not only do I straddle that transatlantic divide, but questions of racialisation and sexuality are always close to my heart as a queer person of colour. I acknowledge, however, that my racialisation is not the same as that which Black people experience, and for this reason, Dr Maynard’s words should take priority over my own. I also acknowledge that I will forever be in the intellectual, cultural, and moral debt of the trans women of colour who laid the ground for me.

There is an uncomfortable parallel at the beginning of Dr Maynard’s* piece given the events of this October. He begins by situating his analysis in relation to the previous Dave Chappelle ‘comedy’ special Sticks and Stones, in which Chapelle ’suggest[ed] that queers were all powerful’ (139). Chapelle’s most recent special The Closer took aim at trans folks in particular, exposing anew the tensions in ‘being asked to choose’ (142) between Blackness and queerness, something altogether impossible. The acceptance accorded to queer life over the last 20-30 years has been driven by ‘[a] form of “queer liberalism”, which co[n]signs racism to the past and erases the voices of people of colour’ (142), in effect, sanitising queer life into a whitened sepulchre of itself.

The pressure Dr Maynard feels invokes the precise social circumstances that gave rise to Kimberlé Crenshaw’s percussive contribution of intersectionality to the legal field (and expanding more broadly thereafter). While ‘[i]n activist communities, the struggle against police brutality has served as a convergence between anti-racism and queer liberation efforts[, t]here is a disconnect between the activist streets and some […] individual responses’ (144-145), not to mention the concerted attempts to demonise intersectionality and Critical Race Theory.

The final line of Dr Maynard’s piece is this:

‘I hope we move forward on this because microaggressions within minority communities are that much more painful and traumatic for the individual to recover from.’ (145)

I could not agree more, and as the Sheku Bayoh inquiry begins in earnest on 18 November, we have much to keep in to mind.

Black lives matter. Black queer lives matter. Black trans lives matter. All Black lives matter.

*Dr Maynard is Assistant Professor of Business Law and Ethics at Indiana University.

Exemplary quotations:

‘As white gay men began to climb the respectability ladder, queers of color were left behind. Parts of the queer community have contributed to the perception that “queer” equals “white,” by offering a safe, assimilationist version of queerness that increasingly stands in contrast to its more diverse beginnings.’ (142)

‘The activists seem to be clear on Black queer lives mattering, but I continue to worry about what happens outside of these spaces.’ (144)

‘A place to start is to explore some possible explanations for the phenomenon: (1) gaps in our teaching of intersectionality (e.g., not providing enough or the most illustrative examples); (2) a mismatch between the theory and some perceived reality that at times you do have to choose between identities (3) some resistance to theory in general because of its association with intellectuals and academia; (4) an almost inevitable reproduction of hierarchy that should be expected; and/or (5) real fears about the loosening of the Black coalition and its implications.’ (145)

Review by Arün Smith, Student Advisor

Full citation: (2021) 30 Tulane Journal of Law and Sexuality 139 <https://link.gale.com/apps/doc/A669352064/ITOF?u=ustrath&sid=bookmark-ITOF&xid=f8c5d8b7>

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Exploring the lack of legal challenges to legislation on self-directed support

The Centre for the Study of Human Rights Law, at the University of Strathclyde, working with Strathclyde Law School postgraduate students and student members of the University of Strathclyde Law Clinic,  partnered with In Control Scotland in order to undertake research pertaining to the implementation of self-directed support (SDS). In Control Scotland is a charity which promotes the development of self directed support(SDS)in Scotland. SDS gives individuals who are eligible for social care choice and control over the delivery of their care.

The research was motivated by an apparent lack of challenges relating to SDS since the Introduction of the Social Care(SDS) Scotland Act 2013.  The primary aim with this research is to identify  if, and if so where, there are barriers to complaints and remedies in SDS. For these purposes, the views of professionals such as law centre solicitors, advocacy workers were sought and 15 interviews were conducted.

The Law clinic’s Ifueko Joy Okungbowa was part of the research team and this report outlines their findings. 

Student researchers on a recent project examining the implementation of self-directed support share their findings, with a focus on legal representation and legal processes. The research team members were Law Clinic student Ifueko Joy Okungbowa, PhD student Charmaine Gittens, LLM Human Rights Law students Clare Gallagher, Saskia Harper, Sayali Walavalkar, and Jamie Walker. The research team was supervised by Mr Douglas Jack and Dr Elaine Webster from the Law School.

Challenging the implementation of the (Self-Directed Support) (Scotland) Act 2013?

Self-Directed Support (SDS) is governed by the Social Care (Self-Directed Support) (Scotland) Act 2013. It gives those who are eligible, and are in receipt of social care support, power and control over the delivery of their care. The aim of the Act is to place human rights at the heart of social care delivery and thus fulfil the requirements of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). As a result, the 2013 Act was hailed as transformative legislation.

However, several years on since the enactment of the legislation, there was a gap in knowledge regarding the implementation of the Act by local authorities. Were individuals making complaints about local authorities’ implementation of the legislation, and what was the outcome of those complaints? Were there barriers to making complaints and, if so, what were they? Why did it appear that there was an apparent lack of high profile legal challenges?

These are the questions that motivated a research project and report produced as a result of a year-long collaboration between the Centre for the Study of Human Rights Law (including postgraduate students from Strathclyde’s LLM in Human Rights Law), students from Strathclyde Law Clinic, and In Control Scotland, a third sector organisation working to improve the system of self-directed support. A series of interviews with advocacy and advice agency staff and law centre staff in the Scottish central belt, led to three key findings.

One was that, while  complaints processes were generally clear and not all participants saw complaints processes as unsatisfactory, there was an overwhelming view that these processes are problematic: inconsistent, unpredictable and dependent on various factors, including geographical location, and the individual receiving the complaint. North Lanarkshire stood out as having a relatively proactive approach, but this was not matched across the other local authorities examined in the research.

On the human rights dimensions, while the 2013 Act aimed to place human rights at its heart, the research indicated that there is still a lack of awareness and detailed knowledge of human rights and the relevant legislation that promotes and protects them, including, but not only,  the UNCRPD . Despite this, there was some suggestion that where complaints processes are framed around human rights, this could improve responses from local authorities. The research indicated that human rights law is generally under-utilised, yet it could be valuable to bring human rights to the forefront of implementation practices.

Limited availability of free legal advice

Finally, the research showed that if an individual wishes to escalate a complaint, beyond the local authority and complaints to the Ombudsman,  there is a demand for legal expertise, including within the free legal advice sector. This demand does not appear to be being met. The research suggested that the free legal advice sector in the central belt has limited experience of challenging decisions of local authorities under the 2013 Act.  Indeed, the research team’s efforts to recruit research participants from this sector had limited success, which was an early sign that there was a gap in this respect.

Both advocacy organisation and law centre staff participants commonly noted there are not enough solicitors with particular knowledge of the 2013 Act and its requirements. Interviewees further observed that some solicitors practicing in the field are reluctant to take on, or are prevented from taking on, SDS-related cases, due to  a lack of available legal aid funding. The lack of access to legal representation was further identified as one of the key barriers to a judicial review in relation to the failure to properly implement the 2013 Act. A further issue was that, even where legal advice was available, interviewees demonstrated that there is a lack of knowledge of these services among individuals claiming SDS.

The solicitors who did participate in the research painted a picture of limited access to legal representation. They identified low availability of specialised or knowledgeable solicitors, as well as issues related to the funding available for legal representation.

Human rights principles in practice and legal redress

Individuals, then, face barriers related to legal support and the legal process, which compound the other – structural, knowledge-related, and relational – barriers.

Clearly, improved implementation of SDS is the aim, as this will reduce the likelihood of recourse to complaints processes, and pursuing legal challenges must remain a last resort. As we know, of course, and as has very recently been shown in the case of Lennon v NHS Highland and Another in the Court of Session, even getting claims into the courtroom may not deliver the outcome that an individual is seeking. Nevertheless, we also know that formal legal channels for holding public authorities to account are an essential part of protecting individual rights (although human rights dimensions need to be recognised in the first place). Avenues of redress must remain accessible to all.

View the full report and a short briefing paper.

Review: Sophie Rigney, ‘Creating the law school as a meeting place for epistemologies: decolonising the teaching of jurisprudence and human rights’

Notwithstanding the aggressively academic title adopted by Dr Rigney – something I am in no position to criticise given the titles of my own works – this is an insightful and honest exploration of decolonising the curriculum in practice. It asks crucial questions about place and pedagogy, and it offers an excellent example of reflexivity, something not only relevant to all Law Clinic members, but also to a wider public genuinely interested in understanding what it means to ‘think of law as a dialogue’ (516), emphasising decolonisation.

Dr Rigney is explicit in the first part in situating her geographic, legal, and social locations, while navigating the meanings of place and space in a legal-academic context. As a settler (i.e non-Indigenous person) from nipaluna, on muwinina lands (now constituted/stated as Hobart, Australia), and an expert in International Law, she rightly does not shy away from questions of Eurocentricity, sovereignty, and settler colonialism. Indeed, she recognises that her role in decolonisation is ‘to practise being in discomfort and [to be] humble in a state of unknowing’ (509). She affirms that the multiple senses of ‘unsettling’ (510) are at the heart of decolonising.

In 2019, at the University of Dundee, she taught a module called ‘Justice, Law, and Human Rights’. She sought to bring the decolonial conversation into a particular Scottish space, following on from the work of other British scholars, like Dr Foluke Adebisi. Her reflections on attempting to pierce the imperial heart are profound and timely, and they should prompt important conversations about place and pedagogy here at Strathclyde, with legacies of slavery only minutes away.

Exemplary quotations:

‘[W]e must know what the law is; understand that as people trained in it, we are partly responsible for how it manifests or changes; and acknowledge the various harms enabled or caused by that law, as well as its structural conditions and what it makes possible’ (506).

‘Decolonisation is a process, and because it is rightly radical, it is also discomforting and must challenge current assumptions, denials, and power imbalances. [It] should be material [and meaningful], not metaphor’ (515).

Review by Arün Smith, Student Advisor

Full citation: (2020) 54(4) The Law Teacher 503 <https://www.tandfonline.com/doi/full/10.1080/03069400.2020.1827821>

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