Benefit tourists, an EHRC reverse, Mosley loses – the Human Rights Roundup
3 October 2011
Leap back
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news
An eventful week in Europe
Advocate-General Trstenjak has issued her opinion in NS v SSHD, a case currently pending before the Court of Justice of the EU. As reported by Cian Murphy for the Guardian, the case involves an Afghan asylum seeker who arrived in the EU via Greece before making his way to the UK to seek refuge.
Under the Dublin regulation it is for the EU country of first entry to consider the asylum claim, so the UK sought to return the claimant to Greece. The claimant then challenged his transfer by claiming that Greece was unable to process his case and that return would violate his fundamental rights. If he is successful, no asylum seeker could be returned to Greece under current conditions. In her opinion, AG Trstenjak made recommendations on a number of points, including the following:
1) After considering the position of the Greek asylum system, that to transfer the claimant to Greece would give rise to a real risk of violation of his fundamental rights.
2) That although the UK was ordinarily free to assume other member states would comply with human rights requirements, it was open to an asylum seeker to rebut that presumption. If the presumption is successfully rebutted, the UK should be obliged to protect the asylum seeker against that risk by processing his asylum claim.
3) That the ECtHR could not be taken as the decisive interpreter of the charter – that task fell to the Court of Justice of the European Union.
4) That the UK-Poland protocol (Protocol 30, discussed in our last roundup) on the EU Charter of Fundamental Rights was not an “opt-out” clause.
Murphy went on to remark that, although this opinion is based on solid legal reasoning, it:
has implications that are politically profound, [as] it effectively requires all other member states to carry Greece’s burden due to the country’s poor human rights record.
For other interesting commentary on the AG’s opinion, see the post by the Joint Council for the Welfare of Immigrants’ blog and the post by Rosalind English’s here.
Whilst on the subject of asylum seekers, see this story about a notice that appeared on the visual displays at Heathrow airport as reported by the Free Movement blog.
Right to reside no more?
A row between the EU Commission and Ian Duncan-Smith, a cabinet minister in the coalition-led government emerged last week, reported the Bagehot’s Notebook. The row involved allegations by Duncan-Smith that the European Commission is trying to force Britain to scrap a “right to reside test” that currently restricts access to a range of state benefits to EU citizens living in Britain.
The Commission argues that Britain does not need its own, home-grown right to reside test because the EU has agreed a separate “habitual residence” test, which Britain could apply in order to prevent benefit tourism. The Bagehot’s Notebook covers the row with a good explanation about the legal details of the dispute. The post, however, unfortunately does not provide us with a final answer on the matter. Any suggestions from our readers?
Finally, as promised last week, the EUtopia Law blog published the second part of a series of posts on the EU’s accession to the ECHR. These latest posts discusses the treaty basis for accession.
On the ECHR front…
In the wake of the Conservative Party’s conference, David Cameron and Theresa May have stated their wishes that the Human Rights Act were scrapped to give way to a British Bill of Rights.
In the Sunday Telegraph, May mentioned she would like to see the HRA go because of the problems she believes it has caused for the Home Office. For Cameron, the Act should go because, amongst other things, it has created a “chilling culture” within state institutions/bodies/agents. His comments were made during an interview on yesterday’s Andrew Marr show (from minute 43:15), where Cameron also said that part of the problem was to do with the judgments of the “European Court of Justice”, a court which does not (yet) make judgments on human rights.
The comments are in sharp contrast with those made by Nick Clegg during the Liberal Democrats’ conference, which reassured the Act was here to stay. The antagonistic view of senior government figures is bound to set a sour undertone to the soon-to-begin UK chairmanship of the Council of Europe, the international organisation under the auspices of which we find the European Convention and Court of Human Rights – see Adam Wagner’s post Reports of the Human Rights Act’s death have been greatly exaggerated.
Religion in the European Court of Human Rights
Last August Adam Wagner reported the Equality and Human Rights Commission’s decision to reverse its plan to intervene in two cases against the UK before the ECtHR in support of the claimants, to now intervene in support of the UK courts’ decisions. The cases involve religious believers who failed to convince the UK courts that they were being discriminated against in the workplace.
The EHRC had initially proposed an extension of the concept of reasonable accommodation beyond disability to include religion and belief – see Alasdair Henderson’s post: A leap of faith? This controversial proposal will no longer be argued. The Head of Legal blog has helpfully provided a link to the EHRC’s submissions to the ECtHR, which encompass the Commission’s new line of argument.
Mosley loses
The ECtHR’s has rejected Max Mosley’s request to refer his case against the UK to the Grand Chamber. See the Inforrm’s Blog’s commentary to the decision here.
The law on squatting: are we being misled?
Academics, solicitors and barristers who practise in housing law have written a letter to the Guardian raising concerns about media and politicians misleading the public on the law on squatting. The letter stated:
“We are concerned that a significant number of recent media reports have stated that squatters who refuse to leave someone’s home are not committing a criminal offence and that a change in the law – such as that proposed by the government – is needed to rectify this situation. This is legally incorrect (…) We are concerned that such repeated inaccurate reporting of this issue has created fear for homeowners, confusion for the police and ill informed debate among both the public and politicians on reforming the law.”
The letter also states that various MPs and ministers have given statements to the press that are misleading. Those who signed the letter are concerned that the above referred acts may prevent a proper debate over the value and effect of the new proposals to further criminalise occupation of buildings from taking place. This prompted a response written by Mike Weatherley MP, published by the same newspaper. The MPs’ response was addressed with humour by the Nearly Legal Blog. See Adam Wagner’s post on the subject here.
BAILII and the quest for open justice
Last week the legal information website BAILII found itself in the heart of the discussions about open justice. An article in the Guardian argued that its mechanism (which does not allow search engines to index its content) stands in the way of true open justice. Lucy Series, for the Small Places blog, and Adam Wagner have come out in defence of website. Lucy Series argues that without BAILII, the open justice agenda would be absolutely stuffed, whilst Adam Wagner points out that BAILII is currently underfunded and in risk of folding, something which he remarked would be a tragedy.
Other roundups
Don’t miss the chance to check out other great roundups of last week’s legal news, such as the Charon QC’s Law Review and 11KBW’s Panopticon blog on information law.
In the courts:
Ferdinand v Mgn Ltd (Rev 2) [2011] EWHC 2454 (QB) (29 September 2011)
High Court dismisses a claim by footballer Rio Ferdinand against “Sunday Mirror”. Although claimant’s Article 8 rights engaged, public interest in correcting false image promoted by him.
Mahajna v Secretary of State for the Home Department [2011] EWHC 2481 (Admin) (30 September 2011)
Detention of Israeli Arab activist Raed Salah Mahajna lawful save for 1.5 days when not told full reasons for detention.
W -v- M and S and A NHS Primary Care Trust [COP 1182483]
Court of protection: Not in woman in vegetative state’s best interests to remove artificial nutrition and hydration. Conclusions at para 249: “importance of preserving life is decisive factor in case”
BAH v. THE UNITED KINGDOM – 56328/07 [2011] ECHR 1448 (27 September 2011)
ECtHR: UK housing law (old system) not discriminatory in excluding asylum seekers from priority need status. See commentary by the Nearly Legal blog here.
…and don’t forget our recent posts:
- Israeli Arab activist detention was (mostly) lawful October 2, 2011 Rachit Buch
- Ferdinand v MGN – a “Kiss n’ Tell” public interest defence succeeds – Lorna Skinner October 2, 2011 1 Crown Office Row
- What is a life worth living? Further analysis of “M” – Daniel Sokol September 30, 2011 Daniel Sokol
- No right to die without a “Living will” September 30, 2011 Rosalind English
- Court refuses family’s “right to die” September 29, 2011 Rosalind English
- Detention of mentally ill foreign national violated Convention rights September 29, 2011 Daniel Sokol
- Strict liability for offence of under-age sex does not offend presumption of innocence September 28, 2011 Rosalind English
- When is family life family life? A look at deportation cases – Lourdes Peroni September 27, 2011 1 Crown Office Row
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P.P.S. Further to the above, if the Polish national I use as an example made a claim for Jobseeker’s allowance and began seeking work, she would thereby gain a ‘right to reside’ and could claim Child Benefit, Jobseeker’s Allowance, Housing Benefit, Council Tax Benefit. The test itself is not hard to satisfy, but for the impracticality of seeking suitable work when you have young kids.
In response to the EC’s threat to the UK, from a Welfare Benefits Advisor:
As far as I can gather the EC are saying that the ‘right to reside’ part of the two-part ‘residence test’ (which the UK imposes upon both non-UK EU nationals and returning UK nationals alike) is discriminatory because returning UK nationals automatically have a ‘right to reside’ whereas non-UK nationals don’t.
As outlined in Imm (EEA) Regs 2006, in order for non-UK nationals to satisfy the ‘right to reside’ test they must be a qualified person, that is:
– a jobseeker
– a worker
– a self-employed person
– a self-sufficient person (with comprehensive sickness insurance)
– a student (with comprehensive sickness insurance)
Family members of qualified persons also have a right to reside (i.e. the spouse, parent, descendent under 21, and some other extended family members with permits). You can also have a permanent right to reside after 5 years of residence where you have been one of (or a combination of) the above.
As the EC’s press release states, Article 4 of EC 883/2004 requires that, “Unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof.” That means non-UK nationals and returning UK nationals should be subject to the same obligations…
It’s quite clear that because the ‘right to reside’ part of the test is automatically satisfied by returning UK nationals (even if the second part, the ‘habitual residence’, test isn’t) the test as a whole is indirectly discriminatory; UK nationals have less obligation to fulfill than non-UK nationals (e.g. a Polish national who lives in the UK but is left by her partner and has to look after a 2 year old child would not have a right reside as she is not a qualified person and no longer a family member of qualified person. She would not be able to claim Child Benefit, Income support etc. but a returning UK national who is in the same position would have a right to these benefits as they automatically have a right to reside).
Is this indirect discrimination justified? Well, Patmalneice vs SSWP [2011](http://ukscblog.com/new-judgment-patmalniece-v-secretary-of-state-for-work-and-pensions-2011-uksc-11) The Supreme Court said “yes”; the test was justified in order to stop benefit tourism and protect the UK’s purse. But in that judgement, Lord Walker dissented and said the more probable reason the test was imposed was to discriminate against economically inactive non-UK nationals.
If Lord Walker was right, seems to me that the only way to bring the test in line with Article 4 would be to remove the right to reside part of the test (at an estimated cost of £2 bill, as Mr Duncan Smith warns) or, make it so that returning UK nationals must satisfy the right to reside test too. This way the test applies equally to both groups (this option might result in us saving some money)!
P.S. The example given in the EC press release of the Czech national who lived in Italy for 8 years then moved to the UK and worked for 2 years and tried to claim Jobseeker’s Allowance is a complete red herring. If she made a claim today, she would satisfy the right to reside test because she is here as a ‘jobseeker’. It’s that simple. There must have been far more at hand in this particular case than simply whether she had a right to reside and the press-release must have over-simplified the issue for ease of reading at severe detriment to the release’s accuracy. I have emailed them about this.