Law of armed conflict means that anti-detention provision in ECHR may be disapplied re Iraqi detainee

camp-bucca1Hassan v. the United Kingdom (application no. 29750/09) ECHR 936 (16 September 2014) – read judgment

This case concerned the capture of an Iraqi national, Tarek Hassan, by the British armed forces and his detention at Camp Bucca in southeastern Iraq during the hostilities in 2003. The complaint was brought by his brother, who claimed that Tarek had been under the control of British forces, and that his dead body was subsequently found bearing marks of torture and execution.  In essence, the case raised issues concerning the acts of British armed forces in Iraq, extra-territorial jurisdiction and the application of the European Convention of Human Rights in the context of an international armed conflict. This was the first case in which a contracting State had requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law, which allows the internment of prisoners of war at times of international conflict.

The Grand Chamber held that although Tarek Hassan had been within the jurisdiction of the United Kingdom between the time of his arrest by British troops until the moment of his release; there had been no violation of Article 5(1), (2), (3) or (4) (right to liberty and security) of the European Convention on Human Rights as concerned his actual capture and detention. The European Convention had to be interpreted in parallel with international instruments which applied in time of war. Four out of the seventeen judges dissented on this point. Continue reading

A novelist enters the Family Division

71BL6-VNgqL._SL1500_In his prolific career, writer Ian McEwan has brought us into the minds of physicists, neurosurgeons, conductors,  cultural and cold war spies and even stalkers. His most recent triumph is to have stepped deftly into the life of a High Court judge in the Family Division.

The Children Act is a short novel of great subtlety and tenderness. In his acknowledgements he says he has drawn on a “superbly written judgment” by Sir James Munby evaluating a child’s best interests in a dispute over ultra-orthodox education of the child of estranged Jewish parents (see Karwan Eskerie’s post on this case). One can see how McEwan was inspired by the judge’s nuanced approach, in which he sought to balance the significance of social and familial links as against an individual’s wellbeing; after all, a novelist’s job is to explore the nature of unhappiness. How irresistible then is an institutional figure whose very job it is to determine happiness and its opposite? Continue reading

Students without indefinite leave to remain are ineligible for student loans

loanimage0 R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 1216 (31 July 2014) - read judgment

The United Kingdom was not in breach of the human rights of those individuals ineligible for student loans because they did not have indefinite leave to remain in the country. The relevant legislation limits eligibility for student loans to those who are “settled” in the United Kingdom (within the meaning of the Immigration Act 1971 ) and who have been ordinarily resident in the UK for three years. According to the Court of Appeal, requiring the Secretary of State to link criteria for educational  eligibility to changes in immigration rules would “enmesh” him into immigration policy:

His picking and choosing candidates for settlement as eligible for student loans, while not … unconstitutional, would be a fragile and arbitrary basis for policy in an area where clarity and certainty are required.

This appeal turned on  issues in relation to the right to education under Article 2 of the first protocol (A2P1) and the prohibition of discriminatory treatment under Article 14 of the European Convention on Human Rights.

Continue reading

State should pay for representation and witnesses in private child disputes

Money purse - WalletQ v Q ; Re B (a child) ; Re C (a child) [2014] EWFC 31 – 6 August 2014 –  read judgment

Public funding is not generally available for litigants in private-law children cases, and no expert can now be instructed in such a case unless the court is satisfied, in accordance with section 13(6) of the Children and Families Act 2014, that the expert is “necessary” to assist the court to resolve the proceedings “justly”.   As the President of the Family Division observed, restrictions on legal aid in certain circumstances has led to a “drastic” reduction in the number of legally represented litigants:

The number of cases where both parties are represented has fallen very significantly, the number of cases where one party is represented has also fallen significantly and, correspondingly, the number of cases where neither party is represented has risen very significantly.

All this has led to increased calls on the Bar Pro Bono Unit, which is generally not able to meet the demand.

Sir James Munby P has therefore suggested that the cost of certain activities, such as bringing an expert to court and providing advice to parents accused of sexual offending within the family, should be borne by the Courts and Tribunals Service.   Continue reading

Victim of trafficking can claim compensation despite illegal entry to UK

human_traffickingHounga v Allen [2014] UKSC 47 – read judgment

The Supreme Court has ruled that victims may in some circumstance recover damages from their traffickers. Overturning the judgment of the Court of Appeal that the illegality of the underlying contract ruled out the claim for compensation, the majority held that to permit the trafficker to escape liability would be “an affront” to public policy. The judgment has far reaching implications in this area because, by its very nature, human trafficking often involves illegality.  Both the majority and the dissenters provide an interesting analysis and refinement of the law on illegality; as Lord Hughes observes:

It is in the nature of illegality that, when it succeeds as a bar to a claim, the defendant is the unworthy beneficiary of an undeserved windfall. But this is not because the defendant has the merits on his side; it is because the law cannot support the claimant’s claim to relief.

Conversely, when the illegality is not sufficiently closely connected to the claim, and can properly be regarded as collateral, or as doing no more than providing the context for the relationship which gives rise to the claim, the bar of illegality will not fall, as was decided in this case. Continue reading

Foreign criminal cannot be deported because of his right not to be discriminated against on grounds of illegitimacy

aeroplane in sunsetJohnson, R (on the application of) the Secretary of State for the Home Department [2014] EWHC 2386 (Admin) 17 July 2014 – read judgment

The proposed deportation to Jamaica of a man convicted of drug smuggling and manslaughter would breach his rights under Article 8 and Article 14 because he had not obtained British citizenship on grounds of illegitimacy, the High Court has ruled.

The claimant challenged his proposed deportation to Jamaica, following his conviction and imprisonment for a very serious criminal offence. He submitted that deportation would violate his right to private and family life under Article 8 combined with the prohibition on discrimination under Article 14. The discrimination was said to arise because the claimant did not become a British citizen when he was born in Jamaica as the illegitimate child of a British citizen, whereas he would have been a British citizen if he had been a legitimate child, and a British citizen cannot be deported.

Following his conviction for manslaughter the claimant was sentenced to 9 years’ imprisonment. The length of his sentence meant that he was subject to automatic deportation as a foreign criminal pursuant to Section 32 of the UK Borders Act 2007. On his appeal against the respondent’s notice, the issue of discrimination arose because of the fact that the claimant would not have been a foreign national had his British father been married to his Jamaican mother when he was born (in Jamaica). Continue reading

Minimum income rules for immigrants do not breach human rights – Appeal Court

money_1945490cMM(Lebanon) and Others, R (on the application of ) v Secretary of State for the Home Department & Anor [2014] EWCA Civ 985 (11 July 2014) – read judgment

Neil Sheldon of 1 Crown Office Row acted for the appellant Secretary of State in this case. He has not had anything to do with the writing of this post.

Provisions in the Immigration Rules which impose income requirements on individuals living in the United Kingdom, who wish to bring their non-European Economic Area citizen spouses to live with them, are not a disproportionate interference with their right to family life under Article 8 of the European Convention on Human Rights. The Court of Appeal has also underlined the important (but often misunderstood) point that there is no legal requirement that the Immigration Rules should provide that the best interests of the child should be determinative. Section 55 of the Borders, Citizenship and Immigration Act 2009 is not a “trump card” to be played whenever the interests of a child arise.  Continue reading