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

Retrospective legislation that interfered with judicial ruling violated the Convention and the rule of law

PoundlandR(on the application of Reilly (No. 2) and another) v Secretary of State for Work and Pensions, [2014EWHC 2182 (Admin) – read judgment

The High Court has issued a declaration of incompatibility following a successful challenge to the Jobseekers (Back to Work Schemes) Act 2013. The regulations under the Act that sanctioned those who did not participate in unpaid “work for your benefit” schemes by depriving them of an allowance violated the rule of law protected by the Convention and this country’s unwritten constitution. However, the dispute did not engage Article 1 of the First Protocol to the ECHR.

Factual background

The claimants, Caitlin Reilly and Jonathan Hewstone (CR and JH)  had been unemployed and claimed jobseeker’s allowance. They objected to participation in schemes devised under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, in which they were required to work for no pay. As a sanction, the allowance could be withheld from those who refused to participate. CR complied with the requirement under the regulations to take unpaid work at Poundland so did not suffer any sanction. However, attendance on the scheme meant she was unable to continue her voluntary work in a museum, which she hoped would lead to a career in museums (see my previous post on her successful challenge to the scheme).  After that ruling, the regulations were amended to overcome the defects identified by the court. But the 2013 regulations, which applied prospectively, had the effect of retrospectively validating the 2011 Regulations, which the Court of Appeal had held to be unlawful. Then the Supreme Court allowed the secretary of state’s appeal against the Court of Appeal decision on the basis that the Act was in force. But the declaration in favour of CR remained valid, following the 2013 Act and that Supreme Court judgment; indeed counsel for the Secretary of State acknowledged the fact that Ms Reilly’s position was “not affected by the 2013 Act.”

JH had not been a party to Reilly No. 1. but his position was  clearly affected by that ruling. After initial attendance on a scheme for some months, he refused to participate further, and so his JSA payments were stopped for four specified periods by way of sanction. He in turn had successfully appealed against sanctions imposed by the 2013 scheme. The secretary of state’s appeal against those decisions had been stayed pending the outcome of Reilly.

The claimants submitted that the 2013 Act was incompatible with their rights under Article 6. It was an intervention in the ongoing proceedings in Reilly No. 1 which had the effect of determining the litigation in the government’s favour by retrospectively validating its unlawful acts. It thereby deprived both claimants of a fair determination of their civil rights and obligations, contrary to to the first paragraph of Article 6.  JH also relied upon Article 1 Protocol 1, claiming that by withholding his JSA, the defendant deprived him of a “possession” to which he was entitled. He submitted that the deprivation could not be justified as being in the public interest.

The court allowed the applications in respect of Article 6 but not A1P1.

Reasoning behind the judgment

Article 6 and the rule of law

CR and JH had brought proceedings against the state. The 2013 Act was directly targeted at resolving the Reilly litigation. As such, this legislative act by the government had amounted to an interference in ongoing legal proceedings: it had influenced the judicial determination in the secretary of state’s favour in Reilly and was likely to do so in JH’s appeals. Although Parliament was not precluded in civil matters from adopting retrospective provisions,  it cannot legislate so as to interfere with the courts’ handling of disputes before them:

 the principle of the rule of law and the notion of a fair trial contained in Article 6 preclude any interference by the legislature–other on compelling grounds of the general interest –with the administration of justice designed to influence the judicial determination of a dispute. (Zielinski v France (2001) 31 EHRR 19)

Nor did the ruling in National & Provincial Building Society v United Kingdom (1998) 25 EHRR 127 avail the defendant, even though the Strasbourg Court ruled there that legislation to close an unforeseen tax loophole was compatible with Article 6. The government in that case, the Court concluded, had “compelling public interest motives” to make the applicant societies’ judicial review proceedings and the contingent restitution proceedings unwinnable.  By contrast, in the instant case the claimants could not have foreseen Parliament’s retrospective validation of its own unlawful act.

Although these principles emanate from decisions of the Strasbourg Court, in Lang J’s view, they also accurately reflected fundamental principles of the UK’s unwritten constitution, which enshrines the fundamental principle of the rule of law:

It requires, inter alia, that Parliament and the Executive recognise and respect the separation of powers and abide by the principle of legality. Although the Crown in Parliament is the sovereign legislative power, the Courts have the constitutional role of determining and enforcing legality. Thus, Parliament’s undoubted power to legislate to overrule the effect of court judgments generally ought not to take the form of retrospective legislation designed to favour the Executive in ongoing litigation in the courts brought against it by one of its citizens, unless there are compelling reasons to do so. Otherwise it is likely to offend a citizen’s sense of fair play.

The secretary of state submitted that there had been compelling public interest grounds for the retrospective legislation. Lang J acknowledged that it was understandable that a government faced with the prospect of substantial repayments would consider it in the public interest not to pay them. But it was apparent from Strasbourg’s judgments, such as Scordino and Zielinkski, that financial loss alone was not a sufficiently “compelling reason in the public interest”. If it were, then retrospective legislation of this kind would be commonplace.” (para 107).

Not only was there insufficient public interest to justify the retrospective legislation but the government had been aware of the concerns about the legality of the statute because it had been brought to the attention of its proposer by the report of the Constitution Committee. One of its members, Lord Pannick, told the House:

this Bill contravenes two fundamental constitutional principles. First, it is being fast-tracked through Parliament when there is no justification whatever for doing so. Secondly, the Bill breaches the fundamental constitutional principle that penalties should not be imposed on persons by reason of conduct that was lawful at the time of their action. Of course, Parliament may do whatever it likes – Parliament is sovereign – but the Bill is, I regret to say, an abuse of power that brings no credit whatever on this Government.

Whilst judicial review is more properly concerned with the substance of the legislation, not the reasons for it, Lang J wryly observes that the absence of any consultation with representative organisations, and the lack of scrutiny by the relevant parliamentary committees, “may have contributed to some misconceptions about the legal justification for the retrospective legislation.” (para 96). The government’s statement to Parliament explaining why the 2013 Act would be Convention compatible had not explained that Parliament was being asked to justify a departure from the legal norm, which would only be lawful if made for compelling public interest reasons. Further, the statement had erred in concluding that the case was comparable to National & Provincial as the legislation would be closing a loophole. It was not accurate to characterise the flaws in the 2011 Regulations as a loophole. The 2013 Regulations had remedied the technical defect identified by the court in the original Reilly litigation, but that did not mean there were compelling grounds to justify the interference with CR and JH’s rights under Article 6 to a judicial determination of their claims. The 2013 Act therefore violated Article 6(1) in relation to those who had pursued claims in the courts or tribunals.

Article 1 Protocol 1: had the Second Claimant been “deprived” of his “possessions”?

JH failed in his claim that he had suffered a violation of the right to respect for peaceful enjoyment of possessions. This was not because he had succeeded under Article 6 –  the rights protected by the respective provisions were different (AXA General Insurance Ltd, Petitioners [2011] UKSC 46).  Lang J accepted the claimants’ argument that a wholly state-funded non-contributory benefit could constitute a possession under A1P1, but JH’s right to the allowance depended on whether he met the conditions for receipt of the benefit. He had not met the conditions for future payment. He had not been deprived of an existing possession because there was no revocation of benefits previously received. This was made clear in Moskal v Poland, where the Strasbourg Court observed that

Art. 1 of Protocol No. 1 does not create a right to acquire property. This provision places no restriction on the contracting state’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. ((2010) 50 EHRR 22)

It was clear from this statement of principle that, in order to establish a property right, the applicant must fulfill the requirements for receipt of the benefit at the relevant time.  Nor did he have a reasonable expectation that the allowance would be paid if his legal claim was successful. His claim was not an “asset” within A1P1.  His only reasonable expectation had been that his appeal would be determined in accordance with the law as it stood from time to time.

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France’s ban on religious clothing in schools did not prevent removal of asylum seeker there under Dublin Regulation

niqab R (On the application of Mofazzar Baradarn and Malik Baradarn0 v Secretary of State for the Home Department and the Sikh Council Hampshire 24 June 2014 [2014] EWCA Civ 854 – read judgment

David Manknell of 1 Crown Office Row represented the Home Office in these proceedings. He has had nothing to do with the writing of this post.

France is a country which observes its Convention obligations therefore it is not in breach of Article 3 or any other of the Convention’s provisions to return an asylum seeker thence under the Dublin Regulation, since that system provides that once a Member State has “taken charge” of an application for asylum (as France has in this case) it has exclusive responsibility for processing and determining the claim for asylum. The prohibition on religious clothing in public schools in France did not disclose a threat to the second appellant’s Convention rights.

Background facts

The appellants were Iranian nationals (father and daughter) who challenged the Secretary of State’s decision on 5 December 2011 to refuse their asylum claims on safe third country grounds and to remove them to France. France had accepted responsibility for their asylum claims pursuant to the Dublin II Regulation. Before Hickinbottom J, they objected to their return to France because under French law they were banned from the wearing of the burka and the niqab in public. They alleged that this would breach their rights under articles 3, 8, 9, 11 and 14 of the European Convention on Human Rights. Their claims were dismissed by the judge in their entirety. Maurice Kay LJ gave them permission to appeal in relation only to articles 8, 9 and 14 by reference only to the French Law 2004-228 (“the 2004 law”) and in relation to section 55 of the Borders, Citizenship and Immigration Act 2009 (“BCIA”). The 2004 law had not featured in argument before the judge. It was, however, common ground that the appeal was concerned with the 2004 law and not the 2010 law. The 2004 Law provides that “in public elementary schools, middle schools and secondary schools, the wearing of symbols or clothing by which the students conspicuously indicate their religious belief is prohibited”. Continue reading

Supreme Court rejects right to die appeals

Tony NicklinsonR (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant) [2014] UKSC 38 – read judgment

On appeal from [2013] EWCA Civ 961

The Supreme Court has declined to uphold a right to die a dignified death.  However, a glimmer is is to be found in this judgment in that two out of the seven justices who concluded that it was for the United Kingdom to decide whether the current law on assisted suicide was incompatible with the right to privacy and dignity under Article 8, would have granted such a declaration in these proceedings., particularly where the means of death was one that could have been autonomously operated by the disabled appellant, leaving no doubt as to the voluntary and rational nature of his decision.

But the majority concluded that this was a matter for Parliament, not for the Courts.

The following summary is from the Supreme Court’s Press Summary

Bacground 

These appeals arise from tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights (“the Convention”), and whether the code published by the Director of Public Prosecutions (“the DPP”) relating to prosecutions of those who are alleged to have assisted suicide is lawful. Continue reading

Old and minor convictions and cautions need not be disclosed – Supreme Court

criminal-background-checkR (On the application of T and another) (Respondents) v Secretary of State for the Home Department and another (Appellants) – read judgment

The Supreme Court has unanimously declared that government rules regarding the disclosure of spent convictions are unlawful and incompatible with Article 8 of the Convention.

One of these conjoined appeals involved T,  who was prevented from employment involving contact with children when  a police caution was disclose in respect of the theft of two bicycles when the respondent was eleven years old (see my previous post on the Court of Appeal judgment in T). In JB, the police issued a caution to a 41 year-old woman in 2001 when she was caught shoplifting (a packet of false fingernails).  In 2009 she completed a training course for employment in the care sector. She was required to obtain an “enhanced criminal record certificate” or ECRC, which disclosed the caution. The training organisation told JB that it felt unable to put her forward for employment in the care sector. Continue reading

Do Not Resuscitate notices: Patients’ rights under Article 8

Hospital-BedR (on the application of David Tracey, personally and on behalf of the estate of Janet Tracey (deceased)) v Cambridge University Hospital and The Secretary of State for Health with the Resuscitation Council and Others intervening (17 June 2014) [2014] EWCA Civ 822 – read judgment

Philip Havers QC, Jeremy Hyam and Kate Beattie of 1 Crown Office Row represented the appellant in this hearing. They have nothing to do with the writing of this post.

The Court of Appeal has declared that the failure of a hospital to consult a patient in their decision to insert a Do Not Attempt Cardiopulmonary Resuscitation Notice in her notes was unlawful and in breach of her right to have her physical integrity and autonomy protected under Article 8.

The Resuscitation Council, intervening, made the point that in recent years there has been a reduction of inappropriate and unsuccessful attempts at CPR . Their concern was that a judgment requiring consultation with the patient save in exceptional cases would be likely to reverse that process.

Background Facts

The wife of the appellant, Mrs Tracey, had been diagnosed with lung cancer in February 2011 and given nine months to live. Two weeks after this diagnosis she sustained a serious cervical fracture in a major road accident and was placed on a ventilator in a critical condition. When the medical team reviewed her treatment, a first Do Not Attempt Cardiopulmonary Resuscitation Notice was placed in her notes. However, she was subsequently successfully weaned from the ventilator and her condition appeared to improve. A few days later her condition deteriorated again and a second DNACPR notice was completed. Mrs Tracey died on 7 March. Continue reading