Supreme Court rules on EU conditions for asylum seekers

UK Border Agency officerEM (Eritrea) and Others v Secretary of State for the Home Department [2014] UKSC 12 – read judgment

The Supreme Court overturned the Court of Appeal’s decision on the correct test for when an asylum seeker or refugee resists their return to another EU country (here Italy) in which they first sought or were granted asylum. The parties before the court all agreed that the test applied by the Court of Appeal, namely a requirement for a systemic deficiencies in the listed country’s asylum procedures and reception conditions was incorrect. 

The Supreme Court agreed and held that even when the Dublin II Regulation was engaged, the correct test was that laid down in Soering v United Kingdom (1989) 11 EHRR 439  –  the removal of a person from a member state of the Council of Europe to another country was contrary to the ECHR “where substantial grounds have been shown for believing that the person concerned… faces a real risk [in the country to which he or she is to be removed] of being subjected to [treatment contrary to article 3 of the Convention].” 

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1940 Soviet massacre outside reach of European Convention, rules Strasbourg

Trzy_krzyze-1Janowiec and Others v Russia (Applications nos. 55508/07 and 29520/09)read judgment

The European Court of Human Rights (ECtHR) has held that it had no competence to examine complaints relating to the adequacy of Russia’s criminal investigation into events that had occurred prior to the adoption of the European Convention on Human Rights (ECHR) in 1950: namely the Katyń Massacre of 1940.

The applicants were relations of 12 victims of the Katyń Massacre. They had been executed by the NKVD together with over 20,000 other former Polish Army officers, government officials, and landowners. A criminal investigation into the deaths ran from 1990 until 2004 when the Chief Military Prosecutor decided to discontinue ‘Criminal Case no. 159’ on the grounds that any alleged suspects were dead.

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Human rights – coming to a private care home near you?

Winterbourne View

Winterbourne View

Human rights protection for residents in private care homes could be a step closer after the House of Lords passed an amendment to the Care Bill.

The amendment, moved by Lord Low of Dalston and supported by Lord Lester of Herne Hill QC and Lord Pannick QC, makes clear that a person who provides regulated “social care” is to be taken for the purposes of subsection 6(3)(b) of the Human Rights Act 1998 to be exercising a function of a public nature.

It is the latest development in a long-running battle to secure human rights protection for service users who are not in local authority-run care homes.

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Mental health detention powers must be reviewed urgently, says Parliamentary Committee – Lucy Series

Screen Shot 2013-08-14 at 09.57.43The House of Commons Health Committee has published a report (PDF) following its inquiries into the Mental Health Act 2007.  The MHA 2007 introduced several amendments to the Mental Health Act 1983 (MHA, as amended), some of which were very controversial at the time and continue to be so now.  The Health Committee’s report follows post-legislative scrutiny of the legislation by its parent department

The Committee’s report was very focussed on the rights of mental health patients guaranteed by Article 5 ECHR and the MHA itself.  Those with an interest in mental health human rights will, however, notice that the radical challenge to detention and involuntary treatment under the MHA from the UN Convention on the Rights of Persons with Disabilities was absent from their discussion.

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UK court ducks position on circumcision

605islamSS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888 - read judgment

This case concerns a hitherto little-explored aspect of the right to a private and family life: a parent’s opportunity to teach their offspring about their own religious faith.

This is also a subset of the right under Article 9 to practise one’s own religion. This question was raised in EM(Lebanon) (FC) v Secretary of State for the Home Department [2008] UKHL 64 but was only tangential to the main issue, which was the relationship between the appellant mother and her son as opposed to the father whose entitlement to custody would have been secured under Islamic law. Continue reading

Is complicity with the death penalty illegal? – Dr Bharat Malkani

Texas-death-chamber-007In a previous blog post on these pages, the case of Lindsay Sandiford was examined. Sandiford – a British citizen facing the death penalty in Indonesia – had asked the UK Government for funding to help her appeal, but was refused financial help. The Court of Appeal ruled in favour of the Government, stating that the decision to provide legal aid to a British citizen abroad is a discretionary matter for the executive.

Regardless of whether one agrees with the decisions of the Government and the Court, the case raises interesting questions about the obligations that are imposed on states that have abolished the death penalty. The primary duty on states is to simply refrain from imposing the death penalty, but it is possible to detect an emerging secondary obligation to refrain from facilitating the use of the death penalty elsewhere. This issue is particularly relevant to the UK, because although the UK takes a leading role internationally in campaigning for the abolition of the death penalty, there is evidence that the UK has on occasion aided the use of capital punishment elsewhere.

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The Times on Abu Qatada

Muslim cleric Abu Qatada prepares to board a small aircraft bound for JordaI have an opinion piece in today’s Times on Abu Qatada. It is behind a paywall so I can’t reproduce it here, but you can probably guess from the title what my theme is: Abu Qatada’s case shows the human rights system worksEnjoy (if you have access).

Here is a taster:

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High level Parliamentary committee asks whether mental capacity laws are working

Screen Shot 2013-07-03 at 09.23.12

Updated | The House of Lords ad hoc Select Committee on the Mental Capacity Act 2005 has now heard three sessions of evidence, and is currently calling for written evidence (deadline 3 September – details here).

The Committee, chaired by Lord Hardie (former Lord Advocate) and including such heavy-hitters as Lord Faulks (Ed Faulks QC as was) and Baroness Hollins (former President of the Royal College of Psychiatrists and current President of the BMA), aims to “scrutinise the legislation to see if it is working as Parliament intended” and to examined “whether the Government’s implementation programme was effective in embedding the guiding principles of the Act in every day practice, and whether there has been a noticeable change in the culture of care.”

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Brain-damaged claimant fails in Article 8 claim against Council

7c70bb7581834f77a7ca9f20e4dc6253Bedford v. Bedfordshire County Council, 21 June 2013, Jay J - read judgment

On 29 May 2004, Bradley Bedford, then aged 13, was beaten senseless by one AH, then 15, whom he had the misfortune to encounter entirely by chance near the seaside in Torbay. AH was in a children’s home there which was contracted to the Defendant Council; AH was a “looked after” child under section 20 of the Children Act 1989. Bradley sued the Council for failing to protect him. His claim was limited to one under the Human Rights Act, and Article 8 ECHR in particular.

Jay J dismissed the claim on the grounds that (a) it was brought too late; (b) there was not a real and immediate risk of harm to Bradley of which the Council should have been aware; (c) even if there was, the local authority took reasonable steps to eliminate or substantially reduce any risk. All these rulings are of some interest.

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Court lifts anonymity order in David McGreavy case

David McGreavyM, R(on the application of) v The Parole Board and another [2013] EWHC 1360 (Admin) - read judgment

Reporting restrictions on proceedings concerning a life prisoner should be discharged since the public interest in allowing media organisations to publish reports outweighed the prisoner’s human rights.

The claimant had been convicted of the brutal murder of three infant children in 1973. Subsequent to his incarceration in open prison, his movements had come to the attention of the press. Inmates made threats and the claimant was moved to secure conditions.  When he sought judicial review of a decision by the parole board in 2011 (declining his return to open conditions), the judge granted an order restricting reporting of  the claimant’s identity, the details of his offences and his current location.  In this hearing, various media organisations intervened to request the discharge this order. Continue reading

High Court directs major overhaul of Iraq death and mistreatment allegations investigation

iraqMousa & Ors, R (on the application of) v Secretary of State for Defence [2013] EWHC 1412 (Admin) (24 May 2013) – Read judgment

Remember the Iraq War? Following the 2003 invasion Britain remained in control of Basra, a city in South Eastern Iraq, until withdrawal over six years later on 30 April 2009. 179 British troops died during that period. But despite there over four years having passed since withdrawal, the fallout from the war and occupation is still being resolved by the UK Government and courts.

Thousands of Iraqis died in the hostilities or were detained by the British. Thanks to two decisions of the European Court of Human Rights in July 2011 (Al-Skeini and Al-Jedda – our coverage here), the state’s duty under the Human Rights Act to investigate deaths and extreme mistreatment applied in Iraq at that time. It is fascinating to see how the UK authorities have been unravelling the extent of that duty. The Baha Mousa Public Inquiry has reported and the Al-Sweady Public Inquiry is ongoing (I acted in the former and still do in the latter). In this major judgment, which may yet be appealed, the High Court has ruled the manner in which the UK Government is investigating deaths and perhaps mistreatment is insufficient to satisfy its investigative duty.

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Closing the loophole: Care services and human rights protection – Sanchita Hosali and Helen Wildbore

Care homeMuch of the House of Lords debate surrounding yesterday’s Second Reading of the Care and Support Bill focused on seeking solutions to complex issues around the future provision of care. Additionally, as several peers flagged, the Bill also provides a timely opportunity to clarify which bodies have legal obligations to uphold protections under the Human Rights Act. Baroness Campbell noted “those who receive their care not from a public authority but from a private body lack the full protection of the Human Rights Act…[This] is a loophole that must be closed.”

What loophole?

Section 6 of the Human Rights Act essentially creates a legal duty to respect, protect and fulfil certain human rights (drawn from the European Convention on Human Rights). This duty is placed on public authorities and those performing “public functions”. The second type of body – those performing public functions – has proved somewhat awkward in practice, particularly in relation to those who receive care services.

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New Guide to Mental Health Advocacy and Human Rights

Screen Shot 2013-05-15 at 22.31.48A quick post to draw your attention to the British Institute of Human Rights’ excellent  new publication, Mental Health Advocacy and Human Rights: Your Guide (PDF).

The Guide is aimed at non-lawyers, is attractively presented and looks very useful indeed. From the BIHR launch site:

This Mental Health Awareness week, BIHR is pleased to launch Mental Health Advocacy and Human Rights: Your Guide, our latest practical resource to help respect and protect the human rights of people with mental health problems.  This guide has been produced with Mind Brighton and HoveWish and NSUN, three of the partner organisations involved in our Human Rights in Healthcare project.

Aimed at both advocates and people who use services, this handy guide explains how the Human Rights Act can be used in mental health settings to secure better treatment and care for people. It draws on real life stories of how laws and legal cases can be used in everyday advocacy practice, providing helpful flow-charts, worked through examples and top tips.

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Local authority ordered to pay substantial costs in family human rights case – Adam Smith

A & S v. Lancashire County Council [2013] EWHC 851 (Famread judgment

This was a costs application arising from an extremely important decision by Peter Jackson J in June 2012 (see Alasdair Henderson’s post here and read judgment)

In that original judgment, Lancashire County Council were found to be in breach of Articles 8 (private life), 6 (fair trial) and Article 3 (inhuman treatment) of ECHR. Two brothers had come into local authority care as infants and were freed for adoption.

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The Tallinn Bronze Soldier riots – and why Russia was in Strasbourg

X20060505037_lKorobov and others v. Estonia, 28 March 2013, ECtHR read judgment

At one level, this is a story of Estonian police over-reaction to major disturbances on the streets of Tallinn, which will be found reproduced in various incidents throughout ECHR countries at various times of civil strife. But a good deal of history and politics lies behind it, and Russia’s intervention in Strasbourg, in support of the applicants’ claims under Article 3 (excessive force) and 5(1) (unlawful detention) against Estonia is of some interest. 

The Bronze Soldier, originally named “Monument to the Liberators of Tallinn” was unveiled there on 22 September 1947, on the third anniversary of that “liberation” in 1944. Not all – including ethnic Estonians – saw it as a liberation. The Germans had retreated before the Red Army arrived, and on 18 September 1944 the Provisional Estonian government had declared independence – short-lived as Estonia was rapidly incorporated into the Eastern bloc courtesy of the Red Army. So “takeover” might be a term closer to Estonians’ hearts.

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