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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Man cannot be stripped of British citizenship, rules Supreme Court

Bolivia-law-mother-earth-225x200

Secretary of State for the Home Department v Al -Jedda [2013] UKSC 62 – Read judgment / press summary

In late 2007, the Secretary of State for the Home Department made an order depriving Mr Al Jedda, who had been granted British citizenship in 2000, of his citizenship, under the British Nationality Act 1981. Section 40(4) of the Act prohibits the deprivation of nationality where the effect would be to render the person stateless.

Not being a citizen of any state can have profound effects on a person’s ability to live a normal life, including being unable to obtain travel documents and facing difficulty settling and obtaining work, education and healthcare. However, the Secretary of State considered that taking away Mr Al Jedda’s nationality was conducive to the public good.

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More developments under Schedule 7

img_6780706_340Sylvie Beghal v Director of Public Prosecutions, [2013] EWHC 2573 (Admin)read judgment

In a judgment with implications for the detention of David Miranda, the High Court has today dismissed an appeal against a conviction for wilfully failing to comply with a duty imposed by virtue of Schedule 7 to the Terrorism Act 2000.

The Court rejected the submission that the Schedule 7 powers in question violated the Appellant’s right under Articles 5, 6 and 8 of the ECHR. However, the Court urged consideration of a legislative amendment introducing a statutory bar to the introduction of Schedule 7 admissions in subsequent criminal trials.

Part of the following report is taken from the Court’s press summary, part is based on the judgment itself.

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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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European Court of Justice grapples with secret evidence in UK immigration case – Dr Cian Murphy

topsecretfile ECJZZ v Secretary of State for the Home Department [2013] EUECJ C-300/11 – Read judgment

The European Court of Justice has, in recent days, handed down a judgment that hits several hot buttons: UK immigration law, EU human rights, secret evidence, and suspicions of terrorism. In ZZ the Court has had to rule on the use of secret evidence before the Special Immigration Appeals Commission (SIAC).

Mr ZZ is an Algerian citizen. However, of crucial importance to his case is that he is also a French citizen, and therefore as an EU citizen, he is entitled to travel to and live the UK. Mr ZZ’s wife is a UK citizen and he was resident in the UK for a over a decade until 2005. In that year he travelled to Algeria but, upon return, was refused admission to the UK on national security grounds.

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The problem of ‘rebalancing’ Article 8

Queen delivers speechI have written an article for the New Statesman  on the announcement in today’s Queen’s Speech about Article 8 ECHR. It is here. Enjoy!

For more, see:

Denounce the ECHR to deport Abu Qatada… You cannot be serious! – Richard A. Edwards

mcenroeThe Guardian reports that Prime Minister Cameron is considering denouncing the ECHR on a temporary basis in order to facilitate the deportation of Abu Qatada. As tennis legend John McEnroe might have put it ‘you cannot be serious!’ In order to remove one man from the jurisdiction the government is contemplating removing the protection of human rights for all. One suspects that this announcement by Downing Street was little more than ‘dog-whistle’ politics with the local elections looming next week. But what if the government is really serious? Two quick thoughts come to mind.

Firstly, the UK is on the face of it able to denounce the ECHR under the terms of Article 58, though see below. But even after a denunciation the ECHR will remain fully applicable for six months. Presumably the government would wait for the six months to expire. It would then seek within domestic law to remove Qatada. As this would also require the suspension or repeal of the Human Rights Act 1998 this would require an Act of Parliament. No doubt a political and constitutional storm would break as a result. This would of course not be the end of the matter because the decision would be judicially reviewable, no doubt under an enhanced form of anxious scrutiny. How further forth would the government be then?

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Detention pending deportation without regular review breaches Article 5 of the Convention

prison2aAbdi v United Kingdom (application no. 27770/08) 9 April 2013 – read judgment

The Strasbourg Court has ruled that a Somali national’s detention pending deportation was not lawful under domestic law.

The following summary is based on the Court’s press release:

The applicant, Mustafa Abdi, is a Somali national who is currently detained in HMP Brixton. Mr Abdi arrived in the United Kingdom on 7 May 1995 and, although refused asylum, was granted exceptional leave to remain in the United Kingdom until February 2000. On 23 July 1998 he was convicted of a number of offences, including rape, and sentenced to eight years’ imprisonment. On 20 May 2002 the Secretary of State for the Home Department ordered Mr Abdi’s deportation and on 27 May 2002 he issued an authority for detention until the making of a deportation order. On 3 September 2003 Mr Abdi’s release became automatic; however he remained in detention on the basis of the authority issued on 27 May 2002. On 5 April 2004 the Secretary of State for the Home Department authorised Mr Abdi’s detention until his deportation. Continue reading

Last week not a good one for Theresa May: not just Abu Qatada


132957J1 v  Secretary of State for the Home Department, 27 March 2013 – read judgment

A UKHRB editor, Angus McCullough QC, was a Special Advocate for J1 before the Court of Appeal, but not in SIAC below. He had nothing to do with the writing of this post

Hot on the Home Secretary’s loss of the Abu Qatada appeal, a reverse for her in another deportation case about someone whom the Court of Appeal described as “an important and significant member of a group of Islamist extremists in the UK,” and who was said to have links – direct or indirect – with men involved in the failed July 21 2005 bombing plot.

The general contours of the case will be familiar to Abu Qatada watchers, with claims under Articles 3 and 6 of the ECHR  amongst others – that if J1 was returned to his country of origin (here, Ethiopia), his human rights would not be respected. There are however a number of interesting features about this decision of the Court of Appeal; firstly, it reversed a decision of  the Special Immigration Appeals Commission against J1 on Article 3 (recall the heightened regard for SIAC as a specialist tribunal in the Abu Qatada appeal) , and secondly (in dismissing the Article 6 claim) it illustrates graphically some of the dilemmas facing Special Advocates when representing their clients in the imperfect world of “closed procedures” (a.k.a secret trials).

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Court of Appeal rejects latest attempt to deport Abu Qatada

121113AbuQatadaMay_6898438Othman (aka Abu Qatada) v Secretary of State for the Home Department [2013] EWCA Civ 277 – read judgment

The Home Office last night assured its 70,000 Twitter followers that “it is not the end of the road”.  Yet by the time she had reached page 17 of the Court of Appeal’s dismissal of her latest attempt to deport Abu Qatada, it might well have seemed that way to Theresa May. 

In November, the Special Immigration Appeals Commission (SIAC) ruled that Qatada could not be deported to face a retrial for alleged terrorism offences due to the real risk of “a flagrant denial of justice”.  Read my post on that decision here.  Yesterday, Lord Dyson – the Masters of the Rolls and second most senior judge in England and Wales – together with Lord Justices Richards and Elias, rejected the Home Secretary’s appeal.

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The more things change…

Sir John Donaldson (National Portrait Gallery)

Sir John Donaldson (National Portrait Gallery)

Another title for this post might have been “they did not want to understand the judgment.”

In light of recent shenanigans, it seems apt to reproduce the first five paragraphs of the 25-year-old Court of Appeal judgment in (1) Nadarajah Vilvarajah, (2) Vaithialingham Skandarajah v Secretary of State For the Home Department 1990 WL 754859 (Update – download from BAILII here), which I was alerted to by a colleague. Sir John Donaldson, then Master of the Rolls, complains in withering style about media coverage of a recent judgment. The last line is the best, although a little depressing.

Lessons learned? The more things change, the more they stay the same. Political posturing over immigration and asylum law long predated the Human Rights Act. And Law in Action was as good then as it is now.

Here is a taster:

A human rights reality check for the Home Secretary – Dr Mark Elliott

teresa mayThe Home Secretary, Theresa May, is no stranger to ill-founded outbursts concerning the evils of human rights. Against that background, her recent article in the Mail on Sunday (to which Adam Wager has already drawn attention) does not disappoint. May’s ire is drawn by certain recent judicial decisions in which the deportation of foreign criminals has been ruled unlawful on the ground that it would breach their right to respect for private and family life under Article 8 of the European Convention on Human Rights. Some of these judgments, May contends, flout instructions issued to judges by Parliament about how such cases should be decided.

Those instructions consist of new provisions inserted last year into the Immigration Rules, the intended effect of which was to make it much harder for foreign criminals to resist deportation on Article 8 grounds. The Rules – made by the executive and endorsed by Parliament, but not contained in primary legislation – provide that, where certain criteria are met, “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”. The assumption appeared to be that this would prevent judges – absent exceptional circumstances – from performing their normal function of determining whether deportation would be a disproportionate interference with the Article 8 right.

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Why the Home Secretary’s attack on human rights judges is like a Bakewell tart

_64933580_3258529-low_res-the-great-british-bake-off-christmas-masterclassThe Home Secretary has launched a major attack on immigration judges in today’s Mail on Sunday, in language which even the Mail says is “highly emotive”. She finds it “depressing” that judges are consistently refusing to allow deportation of foreign criminals in “defiance of Parliament’s wishes”.

We will cover the issue in more detail by way of a guest post tomorrow, and you can read our analysis of the rulings which have caused her such annoyance but first I thought I would share a few thoughts.

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Extradition injustice remains despite European ruling in Radu – Alex Tinsley

ECJCase C-396/11 Radu [2013] ECR I-0000 – Read judgment

The European Court of Justice’s Grand Chamber has ruled that the Charter of Fundamental Rights does not allow refusal to execute a European Arrest Warrant (EAW) on the basis that the person was not heard by the issuing authority.

With reform of the EAW at the centre of the debate concerning the UK’s big 2014 opt-out decision, all eyes were on the Court of Justice of the EU (CJEU) when it gave judgment in this case widely seen as an opportunity for it to address some key issues in the operation of the EAW system. There is some disappointment at the outcome.

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Another critique of the new Immigration Rules’ codification of Article 8

aeroplane in sunsetIzuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) – read judgment

The Upper Tribunal has concluded that new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8 of the ECHR.

This is the second determination of the “fit” between the immigration rules, introduced last year, and the UK’s obligations under Article 8 of the Convention. I covered the Upper Tribunal’s assessment of the rules in MF (Article 8–new rules) Nigeria [2012] UKUT 00393 (IAC) in a previous post and it will be remembered that the Tribunal held there that the new rules fall short of all Article 8 requirements.

Background

The claimant was a Nigerian national who had raised a claim to private and family life under Article 8 of the European Convention on Human Rights as part of a claim for asylum. She had travelled to the UK previously, with periods of overstaying and having obtained employment by using false identity papers. Whist in the UK she met her husband, a dual British/Nigerian citizen and argued that her removal would interfere with her right to family life under Article 8. Continue reading