Category: Immigration/Extradition
28 December 2011 by Guest Contributor
Last Wednesday, the European Court of Justice issued a flurry of judgments just before the Christmas break. Indeed, there were so many interesting and important decisions amongst the twenty or so handed down that seems foolish to consider any of them the ‘most important’. Nonetheless the judgment in NS and Others v SSHD (C-411/10) must be a contender for the title.
The case concerns an asylum seeker in Britain who first entered the EU through Greece. The Dublin Regulation, which governs this aspect of EU asylum law, would ordinarily dictate that the applicant should be sent to Greece to have his asylum claim considered there. However, Mr Saeedi challenged his transfer to Greece, claiming that his human rights would be infringed by such a transfer as Greece would be unable to process his application. NS was joined with an Irish case, ME & Others v Refugee Applications Commissioner & MEJLR (C-493/10), which raised similar questions for EU law.
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6 November 2011 by Matthew Flinn
Raed Mahajna v Secretary of State for the Home Department IA/21/21631/2011 – Read Judgment
1 Crown Office Row’s Neil Sheldon appeared for the Secretary of State in this case. He is not the writer of this post.
The First-Tier Tribunal (Asylum and Immigration Chamber), has upheld the decision of the Home Secretary to deport Raed Mahajna, who had come to the UK to attend a number of meetings and speaking engagements.
Mr. Mahajna (also known as Raed Saleh) was born in Israel in 1968. He is however of Palestinian origin and has been a vocal critic of the Government of Israel. Aware of his intention to travel to the UK, the Home Secretary issued an exclusion order against him on the basis that he had publicly expressed views that fostered hatred which might lead to inter-community violence in the UK. However, this order was never served upon him, and he entered the UK on 25th June 2011. He was subsequently arrested on 27th June and detained until released on bail on 18th July.
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2 November 2011 by Adam Wagner
Julian Assange -v- Swedish Prosecution Authority – Read judgment / summary
Julian Assange, founder of the whistle-blowing website Wikileaks, has lost his High Court appeal against extradition to Sweden. He lost on all four grounds of appeal.
Unless he is granted permission to appeal to the Supreme Court under Section 32 of the Extradition Act 2003, he must now face charges of sexual assault and rape in Sweden. Appeals to the Supreme Court will only be allowed in cases where there is a “point of law of general public importance involved in the decision”.
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22 October 2011 by Guest Contributor
Adam Wagner’s October 19th post on Sir Scott Baker’s Extradition Review Panel report noted that the document “mostly backed the status quo,” calling attention to its rejection of proposed reforms to the “forum bar” rule, the US/UK Treaty, and the lack of a prima facie case requirement.
While it’s true that the Report left much to be desired for extradition reform campaigners, especially those focusing on US/UK extradition issues, reformers can take comfort in the Report’s response to proposed reforms of the European Arrest Warrant (EAW), which offered a rather different picture than was reported.
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19 October 2011 by Adam Wagner
A review of the UK’s extradition laws by a former Court of Appeal judge has found that existing arrangements between the UK and USA are balanced but the Home Secretary’s discretion to intervene in human rights cases should be removed.
The review by Sir Scott Baker was commissioned shortly after the Coalition Government came to power, fulfilling the pledge in its programme for government to ”review the operation of the Extradition Act – and the US/UK extradition treaty – to make sure it is even-handed”. In my September 2010 post I said that the review marked a victory for campaigners against certain extradition agreements, most notably the supporters of alleged Pentagon hacker Gary McKinnon (pictured).
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6 October 2011 by Adam Wagner
Updated |I have been sent the first appeal judgment in the political frenzy which has been termed “Catgate”. I had promised myself not to do any more Catgate posts or use any more cute pictures of kittens, but I have now broken that promise.
Having read the short, 6-page judgment dated 9 October 2008 by Immigration Judge JR Devittie – reproduced here by Full Fact – I will quote from it at length (apologies for any transcribing errors) and say the following.
First, on any reading, the judgment does not support the proposition the Home Secretary made in her speech: “The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.” For similar reasons, it does not support the Daily Mail’s headline from this morning: Truth about Tory catfight: Judge DID rule migrant’s pet was a reason he shouldn’t be deported. Back on to the legal naughty step, Daily Mail.
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4 October 2011 by Adam Wagner
Updated | Today the Home Secretary Theresa May gave a speech to the Conservative Party Conference in which she announced new immigration rules which would make it easier to deport foreign criminals.
May also gave three examples in support of the view that the Human Rights Act “has to go”:
We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had pet a cat.
The most startling of those examples is of course the final one, that an illegal immigrant could not be deported because he “had a pet cat”. As regular readers of this blog will know, there are plenty of mythical examples regularly peddled in order to criticise human rights law. Is the cat deportation one of them?
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2 October 2011 by Rachit Buch
Mahajna v Secretary of State for the Home Department [2011] EWHC 2481 (Admin) (30 September 2011). Read judgment.
1 Crown Office Row’s Neil Sheldon appeared for the Secretary of State in this case. He is not the writer of this post.
The High Court has ruled that detention of a Palestinian activist, whilst he was challenging the decision to deport him on public policy grounds, was lawful in principle. However, the failure to explain to Raed Salah Mahajna the reasons for his detention in a language he could understand rendered the first 35 hours of detention unlawful.
The treatment of foreign nationals pending deportation has provoked a good deal of controversy, as reported recently. These cases are primarily ones where deportation is considered to be conducive to the public good because of serious criminal offences committed by the individual. In this case however, no crime was committed, but a history of activism perceived as anti-semitic preaching was considered a threat to security in the UK.
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27 September 2011 by Guest Contributor
In A.A. v. the United Kingdom, a recent case involving the deportation of a young Nigerian man, the Court faced, once again, the question whether relationships between adult children and parents/siblings amount to family life in deportation cases. The Court’s Fourth Section did not give a clear answer to this question. The 24-year-old applicant resided with his mother and did not have children of his own [also see Rosalind English’s post].
In this post, I take a quick look at the Fourth Section’s reasoning on this issue and try to situate it in the wider context of the Court’s deportation case law. One word of caution: this is an attempt to briefly look at one specific question the Court asks to decide whether the deportation has interfered with an applicant’s right to respect for her family life. Do the ties invoked by the applicant constitute family life within the meaning of Article 8 § 1? To be more specific, do relationships between adult children and parents/siblings amount to family life in deportation cases?
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21 September 2011 by Rosalind English
A.A. v. THE UNITED KINGDOM – 8000/08 [2011] ECHR 1345 – Read judgment
The Strasbourg Court has ruled unlawful the deportation of a Nigerian man convicted of rape. Considering the facts of his case afresh, the Court came to the conclusion that the 24 year old student’s right to family life would be violated if he were removed to Nigeria.
The applicant arrived in the United Kingdom in 2000 at the age of 13 join his mother. At the age of 15, he was convicted of rape. After serving less than two years of his four-year sentence he was released on licence in 2004. The Home Office served him with a notice of liability to a deportation order on account of the rape conviction. Although the Immigration Judge of the Asylum and Immigration Tribunal (“the AIT”) allowed the applicant’s appeal, the Secretary of State’s appeal against this finding ultimately prevailed since it was found that the various factors in respect of his family life and his good conduct in remand did not outweigh the presumption in favour of deportation in accordance with the current version of the Immigration Rules.
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8 September 2011 by Adam Wagner
In a recent speech about the August riots, the Prime Minister bemoaned the “twisting and misrepresenting of human rights”. Unfortunately, this practice is common in the press, sometimes by accident but often by design.
One common accusation against the Human Rights Act is that it prevents the state deporting some foreign criminals. This is sometimes true; for example, the state cannot deport anyone if to do so would put them at a real risk of being tortured. But other law can be “to blame” too for preventing deportation of criminals, as was the case with Learco Chindamo, the killer of head teacher Philip Lawrence. This has not prevented the Daily Telegraph from again using his case as an example of human rights gone wrong.
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25 August 2011 by Isabel McArdle
There are somewhere in the region on 12 million people worldwide who have no nationality. Being stateless can create enormous problems, from being unable to rely on diplomatic assistance to having no home country with an automatic right to return to. The risk to stateless of people of having their human rights breached to is great. The United Nations has expressed its concern repeatedly, and is encouraging states to sign up to two conventions which provide basic rights to those without a state.
Back in March we considered a case where a man claiming asylum alleged that he was a member of a particular ethnic group which, it was accepted by the parties, is at risk of persecution in Kuwait. His claim failed as the court found him to be Kuwaiti. However, because he had no documents to show he was Kuwaiti, the Kuwaiti authorities would not allow him to enter their state. Hence the Catch-22 situation of many stateless people, where they cannot establish a right to reside in one state but have no other state to return to.
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3 August 2011 by Adam Wagner
G v E & Ors [2011] EWCA Civ 939 – Read judgment – 1COR’s Guy Mansfield QC appeared for the Respondent. He is not the author of this post.
Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 – Read judgment
The general rule in civil law cases is that the loser pays the winner’s legal costs, even if the case settles before trial. As with all general rules, there are plenty of exceptions, and many relate to public authorities. Two of those exceptions have just been chipped away at by the Court of Appeal.
Two important judgments increasing the likelihood that local authorities will have to pay out costs emerged the usual last-minute glut before the court term ended on Friday. The first concerned costs in the Court of Protection when an authority has unlawfully deprived a person of their liberty. The second was about costs in immigration judicial review claims which had settled following consent orders.
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25 July 2011 by Rosalind English
A A O v Entry Clearance Officer [2011] EWCA Civ 840 – read judgment
1 Crown Office Row’s Sarabjit Singh appeared for the Respondent in this case. He is not the writer of this post.
“No”, seems to be the Court of Appeal’s answer to the question posed by the heading above; indeed Rix LJ goes as far to say that “the provision of such money can be as much an insulation against family life as evidence of it.”
In this case the appellant, a 69 year old Somalian national who had been living in Kenya, appealed against the respondent entry clearance officer’s refusal to grant her leave to enter the UK to join her daughter. The daughter, who sponsored this claim, had been granted British citizenship. She had seven children and was living on benefits, out of which she sent a monthly contribution to her mother. The appellant, who was said to be in poor health and dependent on a neighbour for daily care, had applied for indefinite leave to join her daughter as a relative and financial dependant of a person settled in the UK under the Immigration Rules r.317. The entry clearance officer refused her request, having found that she did not satisfy r.317(iva) in respect of her ability to be maintained without recourse to public funds and that any interference with her rights under Article 8 of the European Convention on Human Rights was justified and proportionate for the purpose of maintaining effective immigration control.
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1 July 2011 by Matthew Flinn
IR (Sri Lanka) & Ors v Secretary of State for the Home Department [2011] EWCA Civ 704 – Read Judgment
The Court of Appeal has rejected an argument that Article 8 of the European Convention of Rights (ECHR), the right to private and family life, requires that those challenging deportation and exclusion decisions on grounds of national security in proceedings before the Special Immigration Appeals Commission (SIAC) have to be given sufficient disclosure of the case against them to enable them to effectively instruct the special advocate representing their interests.
In his book “The Rule of Law”, the late Lord Tom Bingham enumerated a number of sub-rules to give content to that cardinal, oft-cited but rather vague constitutional principle. Unsurprisingly, one such sub-rule was that adjudicative procedures provided by the state should be fair, an idea which found expression in documents as old Magna Carta. In turn, this entails that, as Lord Mustill stated in In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, “each party to a judicial process should have an opportunity to answer by evidence and argument any adverse material which the tribunal make take into account when forming its opinion”.
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