Immigration and Article 8: what did we learn in 2019?

17 January 2020 by

Field House, seat of the Upper Tribunal

Another year passes, with another series of higher court cases on human rights in the immigration context.

As in previous years, the courts in 2019 were particularly concerned with Theresa May’s attempts as Home Secretary to codify the Article 8 proportionality exercise into legislation.  Those changes have had a significant impact on the approach of tribunals to appeals against deportation and removal on grounds of private and family life.  Judges now have to apply a series of prescribed tests under the immigration rules, before going on to consider whether there are exceptional circumstances requiring a grant of leave.

The general principles having already been established by the Supreme Court (see e.g. in Agyarko [2017] UKSC 11, covered by the Blog here, KO (Nigeria) [2018] UKSC 53, covered by the Blog here, and Rhuppiah [2018] UKSC 58, covered by the Blog here), 2019 saw the Court of Appeal flesh out those principles and clarify the relevant legal tests.

So, for your ease of reference, here are 10 things we learnt about human rights in the immigration context in 2019.


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Round Up- The Child Sexual Abuse Inquiry reports, Equal Pay, and waiving Article 6

13 January 2020 by

Conor Monighan brings us the latest updates in human rights law

index

In the News:

ICCSA, the Independent Inquiry into Child Sexual Abuse, published its report into protecting children who live outside the UK.

It described how there has been “extensive” sexual abuse of children by British nationals whilst abroad. Between 2013 – 2017, 361 UK nationals requested consular assistance between 2013 – 2017 for being arrested for child sex offences. The inquiry suggested this was likely to be a small proportion of offenders committing crimes abroad.

The report highlights the case of Gary Glitter, who was able to travel abroad and abuse vulnerable children even after he had been convicted. Glitter was later sentenced again for abusing two girls, aged 10 and 11, in Vietnam.

ICCSA concluded that travel bans should be imposed more frequently to prevent this behaviour. It noted that Australia bans registered sex offenders from travelling overseas. ICCSA’s report also argued that the burden of proof for imposing travel bans should be reduced, saying that the need for evidence is often overstated by courts and the police.

The inquiry described the global exploitation of children as worth an estimated £27.7 billion, with developing countries being particularly at risk.

The full report can be read here. More from the BBC here.

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The Weekly Round-up: Iran, Technology and the Labour Leadership Contest

7 January 2020 by

Photo: Wikimedia commons

In the news

The news has been nothing if not dramatic this week. US President Donald Trump arranged for the assassination of Iranian General Qasem Soleimani by drone strike on Friday. At Soleimani’s state funeral in Tehran, the streets were filled with crowds chanting ‘death to America!’, and a weeping Ayatollah Khamenei promised that a ‘harsh retaliation’ would come to the USA. The media is full of geopolitical speculation: some say that this amounts to a ‘declaration of war’ by the USA on Iran, and will lead to World War III, while others worry about the possibility of nuclear escalation. The BBC has published this relatively deflationary overview of the risks, as the situation stands.

British-Iranian dual citizen Nazanin Zaghari-Ratcliffe, who was imprisoned in 2016 for allegedly ‘plotting to topple the Iranian regime’ and ‘spreading propaganda against Iran’, remains in prison in the country. Her husband has called for an urgent meeting with UK Prime Minister Boris Johnson. In light of Mr Johnson’s previous mishandling of the situation as Foreign Secretary, and his refusal to condemn the killing, saying on Sunday “we will not lament his death”, Richard Ratcliffe may well consider that he is entitled to a meeting.

International concern continues, too, over the 19-year-old UK citizen held in Ayia Napa in Cyprus, who says that she was compelled to withdraw her allegations of gang rape against a group of Israeli nationals under duress from Cyprus police. She was convicted in 2019 for ‘wilfully indulging in public mischief’, and is now pursuing an appeal process which could take up to three years. Dominic Raab this week urged the Cypriot authorities to ‘do the right thing’ in deciding her case.


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Towards international recognition of the genocide of the Rohingya?

6 January 2020 by

In this article, Ruby Axelson and Wayne Jordash QC (with research assistance from Prachiti Venkatraman and Shireen Meghe) of Global Rights Compliance analyse the two cases which have been brought in the international courts relating to the persecution of the Rohingya people by the Myanmar authorities. To read more about Global Rights Compliance’s work with the Rohingya, please see: https://www.globalrightscompliance.com/en/projects/the-rohingya-accountability-project.

Rohingya refugees in refugee camp in Bangladesh, 2017 (source: Wikipedia)

Known as the world’s most persecuted ethnic group, the Rohingya have faced persecution and deprivation of their fundamental rights within Myanmar for decades. Effectively denied citizenship under the 1982 Citizenship Law, the Rohingya are one of the world’s largest stateless populations.

Following violent attacks in 2016 and 2017, there are now an estimated 909,000 Rohingya refugees living in Cox’s Bazar, Bangladesh. Undoubtedly, the Rohingya are the victims of a shocking array of international crimes, suffering ethnic cleansing, killings, sexual and gender-based violence, torture, forced starvation, enslavement, destruction of property, the arbitrary deprivation of liberty, and much more.

Once suffering in relative international silence, there is now growing recognition of their brutalisation, even if the precise legal categorisation may be debated. Indeed, building on the 2018 findings of the United Nation (‘UN’) Human Rights Council’s Independent International Fact-Finding Mission on Myanmar (‘FFM’) that there are reasonable grounds to conclude that “factors allowing the inference of genocidal intent are present” (para. 1441), there is growing international recognition that the apparent mass ethnic cleansing from Myanmar to Bangladesh, particularly in 2017, had an even darker purpose – the destruction of part or all of their people. Indeed, it is this debate that now promises some much needed attention.


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Ethical veganism is a protected belief, rules Employment Tribunal

4 January 2020 by

Ethical veganism goes beyond dietary requirements to embrace an entire life philosophy

Casamitjana v The League Against Cruel Sports (judgment pending)

In what multiple commentators have hailed as a landmark legal case, Norwich Employment Tribunal found that the Claimant’s “ethical veganism” is a philosophical belief and therefore a protected characteristic for the purposes of section 10 of the Equality Act 2010 (“s.10”) following a preliminary hearing on 2nd and 3rd January 2020. 

The judgment is unlikely to be available for some time, so it is not yet possible to analyse the Tribunal’s reasoning, but the Hearing Bundle and Claimant’s Written Submissions of Claimant’s Counsel have been made available online by his solicitors which gives a clear indication of how the issue may have been decided.


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The Round-Up: constitutional concerns and the Queen’s Speech

26 December 2019 by

In the News

A year of disruption, disappointment, contention and uncertainty is finally drawing to a close. On 19 December, with Christmas around the corner, the country got a hint of what 2020 might bring. The Queen’s Speech, in which the new Conservative government laid out its legislative priorities for the year to come, included more than 30 bills the government hopes to turn into law. 


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10 cases that defined 2019

19 December 2019 by

And so, we reach the end of another year. And what a year it has been. As well perhaps the most tumultuous period in British politics for decades, this year saw the first ever image taken of a black hole, a victory for the England men’s cricket team at the World Cup, the discovery of a new species of prehistoric small-bodied human in the Philippines and signs that humpback whale numbers in the South Atlantic have bounced back thanks to intensive conservation efforts.

And the law? Well, rather a lot has happened really. As the festive season draws near, what better way is there to celebrate than to rewind the clock and relive the 10 cases which have defined 2019?


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Legal aid not available for victim’s family in the 1974 Guildford Pub Bombings inquest

19 December 2019 by

The tragic events of the Guildford pub bombings saw four people killed and another 65 injured when the IRA blew up two pubs in 1974. In January of this year, the decision was taken to resume the inquest into the Guilford pub bombings, more than 40 years since it was suspended.

One of the victims of the bombings was Ann Hamilton. Her sister, Cassandra Hamilton, has had her legal aid application refused and will be unable to have legal representation at the inquest. The Government has stated that the coroner could question witnesses on behalf of relatives.


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Round Up 16/12/19: The Supreme Court moves towards a new President and the small matter of a general election…

18 December 2019 by

Screenshot 2019-12-16 at 19.05.53

This week sees Baroness Hale sitting for the final time as President of the Supreme Court. Photo credit: The Guardian.

A brief delay to the publication of this article has helpfully afforded this blogger the opportunity to move beyond the political events of last Thursday and instead focus on much more interesting legal matters (more on those later).

However, it would be remiss not to recognise the consequences of last week’s election, which saw the Prime Minister return newly empowered by a sizeable Conservative majority. At the time of writing, proposals were being made to put the legislation required to withdraw from the European Union back to MPs as early as this Friday.

Sneaking in at page 17 of the Conservative manifesto (one page after a commitment to extend the water rebate in the South West) came the party’s offering on law and order. This included commitments to increase the number of police, enhance the use of “fair and proportionate” stop and search, as well as promote longer sentences and the greater use of electronic tags. The manifesto was however silent on some matters which have drawn attention of late, including court closures, legal aid cuts, and previous suggestions from ministers that the Human Rights Act might be amended to protect soldiers from prosecution for acts performed during their time in service. With such a significant majority however, the Government will be in a position to pursue its chosen agenda with enthusiasm, and so these and other mooted at policies, such as reform of the judicial review process, may not be as fanciful as previously thought.

Moving gratefully on from politics, today saw the first day in the case of XX v Whittington Hospital NHS Trust (appealing [2018] EWCA Civ 2832), which also serves as Baroness Hale’s final case as President of the Supreme Court before her replacement on January 11thby Lord Reed. The case provides an interesting example of a scenario in which factual matters combined with absent or inadequate law require the court to consider matters of a deeply public policy nature.
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Did the UK violate Article 2 in Kosovo? Plus the Oval Four, and racism in the police

9 December 2019 by

Conor Monighan brings us the latest updates in human rights law

oval
Winston Trew and his wife, Hyacinth. Credit: The Guardian.

In the News:

Court of Appeal judges overturned the convictions of the ‘Oval Four’ after it was found that their sentences were based on evidence given by a corrupt police officer.

The ‘Oval Four’ refers to a group of black men who were arrested by officers claiming to have seen the men stealing Tube passengers’ handbags. The men were subsequently convicted in 1972 based solely on the basis of evidence given by those officers. None of the ‘victims’ appeared at the trial.

The case became a focus point for black rights and the treatment of BME people by the police. It was referred to the Criminal Cases Review Commission, which ultimately led to the successful appeal.

Whilst the convictions of three of the men were overturned, the fourth member of the ‘Oval Four’ unfortunately cannot be found.

The Lord Chief Justice, Lord Burnett, expressed “regret is that it has taken so long for this injustice to be remedied”. Lord Burnett also stated that there was “an accumulating body of evidence that points to the fundamental unreliability of evidence given by DS Ridgewell [the lead officer] … and others of this specialist group”.


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Supreme Court unanimously rules detention of asylum seekers pending removal was unlawful

3 December 2019 by

supreme court

R (Hemmati and others) v Secretary of State for the Home Department [2019] UKSC 56

In a significant public law decision, the Supreme Court dismissed the Secretary of State’s appeal and held that the policy governing detention pending removal fails to comply with the Dublin III Regulation as it lacks adequate certainty and predictability.

The respondents were five individuals who had travelled to the UK illegally and made claims of asylum, having entered via at least one other member state of the European Union in which they had already claimed asylum. Relying on the procedure set out in the Dublin III Regulation (Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013) (“Dublin III”), the Secretary of State requested those states to take responsibility for examining the asylum claims. Each such state agreed.

The respondents were then detained pending their removal pursuant to paragraph 16(2) of the Immigration Act 1971. Paragraph 1(3) of Schedule 2 to the 1971 Act provides that in exercising powers of detention, immigration officers must act in accordance with such instructions as may be given to them by the Secretary of State.


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Lock-change evictions of unsuccessful asylum seekers lawful – Court of Session

26 November 2019 by

Ali v Serco, Compass and the Secretary of State for the Home Department – read judgment.

Serco hit the headlines in July of last year when it introduced its controversial eviction practice of changing the locks of refused asylum seekers. In a judgment that refugee charities are describing as a worrying precedent, the Inner House of the Court of Session ruled that this practice is lawful.

Euan Lynch has also posted on this case, focussing on the question of whether Serco should be classified as a “public authority” under the HRA 1998 as the Outer House and the Inner House of the Court of Session reached different conclusions on this point.


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Serco’s Evictions of Asylum Seekers in the Scottish Courts: A Question of Public Authorities in the Human Rights Act 1998

26 November 2019 by

Ali (Iraq) v Serco Ltd [2019] CSIH 54 
 

The Inner House of the Court of Session has ruled that Serco Limited acted lawfully when evicting a failed asylum seeker from temporary accommodation in Glasgow without first obtaining a court order. This is the same conclusion that was drawn by the Outer House of the Court of Session in April.  Daniel McKaveney has posted on the main points in this judgement here.

Whilst each judgment reached the same end result, one striking difference between the two is the reasoning that the Lord Ordinary and the Lord Justice Clerk deployed to answer the question of whether Serco should be classified as a “public authority” under section 6 of the Human Rights Act 1998 (“the HRA 1998”).  

The persuasiveness and significance of each courts’ reasoning will be considered below.  


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Law Pod UK Ep. 99 : Celebrate a Century of Women in Law at Middle Temple

26 November 2019 by

Celebrate a Century of Women in Law at Middle Temple

Middle Temple’s exhibition celebrates the centenary of the admission of women to the legal profession. We were lucky enough to be guided around this fantastic exhibition by the curator, Rosalind Wright CB QC. Listen to Rosalind discuss the first 100 years of women in law with Rosalind English in the latest episode of Law Pod UK here.

The exhibition consists of 25 portraits of women Middle Templars over the last 100 years, including Helen Normanton, the first woman to become a member of an Inn. It is accompanied by a digital exhibition of many more of our distinguished women members. The exhibition curated by Rosalind Wright CB QC, a Bencher of Middle Temple with specially commissioned photography by Chris Christodoulou. The portraits are exhibited in order of Call to the Bar.

Visit the exhibition, and listen along, to see the women past, present and future who have changed the legal landscape at Middle Temple here.


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