Deportation of foreign criminals: out of country appeals still lawful

Nixon & Anor, R (On the Application of) Secretary of State for the Home Office [2018] EWCA Civ 3, 17 January 2018 – read judgment

The Court of Appeal has refused a judicial review application and permission to appeal in two cases where the applicants were required to pursue their challenges to deportation “out of country” rather than in the UK.  Where the Secretary of State has rejected a human rights claim, and deportation is considered in the public good – because the deportee is a foreign criminal – there has been debate about the effectiveness of an out-of-country appeal .

Background

The facts of this case are similar to the case of R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department [2015] EWCA Civ 1020. In each case, the appellant was threatened with deportation as a result of offending, but he contended that deportation would be in breach of his right to private and/or family life under article 8 of the ECHR. We posted on Kiarie and Byndloss here.  The Court of Appeal held in that case that the Secretary of State could properly proceed on the basis that an out-of-county appeal would meet the procedural requirements of article 8 in the generality of deportation cases, because such an appeal met the essential requirements of effectiveness and fairness.   The Supreme Court reversed  the ruling on the specific facts of the case before them. But their conclusion – that in the cases of Kiarie and Byndloss, the out-of-country appeal procedures were inadequate – does not affect all cases thus certified. All questions of adequacy of evidence and video links have to be considered on a case by case basis, taking into account the efforts made by the individual applicant to advance their case. Not all decisions depriving people of the right of appeal from the UK will be unlawful; it depends on the facts.  Continue reading

Legal Milestones on the route to Brexit: Catherine Barnard

In the cooperative spirit of podcasting, Professor Catherine Barnard of Cambridge University has kindly agreed to allow Law Pod UK to repost the enlightening podcasts from her series 2903CB, charting the transitional stages that need to be negotiated as we progress towards 29 March 2019, when the UK will be no longer part of the EU (CB being Catherine Barnard). Here’s the first one: UK Law Pod No 21: Outlining the legal milestones to Brexit, also available as part of the UK Law Pod series on iTunes.

We hope to continue to rebroadcast her series, along with our own output of interviews and seminars from 1 Crown Office Row on all manner of subjects.

The EU Withdrawal Bill and Judicial Review: Are we ready?

EU flagA flash-back to 1980:  the first series of the TV sitcom, ‘Yes Minister’ and a discussion between a Permanent Secretary (Sir Humphrey Appleby) and his Minister (the Rt Hon Jim Hacker MP):

Sir Humphrey: Minister, Britain has had the same foreign policy objective for at least the last five hundred years: to create a disunited Europe. In that cause we have fought with the Dutch against the Spanish, with the Germans against the French, with the French and Italians against the Germans, and with the French against the Germans and Italians. Divide and rule, you see. Why should we change now, when it’s worked so well?

Hacker: That’s all ancient history, surely?

Sir Humphrey: Yes, and current policy. We had to break the whole thing up, so we had to get inside. We tried to break it up from the outside, but that wouldn’t work. Now that we’re inside we can make a complete pig’s breakfast of the whole thing — set the Germans against the French, the French against the Italians, the Italians against the Dutch… The Foreign Office is terribly pleased; it’s just like old times.

Hacker: But surely we’re all committed to the European ideal?

Sir Humphrey[chuckles] Really, Minister.

 

Nearly 40 years later, as the Westminster Government seeks to extract the UK from the European project, chuckles are in short supply (in contrast to articles about Brexit).  This piece considers the role of judicial review as the EU Withdrawal Bill is enacted, and after Brexit day has dawned – and the capacity of the Administrative Court to meet the increased demands that will predictably be made of it.

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Landmark A-G opinion: EU must respect right of self-determination of Western Sahara

wsaharaR (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA, Court of Justice of the European Union, opinion of Advocate-General Wathelet, 10 January 2018 – read here

The A-G has just invited the CJEU to conclude that an EU agreement with Morocco about fishing is invalid on international law grounds. His opinion rolls up deep issues about NGO standing, ability to rely on international law principles, justiciability, and standard of review, into one case. It also touches on deeply political, and foreign political, issues, and he is unapologetic about this.  That, he concludes, is a judge’s job, both at EU and international court level – if the issues are indeed legal.

The opinion is complex and I summarise it in the simplest terms. But here goes.

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Does “damage” go wider than injury? Supreme Court on jurisdiction

Four Seasons Holdings v. Brownlie [2017] UKSC 80, 19 December 2017, read judgment

Professor Ian Brownlie Q.C., an eminent international lawyer, and members of his family were killed in a road accident in Egypt, when on their way to Al-Fayoum. His widow, also injured, had booked the driver through their hotel, the Four Seasons in Cairo.

The family wished to bring proceedings in the UK against the hotel in respect of the driver. However, the key defendant (Holdings) was incorporated in British Columbia, and the issue which got to the Supreme Court was the issue of jurisdiction.

The family said that there was a contract for the trip with Holdings, and further that Holdings were vicariously liable in tort for the negligence of the driver. Holdings had been less than transparent at earlier stages of the proceedings, but, after the Supreme Court required it to give a full account of itself, it emerged that it was as the name suggested – a non-trading holding company which had never operated the Cairo hotel, even though other companies in the group were involved with the hotel.

On that ground, Holdings’ appeal was allowed. The unanimous Court concluded that there was no claim in either contract or in tort. In simple terms, Holdings was nothing to do with the booking of the driver by the hotel.

But the lasting interest in the case lay in the question of whether you can establish qualifying “damage” in tort in the UK even if you are injured abroad, and on this the Court was split 3-2.

Let me set the scene for this, before telling you the result.

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10 cases that defined 2017

christmas-2960048_960_7202017 has been a dramatic year in global politics and no less in the world of human rights law.

It has been a fascinating time to be editor of the UK Human Rights Blog. As just a taster, decisions have ranged across issues of the best interests of a seriously ill child, the conduct of British soldiers in Iraq and whether a transgender father should be allowed access to his children in an ultra-religious community. But there is much, much more.

So pour yourself a large measure of whatever you fancy, unwrap that mince pie waiting for you in the larder, and let me take you by the hand as we embark on a whirlwind tour of 10 of the biggest human rights cases of the year:

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High Court decision refusing ultra-Orthodox transgender father access to children quashed — Paul Erdunast

Open_Torah_scroll.jpg

Re M (Children) [2017] EWCA Civ 2164, 20 December 2017, read judgment

The Court of Appeal reversed the judgment of the High Court that a transgender father from the ultra-Orthodox Jewish community should not have direct contact with her children. The case was remitted to the Family Court for reconsideration.

 

Facts

The factual background is fully set out in the High Court judgment of Peter Jackson J (as he then was). The parents and their five children are all from the ultra-Orthodox Charedi Jewish community of North Manchester. The mother and children remain there, while the father no longer lives within the community after leaving in June 2015 to live as a transgender woman. Both parents agree that the children should be brought up within the community.

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