Immigration rules, prisoner voting and corporate accountability – The Human Rights Roundup
23 July 2012
Welcome back to the UK Human Rights Roundup, your weekly summary of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
It has been an interesting week for immigration law, with so-called ‘back door’ immigration rule changes struck down by the Supreme Court. The UK has been hauled over the coals yet again about prisoner voting, and those of us interested in corporate accountability saw the High Court rule that it was arguable that the London parent company headquarters of a South African company was its place of central administration for domicile purposes.
by Wessen Jazrawi
In the news
Backdoor immigration changes
As reported on in the Guardian (our post coming soon), the recent case of R (on the application of Alvi) v Secretary of State for the Home Department  UKSC 33 saw the Supreme Court strike down the attempt by the Home Office to introduce substantive immigration requirements through the back door of policy, guidance or instructions, rather than in the body of the immigration rules themselves. As noted by the Free Movement blog, this may have huge implications for the new immigration rules on family members, rendering all of the attempts to specify required documents to prove income and so on unlawful. For a more detailed analysis of Alvi, see this post by Free Movement here and for its post on the new immigration rules quickly brought in by the UKBA, see here and the UK Immigration Law Blog here.
Writing before the Alvi judgment, the Thinking Legally blog discusses the concerns expressed by a UK parliamentary committee about the procedure used by Theresa May to give enhanced democratic credibility to tougher action on immigration. It describes the procedure as “constitutionally innovative” and that “it may have no legal validity”: the rules were not simply passed through the two Houses of Parliament by the traditional means, there was an additional debate (with no vote) in the House of Commons (but not the House of Lords) to assert the legal power of the Rules against the claims of international human rights law. This “negative procedure” is the least strict form of parliamentary oversight in passing legislation, usually for matters of no great controversy.
The UK has been criticised by Nils Muižnieks, the new human rights commissioner at the Council of Europe. He has been quoted by the Guardian as saying: “A blanket and indiscriminate ban is not in line with the European convention on human rights. The UK government seems to have painted itself into a corner through the last few years.” This follows on from yet another legal challenge, this time by a Mr McGeoch, whose lawyers maintain his rights as an EU citizen to take part in elections are being denied. The UK has until November to announce how it is to implement the requirement to allow certain categories of prisoners to vote.
The Justice Gap takes a very practical look at the changes being made to legal aid and what they will mean to the average person. Recommended.
As part of a wider claim by 1,106 gold miners who had contracted silicosis as a result of their employment by Anglo American South Africa Ltd, a High Court judge decided this week that it was arguable that the London headquarters of the parent company was the place where decisions relating to a South African company were being made, and hence that London was its place of “central administration” for domicile purposes, not South Africa. David Hart QC summarised the judgment on the UKHRB here. One to watch for those interested in corporate accountability.
Disclosure of census data
The Panopticon Blog discusses the recent High Court judgment in R (Ali & SJ) v Minister for the Cabinet Office & Statistics Board (2012)  EWHC 1943 (Admin) which concerned the legality of disclosures of census data by the UK Statistics Board for, inter alia, the purposes of a criminal investigation or criminal proceedings. The claimants challenged the legality this on the basis that it infringed the right to privacy under Article 8(2) and, further, was incompatible with the requirements of the Data Protection Act 1998. The Court found in favour of the Board on the basis that its policy offered sufficient safeguards.
Small c conservatives make the case for gay marriage
This post by Adam Wagner on the UKHRB looks at the paper recently published by Policy Exchange, a leading conservative think tank entitled, What’s In A Name? Is there a case for equal marriage? As he notes, it is full of subtle and not-so-subtle hints to the political right that marriage – be it between heterosexuals or homosexuals – is good for society as it encourages a stable family life. My favourite quote is its statement that the only justification for restricting the liberty of gay people to marry is if harm is done to others, that the only possible ‘harm’ remaining is the harm of offence caused and that there is no right to freedom from offence in this country.
Finally for those interested in the clash between law and religion, Adam Wagner is organising an event to be held on Monday 23 July which will feature Joshua Rozenberg and Dinah Rose QC amongst others. For more information, see here.
In the courts (end of term special)
R (on the application of Roberts) v The Commissioner of the Metropolitan Police and The Secretary of State for the Home Department  EWHC 1977 (Admin). High Court holds that stop & search powers in s.60 Criminal Justice & Public Order Act 1994 are compatible with human rights law.
Swift v Secretary of State for Justice  EWHC 2000 (QB) (18 July 2012). Longstanding rule that only unmarried partner who has been living with deceased for over 2 years can claim for loss of dependency compatible with ECHR, rules High Court. Although rule may lead to unfairness, it is for Parliament to change not the courts.
R (on the application of Hicks & Ors) v Commissioner of Police for the Metropolis  EWHC 1947 (Admin). Policing of Royal Wedding was lawful, didn’t adopt “low threshold of tolerance for public protest”. The BBC has reported on this here.
HM Attorney General v Associated Newspapers Ltd & Anor  EWHC 2029 (Admin). Daily Mail and Daily Mirror held in contempt for reporting of Milly Dowler conviction and “substantial risk of serious prejudice” created for other attempted kidnap charge. For a summary and analysis of the judgment, see Rachit Buch’s post on the UKHRB.
Hakemi & Ors v Secretary of State for the Home Department  EWHC 1967 (Admin). Challenge to legality and fairness of Government’s ‘Legacy cases’ asylum backlog management system fails in High Court.
Khaira & Ors v Shergill & Ors  EWCA Civ 983 (17 July 2012). The courts will abstain from adjudicating on the truth, merits or sincerity of differences in religious doctrine or belief and on the correctness or accuracy of religious practice, custom or tradition.
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- The conservative case for gay marriage July 16, 2012 by Adam Wagner