No obligation enforceable within the UK to oblige government to comply with Strasbourg
12 August 2013
Navarathnam v Secretary of State for the Home Department  EWHC 2383 (QB) – read judgment
There was no unfairness in the Secretary of State for the Home Department refusing a Sri Lankan asylum seeker leave to remain in the United Kingdom, despite the ruling from the Strasbourg court that to return him would violate his rights under Article 3 of the European Convention on Human Rights 1950.
A decision had been made to grant the applicant six months discretionary leave to remain but he had absconded before it could be implemented, and by the time he resurfaced the secretary of state had been entitled to review the case and determine that the circumstances in Sri Lanka had changed so that he was no longer at risk if returned.
The claimant was a Sri Lankan national who had been subject to removal action after his asylum claim was refused. In 2008 the Strasbourg Court declared that the circumstances in Sri Lanka were such that his expulsion to Sri Lanka would violate the prohibition on torture and inhuman treatment under Article 3 (AA v United Kingdom). The UK authorities consequently confirmed that removal directions would not be applied to him, and stated that he would be granted six months discretionary leave to remain (DLR).
In the ordinary course following the judgment of the Strasbourg Court the claimant would have been granted five years “humanitarian protection”. But the claimant had a number of convictions and was on the sex offenders’ register. In May 2009, a decision was made to grant the claimant six months’ DLR although, since he was a registered sex offender, his case was subject to active review every six months. Furthermore, if the circumstances in Sri Lanka changed so that he would no longer be at risk on return, voluntary departure or enforced removal could be pursued. But before that decision was implemented the claimant absconded. In March 2010 he was arrested and prosecuted for failing to comply with his obligations arising from being on the sex offenders’ register, and sentenced to 12 weeks’ imprisonment. Following delays by the secretary of state, his case was eventually considered and in December 2012, he was refused leave to remain on the basis that the circumstances in Sri Lanka had changed to the extent that he was no longer in need of protection.
The arguments in this application
The claimant submitted that the secretary of state had demonstrated conspicuous unfairness amounting to an abuse of power in failing to grant him five years DLR shortly after the Strasbourg decision. If that had happened, the claimant argued that he would by now very possibly have been eligible for indefinite leave to remain. As a fallback position he contended in any event that his claim should have been dealt with as part of the “legacy case” programme, whereby the secretary of state announced in July 2006 that a total of 500,000 outstanding cases would be resolved within five years, and had his case been considered by July 2011 the rules then in place would have delivered leave to remain. He argued that he should not be prejudiced by the delay.
Burnett J dismissed the claim for judicial review on the basis that the claimant had failed to substantiate any of his grounds.
Reasoning behind the judgment
The concept of conspicuous unfairness amounting to abuse of power was encapsulated by Simon Brown LJ in R v. Inland Revenue Commissioner, ex parte Unilever plc  STC 681 at p. 695a:
Unfairness amounting to an abuse of power … is unlawful not because it involves conduct such as would offend some equivalent private law principle, not principally indeed because it breaches a legitimate expectation that some different substantive decision will be taken, but rather because it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power.
There can sometimes be a fine line, the judge in this case considered, between fairness and unfairness depending upon the eye of the beholder. The essence of “conspicuous unfairness” is that it does indeed leap from the page or, to put it another way, “is plain as a pike staff.” (para 16).
But the failure of the UK government to comply with a judgment of the Strasbourg Court did not form any part of this alleged unfairness. Burnett J rejected outright counsel for the claimant’s contention that a failure to give effect to a decision of the Strasbourg Court could have direct legal consequences in this jurisdiction. Article 46 of the Convention, on which he relied, provides for the enforcement of Strasbourg judgments. But it does not find a place in Schedule 1 of the Human Rights Act 1998 and is not a “Convention Right” for the purposes of section 1. It is not one of the provisions of the Convention which has direct application. There was, therefore
no obligation enforceable in this jurisdiction upon the United Kingdom government to comply with a judgment of the Strasbourg Court. That is a matter for the Strasbourg organs. (para 18)
In any event, in the instant case the limit of the court’s requirement was that the claimant should not be removed to Sri Lanka and he had not been. The judgment of the Strasbourg court did no more than record its decision that removal would violate the claimant’s rights under Article 3: it said nothing about the legal basis upon which he should be allowed to stay in the UK.
The process which resulted in the May 2009 decision to grant the claimant six months DLR had been slow, but the problems which he had since encountered flowed from his absconding. It was the claimant’s disappearance, his arrest, conviction and imprisonment which gave the secretary of state the opportunity to review the question of whether he was in need of any protection at all. It was not right to suggest that the government had failed to honour a “promise” to Strasbourg. It was the claimant’s conduct which had frustrated the grant of DLR.
There was an insuperable difficulty which prevented the claimant from erecting an argument founded upon the application of the legacy programme to his case: it was not a true legacy case at all. His case was not one of the 500,000 outstanding applications received prior to March 2007 which were referred to the Casework Resolution Directorate. In 2006 and 2007 the claimant had been engaged in domestic litigation following removal directions being set and re-set. He had responded by making his application to the Strasbourg court. He was then engaged in Strasbourg litigation with the government until mid-2008. A decision to grant him DLR was then made. The nature of the claimant’s case and the particular attention it was subject to meant that there was no illegality in the secretary of state failing to consider it as part of the legacy programme before July 2011.
Finally, in regard to the claimant’s Article 8 claim, the judge ruled that the facts of this case did not support the conclusion that the treatment of the claimant in connection with the failure to grant of leave violated his right to respect for his private life because there was no maladministration of the sort identified in Anufrijeva. That was “the starting point (but far from the end point)” for a finding of a violation of the State’s positive obligation under Article 8.
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