Disability detention, Immigration Issues and Court TV – The Human Rights Roundup

27 October 2013 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular hurtling freight train of human rights news and views. The full list of links can be found here. You can  find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.

This week, immigration, in various forms  was hotly discussed and some notable cases have been or are soon to be decided in the realm of disability rights. And not everyone is happy about the decision to televise Court of Appeal cases.

In the News

The many facets of immigration

Immigration, in a number of guises, has been a hot topic this week.

The Home Secretary, Theresa May, has stated that the billboard campaign telling illegal immigrants to ‘Go Home or Face Arrest’ will not be repeated. It seems that the scheme resulted in the voluntary repatriation of just one person.

The Economist discusses how although half a million people live illegally in Britain, ‘the government’s draconian new Immigration Bill will not change that much’. The Bill will mean that, among other things, landlords and doctors will have to check the immigration statuses of tenants and patients. However, as the article explains, this move will be less than effective. For example, it is already almost impossible to formally let from agents as illegal immigrants often do not have the references and income required.

Omar Shibli, of Garden Court Chamber’s ‘Free Movement’ blog, discusses the recent case, MF (Nigeria) v SSHD [2013]. The court determined that whilst ‘immigration rules governing deportation now provide a “complete code” for the Article 8 rights of foreign criminals’, the substantive law relating to Article 8 proportionality assessments has not changed, ‘and do not create a legal test of exceptionality for succeeding where the Rules are not met’. He notes that whilst this defence has survived the recent government challenge, ‘primary legislation as embodied in the “public interest” provisions of the new Immigration Bill – could be about to begin a new phase of attack.’

Colin Yeo examines the case R (on the application of SQ (Pakistan & Anor) v The Upper Tribunal Immigration and Asylum Chamber & Anor [2013]. The case involved an application to remain in the UK in order to receive life saving medical treatment. The Court of Appeal held that whilst the Article 3 test of exceptionality is applicable also to children, the threshold may be lower than for adults.

Disability Rights

In M.H v the UK, the applicant, who has Down’s Syndrome, was detained in January 2003 on mental health grounds for 28 days of assessment. The mother’s attempts to discharge her daughter were blocked and the local authorities then applied to have the mother discharged as her nearest relative. This meant that M.H’s detention was extended indefinitely (eventually ending in July of that year). HumanRightsEurope details how M.H complained that her right under Article 5(4) (right to have lawfulness of detention decided speedily by a court) had been affected. This was in two ways. Firstly, there is no provision under UK law to permit those without legal capacity to be able to have their detention reviewed quickly.

Secondly, whether incapacitated or not, patients cannot take proceedings before a court or tribunal when, following the displacement of the nearest relative, the detention had been extended indefinitely. The government was ordered to pay the applicant’s legal costs. The Guardian reports that the judges stated: ‘It is clear that special safeguards are called for in the case of detained mental patients who lack legal capacity to institute proceedings before judicial bodies. However, it is not for this court to dictate what form those special safeguards should take.’

In other news, last week the UK Supreme Court heard a case ‘that could impact upon the human rights of tens of thousands of older people and people with disabilities living in care services’. The Supreme Court was asked whether or not P, MIG and MEG are ‘deprived of their liberty’ (relating to Article 5 of the ECHR) due to the restrictions that are put in place by their carers. Lucy Series of ‘The Small Places’, when discusses the case here. 1 Crown Office Row’s Lizanne Gumbel QC, Henry Witcomb and Duncan Fairgrieve acted in the case for the Aire Centre, an intervener.

Televising Courts

There have been mixed reactions to the imminent broadcasting of Court of Appeal cases. For the Lord Chief Justice, it will increase transparency and improve public understanding of the courts. However, as Joshua Rozenberg reports, for Helena Kennedy the television is a ‘voracious beast with an appetite that is never fully fed’. Its producers want ‘the most salacious, sensational celebrity ridden cases that they could possibly get their hands on’. Rozenberg discusses the logistics behind the move, noting that despite fears, there is little chance, for example, that ‘broadcasters will ever be allowed to televise criminal trials before the verdict has been delivered’.

In other News

• Much was already said in last week’s roundup on the Supreme Court’s rejection of prisoner enfranchisement. To add to the discussion, Prime Minister David Cameron tweeted that the ruling was ‘a great victory for common sense’. Ruvi Ziegler at UK Constitutional Law argues, however, that ‘a more suitable description for this judgment would be judicial realpolitik is a politically toxic zeitgeist with potentially harmful long-term implications for the legal protection for the right to vote in the UK.’

• Frank Cranmer discusses the case of a couple in Cornwall who won the right not to file online VAT returns after claiming that to do so was contrary to their religious beliefs. Although the couple’s church (the Seventh Day Adventist Church) does not ban the computers, Judge Mosedale accepted that such usage was contrary to the Blackburns’ own religious beliefs.

• Liberty discuss a Policy Exchange report that dramatically declared that the law is increasingly impeding our military’s ability to operate effectively on the battlefield.

Case Comments

• The Strasbourg Court has delivered its first judgment on HIV based employment discrimination. Alexandra Timmer highlights how in L.B v Greece, the Court  ‘applies a social model of disability and that it uses the concept of vulnerable groups to narrow the margin of appreciation. The drawback of this judgment is that it does not give much support to HIV-positive people requiring some form of accommodation from their employer.’

• Obiter J discusses the UKSC case of R v Gul, which is notable because of the Court’s observations about the Terrorism Act 2000. Obiter J notes that ‘it is interesting to wonder whether we are now seeing the beginning of dialogue between the Supreme Court and Parliament….the Supreme Court has opted to express concerns though it has also been careful to emphasise that it is a matter for Parliament’. See the UKHRB post here.

In the Courts

• ALI AND OTHERS v. THE UNITED KINGDOM – 30971/12 – Admissibility Decision [2013] ECHR 1026 (01 October 2013)October 24, 2013
• M.H. v. THE UNITED KINGDOM – 11577/06 – Chamber Judgment [2013] ECHR 1008 (22 October 2013) October 23, 2013
  Initial detention by administrative order for the purposes of medical assessment in hospital breached Article 5(4) (no effective access to a mechanism enabling her to “take proceedings”)
• JANOWIEC AND OTHERS v. RUSSIA – 55508/07 29520/09 – Grand Chamber Judgment [2013] ECHR 1003 (21 October 2013) October 22, 2013
  European Court of Human Rights Grand Chamber rules by majority it has no competence to examine 1940 Katyń massacre as it occurred before adoption of Convention in 1950. Russia criticised for failing to provide key document to court.
• Leathley & Ors, R (on the application of) v Visitors to the Inns of Court & Anor [2013] EWHC 3097 (Admin) (16 October 2013) October 16, 2013
  Professional misconduct proceedings against barristers did not breach article 6 ECHR. Claims “totally without merit” save for in relation to one issue.

Upcoming Events

To add events to this list, email Adam Wagner. Please only send events which (i) have their own webpage which can be linked to, and (ii) are relevant to topics covered by the blog.

• State Security – Panel discussion at BPP University, 30th Oct 2013 featuring our own Adam Wagner, Paul Bernal, Ben Hayes, and Alex Lawson
• UCL CLP: Whither the margin of appreciation?
  President Dean Spielman (ECHR): Whither the margin of appreciation?, UCL Faculty of Laws Events, Thursday, March 20, 2014 at 6:00 PM
• Human Rights Conference 2013: Lawyers as guardians of access to justice?
  30/10/2013 09:00 – 17:00; Venue: The Law Society, from £200

UKHRB posts

• Another hall of mirrors human rights story from the Telegraph – October 27, 2013 by Adam Wagner
• Court of Appeal refuses anonymity for offender – October 25, 2013 by Rosalind English
• More than a slip ‘twixt cup and lip – October 25, 2013 by Rosalind English
• When a decision maker gives retro-reasons – October 25, 2013 by David Hart QC
• Richard III on the move again – pitched into the current judicial review debate – October 23, 2013 by David Hart QC
• Supreme Court considers definition of ‘terrorism’ – October 23, 2013 by Rosalind English
• Coroners inquest enough to satisfy Article 2 in mental health suicide case – October 22, 2013 by Ross Beaton
• The right to food, or the right sort of food? – October 21, 2013 by Rosalind English
• Who’s really moving the goalposts? – October 21, 2013 by Rosalind English
• The latest prisoner votes judgment may be our Marbury v Madison – October 20, 2013 by Jamie Fletcher & Charlie Eastaugh