State Immunity, Atheist Asylum and Children’s Views – the Human Rights Roundup
20 January 2014
Welcome back to the UK Human Rights Roundup, your regular bustling bonanza of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.
After a long wait, the European Court of Human Rights delivered its judgment on state immunity in civil proceedings in Jones and Others v UK. Meanwhile, an atheist has been granted asylum on religious grounds and the Supreme Court ruled that a child’s views are relevant to the evaluation of their habitual residence.
In the News
Jones and Others v UK – State Immunity in Civil Claims
The European Court of Human Rights has accorded State immunity in civil proceedings brought in the UK against Saudi Arabia and Saudi Arabian officials. The court agreed with a 2006 House of Lords’ decision on the case. The claimants were British nationals who claim to have been tortured (for example, being subjected to beatings, sleep deprivation, rape and being forced to take mind altering drugs) in 2001 in Saudi Arabia. By a majority of 6 to 1, the court held that the principle of state immunity did not breach the Convention.
The decision is in line with the International Court of Justice case, Jurisdiction Immunities (Germany v Italy) which determined that state immunity remained even with accusations of a violation of jus cogens. However, Philippa Webb notes that the extension of the immunity to state officials stretches the meaning of the ICJ case and ‘goes against two emerging trends: 1) accountability of non-high ranking State officials for serious human rights violations; 2) the diversification of various forms of immunity’. William Dodge argues that the case is a disappointment because ‘it badly muddles the key questions, confusing whether immunity attaches with whether an exception applies, and mixing up state responsibility with official immunity despite Draft Article 58’s clear warning not to do so’.
See Rosalind English’s post here.
An Atheism Triumph
An atheist Afghan citizen has reportedly been granted asylum in the UK for religious reasons. Originally a Muslim, the man became an atheist whilst in the UK. His case was argued under the Qualification Directive 2004/83/EC of 29 April 2004 . This provides minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. In it, it provides for an atheist to be granted asylum.
Colin Yeo at Free Movement explains that the EU refugee law goes further in its definition of religion than the Supreme Court, in which atheists are excluded. However, ‘it is important in refugee law to have as expansive a definition as possible because that saves lives and the motives of the persecutor are often indiscernible. It makes sense to say that an atheist has been persecuted ‘for reasons of’ religion if persecuted because of being an atheist.’
Children’s Views
This week, the Supreme Court decided in LC (children) that a child’s views are relevant to the evaluation of their habitual residence. Lady Hale said, ‘this approach accords with our increasing recognition of children as people with a part to play in their own lives, rather than as passive recipients of their parents’ decisions’.
Sam Smethers, at Acts for UK Rights blog, also argues that with adoption and fostering, the UK does not always respect the child’s right for private and family life. For example, if the child’s interests are paramount, then the child’s extended family should be considered first before the child is placed elsewhere.
Quitting the ECHR
The president of the European Court of Human Rights has stated that Britain would lose its credibility if it quits the ECHR and that it would be a ‘political disaster’.
Meanwhile, Lord Pannick QC, writing in the Times (behind a paywall), argues against Lord Sumption’s recent speech that the Convention challenges democracy. Obiter J discusses Lord Pannick’s arguments which are, firstly, that the judiciary protects unpopular minorities who lack political clout. Secondly, ‘the judicial process at Strasbourg is not unusual. It is a similar approach to that adopted by constitutional and human rights courts throughout the legal world. Broad concepts such as ‘private life’ and ‘degrading treatment’ are interpreted and applied by each new generation of judges to address contemporary concerns’.
Family Division
The President of the Family Division, Sir James Munby, has issued new guidance on ‘Transparency in the Family Courts: Publication of Judgments’ and ‘Transparency in the Court of Protection: Publication of Judgments’. They are intended to ‘bring about an immediate and significant change in practice in relation to the publication of judgments in family courts and the Court of Protection.’ Our post (cross-posted from Inforrm) is here.
In Other News
- The Small Places blogspot calls on you to help close the ‘loophole’ that means that users of private and independent sector care services are not protected by the Human Rights Act 1998.
- Lord Woolf, former Lord Chief Justice and head of chambers at 1 Crown Office Row, has called on politicians to back the recommendations of the Low Commission which has called for an extra £100m to ensure ‘a basic level of provision’ of advice in its final report.
- Joshua Rozenberg describes how ‘suspicion of GCHQ access to lawyers’ emails to anti Gaddafi rebel Abdel Hakim Belhaj lays bare principle of open justice’.
- Free Movement looks at Regulation (EU) No 604/2013 of the European Parliament and of the Council. This establishes the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person.
- A report has revealed that an 84 year old immigration detainee suffering from dementia, who was declared unfit for detention, died in handcuffs,
- The European Courts blogpost has a roundup of the week’s cases, covering Article 1 of Protocol No.1 (protection of property) and Article 6.1 (rights of access to court) and briefly provides comments on Jones v UK.
- Inforrm has highlighted an excellent new resource – a new searchable database of the transcripts of the evidence given to the Leveson inquiry.
In the Courts
- Upcoming Events
To add 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 the topics covered by this blog.
- Refugee Boy | Southbank Centre
11, 13 February 2014
- Public debate series: State surveillance and the scrutiny of security services
05/03/2014 18:00 – 20:45, free
- Peace & Progress – A Party for Human Rights
International Crime & Punishment, Lecture by Philippe Sands QC Saturday 25th January 2014 at 2pm, Friends’ Meeting House, Euston Road, London
- EHRA Workshop – Maximising the Role of Civil Society in the European Human Rights Protection System
23 and 24 January 2014, Strasbourg
- In Conversation with Joshua Rozenberg – 01 – 2014
UK Human Rights Blog Posts
- Trains, pains and allegations: fairness in medical misconduct cases – Richard Booth QC
- State immunity upheld against human rights challenges in Strasbourg – January 18, 2014 by Rosalind English
- Transparency in the Family Courts and the Court of Protection – January 17, 2014 by Inforrm
- Rendition to Libya an ‘act of state’ and therefore non-justiciable – January 14, 2014 by Rosalind English
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With regard to the Afghan atheist case, it should also be borne in mind that any one has the right to freedom of religion or belief. The ‘belief’ aspect covers, therefore, non-religious beliefs, in addition to religious beliefs. An environmentalist won a case in an employment tribunal on the basis that his employer discriminated against his environmental beliefs – though I cannot now recall the case, I am certain your blog covered it. A recent scientology case could also be perceived as being based – to some extent – on genuinely held belief.
What is important in all of these cases is the concept of belief, first and foremost.