The Round-Up: Deportation by Data Deals, Dubs, and a Step Towards Decriminalising Sex Workers

5 March 2018 by Eleanor Leydon

Photo credit: Guardian

In the News

UK charity Migrants Rights Net have been granted permission to proceed with their challenge to the data-sharing agreement between the Home Office, the Department of Health and NHS Digital. The agreement has meant that the Home Office may require the NHS to hand over patients’ personal non-clinical information, such as last known address, for immigration enforcement purposes.

Currently, the Home Office makes thousands of requests per year, of which only around 3% are refused. A joint response from Home Office and health ministers suggested that opponents of the agreement had downplayed the need for immigration enforcement, and that it was reasonable to expect government officers to exercise their powers to share this kind of data, which ‘lies at the lower end of the privacy spectrum.’ However, critics of the agreement argue that it compromises the fundamental principle of patient confidentiality, fails to consider the public interest, and results in a discrepancy in operating standards between NHS Digital and the rest of the NHS. The good news for Migrants Rights Net was twofold: the challenge will proceed to a full hearing with a cost-capping order of £15,000.

In further migrants’ rights news, a “particularly vulnerable” 16-year-old Afghan boy is challenging the government’s refusal to grant him sanctuary in the UK, in a case which could have major implications for thousands of other lone child asylum seekers. The challenge will focus on the Home Office’s interpretation and implementation of section 67 of the Immigration Act 2016, commonly known as the Dubs amendment. Counsel for the boy, known only as ZS, will argue that the home secretary’s guidance concerning children in Calais applied unlawful criteria, and that procedures used to determine which children were granted entry to the UK were unfair. The Home Office faces separate litigation concerning their implementation of the Dubs amendment from the charity Help Refugees, who have been given permission to appeal their challenge in judicial review.

Former Sex Workers Will No Longer Have To Reveal Soliciting Convictions

Photo credit: Guardian

QSA & Ors, R (On the Application Of) v Secretary of State for the Home Department & Another: Statutory provisions requiring former sex workers to disclose multiple convictions to certain potential employers are disproportionate, and amount to a breach of the claimants’ Article 8 rights, the High Court has ruled.

The claim was brought by three former sex workers who were induced to enter the trade as teenagers, and who each carry multiple convictions for soliciting or loitering, contrary to section 1 of the Street Offences Act 1959. The “multiple conviction rule” lies at the heart of the case [25]: its effect is the result of a series of statutory provisions.

The Rehabilitation of Offenders Act 1974 introduced the concept that after a period of time, a criminal conviction would become “spent”, and the “rehabilitated” person be exempted from the duty of disclosure to employers. The effect of related provisions was that, whilst a person convicted of a single offence under s1 of the SOA would benefit from these protections, if this person were convicted at another time of any other offence then any soliciting conviction would be rendered unprotected. The claimants argued that this ensnared many abused and/or vulnerable women who had entered into sex work in circumstances which made it likely that they would be convicted of more than one soliciting offence. With regard to the two fundamental aims of safeguarding children and other vulnerable adults, and rehabilitating offenders, the court found that use of the multiple disclosure rule in this context was not ‘necessary in a democratic society’ [47]. Furthermore:

the facts of this case vividly illustrate the fact that the multiple conviction rule operates in circumstances in which any link between the past offending, and the assessment of present risk in a particular employment, is either non-existent or at best extremely tenuous.

Further claims brought by the women, that the law amounted to discrimination and to a breach of the state’s obligations towards victims of trafficking, were dismissed. The claimants, represented by Harriet Wistrich, will be seeking permission to appeal on these ‘broader points.’

On the discrimination ground, it was accepted that Article 14 was engaged, that section 1 of the SOA disproportionately affected women, and that women were disproportionately represented in the nurturing professions which required disclosure. However, fatally, it was not section 1 itself which was directly at issue: rather, the court was asked to examine the effect of the multiple conviction rule. Across the ten most common multiple conviction offences, including theft and burglary, women were not over-represented: indeed, men had disproportionately heavier criminal records and committed more multiple offences overall [82].

Several international legal instruments, including an EU Directive and the Council of Europe’s Trafficking Convention, were relied upon to submit that the state was failing to fulfil its obligations to victims of trafficking, including the duty of non-penalisation, and the protection of the privacy and identity of victims [93-94]. This submission, on the right to anonymity, failed simply because there was nothing in the disclosure of an offence pursuant to section 1 of SOA 1959 to of itself indicate that the offender was a victim of trafficking [107].

Fiona Broadfoot, the one victim to waive her anonymity, said “I can’t tell you how relieved I am to know that I don’t have to disclose any more that horrible history of abuse and violence…In our view, it should be and is possible for parliament to devise a scheme which more fairly balances the public interest with the rights of an individual applicant for employment in relevant areas of work.”

Georgiev & Ors v Bulgarian Judicial Authorities: Three Bulgarian nationals have failed to convince the court to ignore assurances by the Bulgarian authorities that their article 3 rights would not be breached upon extradition. The relevant legal principle was set out at paragraph 8:

v) The requesting state might satisfy that burden by evidence that general prison conditions are in fact article 3-compliant. However, even where it cannot show that, that does not result in a refusal to surrender, because the assessment of whether there will be a breach of human rights is necessarily fact-specific. Therefore, where the court finds that there is a real risk of inhuman or degrading treatment by virtue of general prison conditions, it must then go on to assess whether there is a real risk that the particular individual will be exposed to such a risk.

Given the importance of extraditing those who face criminal charges elsewhere, and the principle of mutual respect, this fact-specific exercise required the court to make information requests about prison conditions to the relevant authority. The Respondents had given various assurances as to how the Appellants would be treated if extradited.

Whilst it was accepted that conditions in Bulgarian prisons did put prisoners at risk of being subject to inhumane or degrading treatment amounting to a breach of their article 3 rights, the issue before the court was the reliability of the Bulgarian authorities in complying with the specific assurances made regarding the Appellants. On the facts, Hickinbottom LJ was satisfied that the presumption that the authorities would honour their assurances had not been displaced; as such, the Respondents had adequately discounted the risk of a breach of article 3 [62].

In other news…

The Judicial College has released a new edition of the Equal Treatment Bench Book, containing updated and expanded guidance aimed at making courtrooms a more accessible environment for uncertain, fearful, or otherwise marginalised parties and witnesses. It includes sections on Islamophobia and anti-Semitism, refugees, modern slavery, and litigants in person, as well as practical tips on communication.

The book urges that litigants in person ‘should not be seen as an unwelcome problem’ and predicts that courts and tribunals will continue to see an increased number of such litigants in court ‘as a result of financial constraints and the consequences of the legal aid reforms’.

Amongst other things, the Judicial College take a nuanced approach to the delicate issue of when a witness must remove their veil during proceedings, and which conditions should be attached to this. Suggestions made under the new guidance include limiting the number of observers allowed into court, temporarily stopping court artists from drawing, and limiting screening to the judge and jury.

Rafferty LJ commented in the foreword that the ‘profound desire’ of the team behind the book was that “all those in and using a court leave it conscious of having appeared before a fair-minded tribunal.”

A Solution to the Problem of Unregistered Schools: Greater Investigatory Powers?

As safeguarding concerns continue to mount over unsafe, unsanitary and abusive conditions at unregistered schools, Ofsted’s chief inspector, Amanda Spielman, has said that the law as it stands is ‘not strong enough’: Ofsted needs further investigatory powers, including powers to remove unsuitable and/or extremist teaching materials.

Ofsted set up a specialist taskforce in 2016 which has identified 350 suspected unregistered schools and issued warning notices to 50 proprietors, but none have yet been prosecuted. Spielman said that the Department for Education “could and should” have taken forward many cases. The Department issued a statement to the effect that “the secretary of state has to consent to a prosecution, but this happens at the end of the process, after the director of public prosecution has made a decision to charge. So far no case has reached that stage.”

For Your Eyes, Mainly

Finally, the government has for the first time acknowledged that MI5 spies can commit crimes in the UK, revealing instructions to the Investigatory Powers Committee after a seven-month legal battle with Reprieve and Privacy International. Further details regarding the circumstances in which spies can commit crimes, and how far they can go, remain under wraps.