The Round up: statelessness, Romanian prisons, parental vaccine dispute and UN

23 September 2018 by Thomas Hayes

This week, two Scottish children are playing a key role in the development of the UN Day of General Discussion (Friday, Sept 28). They are the only children from the UK represented, working alongside children from across the world, including Moldova, Norway and India. See below for more details of this event.

Pham v The Secretary of State for the Home Department [2018] EWCA Civ 2064  . Robin Tam QC and Natasha Barnes successfully represented the Home Office in the Court of Appeal, in a case with some extraordinary facts.

The appellant was born in Vietnam in 1983 and is therefore, under the constitution of Vietnam, a Vietnamese citizen. He moved to the United Kingdom in 1989 at which point he successfully claimed asylum. In 1995, he was granted British citizenship.

Aged 21, he converted to Islam and subsequently spent seven months in Yemen from December 2010. Upon his return he was arrested, and ultimately extradited to the United States. There he was convicted on terrorism charges (including a bomb plot on the arrivals area at Heathrow Airport) and is now serving a 40-year sentence in a high security prison. The Home Secretary applied in 2011 to strip him of his British citizenship.

Pham had already taken the question of whether he could be made de facto stateless to the Supreme Court in 2014 in Pham v SSHD [2015] UKSC 19. The court held that he could be made de facto stateless, so long as he had de jure nationality of another country. His case was remitted back to the Special Immigration Appeals Commission and the Secretary of State’s deprivation order under the British Nationality Act (BNA) 1981 upheld. Pham appealed the decision of the Special Immigration Appeals Commission.

Such an order for deprivation of citizenship was made under section 40 of the BNA 1981. Deprivations can be made where “the Secretary of State is satisfied that deprivation is conducive to the public good”. The court rejected the appellant’s argument that such a finding was defeated by the lack of threat he posed, given his current incarceration in a high security prison on another continent.  The judges noted the peculiar paradox which would arise if those convicted of more serious offences and thus sentenced to longer periods of detention were able to benefit by keeping their citizenship on the basis they could no longer pose a threat to the state due to lengthy incarceration. Instead, repudiation by the appellant of his obligation of loyalty to the state constituted a proper basis for citizenship deprivation. This could be undertaken on the evidence of his past acts alone, with no need for ongoing risk of harm to the state to be demonstrated.

In other news, this week saw Michael Spurr, Chief Executive of HM Prison and Probation Service, leave his post after being asked to step down following widespread reports of crisis in the prisons system. Last week saw prison officers walk out for six hours in protest, whilst in August the government had to take back responsibility for HMP Birmingham from G4S after the Chief Inspector of Prisons Peter Clarke described it as the worst he had seen. The BBC reports inspectors finding blood, vomit, cockroaches and rat droppings on the floor, staff asleep and an overpowering smell of drugs.

In light of this, the Justice Department may wish to consider the decision this week in Banu and Others v Romania [2018] ECHR 745 . Eleven prisoners were each awarded compensation of either €3000 or €5000 for breach of their rights under Article 3 of the European Convention on Human Rights. Complaints included, amongst others, overcrowding, insufficient natural or electric light, lack of fresh air, inadequate temperature, mouldy or dirty cells and infestation with insects or rodents. The judgement also cited inadequate furniture, poor quality of food, the lack of availability of showering facilities, toilets and warm water and the poor quality of bedding and linen. HMP Birmingham prison has a reported population of 1450 inmates. David Gauke might want to take note.

Another recent judgement concerned that of parents in dispute over the merits of vaccinations – Re B (A Child: Immunisation) [2018] EWFC 56 . A mother who wished to proceed with the immunisation of her child in conflict with the desires of the father has had her application for an order to vaccinate approved by the court. Whilst explicitly stating that the court makes no “commentary on whether immunisation is a good thing or a bad thing generally” nor on the “merits of vaccination more widely” His Honour Judge Clifford Bellamy noted that this was now the sixth occasion where the court had been asked to make an order in circumstances where a birth patient objected to vaccination. In all but two unusual cases where the medical evidence suggested vaccination would be inappropriate, the court made orders to administer the vaccine. He concluded by stating that

in the absence of new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one of those vaccines, it is difficult to see how a challenge based on efficacy or safety would be likely to succeed.

Whilst the courts may wish to decline to comment on the general merits of vaccination, and the public debate continues, it seems the law in this area of medical treatment now seems settled in favour of child vaccination.

Lastly, a group of Scottish school children have travelled to Geneva to press their views on Human Rights to those at the highest level. As 2018 marks the 20th anniversary of the Declaration on Human Rights Defenders and the 70th anniversary of the UN Declaration of Human Rights, the UN Committee on the Rights of the Child (UNCRC) chose ‘Children as Human Rights Defenders’ as the theme for its Day of General Discussion this month.

The group have presented to the UN five giant papier-mache shields reflecting the human rights themes they feel are most significant. These are the importance of play, learning, diversity, safety and love. Acting as “Human Rights Defenders”, the children have travelled to Geneva to participate in the Day of General Discussion and advocate the views of children across Scotland.

Dylan, one of the young group travelling to Geneva for Friday’s meeting, says:

Children as Human Rights Defenders is a great theme for the Day of General Discussion as adults don’t always know what’s important in our world. If someone is being bullied, I speak up. If rights are not being respected, I fix that problem.

Bruce Adamson, Children & Young People’s Commissioner for Scotland added:

Children and young people in communities are making a difference by defending their rights and the rights of others and we should recognise and celebrate their important work. It is my role to ensure that children are supported and protected when they challenge and speak truth to power. Children don’t have the same political or economic power as adults and are often excluded from decision making, yet we see children and young people from across Scotland changing lives as human rights defenders on a local, national and international level.

By devoting the Day of General Discussion to the topic of children as human rights defenders, the UN hopes to encourage a global movement to promote understanding of the role of children as human rights defenders, as well as identifying improvements in child rights-related laws, policies and practices. More information on September’s day of General Discussion can be found here .