The Round Up: Saudi Arabia, durable relationships, and the Telegraph judgment

29 October 2018 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

Credit: The Guardian

In the News:

Saudi Arabia has admitted that the Washington Post journalist Jamal Khashoggi is dead. The man was last seen entering the Saudi Arabian consulate in Istanbul.

At first Saudi Arabia refused to admit the journalist was dead, then claimed he was killed in a fist fight, before suggesting he was killed by a rogue operation. A man posing as Khashoggi left the consulate the same day and walked around the nearby area.

The country’s public prosecutor has launched an investigation. King Salman announced a restructuring of the kingdom’s intelligence services. He has also dismissed deputy intelligence chief Ahmed al Assiri and Crown Prince Mohammed bin Salman’s nearest adviser, Saud al-Qahtani. 18 other suspects have been arrested and remain under investigation. The location of the journalist’s remains is unclear.

Donald Trump called the Saudi’s response ‘credible’, and senior US officials met with the Crown Prince last week. Trump has promised a robust response, but has said he does not want to damage American jobs by cutting arms sales.

Much of the information was initially leaked by Turkey, which sees Saudi Arabia as a rival in the region. President Erdogan has claimed the murder was planned days in advance.

In Other News….

• Tommy Robinson’s contempt case has been referred to the Attorney General. In May 2017, he filmed in Canterbury Crown Court and was given a suspended sentence. A year later, he broadcast on social media outside Leeds Crown Court and was jailed for contempt for breaching an order restricting reporting on the trial that had been imposed to avoid risking prejudice to subsequent related criminal proceedings.  The Court of Appeal quashed that finding on procedural grounds and released Robinson, but remitted the case to the Recorder of London in the Old Bailey.  Last week the Recorder of London, HHJ Nicholas Hilliard QC referred the case to the Attorney General.  This was on the basis that there was a need for cross-examination and rigorous testing of the evidence – which was not practicable under the summary procedure available to the Crown Court. The Attorney General will decide whether to drop the charge or proceed to the High Court, where cross-examination by counsel on behalf of the Attorney is available. Hundreds of supporters appeared to support Mr Robinson at the hearing, requiring a strong police presence. Mr Robinson’s real name is Stephen Yaxley-Lennon.  (The BBC reports here).
• The Home Office has admitted that it illegally required individuals to provide DNA as proof of family ties. At least seven people were denied the right to stay in Britain because they refused to provide DNA samples. Around 499 people were affected, including Gurkha soldiers and Afghan nationals. Sajid Javid MP has apologised, saying the guidance which led to such letters being sent out was “unclear or wrong”. The majority of cases arose through a fraud operation in 2016. A number of politicians have called for a ‘root and branch’ review of the Home Office, citing concerning links with the Windrush scandal. (The Independent reports here).
• Ministers are considering changing the law to prevent the early release of prisoners like Anjem Choudary. The hate preacher was released halfway through his five-and-a-half-year jail sentence. Although he is subject to strict bail conditions, these lapse in two-and-a-half years’ time. Under the proposals, those convicted of “inviting” support for terrorist groups would no longer be eligible for early release. There are a few terror offences where the sentencing judge cannot impose an “extended determinate sentence”. This tool is designed to keep dangerous offenders in jail beyond the halfway point of their tariff. Many have argued the change will come too late. It is alleged Choudary has refused to take part in deradicalization programmes and has continued to express support for IS. (The Telegraph reports here).

In the Courts:

• ABC & Ors v Telegraph Media Group Ltd: The appellants sought an interim injunction to prevent the respondent from publishing what they alleged was confidential information about them. Section 12 of the HRA applies if the court is considering whether to grant relief which might affect the Convention right to freedom of expression. The court held the trial judge had erred. The judge had not considered that substantial parts of the information were passed to the Telegraph in breach of a duty of confidentiality, or that significant parts of the information were not already in the public domain, and did not weigh in the balance the public policy considerations relevant to upholding non-disclosure agreements (“NDA’s”). The Court of Appeal therefore considered the matter afresh. It found that there was a real prospect of serious harm to the Claimants (and the employees of the Claimants’ companies) if the Telegraph were allowed to publish, that the Claimants would be unable to respond because they would be found by the NDAs, and that it was unlikely the Claimants’ enforcement of their right to confidentiality would be defeated at trial by a defence of public interest. There was no evidence that the Settlement Agreements reached with the claimants were formed in a reprehensible manner, and each employee had received independent legal advice. The court made an order for an interim injunction and a speedy trial.
• Secretary of State for the Home Department v Christy: This appeal concerned the circumstances in which durable partners of EU citizens acquire a ‘right to facilitation’. The right to facilitation gives durable partners a ‘certain advantage’ over other third country nationals when applying for a residency card in the EU citizen’s home member state. In this case, the respondent was a US national who had a ‘durable relationship’ with an UK national. The court rejected the Secretary of State’s submission that Ms Christy would only have the ‘right to facilitation’ if her residency on Poland (where she formed the requisite durable relationship) was based on Directive 2004/38/EC. The purpose of the ‘right to facilitation’ is to allow EU citizens to start a family in another member state and return home with their spouse/ durable partner. This means the ‘right to facilitation’ helps secure free movement by giving durable partners an advantage when compared to other third country nationals. The court therefore ruled that Ms Christy did have a ‘right to facilitation’.
• KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent): The case concerned the interpretation of Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the Act”). The Appellants argued that when determining whether it is ‘reasonable to expect’ a child to leave the UK with a deported parent (under s.117B(6) of the Act), or whether the effect of the parent’s deportation on the child would be ‘unduly harsh’ (under s.117C(5)), the tribunal should only concern itself with the position of the child. The Appellants further argued that the conduct of the parents was irrelevant. The Supreme Court rejected this argument, holding that the criminality of a parent is inevitably a consideration. The ‘unduly harsh’ test is higher than ‘reasonableness’ and means a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. It does not require a balancing of relative levels of severity of the parent’s offence. Appeals dismissed.

On the UKHRB

Rosalind English explained the recent Court of Appeal judgement WM Morrison Supermarkets Plc v Various Claimant, and in another post looked at the controversial ECHR case E.S. v Austria.

Jonathan Metzer updated us on the right of appeal against refusal of a residence card.

Events:

• The Most Contentious Problem: Comparing Rights in Conflict (London Hamlyn Lecture 2018), 6pm on 5^th November at Middle Temple Hall. More here.
• The Origins and Endings of Britain and the EU? (Being Human festival), 1pm on 15^th November, at LSE Library Gallery. More here.
• The Beginning of the End for Inequality (Being Human festival), 3pm on 21^st November, at Senate House Library. More here.

If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor at jonathan.metzer@1cor.com