The Weekly Round-up

1 April 2019 by Rosalind English

In the news

With a third rejection of Theresa May’s deal on Friday, Brexit remains a dismal subject. Dismal not only for its economic but for its human rights implications: this week, the Parliamentary Joint Committee on Human Rights published its report on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. The report (available here) raises concerns about legal limbo for the 3m EU citizens remaining in the UK post-Brexit. In particular, it makes the following recommendations: 

• The bill in its present form is a ‘blank cheque’ affording ministers excessive discretion to remove rights. The JCHR recommends an amendment requiring the Secretary of State to ensure that any regulations contain measures to protect the acquired rights of persons who benefited from EU free movement of persons prior to Brexit.  
• The EU Settlement Scheme is unclear on the implications of failure to register the time limit. The JCHR recommends provisions for registration outside the time limit, and/or otherwise to limit the implications of the time limit.  
• The EU Settlement Scheme in its present form would issue only electronic proof of a successful application. The JCHR recommends the issuing of physical proof, echoing the EU Justice Committee in a comparison to the Windrush scandal on this point. 
• Vulnerable people may have difficulty in accessing the EU Settlement Scheme. The JCHR recommends that steps be taken to ensure that vulnerable people are aware of their rights, and have assistance in accessing the scheme. 
• Finally, the JCHR recommends clarification of the Common Travel Area for Irish citizens.  

Meanwhile, it has been announced that there will be an investigation into a police policy of sharing the data of victims and witnesses of crime with the immigration authorities, following a ‘super-complaint’ in December last year – as reported by the Guardian. 

On a more bizarre note, the press have been reporting this week on the case of Eiseman-Reynard v UK, concerning the protesters who planned a ‘zombie picnic’ at the Royal Wedding, and were detained by the police for public security reasons. Their case (under Article 5) was deemed inadmissible by the ECtHR on 05-03-2019, on the basis that it was ‘manifestly ill-founded’; the police had justifiably engaged in preventive detention (based on intelligence that the protesters were going to throw maggots at the royal couple), and a fair balance had been struck by the police between the liberty of the protesters and the safety of the public. The ruling may be worth noting for any other protesters planning to target high-profile royal occasions….  

Around the world: 

• At a meeting in Geneva this week about killer robots, the UK was among a handful of countries to oppose a blanket ban. 
• Brunei has passed a new law punishing adultery and homosexuality with death. 
• Criticism of Saudi Arabia’s human rights record is intensifying. While 11 female human rights activists stand trialin Saudi Arabia, reports have emergedof serious maltreatment of Saudi political prisoners. 
• Facebook has announceda decision to ban ‘praise, support, and representation of white nationalism and white separatism’ on Facebook and Instagram. 

In the courts 

The Administrative Court this week rejected a string of extradition appeals: 

• Versluis v The Public Prosecutor’s Office In Zwolle-Lelystad, the Netherlands: A Dutch national was being extradited for numerous offences of fraud, forgery, ‘swindling’, and money laundering dating back to 2001. He appealed on the basis of Article 8 ECHR and sections 14 (passage of time) and 25 (ill health) of the Extradition Act 2003. Evidence was adduced of the potential effect of extradition on the applicant’s wife; PTSD after the murder of the applicant’s son; and medical conditions including atrial fibrillation, detached retina, Addison’s disease, and bowel and bladder problems. Nonetheless, the appeal was rejected on all three counts: applying Kakis and Gomes, it could not meet the high threshold of ‘unjust or oppressive’ required by the Extradition Act 2003. 
• Prystaj & Anor v Circuit Court of Zielona Gora, Poland: Two brothers were being extradited for a gang robbery perpetrated against a female victim. They appealed on the basis of sections 14 (passage of time), 17 (speciality rule), and 21A (Article 8 ECHR) of the Extradition Act 2003, together with a ground of ‘abuse of process’. The court found that the s.17 claim (and therefore also abuse of process) failed because there was no risk of the Polish courts breaching the speciality rule; the s.14 claim failed given the seriousness of the offence; and the Article 8 claim failed as the ‘false sense of security’ engendered by a previous extradition proceeding, together with an 18-month-long electronically monitored curfew, were not sufficient to make it out. 
• Barrs v The Financial Prosecutor of the Republic At the Higher Instance Court of Paris: The appellant (with his father) was convicted of premeditated conspiracy to launder and to commit VAT fraud: his ‘carousel’ VAT fraud led to the defrauding of the UK IRC of ~£50m worth of VAT, and also of the French Treasury of ~ €118m in total. France issued extradition proceedings; he appealed under s.12 (rule against double jeopardy) and s.25 (ill health) of the Extradition Act 2003, and under Article 3 ECHR, in view of Shumba and ors (2018), where extradition proceedings were quashed due to the condition of French prisons. The court rejected all three grounds: the crimes were merely ‘overlapping’ (different victims and ‘apparatus’), so no double jeopardy; the condition of French prisons was no longer an obstacle in light of Shumba (No. 2); and the appellant’s risk of suicide and self-harm was not a sufficient reason not to extradite under s.25, applying Bobbe (2017), and in light of the presumption that France would discharge its obligations as an ECHR signatory to keep him safe in custody. 

There were also two noteworthy immigration cases: 

• Riaz, R (On the Application Of) v The Secretary of State for the HomeDepartment: The applicant was issued with a VISA for a family visit in July 2018. In August 2018, he was found ‘working’ in a shop, in contravention of his VISA conditions, and was detained. He applied for judicial review against this decision subsequent to his release, when it was found that he was in fact not working but simply minding the shop. The court held that, in light of the evidence before him, the Secretary of State had reasonable grounds for suspecting that the applicant should be detained, in accordance with paragraph 16(2) of Schedule 2 of the Immigration Act 1971; therefore he had not been unreasonable in the exercise of his powers under s.10 of the Immigration and Asylum Act 1999. 
• Islam, R (on the application of) v Secretary of State for the Home Department: The applicant was refused leave to remain as a Tier 1 (Entrepreneur) Migrant, on the basis of documents he sent with his application – namely 6 print-outs of online advertising and 4 copy leaflets or brochures as evidence of his business operations. In particular, the documents failed to show the continuous operation of his business over the relevant period – leaving a lacuna of about 9 months. Rose LJ applied the test from Mudiyanselage(2018)on ‘specified documents’ and when the Secretary of State should exercise their discretion under paragraph 245AA of the Immigration Rules. She concluded that the applicant’s documents were not ‘the wrong document’, and the information missing was not ‘so wholesale as to affect their fundamental character’. Therefore the SoS should have exercised her discretion under paragraph 245AA to request further documents; the decision was quashed and the SoS instructed to request the missing information. 

The Administrative Court heard a trade union case where Article 11 ECHR was invoked under ss.3-4 HRA 1998: 

• The Independent Workers’ Union of Great Britain, R (on the application of) v Central Arbitration Committee & Ors: Two applications were made by a unit of “Security Guards, Postroom workers, AV Staff, Porters and Receptionists” to be recognised for collective bargaining purposes by (a) Cordant Security Ltd (their employer, an outsourcing company) and (b) the University of London.  The Central Arbitration Committee rejected the first application due to a pre-existing agreement with independent trade union Unison, which made the application inadmissible under the Trade Union and Labour Relations (Consolidation) Act 1992 (para 35 Schedule A1); it rejected the second as the University of London was not the employer of these workers. The IWUGB challenged the legislative framework underpinning these decisions under Article 11. They submitted that the Article 11 right to collective bargaining (Demir v Turkey) was being infringed by the UK, insofar as the UK framework lacks any mechanism to get voluntarily recognised independent unions ‘derecognised’.  In response, the court noted that Article 11 does not create a universal or unqualified right (Unite The Union v UK), and affords states a wide margin of appreciation (per Underhill LJ inBoots). Therefore, first decision of the CAC was within the margin of appreciation, while as to the second, it was not engaged. 

The Upper Tribunal considered the status of gay Albanian men seeking asylum in the UK: 

• BF (Tirana – gay men) Albania (CG): this case arose from an application of an Albanian illegal immigrant for asylum protection under the 1951 Refugee Convention, as interpreted in the Immigration Rules and the relevant 2006 Regulations. This was pursued as an indirect Article 3 claim, on the grounds that the applicant faced a serious risk of persecution for his homosexuality upon return to Tirana. Applying the requirement of Lord Hope in HJ (Iran) that the asylum-seeker must have a ‘well-founded fear’ of persecution, the tribunal judges considered that the applicant could safely be returned to Tirana. Although there was a serious risk of persecution outside Tirana, within Tirana there was sufficiency of protection through the operation of the Albanian Commissioner for Protection against Discrimination and the STREHA youth shelter. It would therefore not be unduly harsh for the applicant to relocate to Tirana.