The Weekly Roundup: Windrush compensation, fracking injunctions, and deportation of ‘foreign criminals’

8 April 2019 by Rosalind English

In the news 

This week, the Home Secretary Sajid Javid launched the Windrush Compensation Scheme. It is estimated that the total compensation will be somewhere in the region of £200m, but critics note that individual payments may be ‘insultingly low’, as with a cap of £1,000 for those who left under a ‘voluntary’ return scheme. The government has published an impact assessment for the scheme. 

The media (and certain MPs) have reacted with outrage to a High Court judge’s statement that a man had a ‘fundamental human right’ to have sex with his wife. The remark was made by Hayden J in a Court of Protection case concerning a marriage to a woman with severe learning disabilities. One commentator has suggested that the remark has been interpreted uncharitably, and was simply meant to indicate a cautious approach to governmental interference with private life in such complex and difficult situations, in line with Article 8 of the ECHR.

The Foreign Office has appointed human rights lawyer Amal Clooney as its ‘Special Envoy for Media Freedom’. Meanwhile, human rights criticisms of the UK government itself have come from various angles: 

• The Northern Ireland Human Rights Commissioner has called on Theresa May to clarify the post-Brexit rights of Northern Ireland-born Irish citizens. 
• The Scottish Commissioner for Young People and Children has called for UN intervention to address Scottish breaches of children’s human rights, such as by strip-searching and illegal restraint. The Commissioner urges the implementation of the UN Convention on the Rights of the Child into Scots law. 
• A report by the Commons Foreign Affairs Committee, titled ‘China and the Rules-Based International System’, worries that UK trade policy with China is prioritising economic interests over other vital concerns such as human rights violations. 
• A report by Citizens UK indicates that the Home Office is making a substantial profit (~£25m/year) from fees to process citizenship applications by the children of migrants who have grown up in the UK. 
• As Shamima Begum’s lawyers prepare her appeal against the government’s decision on her citizenship, international criticism of the UK’s reluctance to repatriate children of ISIS parents is growing, with repatriations by France and Germany, and pressure from the International Committee of the Red Cross. 

Outside the UK: 

• Brunei’s anti-LGBT law has come into force, despite overwhelming international criticism. 
• Debate continues about Mark Zuckerberg’s call for a US state regulator of Facebook. 
• Rwanda marked the 25^thanniversary of the 1994 genocide. 

In the courts 

The Court of Appeal this week considered a challenge to injunctions granted against anti-fracking protesters: 

• Boyd & Anor v Ineos Upstream Ltd & Ors: in 2017, a series of injunctions were granted by Morgan J against potential fracking protesters (‘persons unknown’), in favour of various commercial parties operating fracking sites. These included injunctions (1) against trespassing on the sites; (2) against interfering with access to certain sites by private roads; (3) against interfering with access to public rights of way for certain sites; (4) against combining together to intimidate, commit criminal damage, obstruct the highways or interfere with road traffic equipment.  An appeal was made, including a challenge under s.12(3) HRA 1998 (granting of interim relief which may affect Article 10 rights). Although injunctions against persons unknown were in principle permissible, the court held that injunctions (3) and (4) must be discharged as they were too general; and injunctions (1) and (2) must be remitted to the trial judge to decide whether interim relief should be granted under s.12 HRA 1998. 

The Court of Appeal also made two adverse immigration rulings: 

• Binbuga (Turkey) v Secretary of State for the Home Department: the appellant, a Turkish national, was convicted of various offences including shoplifting, robbery, burglary, and possession of cannabis. He was issued with a deportation order as a ‘foreign criminal’ in September 2015, under s.117D(2) NIAA 2002. He appealed on the grounds that (i) he was not a ‘foreign criminal’; (ii) exception 1 of s.117C(4) applied, as he was socially and culturally integrated, and there were significant obstacles to reintegration in Turkey; and (iii) there were ‘very compelling circumstances’ not to deport him, under Immigration Rules 398-399A. The appeal was dismissed. In ruling, the court noted that (i) the appellant was a ‘foreign criminal’ because he was a ‘persistent offender’, despite evidence of rehabilitation and an 18-month period with no offences prior to the deportation decision; (ii) the appellant’s involvement in ‘gang culture’ was evidence not for but against social and cultural integration (Bossade), and the fact that he might have been a ‘home-grown’ offender was irrelevant (LW (Jamaica) v SSHD).  
• Ullah v The Secretary of State for the Home Department: the appellant had been granted indefinite leave to remain (ILR) in 2012, having allegedly met the threshold of 14 years of continuous residence. A ‘denunciation letter’ was subsequently sent to the Home Office, with evidence of passport and VISA applications indicating that the appellant had not resided continuously in the UK during that time. As a result, in 2016, the appellant’s ILR was revoked. An appeal was made as to whether this new evidence had constituted “relevant fresh evidence that was not available at the date of the hearing” under SSHD v TB (Jamaica). The court held that it had, dismissing the appeal. In ruling, McCombe LJ noted some unease (at [41]) as to the remedial lacuna introduced by Parliament in 2014, whereby a person accused of fraudulent behaviour in an immigration application cannot have an independent review of this accusation by a fact-finding tribunal.

Meanwhile, the Administrative Court determined the quantification of damages for the unlawful detention of EEA rough sleepers: 

• Holownia v Secretary of State for the Home Department: this case involved the application of Gureckis (2017), where Lang J held that the treatment by immigration officers of rough sleeping by EEA citizens as an abuse of freedom of movement was contrary to EU law. The applicant in this particular case was a Polish citizen who was found rough-sleeping in Heathrow airport in December 2015. The judge decided to award compensatory damages of £37,000, but declined to award exemplary damages, holding that the policy did not constitute “oppressive, arbitrary or unconstitutional action by the servants of government” under Rookes v Barnard. 

This week also saw a string of decisions before the ECtHR on Article 6: 

• Dimopulos v Turkey: this case concerned the application of Article 6 to domestic laws applied retroactively. The applicant had inherited land which was classified as a ‘Category 3 Natural Site’. A law passed in 2004 banned the acquisition of such ‘natural sites’ by ‘acquisitive prescription’; this law was retroactively applied, preventing the applicant’s claim, and leading to the registration of the land in the Treasury’s name. The relevant law was only in force for 3 years. The court held that there was a violation of Article 6. 
• Kunert v Poland: this case related to the application of Article 6 to procedural requirements. The applicant was denied access to a court owing to their failure to send the requisite two copies of the relevant form. The court held that there was no violation of Article 6, because the applicant had been informed of this requirement, and had not been sufficiently diligent in their investigations.  
• Hodzic v Croatia: this case concerned the application of Article 6 to expert evidence in cases of psychiatric detention. The applicant was convicted of threats of serious violence, and subsequently detained in a psychiatric facility, on the strength of the Zagreb Municipal Attorney’s Office expert, who stated that the applicant suffered from paranoid schizophrenia. The defence’s own psychiatric expert considered that the evidence in fact pointed to a diagnosis of ‘chronic stress and maladaptation to the environment’, but this evidence was held to be inadmissible. The ECtHR held that this failure to admit the defence’s psychiatric evidence constituted a violation of Article 6 in both its criminal and its civil limb. 

On the UKHRB 

• David Hart QC discusses the Supreme Court’s ruling in Stocker v Stocker, about alleged defamation of a violent ex-husband on Facebook. 
• Rosalind English reports on an animal rights case raising the question of standing for animals. 
• In Episode 75 of Law Pod UK, Emma-Louse Fenelon talks to Marina Wheeler QC about the operation of the Prevent Guidance in universities, and the case of Butt v SSHD.