Round Up 29.04.19 – Domestic courts on Easter vacation but the ECtHR keeps on…

29 April 2019 by Thomas Hayes

Mourners including Irish Taoiseach Leo Varadkar, Sinn Fein leader Mary Lou McDonald, DUP leader Arlene Foster and SNP leader Ian Blackford give a standing ovation after Fr Martin Magill’s speech at the funeral of journalist Lyra McKee in Belfast –  April 24th 2019. Credit: The Guardian.

This week saw the senior courts continue their Easter vacation between the Hilary and Easter Terms. Consequently, neither the Supreme Court, Civil Division of the Court of Appeal or Queen’s Bench Division of the High Court recorded any new decisions in the week commencing April 22^nd.

Luckily for the writer of this Blog, the European Court of Human Rights does not share the relaxed attitude of the domestic courts towards Easter working, and on the April 25^th gave judgement in the case of VM v United Kingdom (No 2).

The case concerned a Nigerian woman who entered the United Kingdom illegally in 2003. She subsequently pleaded guilty to cruelty to her son and was sentenced to twelve months imprisonment with a recommendation she be deported at the end of her sentence. Pursuant to this, upon her release, she was detained under immigration powers for two years and ten months.

In the latter part of this period of detention, the claimant instructed a clinical psychologist to evaluate her case. They concluded that she gave a plausible history of physical and sexual abuse at the hands of her uncle; that she suffered from severe post-traumatic stress disorder; that she was not receiving appropriate treatment for her mental health problems in detention; that release would benefit her mental health; and that her deportation was likely to precipitate further suicide attempts. Equipped with this report, her representatives challenged her ongoing detention.

The case subsequently came before the immigration tribunal, where bail was initially refused, before the intervention of a further medical expert prompted her release in July 2011. Between March and July 2011, six reviews of her position were undertaken by the Home Office, during which the caseworker commented on “yet another psychiatric report” whilst appearing to fail to take account of the most recent medical submissions. On each occasion, the officers concluded that the risk of the applicant re-offending and absconding outweighed any presumption in favour of release.

VM sought to initiate judicial review proceedings regarding this decision but was refused by the High Court in 2012. Ultimately, she appealed, and her case ascended through the court hierarchy. In April 2016, the Supreme Court concluded that whilst there were procedural errors in relation to the consideration of her medical evidence which may have made her detention technically unlawful, she would not have been released earlier had such evidence been considered appropriately. She brought proceedings in the Strasbourg Court contending that her detention had been arbitrary as the authorities failed to act with appropriate “due diligence”, and seeking damages given the alleged failure of the domestic courts to provide sufficient redress for the period of her unlawful detention.

The ECtHR agreed, stating that they had difficulty “accepting the Government’s submission that because the necessary practical arrangements had not been made, the applicant could not have been released sooner and in particular that her detention would have been lawful until such arrangements had been made”. Upholding that there had been a violation of Article 5(1) of the convention, the court awarded her €3,500 damages and €10,700 in costs.

Meanwhile, in the news…

• Sinn Fein and the Democratic Unionist Party committed to new talks aimed at restoring the Stormont Executive following a joint announcement to that effect by UK Prime Minister Theresa May and Taoiseach Leo Varadkar. The process saw new momentum after the funeral of murdered journalist Lyra McKee during a riot in Derry on April 18^th.
• The Government announced a leak inquiry after details of discussions by the National Security Council regarding Chinese telecoms company Huawei’s involvement in the UK’s 5G network found their way into the Daily Telegraph. The revelations raised concerns that cabinet ministers had become so accustomed to leaks they were briefing against each other using material covered by the Official Secrets Act. Swift denials were issued by many ministers including Foreign Secretary Jeremy Hunt and Defence Secretary Gavin Williamson.
• The Foreign and Commonwealth Office issued new guidance advising against all but essential travel to Sri Lanka following bombings in the country on Easter Sunday. The death toll was revised down this week to approximately 253 people.
• Climate change advocacy group Extinction Rebellion continued a series of protests across London, causing disruption to public transportation and blockading sites including the Treasury and London Stock Exchange.

Finally on the blog, Rosalind English interviewed Dr Cherry James, coordinator of the Erasmus Programme at London South Bank University, for the 76th Episode of Law Pod UK. Dr Cherry discussed her views on the concept of a “European Citizen”.