Round Up 27.05.19 – Child asylum seekers gain greater protections, clarification of the law on repatriations to dangerous states, a victory for car owners everywhere and some political matters…
28 May 2019
Theresa May resigns during a speech in Downing Street, May 24th 2019. Credit: The Guardian
It would be virtually impossible for readers of this blog, unless they have recently returned from the International Space Station, awoken from a coma or been rescued after two weeks in the Hawaiian jungle, to have failed to notice this week’s political developments. Dispensing with them briefly, this week saw the Prime Minister announce her departure, and the subsequent commencement of a Conservative leadership campaign to appoint a new PM. Into this mix was thrown Sunday’s European Parliament elections, which saw Nigel Farage’s World Trade Organisation terms advocating Brexit Party finish first, albeit in a poll that saw advocates of a “no-deal” Brexit obtain fewer votes than those committed to preventing Brexit, if you take the combined Brexit Party and UKIP vote compared to combined Liberal Democrat, Green Party and Change UK vote.
More on Britain’s political machinations can be found courtesy of wall-to-wall coverage available pretty much everywhere.
Moving swiftly on to the week’s legal goings on, Friday saw the Court of Appeal hand down judgement in the case of AS (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 873. 1 Crown Office Row’s Sarabjit Singh QC appeared on behalf of the Home Office in an appeal brought by an Afghan asylum-seeker against the decision of the Upper Tribunal that it would not be unreasonable or unduly harsh for a single healthy adult male to relocate to Kabul, even in the absence of specific connections or a support network there.
The individual concerned advanced two grounds of appeal. Firstly, that there was a serious error in the Tribunal’s finding as to the risk of injury to which residents of Kabul were exposed from “security incidents”, and secondly that the tribunal had misunderstood the case law principle that conditions facing a returned refugee in the place to which they are relocated should be considered in the context of the conditions prevailing generally in the country in question.
On the first ground, it was held that the Upper Tribunal had indeed made an error of law in miscalculating by a factor of ten (0.01% as opposed to 0.1%) the prevailing casualty rate in Kabul from security incidents. The case was thus remitted back to the Upper Tribunal for consideration using the accurate figure. On the second ground, his appeal failed. The conditions he would experience in Kabul would be normal for very many Afghans, and it would be possible for him to live in Kabul a relatively normal life without undue hardship, in the context of that particular country.
In a further immigration case, the Court of Appeal was asked to consider the lawfulness of Home Office guidance concerning the treatment of asylum seekers claiming to be children when their appearance suggests they are in fact adults – BF (Eritrea) v Secretary of State for the Home Department [2019] EWCA Civ 872. The determination of whether a solo asylum seeker is a child or adult is of particular importance given amendments to Schedule 2 to the Immigration Act 1971, which makes the detention of child asylum seekers unlawful. Furthermore, children may be owed obligations under the Children Act 1989 and be protected from return to other nations where they have previously claimed asylum under the Dublin III Regulation. Current guidance suggests unaccompanied asylum seekers claiming to be children should be regarded as aged under eighteen unless “their physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary”.
The appellant submitted that the above derogation was unlawful because any assessment of age based solely on physical appearance was inherently unreliable. The court heard that estimates of age could frequently have an error as great as seven years. In a split judgement, Underhill LJ and Baker LJ allowed the appeal, holding that the guidance as formulated created an unacceptable risk that children would be detained.
In other cases, the Court of Appeal gave judgement in no fewer than four cases concerning provisions for the ongoing care of children after they sustained injuries in the care of their parents – J-S (Children) [2019] EWCA Civ 894, I (Children) [2019] EWCA Civ 898, R (A Child) [2019] EWCA Civ 895, N (Children) [2019] EWCA Civ 903. Such a heavy burden of cases comes on the back of rising concerns about the actions of the family courts after BBC investigations highlighted the deaths of children at the hands of fathers awarded visitation rights.
This week also saw the High Court hand down judgement in the case of FZO v Adams & Anor [2019] EWHC 1286 (QB). Robert Seabrook QC and Justin Levinson, both of 1 Crown Office Row, secured damages of £1,112,390.70 on behalf of a claimant who suffers from severe mental health difficulties including post-traumatic stress disorder, having come to realise he had been a victim of sustained and serious sexual abuse as an adolescent and young adult.
Lastly, in a case wholly outside the field of human rights law, but nonetheless of token interest and associated with (at least in this author’s opinion) a sense of fairness and justice, the Court of Appeal rejected an appeal from National Car Parks (NCP) seeking reimbursement from Her Majesty’s Revenue and Customs of VAT paid by the firm on overpayments received by virtue of their pay and display parking machines refusing to offer change – National Car Parks Ltd v Revenue And Customs [2019] EWCA Civ 854. The case hinged on whether overpayments caused by the customer having incorrect change constituted a non-taxable ex-gratia payment or (taxable) consideration for the right to park. NCP’s appeal was dismissed, ensuring that aggrieved motorists who lack small change can at least seek some comfort in the knowledge that they are helping to fund the government’s coffers…
Events
The 14th of June will see the Bingham Centre for the Rule of Law put on a one-day conference with the title ‘Current issues and common challenges for the protection of human rights in Europe, Africa and the Americas’. Organised in partnership with the Bonavero Institute of Human Rights, the Human Rights Implementation Centre at Bristol University, the University of Essex Human Rights Centre and sponsored by Travers Smith LLP, it aims to compare common challenges faced by three regional human rights systems—the European Court of Human Rights; the African Commission and Court on Human and Peoples’ Rights; and the Inter-American Commission and Court of Human Rights. Speakers will include the President of the Inter-American Court, a Vice President of the European Court, and a member of the UK Court of Appeal. It is free to attend and seats can be booked through the Bingham Centre’s web page here.
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