Round Up 14.10.19 – Diplomatic Immunity, Brexit and Immigration

14 October 2019 by Thomas Hayes

Harry Dunn’s family after meeting with the foreign secretary, Dominic Raab, last week. Photograph: Credit: The Guardian, Peter Summers/Getty Images.

The usually obscure concept of diplomatic immunity came to the fore this week after it emerged that the wife of an American diplomat was wanted for questioning in connection with the death of a motorcyclist in Northamptonshire. Anne Sacoolas was spoken to by police after a collision with Harry Dunn in which he was killed whilst riding his motorbike, prior to her return to the United States.

Article 31 of the 1961 Vienna Convention grants immunity from the criminal jurisdiction of the receiving state to diplomats, a feature extended to their family members by article 37. However, both the United Kingdom and the United States were this weekend reported as having agreed that diplomatic immunity was no longer “pertinent” in the case of Mrs Sacoolas. This raised the possibility of the UK seeking her extradition, despite President Trump being photographed this week with a briefing card stating that she would not be returning to Britain.

Meanwhile, the country’s attention turned back towards Brexit, with the week ahead promising to, in the Prime Minister’s words, be “do or die” for the prospects of a negotiated deal. At the beginning of the week it was widely reported that talks had faltered, with Downing St leaks suggesting a deal was “essentially impossible”. However, the mood surrounding negotiations changed significantly on Thursday, with Taoiseach Leo Varadkar describing the emergence of a “pathway” to a deal following his meeting with Boris Johnson.

By next Saturday, following the first weekend sitting of the House of Commons since the Falklands War, things will have become far clearer. The “Benn Act” (otherwise known by its less snappy title of European Union (Withdrawal) (No. 2) Act 2019) requires the Prime Minister, by Saturday, to seek from the European Council an extension of the period under Article 50(3), unless he has won a vote in favour of departure with or without a deal. Exactly how the Prime Minister can comply with this whilst still carrying out his threat to leave on the 31^st of October remains to be seen.

Somewhat lost in this drama, Parliament was once again prorogued (more on the last prorogation here!) ahead of today’s Queen’s Speech. It is perhaps a telling sign of the dysfunction in Westminster that the confusing logic of a government outlining its legislative agenda for the next parliamentary term whilst simultaneously petitioning for a general election which would dissolve that very parliamentary session and form a new parliament which may not be able to enact it, has not received more attention…

Moving to the week’s legal developments, the High Court gave judgement in the case of Mordel v Royal Berkshire NHS Foundation Trust [2019] EWHC 2591 (QB). Clodagh Bradley QC successfully represented the mother of a child born with Down’s Syndrome who claimed she had either not been offered, or had been inadequately counselled about, screening opportunities for the condition. The mother had initially accepted screening but this was not performed, at one instance due to her purported decision to decline. At later appointments the patient was not offered screening when opportunities still existed for it to be carried out, and it was held that had she declined, the consent process underlying this decision had been inadequate to constitute informed consent. Consequently, judgement was made in favour of the claimant.

Meanwhile, the Court of Appeal saw decisions handed down in two immigration cases. In Secretary of State for the Home Department v JS (Uganda) [2019] EWCA Civ 1670, the court examined the protections against refoulement (the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution) afforded to foreign criminals, previously granted refugee status linked to that of a family member, who are now subject to deportation orders. JS received clearance to enter the UK aged 17 to join his mother who had been granted indefinite leave to remain due to a well-founded fear of persecution.  The Home Secretary had sought to deport him following his conviction for rape in 2013, which JS opposed on Article 3 and 8 grounds.

The Court of Appeal allowed the Secretary of State’s appeal against previous judgements setting aside his deportation order, and remitted the matter back to the First-Tier Tribunal to consider. However, a cross appeal by JS was also allowed, with the Court ruling that the Upper Tribunal’s position that Article 3 considerations were ‘immaterial’ was incorrect.

In addition, in Secretary of State for the Home Department v KN (DRC) [2019] EWCA Civ 1665 the Secretary of State challenged the decision of the Upper Tribunal that the decision to revoke the respondent’s refugee status was incompatible with the UK’s obligations under the 1951 Refugee Convention. KN was granted refugee status after his father fled the Mobutu regime but became subject to automatic deportation under s.32 of the UK Borders Act 2017 after he was convicted of conspiracy to rob. The individual is in a relationship with a British citizen with whom he has two children. The case hinged on interpretation of Article 1C(5) of the Refugee Convention which states:

This Convention shall cease to apply… if

(5) He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality.

The Court of Appeal accepted the Secretary of State’s submissions that the Upper Tribunal had interpreted this provision too narrowly, ruling that the case should be remitted back to the Upper Tribunal for a full consideration of the individual’s circumstances in relation to Article 1C(5).

Lastly, the week also saw Labour MP Chris Williamson’s appeal against the decision of the party to recently re-suspend him on allegations of anti-semitism – Williamson MP v Formby [2019] EWHC 2639 (QB). The court ruled the party was entitled to behave as it has, and its ongoing internal disciplinary proceedings continue.

On the UK Human Rights Blog…

• Joanna Curtis considers the interplay between holocaust denial in parliamentary proceedings and freedom of speech.
• Henry Tuffnell discusses the High Court’s ruling on reforms to women’s pension age
• Dr Thomas L Muinzer discusses the case of  State of Netherlands v. Urgenda

On Law Pod UK :

• Rosalind English and Charlotte Gilmartin discuss “what is a ‘mother’ in law?”