The Weekly Round-up: Human Rights Act reform, citizenship for Windrush claimants and European parenting rights

20 December 2021 by William Craig Cohen

On Tuesday, the Ministry of Justice published its full consultation (the ‘Consultation’) on Human Rights Act (the ‘Act’) reform. The Consultation criticises the current application of the Act in the UK and sets out the government’s proposals for repealing the Act and replacing it with a UK Bill of Rights. The 123-page Consultation follows the Independent Human Rights Act Review (‘IHRAR’), which reported to the government in late October, and was published on the government website on the same day as the Consultation.

The Consultation runs through the government’s now familiar issues with the Act, putting significant weight on cherry picked human rights cases which it is eager to summarise in its own words. For instance, R (Ellis) v Chief Constable of the Essex Police 7 [2003] EWHC 1321 (Admin), [2003] 2 FLR 566 is cited in the Consultation as an example of the application of the Act going ‘too far’. The Consultation presents the issue in the case, of Essex police publicising photographs of convicted offenders in train stations, as one that should clearly be beyond the remit of the Act. It makes no mention of the children and relatives of the offenders whose interests were balanced with the interests of the public in naming and shaming offenders in the hopes of deterring further crime (in the end, the scheme was permitted to continue).

The Consultation summarises many other prominent and less conspicuous human rights cases which it views as unsatisfactory, providing little quantitative analysis beyond its discussion of ‘foreign national offenders’, where a ‘random sample’ of 296 First Tier Tribunal cases from internal Home Office data is cited to support the point that foreign national offenders rely more on the Article 8 right to respect for private and family life than other human rights to avoid deportation. These arguments reflect those recently used at conservative party conventions and elsewhere. Once again, cases are cherry-picked (at times without citation) and summarised to demonstrate the damaging nature of the Act. Despite its limited overall relevance to sweeping reform of the Act, anti-immigrant sentiment is the dominant source of popular support for reform, with the Daily Mail neatly summarising the perception of the issue in November:

The right to family life under Article 8 of the European Convention on Human Rights is regularly deployed by foreign criminals, including murderers and rapists, to avoid deportation from Britain after committing crimes here.

The IHRAR made its own set of suggestions in relation to reforming the Act, including greater education for both children and adults on human rights law in the UK. This suggestion is absent from the Consultation. Instead, the Consultation repeatedly highlights ‘confusion’ as being a key issue with the current application of human rights law in the UK and therefore a ground for overhaul. Ironically, the confusion surrounding human rights law highlighted by the Consultation could perhaps have been remedied by reading the IHRAR, which summarises and explains core principles of human rights application in Convention states as well as suggesting greater efforts for wider human rights education in the UK. Ultimately, and after consultation with many independent actors, the IHRAR concludes that the Act is largely fit for purpose, compatible with UK law and legal principles and has an ‘overwhelming body of support for retaining’ it. The Consultation therefore necessarily goes beyond the IHRAR in its continued pursuit of an overhaul.

Central to the Consultation’s proposed Bill of Rights would be a preliminary permission stage to bringing human rights claims, making reliance on human rights more difficult and time-consuming for claimants. An editorial in the Guardian summarises its position on section 2 (the current requirement for courts to take into account ECtHR jurisprudence):

He does not want to leave the convention. But he proposes that domestic courts should not be “required to follow or apply any judgment or decision of the European court of human rights”. Mr Raab wants to keep human rights, only to hollow out their role in law. He suggests that courts ought no longer to interpret whether legislation is compatible with human rights but instead consider whether it is “consistent” with ministerial aims. In other words, judge the government by vague intent rather than fundamental individual rights.

In other news:

• On Wednesday, the Guardian published an article concerning the Nationality and Borders Bill (the ‘Bill’), currently at its second reading in the House of Lords. Clause 9 of the Bill removes the unqualified requirement to give notice to people who are to be deprived of British citizenship. It has been possible for the UK government to order deprivation of citizenship against its citizens where it believes it is ‘conducive to the public good’ since the coming into force of the Immigration, Asylum and Nationality Act 2006, with the additional power to render individuals stateless introduced by the Immigration Act 2014. This has been most visibly achieved in the case of Shamima Begum, considered extensively on the UK Human Rights Blog.

• GB News reported on Thursday that Vernon Vanriel and Eunice Tumi have won their judicial review of the government’s decision to prevent their applications for British citizenship. The Home Secretary’s position was that the requirement for five-year residence in the UK to claim citizenship was immovable, despite that Vanriel and Tumi were prevented from re-entering the UK due to the Windrush scandal, in which many who came to the UK as British subjects and never sought official documentation of their residency or citizenship were thereafter denied re-entry to the UK and lived for many years separated from their families. Finding that these cases contravened Article 8 of the Human Rights Act (the ‘Act’) as the claimants had been separated from their families for many years, the five-year rule of the British Nationality Act 1981 had to be read down under s.3 of the Act to allow for such cases and provide a remedy for the claimants without having to wait for Parliament to amend the Act (the procedure if a s.4 declaration of incompatibility were made).

In the courts

• On Tuesday, the CJEU handed down judgment in case C‑490/20 Stolichna obshtina, rayon ‘Pancharevo’ (Sofia municipality, Pancharevo district, Bulgaria). The case involved two mothers, one British and one Bulgarian, residing with their child in Spain. The Bulgarian mother sought a Bulgarian birth certificate for their child, in order to obtain a Bulgarian identity document for her. Bulgarian law requires a birth certificate to contain the name of the biological mother of the child, however, the mother refused to tell the Bulgarian authorities which of the child’s mothers was biological. The Bulgarian court therefore submitted an Article 267 TFEU request for a preliminary ruling, on whether the application of EU law (which requires Member States to issue documents enabling citizens of the Union to move freely between Member States) required the issuance of a Bulgarian birth certificate in contravention of its national law. The CJEU determined that the Bulgarian authorities were not required to issue a birth certificate, but were indeed required to issue a child with an identity card or passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and that the child’s Spanish birth certificate must be recognised in order to enable the child to exercise alongside her two parents her right to move and reside freely within the territory of the Member States as guaranteed in Article 21(1) TFEU.

• The Supreme Court handed down judgment on Wednesday In the matter of an application by Margaret McQuillan for Judicial Review (Northern Ireland) (Nos 1, 2 and 3) [2021] UKSC 55 On appeals from: [2019] NICA 13; [2019] NICA 46. The 102-page judgment determined that the positive obligations laid on the state by Articles 2 and 3 ECHR did not require authorities to reopen investigations into the killing of Ms Jean Smyth in Belfast in 1972, nor the ill-treatment of the fourteen ‘Hooded Men’ by the Royal Ulster Constabulary in 1971. As these events had occurred long before the UK’s incorporation of the ECHR in the Human Rights Act in 2000, these reviews were ultimately defeated by the Human Rights Act’s lack of retrospectivity, and were unable to avail themselves of the limited exceptions to this.

On the UKHRB

• On the latest episode of the UKHRB’s LawPod UK podcast, Rosalind English presents the Bar Council’s seminar on the role of law reform in the context of climate change

• 1COR’s Angus McCullough QC updates on the progress of the statutory review on closed material proceedings

• Sapan Maini-Thompson discusses the successful appeal of the United States against the Magistrates’ court ruling that prevented Julian Assange’s extradition on the grounds of his suicide risk.