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

20 December 2021 by

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.

On the UKHRB

  • 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.

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection covid crime Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany gmc Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Judaism judicial review jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring music Muslim nationality national security NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal Parole patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law Regulatory Proceedings rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Standing statelessness Statutory Interpretation stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw YearInReview Zimbabwe
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