The Weekly Round-up: Rwanda flight, Julian Assange, and asylum tagging

20 June 2022 by Matthew Johnson

In the news

The first flight attempting to deport asylum seekers to Rwanda has been cancelled at the last minute following a ECtHR ruling that granted an ‘urgent interim measure’ to stop the deportation. This is in contradiction to the UK High Court and Court of Appeal, which found that, while there should be a full review of the policy, the Home Secretary would not be acting unlawfully by deporting asylum seekers in the meantime. The UK Supreme Court refused permission to appeal. The ECtHR stated that the decision was influenced by the UN’s refugee agency, who raised concerns that those being deported may not receive a fair hearing and could be left in unsafe conditions.

The Home Secretary has approved the extradition of Julian Assange to the US. Assange has been charged under the US Espionage Act for publishing leaked documents about the Afghanistan and Iraq wars on his whistle-blowing platform ‘WikiLeaks’ and faces up to 175 years in jail if found guilty. Assange has been in prison since he was removed from the Ecuadorian embassy in London in 2019 after his asylum status was removed. His extradition had previously been blocked for concerns regarding his mental health, but the current decision marks the most important stage in his legal battle. Assange has 14 days to appeal the decision, but his brother expressed that if this is not successful the case will be brought before the ECtHR.

In other news

• The Home Office is facing judicial review in response to its decision to ignore the Grenfell Tower inquiry’s recommendation to implement personal emergency evacuation plans for disabled people. The 5 grounds on which the legal challenge is based are: (i) failure to have regard to recommendations; (ii) breach of legitimate expectation by failing to consult on departure of the recommendations; (iii) depriving consultees of a fair opportunity to address issues; (iv) breach of public sector equality duty; and (v) breach of Article 2 and Article 14 of ECHR in failing to safeguard the lives of disabled residents.

• A 12-month pilot scheme was implemented on Wednesday in which asylum claimants who enter the UK on small boats or in lorries are electronically tagged. The Prime Minister justified the scheme by stressing the importance of stopping people ‘vanishing’ into the rest of the country, but campaigners have criticised it as ‘draconian’ for treating asylum seekers as criminals. They will now have to regularly report in person to authorities and may be subject to a curfew and excluded from certain locations, the breach of which could result in a return to detention or prosecution.  

• The Whyte Review reported that British Gymnastics enabled an ‘unacceptable culture’ where young athletes were forced to train on broken bones, sat on by coaches, and starved as part of a ‘weight management’ scheme. The review, based on over 400 submissions, exposes the devastating result of this maltreatment, with numerous eating disorders described under a ‘tyranny of the scales’. The problem was considered to be systemic, with over 40% of submissions detailing physical abuse on behalf of the coaches.  

In the courts

• On the 15^th, in SC (Jamaica) v Secretary of State for the Home Department [2022] UKSC 15, the Supreme Court allowed an appeal against a deportation order, holding that deportation would be unlawful as the appellant could not reasonably be expected to be located in an area free from inhuman or degrading treatment. The appellant was a Jamaican national convicted of various offences in the UK. His Article 3 Convention rights would be infringed if deported to urban parts of Jamaica, but not rural parts. The appeal hinged on whether the appellant’s criminal conduct was relevant in determining if he could reasonably be expected to stay in rural Jamaica. The Supreme Court reinstated the First-tier Tribunal’s decision that it was relevant because, for instance, the appellant was less likely to find employment in rural areas with a criminal record. As a result, he could not reasonably be expected to stay in rural Jamaica, making the deportation order unlawful.  

• On the 16^th, in Paulo Antonio v Secretary of State for the Home Department [2022] EWCA Civ 809, the Court of Appeal dismissed an appeal against the determination that the appellant was a person to whom section 32(5) of the UK Borders Act 2007 applied. There were 3 grounds on appeal: (i) the removal to Jamaica would be incompatible with the appellant’s Article 8 rights, due to a lack of any real connection to the country; (ii) there was no prospect of deportation to any other country; and (iii) the order itself was inappropriate, with regard to the concession recorded in R (Kaitey) v SSHD [2021] EWCA Civ 1875. In relation to (i), the Court found no material that indicated a disproportionate interference with Article 8 rights. Regarding (ii) it was held that the Upper Tribunal correctly applied the relevant guidance and were entitled to reach the conclusion they did. Finally, (iii) was also dismissed because Kaitey related to maintenance on bail, which did not apply by analogy in the present case.

• On the 10^th, in Secretary of State for the Home Department v The Queen (on application of AM) [2022] EWCA Civ 780, the Court of Appeal dismissed an appeal by the Home Secretary against the Upper Tribunal’s decision that her refusal to grant leave to remain to the Respondent was incompatible with Article 8 ECHR. The Respondent was in ‘limbo’, which means they do not have leave to remain in the UK but there is no current prospect of deportation. The appellant raised 4 grounds of appeal: (i) the Tribunal’s declaration was inconsistent with ECtHR case law; (ii) when considering the effect of the grant on immigration control, the Tribunal wrongly focused on the Respondent’s time in the UK rather than the impact on other entrants; (iii) that the Respondent ‘nearly met’ the requirements of the Immigration Rules was not of relevance but was considered a material factor; and (iv) the Tribunal failed to give weight to the Home Secretary’s own assessment. The Court dismissed all grounds, holding that the Tribunal was entitled to find that the Respondent’s Convention rights were infringed and to grant the declaration in the terms that they did.

• On the 9^th, in Gosturani v Secretary of State for the Home Department [2022] EWCA Civ 779, the Court of Appeal dismissed an appeal that the Upper Tribunal erred in considering that the public interest in deporting foreign nationals convicted of crimes abroad was the same as that of those convicted of offences in the UK. The Court held that the fact that a crime was committed outside the territory of the deporting state does not indicate that lesser weight should be given to the public interest of preventing crime. The Tribunal had correctly assessed the public interest factors, and weighed these against the consequences of deportation on the appellant’s Article 8 rights.

• On the 13^th, in Lazo v Government of the United States of America [2022] EWHC 1438 (Admin), the High Court dismissed an appeal against the decision to send the appellant’s case to the Home Secretary, who ordered their extradition to the United States. The appellant submitted that the District Judge was wrong to send the case to the Home Secretary because the arrest warrant was defective (it being signed by a court clerk rather than a judge). The Court rejected this, holding that just because the warrant was signed by a clerk did not mean it was issued by one. As a result, it was not necessarily invalid and so the case could be sent to the Home Secretary.

Elsewhere on the UKHRB

• Dominic Ruck Keene comments on the case of R (Patton) v HM Assistant Coroner for Carmarthenshire and Pembrokeshire [2022] EWHC 1377 (Amin).