The Weekly Round-up: Gaming the asylum system, contempt warnings, and a European climate change case
4 October 2023
In the news
The Home Secretary, Suella Braverman, has been in the news for claiming that asylum seekers “purport” to be gay to “game the system” and receive preferential treatment in asylum applications. In a speech in Washington DC on Tuesday, the Home Secretary said that discrimination on the basis of sexuality or gender is not sufficient to qualify for international refugee protection. Braverman’s comments have been heavily criticised, and approximately twelve Conservative MPs complained to the Chief Whip this week, saying the Home Secretary’s remarks were offensive, divisive, and inaccurate. According to the BBC, sexual orientation only formed the basis of 1.5% of asylum claims made in the UK last year. Equally, many continue to face persecution as a result of their sexuality; consensual same-sex acts are illegal in a number of countries and, in some cases, are punishable by death.
Meanwhile, the Attorney General issued a notice to the media this week, warning editors not to put themselves at risk of being in contempt of court by ‘publishing any material’ which might ‘prejudice any potential criminal investigation’ into the allegations against Russel Brand. Editors, publishers, and social media users were advised to comply with obligations under the Contempt of Court Act 1981. Commentators have criticised the Attorney General’s warning for possibly misapplying the law on contempt; publishers can be found unintentionally to be in contempt of court, but only where there are active criminal proceedings (which there are not in Brand’s case). Alternatively, the Attorney General might have been warning against falling foul of the old common law rules on contempt, where no active case is required. Regardless, many have questioned whether reporting by the media – who in this instance were responsible for breaking the allegations against Brand and prompting a criminal investigation – would make any future trial unfair.
Finally, a BBC investigation has revealed over 150 instances where police officers are reported to have misused body-worn cameras. The reports include incidents where officers have switched off their cameras, lost footage, and shared camera recordings inappropriately between colleagues on WhatsApp. The National Police Chiefs’ Council’s lead for body-worn video, Jim Colwell, said the NPCC would be updating guidance on body-worn cameras next month.
In other news
This week, children reaching the age of 18 who were conceived from egg, sperm, or embryo donations will be able to learn the identity of their donor for the first time. Changes were made to the donor anonymity law in 2005, allowing children who were conceived after the 1st April 2005 to request the identity, date of birth, and last known address of their donor when they reach the age of 18. Around 30 people conceived through donation will become eligible to request the identity of their donor between October and December this year.
Human Rights Watch published a report this week, revealing that European shipping companies are knowingly scrapping ships in ‘dangerous and polluting yards’ in Bangladesh. According to the report, these yards are dangerously unregulated; offering employees minimal wages and dire working conditions, and engaging in polluting working practices. European companies are reportedly circumventing international regulations which require end-of-life ships to be exported to yards with adequate environmental and labour protections. The report recommends the conventions governing the ship recycling industry are further strengthened.
The Equality and Human Rights Commission has updated its technical guidance for schools, outlining their obligations in relation to students with protected characteristics under the Equality Act 2010. Schools have a legal obligation not to harass, victimise, or discriminate against pupils as a result of a characteristic which is protected by the Act (such as race, sex, or disability). The updated guidance includes changes to reflect recent developments in relation to sex and gender reassignment, and suggests measures schools might take to ensure they are fulfilling their obligations under the Act.
In the Courts
On Wednesday, the Grand Chamber of the European Court of Human Rights heard the case of Duarte Agostinho and Others v. Portugal and 32 Others (application no. 39371/20). The applicants in this case are Portuguese nationals, aged between 11 and 24. They claim that forest fires in Portugal – which have worsened since 2017 – have caused damage to their health, and are the direct result of climate change. They contend that by failing to take adequate measures to limit global emissions (in line with international treaties), the 33 member states are in breach of their obligations under the European Convention on Human Rights. Specifically, they argue there has been a breach of Article 2 (right to life), Article 8 (right to respect for private and family life), and Article 3 (prohibition of ill-treatment), as well as a violation of Article 14 (prohibition of discrimination) whereby they contend global warming is having a greater impact on younger people’s rights. There are two other similar cases being heard by the ECHR and rulings on all three cases are expected later this year.
In Yüksel Yalçinkaya v. Türkiye (application no. 15669/20), the Grand Chamber of the ECHR found there had been a violation of Articles 7 (no punishment without law), 6§1 (right to a fair trial) and 11 (freedom of assembly and association). In this case, the applicant was convicted of being a member of an armed terrorist organisation, which Turkish authorities consider to be responsible for the attempted coup d’état in Turkey in 2016. Regarding Article 7, the Grand Chamber found the Turkish court had interpreted the law too broadly, so as to create a presumption of guilt based upon the applicant’s use of a specific messaging application (“ByLock”). Further, the Court found the applicant was not given the opportunity to challenge evidence presented against him, thus constituting a violation of his right to a fair trial. Finally, the applicant’s conviction was based, in part, on his association with specific trade unions. This was sufficient to constitute a violation of Article 11 of the Convention. The Court noted that approximately 8,500 other similar applications have been made to the ECHR and held that Turkey should take ‘general measures’ to address the systemic problems which led to the violations in this judgement.