The Weekly Round-Up: Provisional Measures for Gaza, Warning on Rwanda, & Asylum Seekers
29 January 2024
In the News
On Friday, A 17-judge panel at the International Court of Justice delivered an interim ruling imposing provisional measures on the state of Israel in order to alleviate the ‘catastrophic humanitarian situation’ in Gaza. Though stopping short of calling for the complete suspension of military operations requested by South Africa, the court ordered that Israel must do everything in its power to prevent the commission of acts of genocide. President of the Court, Judge Joan E Donoghue, emphasised in judgment that the court does not need to find that Israel has broken the Genocide Convention in order to impose provisional measures. Rather, they must only find that Israel’s acts are ‘capable of falling within’ the remit of the Genocide Convention, and that the right of Palestinians in Gaza to be protected from genocide was plausibly under threat. The Court held that this was the case, and that there was a risk of the situation deteriorating further before final judgment could be delivered.
16 members of the court, including Israel’s own Judge Aharon Barak, voted that Israel must take ‘immediate and effective measures’ to address the ‘adverse conditions of life’ in the Gaza strip. The Court also directed that Israel produce a report within one month on the actions it has taken to give effect to the order. Judge Donoghue concluded by reiterating that this interim ruling ‘in no way prejudges’ the jurisdiction of the court to deal with the case, or the merits of the case itself – a case which may take years to reach final judgment.
In Other News
During the ECHR’s annual press conference on Thursday, President of the ECHR Síofra O’Leary reminded the UK Government of its duty to comply with the Rule 39 injunction against flights to Rwanda. This comes as the House of Lords are due to discuss the Safety of Rwanda (Asylum and Immigration) Bill on Monday, a bill which clearly provides that it is at the discretion of ministers whether they comply with the injunction. The Rwanda Scheme has come under further scrutiny this week after it has been reported that the housing secured by the UK Government for refugees has been sold on or reserved for Rwandan nationals. An undercover reporter at openDemocracy, posing as an international investor, was told at a meeting with the sales team of the housing developer that the homes were ‘not for refugees’.
The UK and the US jointly launched a second set of air strikes on Houthi targets in Yemen on Monday night. As ships affiliated with Israel and the West travelling through the Red Sea trade route continue to be attacked, the UK Government has released a statement on the legality of military action against Houthi targets. A letter sent by the Houthi-controlled Foreign Affairs Ministry to the UN’s humanitarian coordinator for Yemen on Wednesday has ordered US and British nationals, including all humanitarian aid workers, to leave the country within one month. The removal of aid workers is likely to cause further deterioration of the fragile humanitarian situation in Yemen, with opposition leader Keir Starmer asking what steps are being taken to materially support Yemenis who have already “suffered terribly as a result of that country’s civil war”. UK Foreign Secretary Lord Cameron is planning to visit the region in the coming days.
Commentators are claiming a ‘blow to the rule of law’ as Hong Kong’s Court of Final Appeal overturned the acquittal of pro-democracy protester and human rights barrister Chow Hang-tung last week. Chow had originally been convicted of ‘inciting others to take part in an unauthorised assembly’ following her involvement in organising and hosting the Tiananmen Vigil in 2021, a vigil which had been held annually for the last thirty years. Despite being later acquitted, the prosecution successfully appealed the decision. The Court of Final Appeal found by a 3-2 majority that the prohibition of the vigil had been a lawful and proportionate restriction of freedom of assembly, thereby reinstating Chow’s conviction. She remains in a maximum-security prison and is now facing a potential life sentence under a separate national security charge.
In the Courts
The High Court held this week that the Home Secretary’s withholding of decisions on leave to remain for victims of trafficking was in breach of articles 8 and 14 ECHR. The Home Office had neglected to issue decisions on leave to remain for victims of trafficking who had applied for asylum while the seminal case of R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 Admin progressed through the upper courts. The High Court and Court of Appeal had found in KTT that in order for the United Kingdom to comply with its duties under the European Convention Against Trafficking, confirmed victims of trafficking who are claiming asylum in the UK (at least in part for fear of re-trafficking) must be granted leave to remain while their asylum case is being decided. The Home Secretary was seeking to appeal this decision, though permission to appeal to the Supreme Court was eventually refused in October 2022.
Judgment was handed down on Tuesday in the case of XY v Secretary of State for the Home Department [2024] EWHC 81 (Admin), where a confirmed victim of trafficking had been denied a decision on his leave to remain while his asylum case was decided for over 18 months. Consequently, the claimant was unable to rent a property, open a bank account, or otherwise fulfil the necessary prerequisites to participating in society. Lane LJ held that this amounted to a breach of Article 8(1) ECHR, the right to respect for private and family life. A breach of Article 14 (protection from discrimination) was also found on the grounds of the differential treatment between trafficking victims who had applied for asylum and those who had not, given that both groups had equal need for a decision on leave to remain.
As of 30th January 2023, decisions on leave to remain for trafficking victims are now made according to the Nationality and Borders Act 2022.
And do listen to the latest episode of Law Pod UK, in which Rachel Marcus and Marcus Coates-Walker of 1 Crown Office Row join Lucy McCann to explore the principle of the scope of duty in the context of clinical negligence claims.
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