Digital ID scrapped and ECHR jurisdiction in the Court of Appeal
27 July 2026
In the News
Digital ID scrapped:
On Tuesday, the new Prime Minister, Andy Burnham, announced that the Government would scrap plans to bring in mandatory digital ID. The policy, announced under the Starmer administration, was intended to help tackle illegal migration and working, as well as improve access to public services.
However, the plan received considerable criticism at the time, in particular from human rights charities, being described by Amnesty International UK as ‘a serious cause for concern’, which carried with it ‘new risks of discrimination … including racialised policing.’ The development of the policy was later characterised by the Chair of the Home Affairs Committee, Dame Karen Bradley as a ‘fiasco’ which ‘raised fears of government over-reach into people’s lives’.
Burnham styled his move to ditch the plans as a ‘reprioritisation of public resource’ but notably refrained from criticising the policy on rights grounds. Although the plans had already been watered down somewhat, Burnham’s recent decision has received immediate praise. Akiko Hart, a Director at Liberty commended the move as ‘a victory for civil liberties in the UK’.
Charity Commission investigates Amnesty International UK:
On Tuesday, the Charity Commission opened a compliance case into Amnesty International UK. This followed Amnesty’s self-referral to the Commission following the significant backlash it received for a now-withdrawn report published on its website. That report had sparked controversy for labelling over one-hundred gender critical organisations as being part of an ‘Anti-Rights Movement’.
One such organisation listed by the Amnesty International UK in the report was Beira’s Place – a female-only sexual violence support centre founded by JK Rowling in 2022. Following the publishing of the report, Beira’s Place threatened to take legal action against Amnesty, alleging the report to have been defamatory and demanding a retraction and apology. JK Rowling herself then offered legal funding to any groups that had been named by Amnesty in the report.
Amnesty swiftly withdrew the report, explaining that it had failed to go ‘through the established internal review processes that are in place to ensure consistency, accuracy and alignment with Amnesty International UK’s position.’ It has added that it is ‘engaging fully’ with the Charity Commission’s investigation.
In the Courts
On Monday, the Court of Appeal handed down judgment in Rahim v Secretary of State for the Home Department [2026] EWCA Civ 930.
The facts:
The case took the form of an appeal from the Upper Tribunal (Immigration and Asylum).
In 2017, the Home Secretary had refused the Appellant’s (Mr Rahim) application for Indefinite Leave to Remain (“ILR”) on the grounds that he had cheated in an English language test in 2012, which was a requirement for him being granted further leave to remain in the UK.
Mr Rahmin appealed this Decision, initially on the grounds that he had not deceived the Home Office by cheating. His appeal made ‘general references to Convention rights, and to article 8’ [para. 15]. The First Tier Tribunal found against him and ruled in favour of the Secretary of State. After a series of applications for permission to appeal the FTT’s ruling, Mr Rahmin’s appeal was eventually remitted by consent to the Upper Tribunal, which along with finding that Mr Rahmin had cheated, also found that ‘the public interest in maintaining effective immigration control outweighed his article 8 right to respect for his private life’ [para. 31].
Since the Decision, Mr Rahmin along with his partner (Ms Bibi Ali) had three children. The first of his children (“A”) was a ‘qualifying child’ for the purposes of s. 117B(6) of the Nationality, Immigration and Asylum Act 2002, being under-18 and either a British citizen or settled in the UK. Mr Rahmin’s case was that the UT had failed to take into account a ‘new matter’ – his relationship with child A – when considering whether the Decision was unlawful for being a disproportionate interference with his Article 8 rights.
The question before the Court of Appeal was whether the UT had erred in refusing to consider child A as a ‘new matter’. To consider a ‘new matter’ the Tribunal would require the permission of the Secretary of State under s. 85 of the 2002 Act. However, under s. 117A(2) of the 2002 Act, the tribunal also had to have regard to public interest considerations, including that removal is generally not in the public interest where an individual has a ‘genuine and subsisting parental relationship with a qualifying child’.
The decision:
Dismissing the appeal, the Court of Appeal held that there was no conflict between the ‘mandatory language’ of s. 117A(2) and s. 85 of the 2002 Act. Rather, s. 85 defined the jurisdiction of the Tribunal, requiring the Secretary of State’s permission to hear a ‘new matter’. S. 117A(2) applied once breach of Article 8 was in issue before the Tribunal [paras 36-37].
The Court also reasoned that even though the FTT in its determination had referred to Mr Rahmin’s family life, this could not mean s. 117A(2) was invoked in respect of his relationship child A. On the contrary, that would be ‘flatly inconsistent’ with the fact that this relationship was a ‘new matter’ [para. 40]. Furthermore, both tribunals would have had no jurisdiction to consider Mr Rahmin’s relationships since the Decision anyway, due to the requirement for the Secretary of State to give permission [para. 41]. Finally, the FTT’s considerations were irrelevant, since its findings had been set aside by the UT in its determination [para. 42].
In a concurring judgment, Andrews LJ held that the ‘fatal flaw’ in Mr Rahmin’s first argument was that it ‘is only when the tribunal has jurisdiction that it is obliged to consider matters such as an appellant’s relationship with a qualifying child.’ [para. 44].
On Wednesday, the Court of Appeal handed down judgment in R (Al Hashimi) v Secretary of State for the Home Department [2026] EWCA Civ 943 – a case concerned with jurisdiction under the ECHR.
The facts:
The Appellant (Ms Al Hashimi) was seeking a declaration of incompatibility under s. 4 of the Human Rights Act 1998 on the grounds that provisions of the British Nationality Act 1981 were unlawfully discriminatory on the basis of sex and therefore incompatible with Article 14 when read with Article 8 of the Convention.
Ms Al Hashimi, born in UAE, is a national of Somalia. Her mother, who was born in Aden in 1958 – at the time a British colony – became a ‘British Overseas Citizen’, although she had no right of abode in the UK. Ms Al Hashimi applied to the Home Office to become registered as a ‘British Overseas Citizen’, however this application was rejected in 2024.
The grounds for her rejection were that under s. 5 of the British Nationality Act 1948, a person born after the Act came into force could only become a ‘citizen of the United Kingdom and Colonies’ by descent through their father. ‘Citizenship of the United Kingdom and Colonies’ was then translated into ‘British Overseas Citizenship’ under the 1981 Act. While later legislation amended the discriminatory provision to allow citizenship by descent through a person’s mother, this change only applied to those would become a ‘British Dependent Territories citizen’. Ms Al Hashimi was caught out by the residual provision.
Ms Al Hashimi was living in the UAE at the time of her application to the Home Office. The High Court accordingly rejected the claim on the ground that it did not come within the jurisdiction of the UK under Article 1 of the Convention. The correctness of this finding was the sole ground of appeal.
The decision:
The question for the Court of Appeal was whether by rejecting Ms Al Hashimi’s application for registration the Secretary of State had exercised extra-territorial jurisdiction, which Strasbourg case law establishes as being an ‘exceptional’ [para. 20].
The circumstances in which ‘exceptional’ extra-territorial jurisdiction could arise are primarily those where there is ‘effective control by the State over an area’ or ‘State agent authority and control over individuals’ [para. 21].
Unfortunately for Ms Al Hashimi, the Court found that there was nothing in her case ‘comparable to the exercise of authority or “physical power and control”’ [para. 42]. While the grant of a British Overseas Citizen passport might affect her interests, the United Kingdom was not exercising any control over Ms Al Hashimi. Furthermore, the Court applied the decision in S1 v Secretary of State for the Homes Department[2016] EWCA Civ 560 in holding that ‘ the “authority” which States have over their nationals in international law “is not the same as exercising ‘authority or control’ for the purposes of art. 1 of the Convention”’ [para. 42].
Ms Al Hashimi attempted to rely on the Strasbourg case of HF v France (2022) 75 EHRR 31, where the Grand Chamber stated that it ‘certain circumstances relating to the situation of individuals who wish to enter the State of which they are nationals … may give rise to a jurisdictional link with that State for the purposes of art.1 of the Convention’ [para. 25]. However, the Court of Appeal distinguished this, holding that the Strasbourg Court was concerned with situations in which rights under the Convention would be rendered ineffective. In Ms Al Hashimi’s case, there was no risk to Article 14 being rendered ineffective [para. 44]. Accordingly, her appeal was dismissed.
