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The Upper Tribunal (Immigration and Asylum Chamber) has found that Priti Patel breached her procedural obligations under Article 2 of the ECHR in respect of deaths in immigration detention.
The application for judicial review arose following the death of Oscar Lucky Okwurime on 12 September 2019 in his cell at IRC Harmondsworth. Mr Okwurime had tried but failed to secure healthcare at the centre. He was not provided with his obligatory ‘Rule 34’ GP appointment within 24 hours of his arrival.
Priti Patel was subject to a legal requirement to assist the coronial inquest by identifying and securing evidence from potential witnesses. Instead, she elected to continue with her plans to remove a number of potential witnesses, including the Applicant, Mr Lawal, a close friend of Mr Okwurime.
Later, the Area Coroner for West London required Mr Lawal to attend the inquest on the basis that he was “an important witness of fact.” The jury later found that “multiple failures to adhere to healthcare policy” and “neglect” contributed to Mr Okwurime’s death from coronary heart disease.
The court found that Patel acted unlawfully in deciding to remove the Applicant in that she failed to take to take reasonable steps to secure the applicant’s evidence concerning the death of Oscar Okwurime. Aditionally, the absence of a policy directing caseworkers on how to exercise immigration powers in a case concerning a witness to a death in custody was unlawful. This was contrary to her Article 2 procedural obligations.
A Home Office spokesperson has said that, in light of the judgment, its processes were being refreshed and a checklist was being introduced to ensure all potential witnesses are identified.
The decision comes as Patel faces criticism for “serious mistakes” and “fundamental failures of leadership and planning” by the Home Office in managing former military sites as makeshift accommodation for asylum seekers. The Home Office is also being sued by a female asylum seeker who claims that staff at her asylum accommodation refused to call an ambulance for three hours after she told them she was pregnant, in pain and bleeding. When she was eventually taken to a nearby hospital, she learned that her baby had died.
In Other News:
Helena Kennedy QC, a leading human rights barrister and author of Eve Was Framed, has been included on the list of those sanctioned by the Chinese government for criticism of the human rights abuses against Uighur Muslims in Xinjiang province. Together with David Alton, a crossbencher, she helmed an ultimately unsuccessful attempt to persuade the UK government to create a procedure that would have enabled the English high court to make a determination on whether the evidence reached the threshold for genocide. China has imposed sanctions on 10 other UK organisations and individuals, including the former leader of the Conservative party Iain Duncan Smith, over what it called the spreading of “lies and disinformation” about human rights abuses in Xinjiang.
The investigatory powers tribunal (IPT), which examines allegations that the state has misused its surveillance powers, has heard from an environmental activist who was deceived into a long-term sexual relationship by an undercover Metropolitan police officer that his managers knew about the deception and allowed it to continue. A judge-led public inquiry into the activities of undercover officers is ongoing; Phillipa Kaufmann QC, who represents women deceived into sexual relationships, has called the practice “endemic”.
In the Courts:
Hamilton & Ors v Post Office Ltd [2021] EWCA Crim 577: the Court of Appeal quashed the convictions of thirty nine men and women employed by the Post Office as sub-postmasters, sub-postmistresses, managers or counter assistants; three other former employees’ appeals failed and were dismissed. All the appellants were prosecuted by their employer and convicted of crimes of dishonesty. The reliability of the computerised accounting system, “Horizon”, in use in branch post offices during the relevant period, was essential to the prosecutions. Despite repeated assertions by the Post Office that the system was robust and reliable, it has become clear that it was critically undermined by bugs and glitches which cause it to incorrectly record shortfalls. The court called the convictions “an affront to the public conscience.” A public inquiry chaired by Sir Wyn Williams, President of Welsh Tribunals, is currently trying to establish an account of the implementations and failings of the system.
Howard, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC 1023 (Admin): the High Court ruled that the Home Office’s handling of a Windrush citizenship application was irrational and unlawful. Hubert Howard was repeatedly denied British citizenship over the course of a decade, despite having lived in the UK since he arrived from Jamaica at the age of three in 1960, on the grounds that a number of minor convictions prevented him from meeting a “good character” requirement, which is an eligibility criteria for citizenship.
Elkundi & Ors, R (On the Application Of) v Birmingham City Council [2021] EWHC 1024 (Admin): the High Court has ruled that Birmingham City Council has been operating an unlawful system for the performance of its main housing duty under the Housing Act 1996. The Council had been operating on the basis that an applicant owed the main housing duty may be left in unsuitable accommodation while the Council takes a reasonable time to secure permanent suitable accommodation. Steyn J held that this was unlawful; the main housing duty is an “immediate, unqualified and non-deferrable” duty to secure suitable accommodation. Putting applicants on a waiting list was not a lawful means of performing that duty.
On the UKHRB:
Caroline Cross covers a recent case in which the boundaries of causation in mesothelioma deaths were tested and clarified.
Martin Forde QC summarises the High Court’s decision (set out briefly above) that the Home Office’s handling of a Windrush citizenship application was unlawful
The duty to expeditiously return under the Hague Convention vs the principle of non-refoulment in asylum law
In the News:
Last week, the Supreme Court considered an interesting interplay between two competing obligations of the state: on the one hand, the duty expeditiously to return a wrongfully removed or retained child to his home jurisdiction under the Convention on the Civil Aspects of International Child Abduction (“the 1980 Hague Convention”); on the other, the principle that refugees should not be refouled, meaning expelled or returned to a country where they have a well-founded fear of persecution.
The parties to G (Appellant) v G (Respondent) [2021] UKSC 9are the divorced parents of an eight-year-old girl (“G”). G was born in South Africa, and was habitually resident until G’s mother wrongfully removed her to England, in breach of G’s father’s custody rights. G’s mother fled South Africa when, after separating from G’s father and coming out as a lesbian, her family subjected her to death threats and violence. On her arrival in England, she applied for asylum and listed G as a dependant on her asylum application.
G’s father applied for an order under the 1980 Hague Convention for G’s return to South Africa. At first instance, Lieven J held the application should be stayed pending the determination of G’s mother’s asylum claim. The Court of Appeal considered that the High Court was not barred from determining the father’s application or making an order for expeditious return
Having been temporarily suspended in early January as a result of an increase in COVID-19 cases, the Grenfell Tower Inquiry hearings resumed on 8 February 2021. The fire killed 72 people.
The hearings are being conducted remotely using a Zoom-based video platform, which the Inquiry describes as “a temporary measure to be used only for as long as absolutely necessary”.
The Inquiry conducted Phase 1 of the investigation, which focused on the events of the night of 14 June 2017, on 12 December 2018. Phase 2 is currently underway, which examines the causes of these events, including how Grenfell Tower came to be in a condition which allowed the fire to spread in the way identified by Phase 1.
Rampant spread, fuelled by a combination of a new variant that is around 50-70% more transmissible, plus a lifting of restrictions at the beginning of December, brings us into another national lockdown.
In many ways, Prime Minister Boris Johnson’s first address of 2021 felt unpleasantly like a return to early 2020.
The original “Stay Home” messaging made a comeback. The Prime Minister was deliberately vague about how long lockdown would last. Big Brother Watch criticised the government for “yet again … evading the democratic process” by denying MPs a meaningful vote on the new national restrictions prior to their televised announcement to the nation, or their coming into force. The new guidance differs from the Tier 4 guidance in emphasis, if not substance.
Ever the optimist, the Prime Minister was keen to emphasise “one huge difference” between this lockdown and the first one: the UK is “rolling out the biggest vaccination programme in its history”. He also managed to get in a jab at the UK having delivered more vaccines than the rest of Europe combined.
There were other, more subtle differences, as No. 10 tweaked its messaging in light of past mistakes.
There is a long history of crossover between lawyers and politicians; more members of parliament come from the law than almost any other profession. But the relationship – never totally tranquil – has become more strained in recent years.
On 12 October 2020, the Prime Minister made a statement in Parliament and addressed the nation to announce a new three tier lockdown system would be introduced across the country. The Secretary of State for Health introduced three statutory instruments before Parliament which came into force two days later.
In oversimplified terms, the restrictions in place in each tier are as follows:
On 1 October 2020, the Lord Chancellor, Robert Buckland QC, gave a speech at Temple Church to mark the opening of the legal year. He praised the “enduring success” of our legal system, our “healthy democracy”, and the “commitment to the Rule of Law” which steered the government’s response to the coronavirus pandemic.
The Lord Chancellor delivered his speech two days after the controversial Internal Market Bill cleared its final hurdle in the House of Commons with ease, by 340 votes to 256. Earlier in September, Brandon Lewis, the Northern Ireland secretary, told the House of Commons that the government’s plans would “break international law in a very specific and limited way.” On September 29, the Lord Chancellor voted against a proposed amendment to the Bill “requiring Ministers to respect the rule of law and uphold the independence of the Courts.” He was joined in doing so by the Attorney General, Suella Braverman, and the Solicitor General, Michael Ellis.
The Joint Committee on Human Rights has published a report which proposes that the Government must urgently consider the human rights implications of its Covid-19 measures.
The report drew attention to eight problem areas, claiming:
On 30 July 2020, the Crown Prosecution Service published its performance statistics on sexual violence cases for the year 2019-20, which vindicate long-held concerns about the “damning” number of cases being lost amid “under-resourced” investigations.
In a recent report entitled “It Still Happens Here”, the Centre for Social Justice (CSJ) and the anti-slavery charity Justice and Care have found a rise in incidents of domestic slavery, and warned that the problem is likely to intensify in the aftermath of the coronavirus crisis.
Together with anti-racism protests sparked by the death of George Floyd, the coronavirus pandemic has continued to dominate the news. Two recently published reports have highlighted flaws in the government’s response in relation to the provision of social security and domestic abuse support during the crisis.
This afternoon, health secretary Matt Hancock made a statement in the Commons updating the house on the government’s response to the crisis.
The health secretary announced that anyone in the UK aged five and over who has coronavirus symptoms will be eligible for a test. From today, recognised symptoms include the loss of smell and taste, as well a persistent cough and a high temperature. Hancock confirmed for the first time that the government has recruited over 21,000 contact tracers, including 7,500 health care professionals, to manually trace and get in contact with anyone who has tested positive.
In addition, he offered a degree of clarification in relation to the government’s new contact tracing app. The function of the app is to alert people of the need to self-isolate if they have come into proximity with an individual who reported coronavirus symptoms.
Two jury trials will resume at the Old Bailey this week in the first steps toward Crown court cases restarting around the country. It has been almost two months since jury trials were suspended on 23 March amid coronavirus lockdown measures.
In his announcement, the Lord Chief Justice, Lord Burnett of Maldon, began by affirming that “the practice of trial by jury sits at the heart of our criminal justice system.” In contrast, the Lord Chancellor, Robert Buckland QC, began his statement with a more equivocal comment about a well-functioning justice system being the hallmark of a healthy democracy.
Police officers direct traffic in the wake of new legislation
In the News
In the past week, Covid-19 has once again dominated the news, effectively occluding all other topics. Given that Monday evening saw leaders including Emmanuel Macron, Michel Barnier, Donald Trump and Sir Keir Starmer expressing their hopes for Boris Johnson’s swift recovery after his sudden removal to intensive care, this dominance does not seem disproportionate.
Faced with mounting criticism of his reluctance to impose restrictions on British society in the face of the Covid-19 crisis, this evening Boris Johnson ratcheted up Britain’s response by announcing a strict lockdown across the country. His address to the nation is available in full here.
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