Human trafficking is internationally recognised as threatening human rights and the fundamental values of democratic societies. States have taken action to prevent, suppress and punish trafficking and to provide support to victims of what is the third largest illicit money-making venture in the world. But what happens when the victims of trafficking commit a crime themselves? Should they be prosecuted? What factors are relevant in this assessment? And which arm of the State should the assessment of whether someone is a victim of trafficking be entrusted to? This is the first time the European Court of Human Rights has tackled these questions. The Court found that the UK had breached its obligations under articles 4 and 6 of the European Convention on Human Rights by prosecuting two Vietnamese children who were potential victims of trafficking.
It was only at the turn of the century that the first comprehensive international instrument on human trafficking was adopted. The Palermo Protocol established a number of obligations to prevent trafficking, punish traffickers and protect victims of trafficking. It defines trafficking as:
the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs
There are therefore three elements to trafficking: (i) action (recruitment, transportation, transfer, harbouring or receipt); (ii) means (threat or use of force or other forms of coercion etc.); and (iii) purpose (exploitation). When trafficking involves a child, the ‘means’ element of the test does not apply.
The European Court of Human Rights has found that the deportation of a Nigerian man from the United Kingdom violated his right to respect for private and family life guaranteed by article 8 of the European Convention on Human Rights. The applicant in Unuane v United Kingdom successfully argued that his removal from the UK was a disproportionate interference with family life because it separated him from his children. Though finding for the applicant, the Court rejected his attack on the compatibility of the Immigration Rules – an issue that as recently as 2016 the Supreme Court had authoritatively settled. The decision is of interest for the Court’s approach to the necessary balancing exercise to be carried out in the sensitive area of human rights challenges to the deportation of foreign criminals.
The applicant, Mr Unuane, is a Nigerian national who came to the UK in 1998. He has three children with his Nigerian partner, all of whom are (now) British citizens and one who has a rare congenital heart defect. In 2005 the applicant was convicted of obtaining a money transfer by deception and in November 2009 he and and his partner were convicted of offences relating to the falsification of thirty applications for leave to remain in the UK. He was sentenced to a period of five years and six months’ imprisonment, while his partner was sentenced to eighteen months’ imprisonment. Since the applicant was sentenced to more than twelve months, he was deemed to be a ‘foreign criminal’ and as such the Secretary of State was required to make a deportation order against him (s32(5) UK Borders Act 2007). An order was made against the applicant’s partner for the same reason and against two of his children as dependent family members (only one was a British citizen at the time).
When a provision of legislation is held to be incompatible with a Convention right, a Minister of the Crown ‘may by order make such amendments to the primary legislation as he considers necessary’. This power to take remedial action, contained within section 10 of the Human Rights Act (HRA), applies when a domestic court finds an incompatibility with the European Convention on Human Rights (ECHR), and also when the Minister considers a provision of legislation incompatible with the Convention ‘having regard to a finding of the European Court of Human Rights’ (ECtHR). A recent draft remedial order laid before Parliament aims to remedy an incompatibility of the latter kind, following the ECtHR’s judgment in Hammerton v United Kingdomno. 6287/10 ECHR 2016. The draft remedial order is of particular interest because it purports to amend the Human Rights Act itself.
Professor Richard Ekins, writing for Policy Exchange, has criticised the draft remedial order as ultra vires and ‘of doubtful constitutional propriety’ and argues that the power in section 10 does not authorise ministers to amend the HRA itself. Further, he contends that the Hammerton judgment of the Strasbourg Court – which gives rise to the draft remedial order – is open to question. This blog post seeks to demonstrate that, whatever the merits of the wider argument about the constitutional propriety of amending the HRA through the power in section 10, the Hammerton judgment itself is based on well established ECHR case law. It is suggested that, in so far as it rests on a characterisation of the Hammerton judgment as unreasoned or lacking a reasonable basis, any view that the draft remedial order is of questionable validity is mistaken
On UKHRB we’ve considered a number of the potential human rights implications of the Covid-19 pandemic and the measures put in place to combat it (Alethea Redfern’s round up is the best place to start, there have been a number of posts since, and there will be a podcast coming up on the subject next week on Law Pod UK). It was only a matter of time before some of these issues started to come before the European Court of Human Rights and, on Wednesday, a case involving the UK Government concerning the impact of Covid-19 on conditions of detention in prison was communicated: Hafeez v the United Kingdom (application no. 14198/20).
Communication of a case takes place where an issue is considered to require further examination and the respondent state is invited to submit written observations on the admissibility and merits of the case. It is also an indication that the Court does not consider the case, on its face, inadmissible.
Last month European football’s governing body, UEFA, announced that English champions Manchester City had been fined 30 million Euros and banned from the Champions League – the most illustrious competition in European football. The Adjudicatory Chamber of UEFA’s Club Financial Control Body (CFCB) handed down a two-year ban on the basis that Man City had breached Financial Fair Play Regulations. The club have responded fiercely, complaining of a ‘prejudicial process’ and alleging that the case was ‘initiated by UEFA, prosecuted by UEFA and judged by UEFA.’ Against this background it is thought likely that City will rely on human rights arguments in their appeal to the Court of Arbitration for Sport (a somewhat ironic development in the view of some commentators given previous criticisms of the human rights records of the club’s backers).
Can the police indefinitely retain an individual’s DNA profile, fingerprints and photograph after they have been convicted?
That was the question before the European Court of Human Rights (ECtHR) in Gaughran v UK (no. 45245/15, ECHR 2020). This judgment — which was given for the applicant — is of interest both on the merits and as an example of the way the Court continues to approach issues of this kind.
J.D. and A v the United Kingdom (nos. 32949/17 and 34614/17) – read judgment
Much may have changed in the political world since the Coalition Government introduced its controversial ‘bedroom tax’, but the legal fall-out from the policy continues. The European Court of Human Rights has delivered its verdict on the compatibility of the scheme with the prohibition on discrimination set out in Article 14 of the European Convention on Human Rights. The Strasbourg Court has found that the policy discriminated unlawfully against women at risk of domestic violence.
As is well known, in 2012 the United Kingdom government introduced new regulations with the effect that those in social housing with an ‘extra’ bedroom had their housing benefit reduced: the so-called ‘bedroom tax’. The purported aim of the policy was to save money and to incentivise those with an ‘extra’ bedroom to either move property or take in a lodger thereby resulting in a saving of public funds.
It is not difficult to imagine why someone might have an extra bedroom but have strong reasons (related to disability or gender) for not moving house. The Government sought to make provision for such cases through a discretionary scheme operated by local authorities but funded by central government.
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