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Russia’s invasion of Ukraine has dominated the news since the conflict began. The human rights implications of the conflict will be far reaching and devastating, and this Weekly Round-Up will no doubt examine the impact of events as they unfold. This week, our focus is on the UK government’s approach to Ukrainian refugees. The Home Office is still insisting that only those refugees with family ties to the UK will be able to satisfy visa requirements to enter through the ‘Ukraine Family Scheme’. Those who successfully use this route will have the right to work and to claim benefits. However, they will not be able to access other assistance, such as accommodation, as was offered to refugees from Afghanistan, for example, because the Home Office assumes they will be offered support by UK relatives. This approach has been widely criticised as unduly restrictive, given that many European countries have dropped their visa requirements altogether so as to enable a greater number of Ukrainians quickly to reach safety. The Home Secretary rejected this more permissive policy earlier this week, arguing that security and biometric checks imposed by the visa system were essential to prevent extremists and Russian agents entering the UK. But with one million refugees reportedly having fled their homes already, and four million more predicted, many campaigners have pointed out that a fast route to safety is urgently needed. On Friday, the Home Office stated that they were working on an ‘unlimited sponsorship route’ which would not be dependant on family ties, but it remains unclear when this will be launched, or what support it will offer.
In other news:
The House of Lords has defeated the controversial Nationality and Borders Bill for the fourth time, removing clause 11. This measure would have divided refugees into two groups depending on how they arrived in the UK, potentially excluding those who took a route outside the law. For example, those who arrived on small boats through the Channel could have their asylum application automatically ruled inadmissible, face up to four years in prison, be banned from accessing public funds, and have family members banned from joining them. Peers had previously struck out a clause allowing the government to strip individuals of their British citizenship without warning. The changes made by the Lords will now be sent back to the Commons, who can either accept or amend them.
A leaked report has suggested that the Environment Agency has only prosecuted 7% of the serious incidents of pollution investigated between 2016 and 2020. Agents within the organisation prepared case papers for 495 serious incidents in the period, all of which they recommended for prosecution. However, only 35 cases actually reached court after managers intervened. The others were either dropped entirely, or dealt with using less serious sanctions such as a warning letter. These were all incidents of the most serious form of waste pollution, for example, those involving illegal discharges of raw sewage, and some incidents were known to be perpetrated by organised crime groups. Workers within the Agency have linked the lack of action to the severe cuts to the Agency’s resources. The Environment Agency responded to the report by stating that they follow the Code for Crown Prosecutors, which states that prosecution should only be pursued where there is a realistic prospect of a successful conviction, and when it is in the public interest.
The Department of Work and Pensions (DWP) has been sent a letter before action by the Greater Manchester Coalition of Disabled People (GMCDP) and non-profit legal group Foxglove, who claim that the department’s use of a computer algorithm to decide who should be investigated for fraud unlawfully discriminates against disabled people. The two groups claim that there is a lack of transparency about how the algorithm works, and called on the DWP to explain how it prevents discrimination in its use of the algorithm. The DWP responded by saying that human agents always review cases of suspected fraud, and thus the effects of the algorithm were being carefully monitored. The government’s statement on Transparency in Automated Decision making can be found here.
In the courts:
U3 v The Secretary Of State for the Home Department [2022]: The Special Immigration Appeals Commission (SIAC) dismissed an appeal by U3, a joint British-Moroccan citizen, against the decision of the Home Secretary to remove her British citizenship in 2017, and prevent her entry clearance in 2019. U3’s citizenship was withdrawn because the Home Office determined that her links with ISIL in Syria implied that she posed a national security risk. In 2019, U3’s children were repatriated to the UK, and U3 sought entry clearance to be reunited with her children, relying on her Article 8 right to respect for her private and family life. Entry clearance was denied, with the Home Secretary claiming that her Article 8 rights were not engaged, and even if they were, her separation from her children was proportionate to the risk she presented to national security. The key issues in this appeal were as follows. First, on what grounds could the SIAC interfere with the SSHD’s decision; Second, whether U3 in fact posed a risk to national security, given that if she did, precedent established that the separation from her children was likely to be proportionate. Concerning the first issue, the court found, following Begum, the SIAC can interfere with the SSHD’s decision even where it concerns national security on the usual grounds available for judicial review. Thus if it was shown that the decision was flawed according to the public law standard of review, and the outcome, but for the error, would have been different, the SIAC could reverse the decision. On the second issue, counsel for the Claimant argued that given the accepted factual evidence of the coercive and abusive relationship U3 had with her husband, with whom she travelled to Syria in 2014, her decision to live in an ISIL-controlled part of Syria did not demonstrate that she was ideologically aligned with ISIL, nor that she had become radicalised. However, the court found that the SSHD could rationally find that U3 herself was aligned with ISIL in light of evidence that she left for Turkey of her own accord, and that she had a good knowledge of the ideology of the group and of the atrocities it had committed. Given this finding, the SSDH’s decision was proportionate, and the appeal was dismissed.
On the UKHRB:
David Burrows discusses the new Divorce, Dissolution and Separation Act.
Mark Zuckerberg’s Meta platform is under pressure from the UK’s data watchdog, the Information Commissioner’s Office (ICO), over reports that their latest virtual reality headset, the ‘Oculus Quest 2’, does not have adequate parental controls, exposing children to harmful content. The ICO said it will investigate whether it violates the so-called ‘Children’s Code’, a set of regulations introduced in the UK four months ago which seeks to protect children online. The campaign group, Centre of Countering Digital Hate (CCDH), conducted research on the device, finding frequent instances of inappropriate behaviour on the app often used by Oculus Quest 2 players, VRChat. This included two ‘heavily breathing’ men following a child’s avatar, and another man joking that he was ‘a convicted sex offender’. If Meta has breached the code, it could be fined up to £2.5bn. However, it is unclear whether the device will be found to have breached the Code even if insufficient parental controls are in place, given that the regulations largely focus on the misuse of data, rather than the content children are exposed to on apps.
The Colston Four have been acquitted of criminal damage by a jury for their role in pulling down the statue of Edward Colston in Bristol and pushing it into Bristol Harbour during a Black Lives Matter protest in June 2020. Under the Criminal Damage Act 1971, a defendant will have a defence to criminal damage if they can prove they had a ‘lawful excuse’ for their actions. In this case, the four defendants put forward three lawful excuses. First, they argued that they had been acting to prevent the crime of public indecency which was being committed in the retention of the statue after 30 years of petitions to remove it, given the serious offence and distress it caused. Relatedly, they contended that Bristol County Council had committed misconduct in failing to take it down, but this was withdrawn from the jury by HHJ Peter Blair QC as there was insufficient evidence. Second, they argued that they genuinely believed the statue was the property of Bristol citizens, and that those citizens would consent to the statue being pulled down. Finally, they contended that a conviction would be a disproportionate interference with their rights under Articles 10 and 11 of the European Convention on Human Rights (to freedom of expression and assembly). The verdict has been criticised by some as a politically motivated decision which has no proper basis in law, and a petition to retry the protesters has received over 13,000 signatures. Supporters of the Colston four maintain on the other hand that their excuses have a real foundation in the law, and that therefore it had been open to the jury to find the defendants not guilty.
The approach of juries in protest cases has come under further scrutiny in light of the new proposal in the Police Crime, Sentencing, and Courts Bill to increase the maximum sentence for the damage of memorials to 10 years imprisonment, irrespective of the cost of the damage. The increase in sentence means that all cases would necessarily be tried by a jury, which some legal commentators have suggested makes it more likely that perpetrators will go free.
The relationship between women’s rights and the police has been at the forefront of the news again this week, with shocking new revelations in the Sarah Everard case increasing concerns about institutional sexism in the police force, in addition to a scathing judgement from the Investigatory Powers Tribunal (IPT) condemning the sexual relationship carried out by a male undercover police officer as a human rights abuse.
Further details about the tactics used by the police officer Wayne Couzens to kidnap Sarah Everard before her rape and murder were released earlier this week after being presented in court. Couzens used his Metropolitan police-issued warrant card to convince Everard that she was being legitimately arrested for breaching Covid regulations. The new information has heightened debates about whether the Met has an internal culture which tolerates sexism, misogyny, and abuse, with many female police officers reporting inappropriate behaviour and sexual assaults. Towards the end of the week, it was revealed that two officers in a WhatsApp group with Couzens, which allegedly swapped misogynistic, racist, and homophobic messages, remain on duty. Furthermore, the Metropolitan Police’s response to Couzens’ sentencing hearing has been seen by many as completely inadequate, with Commissioner Cressida Dick suggesting that women approached by a plain clothes police officer should consider, inter alia, ‘waving a bus down’ to avoid kidnap. The Met has recently unveiled an action plan to restore trust, but campaigners argue that it is more concerned with changing women’s behaviour than addressing the underlying culture that enables misogynistic behaviour to thrive.
The police were also severely criticised in an IPT judgement handed down last week for violating the human rights of a woman, Kate Wilson, who was tricked into a relationship with undercover police officer Mark Kennedy. Kennedy is thought to have exploited his relationships with Wilson and numerous other women to ingratiate himself with the political organisations he infiltrated. The report found that Wilson’s treatment contravened five rights protected by the European Convention on Human Rights (ECHR): freedom from inhuman or degrading treatment (Art.3); respect for private and family life (Art.8); freedom of expression (Art.10); freedom of assembly and association (Art.11); and the right for convention rights to be applied without discrimination, in this case on the ground of sex (Art.14). The IPT asserted that the senior officers were either ‘… quite extraordinarily naïve, totally unquestioning, or chose to turn a blind eye’. While numerous women have brought civil suits against undercover officers who employed similar tactics, Wilson is the first to bring a claim to the IPT. The Met issued a statement responding to the judgement, accepting and apologising for the ‘damage caused’.
The independent police watchdog has published a report this week claiming Black people and those with mental health problems are more likely to be subject to prolonged Taser use. The report from the Independent Office for Police Conduct reviewed some of the most serious cases of Taser use in the last five years, including 16 deaths. The report suggested that 60% of Taser incidents against Black people lasted for longer than 5 seconds, more than double the 29% of white people subjected to a similar length. The report made 17 recommendations, including a new system of police training on the use of the weapons. Following the report, families of victims killed by the use of a Taser have argued that the police should be banned from using them where it is clear the subject is suffering from a mental health crisis, and suggested that many of the cases of Taser deaths (some of which were sent to the Crown Prosecution Service but never reached court) should be reinvestigated. However, the police rebutted the report’s findings, asserting that they were ‘vague’ and misrepresentative, given that the report looked at only 0.1% of Taser use between 2015-2020, and focused on serious cases which had already been investigated by the Commission. This issue is becoming ever more relevant as a greater number of police officers are issued with Tasers each year.
Immigration and migrant rights have been at the forefront of the news this week. An investigation has revealed that many undocumented migrants in the UK are being denied access to a vaccine, even though NHS England policy states that ID is not required to register with a GP (needed to book a jab). The vaccines minister, Nadhim Zahawi, confirmed that the vaccine was available to everyone, regardless of immigration status, but the report suggests that in reality, the majority of GPs are refusing registration, and are providing inaccurate information about the necessity of identity documents. The report highlights the danger this practice poses to the health of migrants and the general population in aiding the spread of the virus.
The Home Office has been forced to pay out £9.3 million in compensation this year in response to over 300 cases of unlawful detention. This amounts to a 35% rise in a year. Bella Sankey, Charity Detention Action’s director, has warned that these figures are likely to increase considerably with the Home Secretary’s proposed Nationality and Borders Bill, which aims to process asylum seekers in offshore centres. However, the Home Office stated that it was ‘committed to learning lessons from any case where we concede or the courts deem unlawful’ to reduce the number of unlawful detentions in the future.
Campaigners have warned that a loophole allowing children aged 16 or 17 to get married with their parents’ consent is enabling forced child marriages to take place across England. Current laws against forced marriage to do not specifically protect children, and there are no laws in the UK to prevent religious or customary child marriages. The organisation Girls Not Brides UK, who sent a letter to the Prime Minister warning of the impact of this loophole last week, have suggested that child marriages disproportionately affect girls, and often lead to fewer educational and employment opportunities and a higher risk of domestic violence. The government’s Forced Marriage Unit, which collects data on cases of forced marriage, shows that more than a quarter of cases involve children. The Conservative MP Pauline Latham is currently promoting a bill in Parliament aimed at criminalising child marriage completely.
The rights of immigrants and asylum seekers have been at the forefront of the news this week, with the Home Secretary coming under fire both in the courts and in the political arena. On Wednesday, a landmark court ruling held Ms Patel accountable for failures properly to investigate deaths among asylum seekers at detention centres. The case concerned two Nigerian nationals, one of whom was found dead in Harmondsworth immigration centre in 2019. His friend, Mr Lawal, was a key witness in the investigation of the death, but the Home Office sought to deport him before he could give evidence. The court held that the Home Secretary’s initial policy, which sought to remove Mr Lawal, its replacement, applied from August 2020, and the current policy, were unlawful and breached human rights because they failed to ensure that those who had relevant information would be able to give evidence before removal proceedings were commenced, thus frustrating inquiries into immigration centre deaths. Days later it was reported that this may be a widespread problem, with suggestions that scores of people had been prevented from giving key evidence to police investigations as a result of early deportation. While Ms Patel was warned that this practice must be curbed by a coroner in August, it is suggested that her response did little to address the problem.
Women’s rights and gender equality issues have been at the forefront of the news this week. The appalling murder of Sarah Everard, abducted when walking home in London, has elicited a huge social media response. In particular, it has highlighted the problematic phenomenon of victim-blaming directed at women, with advice focusing on teaching woman how to avoid being sexually harassed, rather than educating men about how to be better allies in calling out the misogynistic behaviour that enables harassment. These events coincided with statistics published by the World Health Organisation on Tuesday, which found that one in three women have been physically or sexually assaulted by their male partner across the world, and a survey conducted by UN Women UK published on Wednesday, which showed that 97% of women between the ages of 18 and 24 had been sexually harassed. The latter study also revealed that the majority of women don’t report these incidents because they don’t have confidence that the abuse will be dealt with effectively by the police or the legal system. On Tuesday the government unveiled the new Police, Crime, Sentencing and Courts Bill which, among other changes, has amended the sentencing laws for sexual offenders, enabling them to be put behind bars for longer. The government stated the new legislation was aimed at ‘restoring confidence in the criminal justice system’. However, given current statistics indicating a diminished number of successful rape prosecutions in the last year, it seems unlikely that the mere possibility of tougher sentences for sexual offenders once convicted is going to improve women’s confidence in the justice system. In fact, the new Bill has been substantially criticised by equality and civil liberties campaigners because it will increase the powers of the police to shut down public protest. Under the new law, the Home Secretary would be able to label particular protests as a ‘serious disruption’, enabling the police to then impose stringent conditions on the demonstration. The first detailed discussion of the Bill in Parliament today comes after accusations that the police were ‘too heavy-handed’ in dealing with demonstrators at the Sarah Everard vigil on Saturday evening. However, the Conservative majority in the Commons will almost certainly ensure that the Bill passes.
The High Court will hear a case brought by a mother and her 11-month-old baby, who are arguing that they should not be excluded from the UK government’s ‘Healthy Start’ scheme. The scheme provides vouchers for healthy food, nutritional advice, and vitamins to low-income families, but currently excludes many migrant families, including those who have a right to live and work in the UK, have British children, and earn well below the threshold needed to obtain welfare benefits. The judicial review will challenge the eligibility criteria of the scheme on several grounds: it is inconsistent with the intended purpose of the scheme to benefit those in greatest need, it breaches human rights, and it indirectly discriminates against families from Black and Minority Ethnic backgrounds.
Campaigners have welcomed a government announcement that it will introduce several key amendments to the Domestic Abuse Bill currently being debated in Parliament. In particular, the Bill will make non-fatal strangulation a specific offence, with an attached maximum sentence of five years. This is a significant shift from the previous maximum six months’ sentence if tried in the Magistrates Court under the crime of common assault. The Bill will also expand the definition of coercive behaviour by removing the requirement that the victim co-habit with their abuser, and broaden the scope of the laws on revenge porn by enabling those who threaten to share indecent images to be prosecuted.
The European Court of Justice has ruled this week that air pollution in 75% of the United Kingdom’s urban areas has exceeded legal levels for over ten years. Nitrogen dioxide, which is emitted largely by diesel vehicles, significantly contributes to pollution, and was found by a scathing coroner’s report to have contributed to the death of a nine-year-old girl last year. Imposing charges in urban centres to deter polluting vehicles (‘clean air zones’) is thought to be the most effective means of combating the problem. However, the government has only established one such area, in London, in the four years since research was published. The legal proceedings in the CJEU began before Brexit was concluded, and the pollution limits are still part of UK law. The UK could therefore face financial penalties if it fails to remedy the situation within a reasonable period.
In the courts:
A And B (Minors: placement, faith) [2021] EWHC 455 (Admin): In this judicial review case, the Claimants, two brothers with complex medical and behavioural conditions from a strict Orthodox Haredi Jewish community, argued that the decision of Manchester City Council to offer them respite accommodation in a secular residential home in Manchester, rather than an exclusively Orthodox Jewish home in London, was unreasonable. In particular, it was contended that placement in the Manchester accommodation would prevent the boys from fully manifesting their religious faith, for example, in following kosher dietary rules and observing holy days, contrary to Part III of the Children Act (1989), and possibly Articles 8, 9, and 14 of the European Convention for Human Rights, and the Equality Act (2010). There was an important difference between the two brothers: it was agreed that A should undertake a 12-week assessment placement at one of the homes, whereas B would only stay at the home once a fortnight and during school holidays. Accordingly, His Honour Judge Stephen Davies held that the decision of the council to offer only A a place at the Manchester home was unlawful and in breach of his Article 8 and 9 rights under the ECHR, because he would not be able to cook kosher meals nor perform the required prayers by himself, and so the placement would not allow him to manifest his religion. However, the council’s proposal was not unlawful in relation to B, because the limitations imposed by a fortnightly short overnight stay were not significant enough to breach his rights under the ECHR.
Turner, R (On the Application Of) v Secretary of State for Work and Pensions [2021] EWHC 465 (Admin): The High Court rejected the Claimant’s case that the Secretary of State for Work and Pensions acted unlawfully in withdrawing Errol Graham’s disability benefit, who tragically was found to have starved to death in his flat in 2018. It was contended that the Department for Work and Pension’s (DWP) policy for assessing Employment Support Allowance eligibility was unlawful on two grounds. First, the policy placed the onus on the applicant to show ‘good cause’ for failing to attend appointments, which was incompatible with the objectives of the legislation; and, second, the DWP has an implied duty to inquire as to why the applicant had withdrawn their engagement where they are known to have mental health difficulties, under s.149 of the Equality Act (EA) (2010). Justice Bourne held that the reference to ‘good cause’ did not create an unlawful burden of proof, because it was clear from the policy that the Defendant must also utilise information that they could reasonably obtain, rather than just relying entirely on the applicant to demonstrate their eligibility. In addition, s.149 of the EA did not impose a duty to inquire after individuals, but rather a broad obligation to give due regard to the advancement of opportunity for disabled people generally, which the Defendants satisfied. The Equality and Human Rights Commission was given intervenor status, but the judge considered their submissions to be outside the scope of the ground of challenge.
Joanna Curtis reports on the ECtHR’s recent imposition of further interim measures against Russia as a result of the continued imprisonment of opposition figure Alexei Navalny.
Marina Wheeler considers Shamima Begum’s latest loss in the Supreme Court last week in Special Immigration Appeals Commission and Secretary of State for the Home Department v R (Begum) [2021] UKSC 7.
Last week’s round-up detailed China’s ongoing oppression of Uyghur Muslims in Xinjiang province. This week, the government narrowly defeated a backbench rebellion in the form of an all-party amendment, strongly endorsed in the Lords, which would have given victims of genocide the ability to obtain a determination in the High Court confirming the existence of genocide in their country. Such a determination would have required Parliament to reconsider all trade deals with the country in question. The amendment aimed to deal with a current impasse whereby international courts cannot make a ruling on genocide because the involved nations, for example, China, veto such matters from consideration, or do not recognise the relevant courts. The Trade Secretary, Greg Hands, had strongly opposed the amendment, suggesting that it fundamentally undermined Parliamentary sovereignty in giving the courts too much power to determine UK trade deals. The government’s failure to act in seeking to prevent serious violations of human rights has been widely criticised. Tobias Ellwood, the chair of the defence select committee, suggested that ‘the UK was suffering from an absence of clarity about what we believe in’. In response to the motion’s defeat, the independent peer Lord Alton, who co-sponsored the motion in the Lords, has stated that the amendment will be re-drafted to make explicit the requirement that Parliament would vote on the revocation of all trade deals with a country where a determination of genocide had been made. The revised amendment will be re-submitted in the Lords as quickly as possible. The US State Department’s declaration that the treatment of Uyghur Muslims in China represents genocide and crimes against humanity on Tuesday, is likely to embolden rebels to maintain their pressure on the UK government for further action.
Ursula von der Leyen, President of the European Commission
Four and a half years after Britain voted to leave the EU, and 12 months after Boris Johnson was elected Prime Minister with his ‘oven-ready’ Brexit deal, the UK and European Union finally concluded a trade agreement on Christmas Eve. The deal, yet to be ratified by Parliament, is expected to gain approval without difficulty on 30th December, with the Leader of the Opposition, Keir Starmer, whipping his MPs to approve it. So did this deal supply the Christmas joy we’ve been missing in 2020? What does the deal contain?
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