JD (Congo) and others v Secretary of State for the Home Department, Public Law Project  EWCA Civ 327
The Court of Appeal has considered the test for granting permission at the second stage of appeal in immigration cases, when someone wishes to appeal from the Upper Tribunal to the Court of Appeal. The test requires showing that:
“(a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the [Court of Appeal] to hear the appeal.”
But these test cases were of special interest, because they involved situations where the appellant has succeeded before the First-Tier tribunal but failed in the UT after the Secretary of State’s appeal succeeded, or where the appellant was unsuccessful at both levels, but the FTT had made a material error of law and the UT made the decision afresh. Previous authority showed no clear approach in these circumstances. The Court stressed that the test for permission at the second stage of appeal is higher than the first stage test. Continue reading →
HARKINS AND EDWARDS v. THE UNITED KINGDOM – 9146/07  ECHR 45 – Read judgment
The European Court of Human Rights has found that there would be no breach of Article 3 ECHR (prohibition of inhuman and degrading treatment) in extraditing two men accused of murder to the US.
The men argued that they face the death penalty or life imprisonment without parole if found guilty. The US had given assurances to the UK government that the death penalty would not be sought. The following summary is based on the Court’s press release (my abridgement):
The Government of the United States of America -v- O’Dwyer, Westminster Magistrates’ Court – Read judgment
It seems appropriate, on the day when Wikipedia shut down for 24 hours to protest against US anti-piracy legislation, to talk about piracy (in the copyright sense) and what role human rights law has to play in the perpetual battle against it.
It is a topic that polarises, with some considering piracy to be no more moral than any other theft, and others seeing those who commit piracy offences as fighting for freedom of expression and liberal copyright laws. In the case of Richard O’Dwyer, a young man who is accused of setting up a website which breaches US copyright law and who is facing extradition to the US for trial, he attempted to block his extradition by relying on a combination of human rights and other objections relating to the manner and circumstances surrounding the request.
On the one hand, many people feel strongly that retention of something as personal as someone’s genetic code should never be done when the person has not been convicted of a crime. As DNA analysis gets more advanced, it can reveal increasingly large amounts of information about a person.
There are somewhere in the region on 12 million people worldwide who have no nationality. Being stateless can create enormous problems, from being unable to rely on diplomatic assistance to having no home country with an automatic right to return to. The risk to stateless of people of having their human rights breached to is great. The United Nations has expressed its concern repeatedly, and is encouraging states to sign up to two conventions which provide basic rights to those without a state.
Back in March we considered a case where a man claiming asylum alleged that he was a member of a particular ethnic group which, it was accepted by the parties, is at risk of persecution in Kuwait. His claim failed as the court found him to be Kuwaiti. However, because he had no documents to show he was Kuwaiti, the Kuwaiti authorities would not allow him to enter their state. Hence the Catch-22 situation of many stateless people, where they cannot establish a right to reside in one state but have no other state to return to.
Currently, non-Scottish students from elsewhere in the UK and Northern Ireland have to pay tuition fees in Scotland, set to rise to up to £9,000 annually next year. However, Scottish students and those from other parts of the EU do not have to pay fees at all. Non-British EU students do not have to pay fees in Scotland due to EU law forbidding them from being treated differently to Scottish students.
The European Commission has begun a consultation process to explore the impact of pre-trial detention in the European Union (EU). The particular focus, summarised in its Green Paper, is how pre-trial detention issues affect judicial co-operation generally within the EU.
CD v Secretary of State for the Home Department  EWHC 1273 (Admin) Read judgment
As readers of this blog will know, control orders have often been successfully challenged in the courts on human rights grounds. But in this case, an order forcing a person to relocate to a different part of the country was found to be lawful.
The Prevention of Terrorism Act 2005 gives the Home Secretary the power create to control orders, which impose obligations on persons “for purposes connected with protecting members of the public from a risk of terrorism”. One of the obligations permitted is a restriction on an individual’s place of residence.
R (on the application of Evans) v The Lord Chancellor and Secretary of State for Justice  EWHC 1146 (Admin) – Read judgment
The High Court has found that the Ministry of Justice, when making a decision to cease the state’s funding of judicial review challenges on purely public interest grounds (apart from one exception), took into account the fact that to do so would reduce the number of decisions being made which were not in the government’s interests. Unsurprisingly, the Court to concluded that the decision was unlawful and should be quashed.
The Applicant applied for judicial review of a decision by the Respondent to amend the Legal Services Commission (LSC) Funding Code, which funds litigation for those who meet certain criteria. The effect of the amendments, which were introduced in April 2010, was to prevent public funding by the LSC for judicial review proceedings (challenging decisions of public bodies) which were pure public interest challenges. That is, where the Applicant stood to gain nothing from the litigation and was bringing it solely to promote a particular public interest. The one exception was in environmental cases.
These types of proceedings can have human rights implications in two ways: Article 6, providing the right to a fair trial can be infringed upon by improper communicaton by jurors, and to a lesser extent, Article 10, which provides the right to freedom of expression may be engaged. As Article 10 includes a large number of circumstances where freedom of expression may be lawfully restricted, raising freedom of expression arguments to challenge the bringing of contempt proceedings would be very unlikely to succeed in these circumstances.
In a decision bound to stir up strong feelings, the Court of Appeal has found that disclosures made by a local authority to other organisations of a person’s conviction for a sex offence against a child and future disclosures proposed by the authority were unlawful. The Court considered that the “blanket” approach to disclosure, even though the person with the conviction and his partner did not work directly with children, was not proportionate to the risk posed. Further, making disclosures without first giving the persons concerned the opportunity to make representations on the matter was unfair. Continue reading →
The Commission for Equality & Human Rights has been ordered to pay costs of court proceedings to two members and a former member of the British National Party. Although the decision is a technical one relating only to costs of proceedings, it highlights the financial risks which must be borne by those seeking to police and enforce compliance with the requirements of human rights law. Continue reading →
AS v Secretary of State for the Home Department  EWHC 564 (Admin) – Read Judgment
In a strange case, reminiscent of the film The Terminal in which Tom Hanks plays a person unable to leave an airport because he is temporarily stateless, an Applicant lost a judicial review application despite being unable to enter the UK lawfully and unable to acquire travel documents to return to Kuwait.
This was an application for judicial review of the decision by the Secretary of State to refuse to treat further representations by a failed asylum seeker as a fresh claim. The Applicant claimed to be a Bedoon, a member of an ethnic group mostly living around the borders of Iran, Iraq, Syria, Saudi Arabia and Kuwait. The Kuwaiti government is not permitting Bedoon outside Kuwait to return there, and since the 1980s the country has taken away from the Bedoon a great number of rights and benefits. It was accepted by both parties that in Kuwait, the Bedoon are at risk of persecution.
P and Q by the Official Solicitor, their Litigation Friend v Surrey County Council and Others (Equality and Human Rights Commission, Intervener)  EWCA Civ 190- read judgment
What does it mean to be “deprived of liberty”? This is not an easy question, and there are a wide variety of relevant factors. For instance, the amount of space a person is free to roam in, the degree of supervision and the amount of time away from their main residence are matters which are likely to vary greatly from case to case. There are many borderline cases.
In an important recent case, the Court of Appeal has found that there was no deprivation of liberty, within the meaning of Article 5 of the European Convention on Human Rights, when two people with moderate to severe learning difficulties are cared for in a foster home and a specialist home for adolescents respectively.
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