Media By: Jonathan Metzer


Are “squalid” prison conditions and the response to the Covid-19 pandemic breaching human rights?

6 July 2020 by

The Chief Inspector has described conditions at HMP Exeter (pictured) as “grim”. Image: Wikipedia

The latest reports of HM Chief Inspector of Prisons and the Parliamentary Joint Committee on Human Rights lay bare the conditions in some British prisons.

Some of the language that is used to describe living conditions in the Chief Inspector’s report is shocking – including “appalling”, “squalid”, “intolerable”, “extremely squalid” and beset with “vermin and filth”.

The Chief Inspector’s view is that such conditions “should not feature in 21st century jails”. This conclusion was expressed prior to the further impact caused by the Covid-19 pandemic.

Since the pandemic, the Government has introduced measures to address the risk of contagion including a blanket ban on visits since around 24th March which has still not been revisited despite the Covid-19 threat level having been reduced to level 3 on 19th June.

The conclusion of the Parliamentary Joint Committee on Human Rights is that the Government’s response and the deficiencies in the measures to mitigate the impact of this “have put at risk the right to family life of up to an estimated 17,000 children of mothers in prison”.

In the view of this author, the evidence indicates that in several respects the UK may well be in breach of vital protections for prisoners and their families under Articles 3 and 8 of the European Convention on Human Rights (ECHR). This extended piece will examine these issues in detail.


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Black Lives Matter

12 June 2020 by

UK human rights blog

As many others in the legal community have said, we at the UK Human Rights Blog are deeply saddened and appalled by the killing of George Floyd and the events in Minneapolis and elsewhere that exemplify systemic racism and violence against black people.

We endorse the statements made by the Bar Council and by 1 Crown Office Row which may be found here.

We will explore these issues in more depth in upcoming podcasts and articles.

Article 6 applies to challenge to conditions imposed on suspected Al-Qaeda affiliate – an extended look

19 May 2020 by

QX v Secretary of State for the Home Department [2020] EWHC 1221 (Admin)

In a complicated but very important decision, the High Court has ruled as a preliminary issue that the procedural protections under Article 6 which require a person to be given sufficient information about the allegations against them so they can give effective instructions to their lawyers will apply to a challenge to conditions imposed by order on a man suspected to have affiliations to Al-Qaeda.

This ‘extended look’ will explain the background to the issues in play and the way that a powerful ‘cocktail’ of rights under Articles 6 and 8 ECHR operates to try to ensure that a balance is struck between the rights of the individual and the collective interest in security.

Temporary Exclusion Orders

The claimant, QX, is a British national. He is married with three children who are all of toddler age. In October 2018, he and his wife were arrested in Istanbul.

On 26 November 2018 the Secretary of State successfully applied to the court for permission to impose a Temporary Exclusion Order (TEO) on QX for two years on grounds of national security. This was granted by the court and on 9 January 2019 QX was returned from Istanbul to the UK under the terms of the TEO.

A TEO is an order which may be imposed under the Counter-Terrorism and Security Act 2015 (“the 2015 Act”) in order to temporarily disrupt the return and activities of a citizen suspected of being involved in terrorist-related activity abroad to manage the risk that they may pose to the public. It is an offence triable in either the Magistrates’ or the Crown Court with a maximum sentence of 5 years if a person does not comply with TEO conditions without reasonable excuse.


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‘One of the most controversial questions which the law of human rights can generate’: Supreme Court alters approach to Article 3 in medical cases – an extended look

29 April 2020 by

Unlike some of the rights protected by the European Convention on Human Rights, the prohibition on torture or inhuman or degrading treatment under Article 3 is absolute. There is no question of striking a balance between Article 3 and other considerations: the state simply may not act in a way which would breach this prohibition.

This means that this right can offer crucial protection to the sorts of people that some members of the public may not have instinctive sympathy towards, such as an immigrant with a serious criminal history who may otherwise struggle to resist deportation. Even if their case is otherwise unattractive, if it is shown that deporting them would expose them to inhuman or degrading treatment (or indeed constitute such treatment), their appeal must succeed.

In certain circumstances this will include a person with a serious medical condition who resists removal on the basis that the disparity between medical care in their country of origin compared to their host state would mean that removing them would constitute inhuman or degrading treatment. Such cases had previously been considered to succeed primarily for a person close to death, where removal would involve “in effect, pulling a man off his deathbed” (AM (Zimbabwe), para 14).

However, in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, the Supreme Court has held that the proper approach to Article 3 was modified by the European Court of Human Rights in Paposhvili v Belgium [2017] Imm AR 867. The relevant test now is whether removal would give rise to a real risk of a serious, rapid and irreversible decline in the person’s state of health resulting in intense suffering, or to a substantial reduction in life expectancy. This does not require that death be imminent in the event of removal.


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From your US correspondent: the Supreme Court of the United States

31 January 2020 by

The US Supreme Court has had its home here since 1935

Last autumn I was privileged to spend six weeks in the United States as a scholar on the Pegasus Programme. This gave me the opportunity to learn a great deal about the similarities and contrasts between our legal systems, as well as the latest developments across the Atlantic.

In this piece I will tell you about what I learned about the US Supreme Court — its history, its role and what the Presidency of Donald Trump may mean for its future.

The Supreme Court

The Supreme Court is the highest court in the United States and acts as guarantor and arbiter of the Constitution. It has the power to establish (and extend) the content of constitutional rights and to strike down not only government acts, but also primary legislation incompatible with those rights.


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10 cases that defined 2019

19 December 2019 by

And so, we reach the end of another year. And what a year it has been. As well perhaps the most tumultuous period in British politics for decades, this year saw the first ever image taken of a black hole, a victory for the England men’s cricket team at the World Cup, the discovery of a new species of prehistoric small-bodied human in the Philippines and signs that humpback whale numbers in the South Atlantic have bounced back thanks to intensive conservation efforts.

And the law? Well, rather a lot has happened really. As the festive season draws near, what better way is there to celebrate than to rewind the clock and relive the 10 cases which have defined 2019?


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Supreme Court rules unanimously that the prorogation of Parliament was unlawful

24 September 2019 by

R (Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41

In a historic decision, a panel of 11 justices of the Supreme Court has held that the decision of the Prime Minister, Boris Johnson, to prorogue Parliament for 5 weeks from 9 September to 14 October 2019 was unlawful on the basis that it constituted an unjustified frustration of the constitutional principles of Parliamentary sovereignty and accountability.

Giving the summary of the Court’s reasons for the decision, the President of the Supreme Court, Lady Hale, said that

when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper … Parliament has not been prorogued.

It follows, said Lady Hale, that the Speaker of the House of Commons and the Lord Speaker of the House of Lords “can take immediate steps to enable each House to meet as soon as possible”.


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Right of appeal against refusal of a residence card: the conclusion

10 September 2019 by

Field House, where the Upper Tribunal sits

The question of whether non-married partners and wider dependent relatives (e.g. grown-up children) of EEA nationals (known as ‘extended family members’) have a right of appeal against a decision by the Home Secretary to refuse them a residence card under the EEA Regulations has had a fraught recent history.

Now, as a result of the final decision of the Upper Tribunal in Banger (EEA: EFM – Right of Appeal) [2019] UKUT 194(IAC), full appeal rights have been restored to ‘extended family members’ whose applications are refused.


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Judicial review against prorogation of Parliament launched

28 August 2019 by

The day began with the news that the Prime Minister Boris Johnson had asked the Queen to prorogue (suspend) Parliament in order to table a Queen’s Speech — with the effect that the number of days that MPs would sit between now and Brexit Day on Halloween being significantly reduced.

Tonight, Gina Miller, the successful claimant in the case challenging Theresa May’s attempt to trigger Article 50 and begin the process of leaving the EU without a vote in Parliament, announced that she has reassembled the same legal team and launched a legal challenge to this move.

On Newsnight (see 31 mins, 20 seconds into this episode), former Supreme Court Justice Lord Sumption said that whilst he considered what Boris Johnson has done to be politically “shocking”, he did not expect the courts to block the move, saying that

I think that it’s a very very long shot. This is such an unusual situation that nobody can stand here and say what the answer is definitely going to be, but there are huge difficulties in the way of an application like that … the relations between the Crown and Parliament are governed by conventions … [which are] binding only in the sense that it would be politically costly to disregard them … the courts are not there to decide what are good political reasons and what are bad political reasons, they are there to decide what’s lawful.

We shall have to wait to see what happens next.

Anisminic 2.0

15 May 2019 by

The Supreme Court has ruled in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 that the Investigatory Powers Tribunal’s decisions are nevertheless amenable to judicial review, despite the existence of a powerfully-drawn ‘ouster clause’ preventing its decisions from being questioned by a court.

In this article we will navigate our way through the decision and have a look at the principles that lie behind this case and what its wider significance might be.

Background

The Investigatory Powers Tribunal (IPT) is the body which has jurisdiction to examine the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (GCHQ). Effectively, the IPT is the court where a person can challenge the lawfulness of a decision to put them under surveillance.

The question in this case was whether the decisions of the IPT itself could be challenged in court. In particular, did the High Court have jurisdiction to entertain an application for judicial review brought by Privacy International against a decision by the IPT that computer hacking by GCHQ fell lawfully within its general warrant to undertake such activity?


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10 cases that defined 2018

20 December 2018 by

Jonathan Metzer is the commissioning editor of the UK Human Rights Blog. He is a barrister at One Crown Office Row.

And so we come to the end of another whirlwind year.

It has gone by with worryingly rapid speed. As I write this it is hard to remember that scorching hot summer, with a Royal Wedding in bright sunshine and the England team surpassing all expectations at the World Cup. But as well as a number of major geopolitical events (including Brexit, which I promise not to mention for the rest of this article), this year also saw the unveiling of astonishing artwork at the Roman ruins of Pompeii, the reintroduction of the Chequered Skipper butterfly to Rockingham Forest, the first time that a robot addressed a Parliamentary meeting, and the demise of the Charles Darwin £10 note.

But what happened in the courts? Oh what an adventure it has been, dear reader. Strap on your seat belts and join me as we take a whistle-stop tour through 10 of the biggest legal battles of the last year.


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Supreme Court rules that immigrants without indefinite leave have “precarious” status in UK

16 November 2018 by

supreme courtOn 14th November 2018 the Supreme Court gave judgment in the case of Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58. The effect of this decision is that:

(a) A claimant at the Immigration Tribunal who relies on their private (not family) life under Article 8 will be entitled to have only “little weight” placed on that private life if they have been in the UK without indefinite leave to remain, unless there are “particularly strong features of the private life in question”; and

(b) A claimant who is financially dependent on other people but not on the state should not have that fact held against them when assessing the public interest in their removal.

Whilst the result was a victory for the individual claimant in this case, the wider consequences of this decision will be to clarify and tighten the law in a way that will make it even harder than it already was for claimants to succeed on the basis of their private life in the UK.

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Supreme Court rules that parental misconduct irrelevant to whether child should leave UK — an extended look

29 October 2018 by

supreme courtOn 24th October 2018 the Supreme Court gave its judgment in the conjoined cases of KO (Nigeria); IT (Jamaica); NS (Sri Lanka) and others; Pereira v Secretary of State for the Home Department [2018] UKSC 53 — read judgment.

This is a major decision which clarifies the approach that the Immigration Tribunal should take to the question of whether a child and/or their parents should be removed from the UK in circumstances where it is claimed that this would constitute a disproportionate interference in their rights to private and family life.

In summary, the Court held that misconduct by the parents — be it criminal offending or immigration-related misdemeanours such as overstaying a visa — should not form part of the assessment of whether a child should be removed from the UK. As a result, it should also not form part of the assessment of whether Article 8 requires that the parent remain in the UK with the child.

However, the judgment is complicated and leaves some questions without clear answers. In this extended article, we will explore the reasoning of the Court and have a look at what has been clarified but also at what might now be plunged into confusion.

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The right of appeal against refusal of a residence card: the latest developments

24 October 2018 by

CJEUAs discussed previously on the Blog, the rights of the family members of EEA nationals to reside in the UK is currently in a state of flux. One important issue concerns the appeal rights of an “extended family member” of an EEA national.

At the moment, if a “family member” of an EEA national resident in the UK, that is, a spouse, direct descendant (including a stepchild) who is dependent or under 21, or a dependent in the direct ascending line, applies for a residence card under the Immigration (European Economic Area) Regulations 2016 and is refused by the Home Office, they have a right of appeal to the First-tier Tribunal in the normal way.

However, if an “extended family member”, that is, a non-married partner or other dependent relative (e.g. grown-up child) of the EEA national applies for a residence card, but is refused, regulation 2 of the Immigration (European Economic Area) Regulations 2016 operates to preclude a right of appeal to the First-tier Tribunal. Therefore, only judicial review is available to challenge such a decision.

In my last article, we saw that one such “extended family member”, Ms Rozanne Banger (I am reliably informed that her surname is pronounced “Banjer” with a soft “g”), fought a case at the Upper Tribunal in part concerning the issue of whether the denial of a right of appeal to a person in her position was compatible with EU law, specifically Article 3(2) of Directive 2004/38 (known as the “Citizens Directive”). The Upper Tribunal decided that it needed to ask the Court of Justice of the European Union to clarify the matter.

But on 12th July 2018, the Court of Justice gave its decision.

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Interview with Philip Havers QC

16 October 2018 by

Philip-Havers-QC- cropped.pngAfter 12 years as Head of Chambers at One Crown Office Row, during which Chambers grew steadily and the number of silks almost doubled, Philip Havers QC this month handed over the reins to his successor, Richard Booth QC.

Philip’s career so far has ranged over a great breadth of work, encompassing public and human rights law, clinical negligence, public inquiries and high profile inquests.

He regularly appears in landmark cases in the appellate courts. He recently acted as counsel to a prisoner who tried to persuade the Supreme Court that the prison authorities had to enforce the ban on smoking in public places, successfully defended the Crown Prosecution Service in the Supreme Court against a claim that a decision to prosecute a Somalian asylum seeker had been a breach of her Article 8 rights, and last week the Supreme Court gave judgment in a case of his involving an A&E receptionist who gave negligent advice to a patient about how long he would have to wait to be seen by a nurse (covered on this Blog here). He also appeared this summer in the Privy Council representing the Chief Justice of Trinidad and Tobago in a case concerning whether the constitution prevented the Law Bar Association of Trinidad and Tobago from inquiring into allegations of misconduct made against him.

Outside court he is a music lover, with a particular devotion to Tom Petty and the Traveling Wilburys. He is also a tennis fan, a wine connoisseur, and a keen gardener.

He sat down to answer a few of our questions about his career at the Bar and what he has learned.

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