Should asylum seekers take action to avoid persecution on the ground of political opinion incorrectly attributed to them?

Secretary of State for the Home Department v MSM (Somalia) and UNHCR (Intervener) [2016] EWCA Civ 715 – Read judgment

The Court of Appeal dismissed the Secretary of State’s appeal challenging the Upper Tribunal’s decision that MSM would have been at risk on return to Somalia on the ground of political opinion.  Exceptionally, the court went on to consider the modification of conduct issue in relation to imputed political opinion on an obiter basis, which gave rise to interesting analysis.

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The dissenting voices in Rahmatullah: no time for political sensitivities

Secretary of State for Foreign and Commonwealth Affairs and another v Yunis Rahmatullah [2012] UKSC 48 – read judgment.

For a summary of the facts and reasoning in this case please see Rosalind English’s previous post.

Only a few weeks after giving the Birkenhead lecture entitled “Dissenting judgments – self indulgence or self sacrifice?” (See David Hart QC’s previous post), Lord Kerr delivered the leading judgment of the Supreme Court in the case of Rahmatullah.   Given that the issue of a man’s liberty was at stake, it could be no real surprise for Lord Kerr or anyone else that there were two dissenting judgments in the cross-appeal provided by Lord Carnwath and Lady Hale. They made clear that in their view the UK should have done more to secure the release of detainee Yunis Rahmatullah and in doing so raised questions as to the proper limits of judicial intervention into the “forbidden area” of foreign policy.

But first what did everyone agree with? The Supreme Court was unanimous in dismissing the Secretary of State’s appeal against the Court of Appeal’s decision to issue a writ of habeas corpus to the UK Government. The primary purpose of the hallowed habeas corpus writ is the physical production of the person concerned, in order for the detainer to show that detention is lawful.   Here the problem was that the person concerned, Mr Rahmatullah, although first captured by UK forces in Iraq, is currently detained by US forces in the notorious Bagram Air Base, Afghanistan.

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Domestic violence: the limits of Strasbourg’s intervention

Irene Wilson v. The United Kingdom (Application no. 10601/09) – read admissibility decision

Sadly barely a month seems to go by without a report in the media about the police and the justice system failing to protect the victims of domestic violence.

The Strasbourg Court  has been required on a number of occasions to assess whether the response of domestic authorities to domestic violence has been compatible with their positive obligations under Article 8 (right to respect for  family and private life) of the Convention.  Given that such individuals are of a particular vulnerability, Strasbourg has repeatedly emphasised the need for active state involvement in their protection. However, in this particular admissibility decision, the Court held that the Northern Irish authorities had not failed in their duty under the Convention to protect the applicant.

Background Facts

The applicant, Irene Wilson, was assaulted by her husband after they had been out drinking.  She suffered a severed artery on her head, requiring eight stitches as well as multiple bruising. Her husband was arrested and charged with causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861.  He was granted bail and required to reside at an alternative address to the matrimonial home. Continue reading

Back in the spotlight: the detention of mentally ill asylum seekers

R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) – read judgment

1 Crown Office Row’s Robert Kellar was instructed for the Defendant in this case.  He is not the writer of this post.

The High Court has ruled that the failure to consider the continued detention of a mentally ill failed asylum seeker in accordance with immigration policy rendered his detention unlawful in part.

The Claimant applied for asylum based upon his account of an attack during the Rwandan genocide and subsequent events.  The Home Secretary refused the application and the Claimant appealed.  At the appeal he was unrepresented and he adduced no medical evidence.  The Immigration Judge dismissed his appeal, disbelieving the entirety of his account. Once his appeal rights had been exhausted (that is, he was unable to appeal any further through the courts), the Secretary of State detained him on 19 October 2010 for the purpose of removal.

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