Media By: Thomas Hayes
11 March 2019
Home Secretary Sajid Javid. Credit: The Guardian
After some quieter times earlier in the year, last week saw no fewer than two Supreme Court judgements and twenty Court of Appeal (Civil Division) decisions.
However, the dominant legal and political story of the week (the ubiquitous Brexit aside) concerned criticism of the Home Secretary Sajid Javid, after reports emerged about the death of the child of Shamima Begum. The 19-year-old left East London to travel to Syria and join the Islamic State aged 15. Javid had stripped Begum of her British Citizenship on the basis that she was a dual national of Bangladesh. News broke this morning that the Home Office had removed citizenship from a further two individuals who had left under similar circumstances.
The case of Begum has shed light not only on the rights and powers of the Home Secretary to strip individuals of citizenship, but also on the tragic consequences of armed conflict. Child mortality across the whole of Syria was four times that in the UK at 17 per 1000 live births in 2017, with the situation in refugee camps likely far worse given the absence of heating or adequate shelter. Ms Begum’s son appears to have died of pneumonia, an easily preventable disease which remains the biggest killer worldwide of children under five, accounting for 1.4 million fatalities a year. Whilst there may be debate as to the practical ability of the Foreign Office to provide consular assistance in war zones and the legality of her deprivation of citizenship, Ms Begum’s case illustrates the tragic realities of armed conflict and its consequences upon innocent lives.
In a potentially bad week for cabinet ministers, criticism also flowed the way of Karen Bradley, Secretary of State for Northern Ireland, after she described deaths caused by the police and armed forces in Northern Ireland as “not crimes”. The comments caused consternation amongst nationalists and the relatives of those who had lost their lives and comes ahead of an expected announcement by the Public Prosecutions Service as to whether it will seek prosecutions against soldiers in relation to the deaths of 13 people in Derry on Bloody Sunday.
Returning to the courts, in the Supreme Court…
- Jordan, Re for Judicial Review (Northern Ireland)  UKSC 9. In a further legacy case arising from the conflict in Northern Ireland, the Supreme Court allowed the appeal of the father of a man shot dead by the Royal Ulster Constabulary, overturning the finding of the Court of Appeal that his claim for damages in relation to delays to his son’s inquest could not be awarded until the inquest’s conclusion. The Police Service of Northern Ireland had failed to disclose information in a timely manner to the inquest into the death of his son, in breach of the requirement under Article 2 of the European Convention on Human Rights that an investigation into a death should begin promptly and proceed with reasonable expedition. Applying the principle of proportionality to the case, particularly given the fading health of the claimant, the Supreme Court overturned the Court of Appeal decision and awarded him the damages sought.
Meanwhile, the Court of Appeal gave judgment this week in nine cases with a human rights flavour. Given the volume, only some of the more interesting are summarised below:
- An application for judicial review into the Home Office’s guidance regarding its counter-terrorism “Prevent” strategy, in particular that in relation to speakers at universities and the collecting of data by the Home Office’s Extremism Analysis Unit, was largely rejected in Butt, R (On the Application Of) v The Secretary of State for the Home Department. The appeal against the initial decision to dismiss the application was brought by Dr Salman Butt, editor in chief of “Islam21C”, who has been labelled a “hate speaker” by the Prime Minister’s Office and Home Office. Mr Butt had alleged interference with his right of free speech under both the common law and Article 10 of the European Convention on Human Rights, as well as his privacy rights under Article 8.
- The Home Office successfully appealed in the case of a Liberian gentleman who had sought a permanent residence card by virtue of his durable relationship with a Czech national. His appeal against the Secretary of State’s rejection of his application had been upheld in the first-tier and upper tribunals. The Court of Appeal however agreed with the Home Office that his entitlement to a permanent residence card only arose five years after the initial granting of a residence card, and did not take effect from an earlier date when he may have been in the country or in a relationship with an EU citizen: Secretary of State for the Home Department v Aibangbee  EWCA Civ 339. The Home Office had continued the appeal to secure the point of law despite the case becoming moot as between the parties, enough time having expired by the time of the hearing to make Mr Aibangbee eligible.
- An appeal by the newspaper group MGN limited against the decision of a High Court judge not to vary the terms of an order requiring early disclosure was rejected: Various Claimants v MGN Ltd  EWCA Civ 350. The newspaper group had submitted that the order gave rise to a real risk, in the case of one claimant, that it would have to disclose material which would reveal the identity of a confidential journalistic source, contrary to protections enjoyed by publishers under section 10 of the Contempt of Court Act 1981.
- A prisoner convicted of terrorist offences, namely plotting to behead a member of the public around the time of Armistice Day 2015, who alleged that his transfer to a “Managing Challenging Behaviour Unit” constituted a “removal from association” with other prisoners had his appeal dismissed. The Court similarly dismissed the Secretary of State for Justice’s cross-appeal against the findings of an earlier court that such restrictions did amount to an interference with his right to respect for private life under Article 8(1) of the European Convention on Human Rights and therefore required justification under Article 8(2): Syed v The Secretary of State for Justice  EWCA Civ 367.
18 February 2019
Renu Begum holds a photograph of her sister Shamima, taken prior to the then school girls travel to Syria to support the Islamic State. Credit: The Guardian
Immigration cases have dominated human rights case law this week. However, perhaps the greatest controversy concerned the Home Secretary’s intervention in the case of Shamima Begum. News broke on Sunday morning that the nineteen-year-old had given birth in Syria to baby boy, having travelled to the country to support ISIS as a school girl three years ago.
The Times newspaper’s report earlier in the week that Miss Begum wished to come back to the UK prompted Sajid Javid to tell the same paper that he “would not hesitate to prevent” her return. International law may be an obstacle; Article 8 of the UN Convention on the Reduction of Statelessness 1961, to which the UK is a signatory, prevents a government from depriving an individual of their nationality if it would render them stateless.
However, UK law does permit the removal of citizenship under certain conditions. Section 66 of the Immigration Act 2014 allows the removal of citizenship where that status results from naturalisation, the Secretary of State is satisfied that deprivation is conducive to the public good and there are reasonable grounds for believing the person is able to become a national of another country or territory. The Supreme Court has been happy to allow an individual to become de facto stateless, but not de jure stateless – Pham v Secretary of State for the Home Department  UKSC 19 (25 March 2015).
The key difference in Miss Begum’s case is that she appears to lack citizenship of another country. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)  UKHL 61;  AC 453 (Paragraph 70), Lord Bingham cited Sir William Holdsworth’s ‘A History of English Law (1938’), vol X, p 393:
The Crown has never had a prerogative power to prevent its subjects from entering the kingdom, or to expel them from it
Similarly, Laws LJ, at paragraph 39 of the judgement in Bancoult (No 1), stated:
For my part I would certainly accept that a British subject enjoys a constitutional right to reside in or return to that part of the Queen’s dominions of which he is a citizen.
Mr Javid may well find that preventing Miss Begum’s return is more difficult than giving a hard-line soundbite to The Times. It is not difficult to imagine a whole array of different grounds on which to challenge such a decision, including her age at the time she left the United Kingdom, positive secondary duties owed under Human Rights law and obligations owed to her child, who appears to automatically inherit British citizenship through his mother.
In other news…
- 1 Crown Office Row’s Sarabjit Singh QC represented the government in a judicial review of circumstances surrounding an application for indefinite leave to remain. The review was brought by a Somali asylum seeker who had been subject to deportation orders after his conviction for wounding with intent – Guled, R (On the Application Of) v The Secretary of State for the Home Department  EWCA Civ 92. G. sought an order compelling the Home Secretary to grant him indefinite leave to remain, his deportation proceedings having extended over 12 years during which time he was diagnosed with schizophrenia. He alleged there was no realistic prospect of effecting his safe removal to Somalia under such circumstances. Ultimately, the Court of Appeal instructed the Home Office to reconsider his application, however it stopped short of granting a mandatory order compelling the Home Secretary to grant indefinite leave to remain.
- Bhandari & Anor v Secretary of State for the Home Department  EWCA Civ 129 – The appeal of a Nepali woman against the decision to refuse her application for leave to remain as a Tier 4 migrant was rejected by the Court of Appeal. She had paid £9500 to a fraudulent third party in order to secure a ‘Confirmation of Acceptance for Studies’ document after she made what she thought was a valid application to study at King’s College London. Whilst sympathetic to her circumstances, the court found itself unable to support her appeal.
- SB (Sri Lanka) v The Secretary of State for the Home Department  EWCA Civ 160 The appellant had put forward evidence suggesting his life would be endangered were he returned to Sri Lanka due to purported activities he had undertaken in support of Tamil fighters in the country’s civil war. All his evidence had been dismissed as lacking credibility by both previous tribunals. The Court of Appeal remitted the case back to the First tier Tribunal to go before a different judge.
21 January 2019
Photo credit: The Guardian
In his 1748 text ‘The Spirit of the Laws’, Montesquieu proposed his initial concept of what would ultimately become known amongst political scientists as the separation of powers. Mercifully, for both the writer of this blog and the time poor reader, this weekly round-up of events need only concern itself with one of those branches of government…
Despite best efforts however, the topic of European politics is never truly out of the picture. This week saw judgement given in a series of cases by the European Court of Human Rights concerning Article 6 rights in Hungary – Boza and Others, Kurmai and Others, Csontos and Others, Kvacskay and Others, Bartos, Kovács-Csincsák and Komlódi, and Borbély and Others v. Hungary. The EU member state has increasingly been the focus of continent-wide concerns about the rule of law in central Europe, which in particular relate to the policies of Prime Minister Viktor Orban and his Fidesz party. Similar concerns have spread to neighbouring countries including regional heavyweight Poland, where the ruing Law and Justice Party has repeatedly clashed with both Brussels and the country’s judiciary over suggestions that judicial appointments have become politically motivated.
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17 December 2018
This week the eyes of the United Kingdom, and quite possibly the whole of Europe, were trained on Luxembourg for an eagerly awaited judgement from the Court of Justice of the European Communities. However, before we embark on a lengthy and forensic analysis of the German/Slovakian case of AlzChem v Commission (State aid – Chemical industry – Judgment)  EUECJ T-284/15 (13 December 2018), we should pay some attention to the week’s legal Brexit developments…
The CJEU this week delivered judgement in the case of Wightman and Others – (Notification by a Member State of its intention to withdraw from the European Union – Judgment)  EUECJ C-621/18 (10 December 2018). The case had been referred to the Luxembourg court by the Inner House of the Court of Session and addressed the feasibility of unilateral revocation of Article 50 TEU. The UK government sought to have the application ruled inadmissible on the grounds that the question posed was hypothetical, no such revocation of Article 50 having been attempted or even contemplated. The European Council and Commission meanwhile contended that although revocation was possible, the right was not unilateral. They appeared to fear abuse of Article 50 by member states who could unilaterally seek to terminate their membership of the European Union, revoke that termination and then repeat the exercise as necessary to circumvent the two-year time limit imposed by Article 50 on withdrawal negotiations.
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26 November 2018
New Interpol President Kim Jong-Yang – credit The Guardian
From Strasbourg to the Strand, this week saw a plethora of judgements delivered in cases with notably interesting facts. However, arguably the most widely reported legal news concerned two stories, neither involving judgements in the UK courts. The case of six-year-old girl sexually assaulted by other pupils at a primary school made headlines after a local authority, whilst not admitting liability, settled her claim following a round table meeting in March this year. The High Court has now approved this settlement to make it binding on the parties (a necessary move when one party is a child to prevent them seeking further damages when they attain a majority) in litigation which some consider may contribute to legal precedent. More on that here. Meanwhile, the case of Matthew Hedges, a British academic jailed for life in the UAE on spying charges widely considered unfounded, appears to be resolved. Reports this morning indicate Mr Hedges has been unconditionally pardoned and is likely to be released imminently. This case raised profound questions about the rule of law and reliability of the judiciary in a Middle East country considered one of the West’s closest and most reliable partners.
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4 November 2018
After the flurry of excitement we were treated to earlier in October, last week afforded observers of the Supreme Court and legal news an opportunity to relax and catch their breath. However, the Court of Appeal proved to be a bountiful source of judgements, and reliable as always, Brexit continued to occupy the minds of journalists, politicians and lawyers alike.
However, perhaps the biggest story of the week originated in Pakistan. The case of Asia Bibi raises not only profound questions regarding the protection of human rights in the country, but also more substantial concerns about the rule of law, constitutional balance and ability of the government and courts to impose their will in a nuclear armed state at the forefront of some of the world’s most acute geo-political challenges.
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14 October 2018
Baking takes up supreme court time on both sides of the Atlantic, the United Nations High Commissioner for Refugees makes an appearance in the Court of Appeal, Unexplained Wealth Orders make an entrance and more…
The biggest news of the week arguably came out of Northern Ireland. However, mercifully this blog can ignore the ongoing speculation regarding a Brexit settlement, the attitude of DUP MPs, the potential presence of border infrastructure and whether or not veterinary inspections and customs checks are of loose equivalence (well, at least for now…).
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23 September 2018
This week, two Scottish children are playing a key role in the development of the UN Day of General Discussion (Friday, Sept 28). They are the only children from the UK represented, working alongside children from across the world, including Moldova, Norway and India. See below for more details of this event.
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