Media By: Thomas Hayes
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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