Category: Case law
22 December 2010 by Suzanne Lambert
The Secretary of State for the Home Department v Respondent [2010] UKUT B1 – Read judgment
There has been public outrage over the ruling of two Senior Immigration Judges that it would be unlawful to deport Aso Mohammed Ibrahim, an Iraqi Kurd, who has been labelled an “asylum seeker death driver”
The fury has not been limited to the lay public or the media, but “great anger” has also been expressed by high-profile figures such as Prime Minister David Cameron, a well-known critic of the Human Rights Act. The Government’s embarrassment over the decision has prompted Immigration Minister, Damian Green, to announce that the UK Border Agency (UKBA) will appeal the decision, and there have been more drastic calls from Tory MPs for the scrapping of the Human Rights Act.
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22 December 2010 by Adam Wagner
Lots of judgements are being released this week as judges tie up their business in time for the holidays. Here is a quick roundup of human rights cases.
More trouble for the LSC tender process
- Hereward & Foster Llp & Anor v The Legal Services Commission [2010] EWHC 3370 (Admin) (21 December 2010) A number of different organisations have attempted to judicially review the much criticised Legal Services Commission tender of publicly funded work, initially the Community Law Partnership and most notably (and successfully), the Law Society. In this case a solicitor has had its permission application refused regarding the LSC’s immigration tender as it was out of time, but the court did find that the “supervisor attendance criteria” imposed by the LSC indirectly discriminated against women as in privileging round-the-clock service, it prejudiced part-time over full-time workers (see para 62 for a summary of the judge’s conclusions). So a partial (moral) victory for the solicitors, with the immigration tender process looking in trouble and vulnerable to future challenges on indirect discrimination grounds.
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21 December 2010 by David Hart KC
Smartsource v Information Commissioner + 19 other parties [2010] UKUT 415 (AAC) 23rd November 2010 – read judgment
Ibsen’s Enemy of the People has Dr Stockmann complaining to his Norwegian municipality about contamination of its water supply. We think that these sorts of disputes are part of a modern problem, so it is striking to find Ibsen being invoked, judicially, in this far from 19th century fight about environmental information.
The question was the less than dramatic one as to whether information about water and wastewater billing etc was environmental information, and that in turn involved deciding whether water companies and sewage undertakers were “public authorities”. Ibsen might not have found that answer too difficult to provide: what local authorities used to do in the 19th century and much of the 20th century, here, in Norway, and elsewhere, included supplying you with clean water and taking away your foul water.
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21 December 2010 by Matthew Flinn
R (on the application of Daniel Faulkner) v Secretary of State for Justice and Anor [2010] EWCA Civ 1434 – Read Judgment
The Court of Appeal has upheld the appeal of prisoner who spent 10 more months in prison than he should have, due to unjustified delay in having his case heard by the Parole Board. The court found that there had been an infringement of his rights under Article 5(4) of the European Convention on Human Rights (ECHR).
In 2001 Daniel Faulkner was convicted of causing grievous bodily harm with intent (an offence under section 18 of the Offences Against the Person Act 1861). As this was his second offence of this nature, he was sentenced to custody for life, with the minimum period he had to spend in custody being set at two years, eight and a half months. That period expired on 18th April 2004 and he became eligible for parole.
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20 December 2010 by Rosalind English
R (on the application of Edwards and another) (Appellant) v Environment Agency & others(Respondents) [2010] UKSC 57 – Read judgment
The development of the principles of access to justice in environmental cases moves on apace.
This case arose out of a failed attempt to seek judicial review of the Environment Agency’s decision to issue a permit for the operation of a cement works. The application was made under the Environmental Impact Assessment Directive 85/337/EC and the Intergrated Pollution Prevention and control Directive 96/61/EC, both of which incorporate Article 9 of the Aarhus Convention, which requires that costs for environmental proceedings should not be prohibitively expensive.
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17 December 2010 by Adam Wagner
Chester v Secretary of State for Justice & Anor [2010] EWCA Civ 1439 (17 December 2010) – Read judgment
The Court of Appeal has rejected a claim by a man convicted of raping and murdering a seven-year-old girl that the court should grant him the right to vote. Meanwhile, following the judgment the government has announced that it plans to allow all prisoners less than four years to vote.
Mr Chester’s case is interesting from a constitutional perspective, although the decision is not too surprising, as I will explain. But it does highlight the complex and sometimes unsatisfactory manner in which human rights are protected in the UK.
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17 December 2010 by Catriona Murdoch
Secretary of State for the Home Department v DD (Afghanistan) [2010] EWCA Civ 1407 (10 December 2010) – Read judgment
It is a sometimes controversial aspect of immigration law that asylum seekers facing a real risk of persecution will nevertheless be denied the protection of the Refugee Convention, through the application of Article 1F of that Convention. One of the bases for exclusion from protection is Article 1F(c), which applies where a person “has been guilty of acts contrary to the principles of the United Nations”. How does a court decide such cases?
The Court of Appeal has reversed the decision of the Asylum and Immigration Tribunal (AIT) in a case involving an Afghani asylum seeker. The AIT had ruled that Article 1F did not apply, and so DD was entitled to refugee status. The AIT’s conclusion was reached despite DD admitting a history of involvement with organisations engaged in violent activities against the Afghan Goverment and UN-mandated forces: Jamiat-e-Islami, the Taliban, and Hizb-e-Islami. The Home Secretary’s appeal was allowed and the case was remitted to the AIT for a limited reconsideration.
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16 December 2010 by Rosalind English
Ofulue v United Kingdom, Application no. 52512/09 – read judgment
The Strasbourg Court has confirmed that the inadmissibility of a “without prejudice” letter neither interferes with an applicant’s fair trial rights under Article 6 nor does it prejudice their rights to enjoyment of property under Article 1 Protocol 1 where the production of such a letter might have proved their title in proceedings challenging adverse possession.
The applicant was the registered owner of a property in London which became subject to adverse possession. In the dispute over whether or not her title had been extinguished she sought permission to produce a “without prejudice” letter from the tenants which had been written some years before making an offer on the house.
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16 December 2010 by Adam Wagner
CASE OF A, B AND C v. IRELAND (Application no. 25579/05) – Read judgment / press release
The Grand Chamber of European Court of Human Rights has ruled unanimously that abortion must be more accessible in Ireland for women whose lives are at risk. It rejected applications that abortion must be more widely available in other circumstances.
The ruling does not represent a significant departure from the current state of Irish law – in that it does not require the state to legalise abortion more than it technically already has done – but the probable changes in the law may result in a general softening towards abortion in general, as, in theory at least, it will be much easier for women in life threatening situations to obtain an abortion. Up until now, the law has made it practically impossible to do so.
Moreover, the recognition that abortion falls under article 8 (the right to private and family life) may also lead in future to more wide-ranging judgments, along the lines of Roe v Wade in the United States.
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16 December 2010 by Rosalind English
O’Donoghue and Others v. the United Kingdom(application no. 34848/07):
The government’s system for preventing sham marriages as an entry ploy for immigrants breached the right to marry and was discriminatory – read judgment.
By the time this case was lodged the Certificate of Approval Scheme had been much diluted by a series of amendments, but even so the Court found itself to be “gravely concerned” with the policy. This, along with the surprisingly lenient approach to the applicants’ failure to exhaust local remedies, suggests that the Court was anxious to address what it sees as endemic problems in the UK’s border control policy. If states want to use impediments to marriage as an entry deterrent, it says, then they must face being rapped with the Article 12 stick.
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15 December 2010 by Adam Wagner
Principal Reporter (Respondent) v K (Appellant) and others (Scotland) [2010] UKSC 56 – Read judgment / press summary
The Supreme Court has ruled that Scottish law, which previously did not give unmarried fathers the right to take part in a hearing relating to a child with whom they have established family ties, is incompatible with human rights law.
The statutory provision which defines the categories of people who have a right to take part in the hearings must be read to include anyone who has established family life with the child. The Human Rights Act empowers courts to “read” legislation in such a way as to give effect to the European Convention on Human Rights.
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15 December 2010 by Caroline Cross
PF and EF v UK (Application No. 28326/09) – Read judgment
The European Court of Human Rights has dismissed an application brought against the police in Northern Ireland by a mother and her daughter who argued the police had failed to take sufficient action to protect them from loyalist riots on their route to primary school.
The court held that the police must be afforded a degree of discretion in taking operational decisions, and that in this case the police took all “reasonable steps” to protect the applicants.
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14 December 2010 by Maria Roche
R v Khan [2010] EWCA Crim 2880 – Read judgment
The Court of Appeal has increased the sentences of two human traffickers from 3 to 4 years and upheld the 3 year sentence of a third trafficker (despite her mental health problems) for systematic and well-planned exploitation of trafficked restaurant workers.
The offenders, Shahnawaz Ali Khan, Raza Ali Khan and their mother Perveen Khan, were family restaurateurs in Harrogate. Over a period of four years they recruited nine men from the Middle East and the Indian subcontinent to work in the restaurant. All the workers entered the country legally on non-EEA work permits, after the offenders made assurances of good pay and working conditions to both the workers and the Home Office.
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9 December 2010 by Rosalind English
The Child Poverty Action Group (Respondent) v Secretary of State for Work and Pensions(Appellant) [2010] UKSC 54 – Read judgment / press release
The Supreme Court has ruled that where benefits are overpaid as a result of a mistaken calculation, the department responsible cannot claim these amounts back via the common law route of restitution; the Secretary of State’s only recourse is via Section 71 of the Social Security Administration Act.
The following summary is taken from the Supreme Court site’s Press Release, with my comment below:
This appeal concerns the question whether, in cases of social security benefit awards mistakenly inflated due to a calculation error, the Secretary of State is entitled to recover sums overpaid under the common law of unjust enrichment or whether section 71 of the Social Security Administration Act 1992 (the “1992 Act”) provides the only route to recovery (nb. the Supreme Court press summary wrongly refers to the Social Security Benefits Act 1992).
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8 December 2010 by Rosalind English
This time two years ago two obscure environmental groups, Clientearth and the Marine Conservation Society , took a step that may make more difference to the enforcement of environmental rights in this country than all the recent high-profile “green” NGO campaigns put together.
They submitted a complaint – euphemistically called a “communication” – to the enforcement body of the Aarhus Convention, a treaty which lays down baseline rules for proper environmental justice in the EU, alerting it to various shortcomings in the legal system of England and Wales (inelegantly but conveniently referred to in the report as E & W).
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