Category: Case law
24 August 2010 by Matthew Hill
UE (Nigeria) and Others v Secretary of State for the Home Department [2010] EWCA Civ 975
The Court of Appeal has held that in deciding whether the removal of a person from the UK is compatible with their human rights, their value to the community can and in many cases should be taken into account.
The court ruled that when a decision-maker is undertaking the balancing exercise required to determine whether the removal of an individual from the UK is proportionate under Article 8 ECHR (right to family life), the individual’s value to the community in this country is a relevant consideration to be taken into account. However, this judgment was qualified by indications from the judges that, in practice, this factor is unlikely to carry much weight in the decision-maker’s evaluation.
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19 August 2010 by Adam Wagner
Tenets of belief not enough
The Charity Commission has rejected a bid by a Catholic organisation to amend its charitable objects in order to restrict its adoption services to heterosexuals. The case highlights the significant protections which have been put in place by recent equality law, and the policing role which the Charity Commission is required to play from a human rights perspective.
The Commission was ordered by the High Court in March to look at its initial decision again in light of Article 14 of the European Convention on Human Rights. The law behind the case is quite convoluted, but is worth looking at again as it is likely to have significant implications for gay couples looking to adopt as well as for religious charities in general.
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16 August 2010 by Adam Wagner
Updated 12/9/10 | PM, R (on the application of) v Hertfordshire County Council [2010] EWHC 2056 (Admin) (04 August 2010) – Read judgment
Some people get to a certain age and stop counting. For them, the exposure of their true age to friends or colleagues might cause embarrassment. But for asylum seekers, proving their true age can alter the direction of their lives.
The recent High Court case of an Afghan asylum-seeker has highlighted the different, and often better, treatment which child asylum seekers received compared to their adult equivalents. It has also brought into focus the importance of a court’s initial, and often difficult, assessment of an asylum-seeker’s age, and the duty on local authorities to make up their own minds.
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12 August 2010 by Caroline Cross
Shirin Jisha v The Secretary of State for the Home Department [2010] EWHC 2043 (Admin) – Read judgment
When is a human rights claim a human rights claim in an immigration context? The High Court has recently considered this question in the case of a Bangladeshi citizen who had her visa cancelled when returning from a trip abroad.
This case related to the proper meaning of section 113(1) of the Nationality, Immigration and Asylum Act 2002. The Secretary of State had argued that the claimant’s claim was not a “human rights claim” because the claim was not made “at a place designated by the defendant” but served as part of her appeal to the Asylum and Immigration Tribunal against the defendant’s refusal to grant her leave to enter. It was held that the claim was a “human rights claim” within the terms of section 113(1).
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11 August 2010 by Adam Wagner
Ken Clarke
The Ministry of Justice (MoJ) is to cut £2bn from its £9bn or so budget. But where will this 20% cut come from?
Kenneth Clarke’s MoJ are said to have got in early in agreeing spending reduction targets with the Treasury, and yesterday it was reported by the Public and Commercial Services Union that senior staff were informed by email that the cuts will amount to around £2bn of the overall budget. The Union suspect that around 15,000 of the MoJ’s 80,000 staff may have to be axed.
However the MoJ makes the cuts, a reduction of around 20% is likely to have severe effects on access to and provision of justice in the United Kingdom. Various MoJ-funded bodies have already been lining up to explain why their departments could not survive on much less. The criminal legal aid system has long been said to be in crisis, the President of the Family Division indicated last week that the child protection system is in grave danger of imploding, and the Chief Executive of the Supreme Court has said the cuts could cripple the new court.
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11 August 2010 by Adam Wagner
Redaction in Al Rawi
Gradwick v IC and the Cabinet Office (EA/2010/0030) – Read decision
The Panopticon Blog has highlighted an interesting recent case in the General Regulatory Tribunal which may prove to be useful in the many different situations where documents are disclosed in redacted form.
The General Regulatory Tribunal (‘the Tribunal’) regulates information rights, amongst other things. Simply, the Tribunal held that if parts of documents disclosed under the Freedom of Information Act 2000 are to be redacted (blacked out), it is not good enough to transcribe a new document with the offending parts removed. This is because, as the Tribunal said:
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4 August 2010 by Rosalind English
W(Algeria) and 7 Others v Secretary of State for the Home Department [2010] EWCA Civ 898 (Jacob LJ, Sullivan LJ and Sir David Keene) 29 July 2010 – read judgment
Article 6 of the Convention did not require an “irreducible minimum of information” that had to be provided to appellants in proceedings before the Special Immigration Appeals Commission about the risk they posed to national security.
In their appeal against decisions of the respondent secretary of state to deport them on grounds of national security (upheld by the Special Immigration Appeals Commission (SIAC)) the appellants all claimed that they would be at risk of ill-treatment if they were deported. They had obtained relevant information which had been provided on the understanding that it could only be made available if there were clear guarantees that it would not become known to their national government.
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3 August 2010 by Adam Wagner
Worth lying for?
(1) MS JENNY PATON (2) C2 (3) C3 (4) C4 (5) C5 and POOLE BOROUGH COUNCIL, Investigatory Powers Tribunal – Read ruling
The Investigatory Powers Tribunal (IPT) has ruled that a local council acted unlawfully in spying repeatedly on parents suspected of lying about where they lived in order to get their child into a sought after school. The ruling may not, however, prevent local authorities from spying on families for similar reasons in the future.
The IPT exists to investigate complaints about conduct by various public bodies, including in relation to surveillance under the Regulation of Investigatory Powers Act 2000 (RIPA). Section 28 of RIPA allows a public body to apply to conduct direct surveillance if the authorisation is necessary on various grounds, including the detection of crime.
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2 August 2010 by Adam Wagner
For those of you looking for more information on last week’s Supreme Court judgment on UKIP party funding (see our previous post), we have been sent an interesting analysis of the judgment from Lucy Colter at Four New Square Chambers.
Patrick Lawrence Q.C. and Can Yeginsu, also of Four New Square, appeared for UKIP. The judgment was only of tangential importance in respect of human rights, but Coulter addresses this towards the end of her article. The main point was that a court in future would have leeway as to how much it could order a party to forfeit. As such, the court was satisfied that the party funding legislation is sufficiently flexible so as not to contravene human rights law:
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30 July 2010 by Adam Wagner
Morley & Ors v. R [2010] EWCA Crim 1910 – Read judgment
Four former Members of Parliament have failed in their appeal of a Crown Court ruling preventing them from claiming parliamentary privilege in criminal proceedings arising from the parliamentary expenses scandal.
The appeal was of Mr Justice Saunders’ ruling in the Southwark Crown Court that the parliamentary privilege enshrined in the 1688 Bill of Rights does not extend to protecting the four ex-MPs, Elliott Morley, David Chaytor, James Devine and Lord Hanningfield, from prosecutions for claiming inflated expenses. He had said that he could “see no logical, practical or moral justification for a claim for expenses being covered by privilege; and I can see no legal justification for it either.”
The Lord Chief Justice gave the judgment of the court, and made clear that Parliamentary privilege was simply not designed to protect these four men from the allegations currently against them:
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29 July 2010 by Adam Wagner
Tchenguiz & Ors v Imerman [2010] EWCA Civ 908 (29 July 2010) – Read judgment
The Court of Appeal has ruled that secretly obtained documents can no longer copied and then used in divorce proceedings, overturning a rule dating back almost twenty years. The case will have a significant impact for divorcing couples, but has the court left itself open to a Supreme Court reversal on human rights grounds?
The appeal related to the divorce proceedings between Vivian and Elizabeth Imerman, in which Mrs Imerman’s brothers brothers had downloaded documents from Mr Imerman’s office computer in order to prove that he had more assets than he had disclosed to the court. Mr Justice Moylan ruled in the High Court that seven files of documents should be handed back to Mr Imerman for the purpose of enabling him to remove any material for which he claimed privilege. Mr Imerman appealed against the decision that he would then have to give the documents back, and Mrs Imerman argued that she should be given more control over the privilege process.
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29 July 2010 by Adam Wagner
AN v Secretary of State for the Home Department [2010] EWCA Civ 869 (28 July 2010) – Read judgment
The Court of Appeal has held that control orders of three men suspected of terrorism revoked by the Government should in fact be quashed altogether. The decision opens the door for the men to claim compensation, and deals another blow to the controversial control order scheme.
This is the latest in a long and tortuous series of court judgments which have chipped away at the controversial control order scheme. This latest decision arises from a 2009 House of Lords (now the Supreme Court) decision that it was a breach of the right to a fair trial under Article 6 (the right to a fair trial) to hold someone under a control order without sufficient information about the allegations against him, even where the case against the “controlee” was based on closed materials, the disclosure of which would compromise the country’s national security (see our summary).
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29 July 2010 by Adam Wagner
R (on the application of ZO (Somalia) and others) (Respondents) v Secretary of State for the Home Department (Appellant) [2010] UKSC 36 – Read judgment
The Supreme Court has ruled that the UK must provide minimum standards to asylum seekers, including the right to work, whether or not their first asylum application has failed. Asylum seekers will now be able to work if they have been waiting for over a year for a decision.
The ruling is the latest in a line of court defeats for the Government on its asylum policy, including the recent High Court ruling that part of the fast-track deportation system is unlawful, as well as the Supreme Court’s rejection of the policy of sending gay asylum seekers back to countries where they may face persecution for their sexuality.
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26 July 2010 by Adam Wagner
Medical Justice, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1925 (Admin) (26 July 2010) – Read judgment
The High Court has ruled that a fast-track scheme for the removal of failed asylum seekers with little or no notice is unlawful as it does not provide sufficient access to justice.
Permission to appeal has been granted but the decision could put a stop to the policy being implemented for the time being.
The challenge was brought by Medical Justice, a charity which advises asylum seekers, represented by the Public Law Project, a legal charity which aims to improve access to public law remedies (see their press release here). The policy being challenged came into effect in January 2010, and gives individuals who fall into certain specified categories and who have made unsuccessful claims to enter or to remain in the United Kingdom, little or sometimes no notice of their removal directions.
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26 July 2010 by Adam Wagner
KS v R [2010] EWCA Crim 1756 (23 July 2010) – Read judgment
J, S, M v R [2010] EWCA Crim 1755 – Read judgment
The Lord Chief Justice has emphasised in two Court of Appeal judgments that the jury-less trials must be a last resort and take place only in truly extreme cases. His comments are clearly aimed at putting the breakers on an accelerating trend of requests for jury-less trials in prosecutions of serious crime, following the ground-breaking but controversial ‘Heathrow heist’ trial.
The Criminal Justice Act 2003 limited for the first time the right to trial by jury in the Crown Court, where trials for serious crimes take place. Section 44 provides for the option of judge-only trials if there is a “real and present danger” of jury tampering.
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