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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How will human rights fare under new PM Theresa May? – the Round-up

In the news

Theresa May has been sworn in as Prime Minister of the United Kingdom, prompting speculation about the impact her leadership will have on human rights.

The former Home Secretary has been a vocal and long-standing critic of the Human Rights Act. In a 2011 speech she insisted that the legislation “needs to go”, making controversial reference to what legal commentators argued was a “mythical example” of an immigrant who could not be deported because “he had a pet cat”. Her appointment of Liz Truss as Justice Secretary, who has previously spoken out against the HRA, suggests that the Government will continue with plans to replace the Act with a British Bill of Rights.

Nonetheless, it appears that the UK will remain a signatory to the European Convention on Human Rights, at least in the near future. During her campaign to be Prime Minister, Theresa May stated that she would not pursue pulling out of the ECHR, describing the issue as divisive and lacking majority support in Parliament. Amnesty International have said that they “warmly welcome” this commitment, and have called on the Prime Minister to “turn the corner on human rights” in the UK.

In an examination of “Theresa May’s Eight Human Rights Highs and Lows”, RightsInfo has noted that in 2012 May “came out strongly in support of the proposal to change the law so people of the same sex could marry”. Pink News charts her evolution on LGBT rights to become the “unsung hero” of equal marriage, while pointing out criticisms that conditions for LGBT asylum-seekers have worsened under her tenure as Home Secretary.

On the issue of freedom of religion, commentators have similarly looked to Teresa May’s actions as Home Secretary for an indication of her position. David Pocklington provides an overview for Law & Religion UK, noting her recent launch of an independent review into the operation of sharia law in England and Wales.

Meanwhile, the Government’s review into whether victims of trafficking have effective access to legal advice has yet to be published. Writing in the Justice Gap, Juliette Nash has called on Theresa May to deliver on her promise to tackle modern slavery and implement any recommendations of the review as soon as possible: “the spotlight is now on …the Prime Minister…to ensure that justice is done”.

In other news:

The Guardian: Lawyers acting on behalf of a British citizen are seeking to challenge the lawfulness of the Government triggering Article 50 of the Treaty on the European Union without parliamentary approval. We have posted on the “divorce” process here.  The UK Constitutional Law Association Blog provides  extensive academic discussion of the constitutional issues surrounding the UK’s withdrawal from the EU.

Law Society’s Gazette: In a report on the impact of tribunal fees published on 20 June, the House of Commons Justice Committee made a number of recommendations, including that the fees charged in the employment tribunal should be ‘substantially reduced’. In the meantime, Unison has continued to pursue its quest for judicial review of the lawfulness of the fees, with an appeal to the Supreme Court set for December 2016.

BBC: An investigation is under way following the death of 18 year-old Mzee Mohammed in police custody, who had been detained by security staff at a shopping centre. The charity Inquest has called for “the most thorough and robust scrutiny of the actions of the security guards and the police” who were in contact with Mr Mohammed before his death.

Daily Telegraph: Figures released by the CPS show that the number of prosecutions for hate crimes against disabled people has increased by 41.3% in the last year, while prosecutions for homophobic and transphobic crime have risen by 15% over the same period.

In the courts:

Taddeucci and McCall v Italy (judgment in French only)

This case concerned the refusal of Italian authorities to grant a residence permit to a gay couple, on the basis that they did not constitute family members. The Court found that the restrictive interpretation of the notion of family member applied by the authorities did not take into account the fact that under Italian law the couple were unable to marry. In deciding to treat homosexual couples in the same manner as unmarried heterosexual couples, Italy was in breach of article 14 (freedom from discrimination) taken together with article 8 (right to respect for private and family life).

Buzadji v the Republic of Moldova

This case concerned the detention of a businessman for ten months, pending trial on an allegation of attempted fraud. The Court affirmed that judicial authorities were required to give relevant and sufficient reasons for detention, in addition to having a “reasonable suspicion” that the relevant individual had committed an offence. Importantly, this requirement was held to apply already at the time of the first decision ordering detention, and “promptly” after the arrest.

On the particular facts, the Court found that the reasons given for detention had been stereotyped, abstract and inconsistent. As such there had been a violation of article 5 (the right to liberty).

UK HRB posts

Whose fair trial prevails? – David Hart QC

Justice for everyone: another Grayling reform bites the dust – Gideon Barth

Book review: “The Inquest Book: The Law of Coroners and Inquests” edited by Caroline Cross and Neil Garnham – Michael Deacon

The Chilcot Report – an Illegal War? – Dominic Ruck Keene

Another door closes for the Chagossians – Dominic Ruck Keene

Get out the back, Jack? make a new plan, Stan? – Rosalind English

 

Whose fair trial prevails?

shutterstock_152336216-505x337Da Costa and another v. Sargaco [2016] EWCA Civ 764   14 July 2016 read judgment

Two people say they owned motorbikes which they kept outside their house – until, it is said, the bikes were mown down by the defendant’s car, a collision which their witness claimed to have seen. The car’s insurers said that the claim was fraudulent and it was all a conspiracy. The judge agreed it was a fraud, whereas the Court of Appeal disagreed – but still disallowed the claim because, the CA said, the owners had not proved their case.

But the point of general interest arose because the judge decided that each claimant should give evidence in the absence of the other. And the CA said this was wrong. As I shall explain, I disagree. But let’s see where the Article 6 ECHR battle lines lie so you can come to your own view.

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Justice for everyone: another Grayling reform bites the dust

R (on the application of Public Law Project) v Lord Chancellor [2016] UKSC 39

Supreme Court bins the Government’s residence test for legal aid as ultra vires: just as the latest non-lawyer assumes the role of Lord Chancellor, the reforms made by the first non-lawyer to assume that role continue to fade away.

In April 2013, the Government announced it would introduce a residence test for civil legal aid funding under the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act (“LASPO”) 2012. If you were not lawfully resident in the UK (or a Crown Dependency or British Overseas Territory) at the time of your application for legal aid, or for the last 12 months, you would not be eligible for legal aid.

The Public Law Project (“PLP”) challenged this residence test on two grounds: (i) the secondary legislation was ultra vires; and, (ii) the test was unjustifiably discriminatory, and has now been successful before the Supreme Court in doing so.

After a topsy-turvy trip through the courts, the case ended up before the Supreme Court who, in an apparently unprecedented step, announced it had decided the case after day one of the two-day hearing, and did not need to hear the discrimination issue. The judgment, written by Lord Neuberger, with whom the other six justices agreed, has now been handed down.

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Book review: “The Inquest Book: The Law of Coroners and Inquests” edited by Caroline Cross and Neil Garnham

book

As we mentioned here, ‘The Inquest Book: The Law of Coroners and Inquests’, edited by Caroline Cross and Neil Garnham and written by members of 1 Crown Office Row, was published last month.  The Inquest Book provides practitioners with an up-to-date and comprehensive guide to the law of coroners and inquests.

Now available in hard copy and ebook format, The Inquest Book is available here with a discount of 30% available until 18 July 2016, and from Wildy’s, Waterstones and Amazon.

Please see below for a helpful review of the book by Bridget Dolan QC.

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The Chilcot Report – an Illegal War?

More than 7 years after Gordon Brown first announced that a public Inquiry would be conducted to identify lessons that could be learned from the Iraq conflict, the Chilcot report was finally published on7 July 2016. However, it was worth the wait. This post does not seek to summarise the report: there are many other good overviews (such as the BBC’s ). The report’s executive summary, in particular the key findings section, is also well worth a read.  The intention is to cover in this and subsequent posts some of the key legal issues raised by the report.  This post considers the relevance of the Chilcot report’s findings to the broader issue of whether Britain’s intervention in Iraq was legal – an issue which was not itself within the remit of the inquiry. Continue reading

Another door closes for the Chagossians

In R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs  [2016] UKSC 35, the Supreme Court last week dismissed the attempt to set aside the House of Lord’s controversial 2008 decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61. The challenge was grounded in the disclosure of documents in the parallel proceedings of Bancoult No 3 relating to the reliability of a feasibility study into the long term viability of settlement in Chagos Islands.

Read More.

The Chagos Saga

Those who have followed David Hart and Rosalind English’s posts on the long running saga of the Chagossians will be familiar with the extremely unedifying tale of the British Government’s removal and resettlement between 1968 and 1973 of the Chagossians from their homes in the British Indian Ocean Territories in order to enable the construction of the key US base of Diego Garcia. In 2000 the Divisional Court upheld a challenge to the original statutory ordinance prohibiting the Chagossians from entering or being resident in the BIOT on the grounds that the Commissioner for the BIOT’s power to legislate for the peace, order and good government of the BIOT did not include a power to expel its inhabitants. However, following the completion of a feasibility study into the resettlement of the Chagossians a new statutory order was enacted in 2004 again prohibiting them from living in the islands. The 2008 decision rejected a challenge to the rationality, legality and procedural fairness of that order.

The present claim sought to overturn the 2008 decision on the basis that (1) the Foreign Secretary failed in breach of his duty of candour in public law proceedings to disclose relevant documents containing documents that would have been likely to affect the factual basis on which the House of Lords made its decision; and (2) there was new material that undermined that factual basis. Specifically, further documents had been disclosed that cast significant doubt on the conclusions of the feasibility study that any long term resettlement on the Chagos Islands was infeasible except at prohibitive cost. Accordingly, the Claimant would have been in a position to challenge the reliability of those conclusions, it was highly likely that the challenged would have succeeded, and that if the 2008 judgment was set aside, a new hearing would reach a different conclusion.

The judgments

Lord Mance gave the leading judgment for the majority. He began by addressing the alleged breach of duty of candour, and emphasised that a party’s failure to disclose relevant documentary information was clearly capable of subjecting another party to an unfair procedure. However, when considering whether to re-open an appeal it had to be clearly established that a significant injustice had probably occurred and that there was no alternative effective remedy. Similarly, where fresh evidence has been discovered after a judgment that could not be appealed, then there had to be a powerful probability that an erroneous result was reached in the earlier proceedings.

Lord Mance analysed the 2008 judgment and set out citations from it that showed that the conclusions of the feasibility study had been given significant (perhaps even conclusive) weight by the majority. He summarised the issue as to whether it was probable or likely (he did not need to decide which it should be) that the material now available would have led the House of Lords to conclude that it was irrational and unjustified for the Foreign Secretary to accept and act on the feasibility study’s conclusions.

Lord Mance then turned to the feasibility study and to the documents disclosed that shed additional light on the degree to which the content of its ultimate conclusions had been influenced by pressure from the government and/or had not be based on sound science. Lord Mance noted that the critical conclusions had remained unchanged from the draft written by the consultancy who authored the report and the final version produced following comment and input from the FCO.  Accordingly he held that there was no probability, likelihood or even possibility that the court would have seen anything in the new material that would or should have caused the Foreign Sectary to doubt the report’s conclusions, or made it irrational or otherwise unjustifiable to act on them in June 2004. The issue was whether the Foreign Secretary was justified in acting as he did on the material that was or should have been available to him, not whether his decision could be justified on a revisiting of the whole issue of resettlement in the light of any other material which either party could adduce in 2016.

Lord Mance went on to hold that even if the threshold test for setting aside the House of Lords’ decision had been met, it would have been decisive that a new 2015 feasibility study has found that there is scope for settled resettlement. According “in practical terms., the background has shifted, and logically the constitutional ban needs to be revisited… it is open to any Chagossian now or in the future to challenge the future to abrogate the 2004 orders in light of all the information now available.

Lord Kerr’s powerful dissent (with which Baroness Hale agreed) is worth reading. He began by stating that if the decision on the feasibility of resettlement was reached on information that was plainly wrong, or was open to serious challenge, and it was at least distinctly possible that a different decision would have been formed if the full picture had been known, then the rationality of the 2004 Order should be re-examined.

Lord Kerr identified that in light of the Divisional Court holding that the government was no legal obligation to fund a resettlement, the feasibility study’s conclusions had to be capable of sustaining the Foreign Secretary’s decision that the risk of the government coming under pressure to meet the cost of, and to permit the resettlement of the Chagossians was such that they had to refused the right to return to their homes. That was the decision whose rationality was being challenged. Accordingly he held that “any reservations about the veracity of the claims made in the report assume an unmistakable significance. Unless the report was compelling and irrefutable in its conclusions, its capacity to act as the sole justification for the denial of such an important right was, at least, suspect.” Lord Kerr also analysed the study, and the light shed by the new documents on how it had reached its final form. However, unlike Lord Mance, he concluded that there were questions raised about the validity of its conclusions. Therefore it was at least questionable that the majority of the House of Lords would have placed such heavy reliance on its conclusions, and a distinct possibility that there would have been different outcome. The appeal should therefore be re-opened.

The most trenchant part of Lord Kerr’s dissent is his categorical (and in my opinion compelling) argument that there was no possible juridical basis to deny a remedy solely because the Chagossians might be allowed to resettle in entirely different circumstances and for completely different reasons as underlay the original decision.

Where next?

It should be noted that the Supreme Court has given permission to appeal in Bancoult No 3 – in a challenge surrounding whether the Marine Protection Zone created around the Chagos Islands was created for the improper purpose of ensuring that the Chagossians would not be able to return. One day the Chagossians may yet be vindicated in their search for justice.

On another note – for those interested in the duty of candour see also a recent judgment of Sir Kenneth Parker in R (Biffa Waste Management Services Ltd) v the Commissioners for Her Majesty’s Revenue and Customs [2016] EWHC 1444 (Admin).