Concrete Walls and Bureaucratic Barriers to Access to Justice for Migrants


calais-421331Work recently began on a wall in Calais, funded by the UK government, to prevent migrants and asylum seekers from crossing the Channel to Britain. Nearly simultaneously, the government announced that it would increase immigration tribunal fees by over 500%, erecting a different type of barrier—to access to justice. It was claimed that doing so would bring in an estimated £34 million in income annually and preserve the functioning of the tribunals.

The decision to increase fees was made despite the fact that responses to a public consultation conducted by the government overwhelmingly disagreed with the proposals. The suggestion to increase fees in the First-tier Tribunal (the first port of call when a person wants to challenge an immigration or asylum decision by the state) was opposed by 142 of 147 respondents. Introducing fees in the Upper Tribunal (where appeals against decisions in the First-tier Tribunal are heard) was opposed by 106 of 116 respondents, and the introduction of fees for applications for permission to appeal in both Tribunals was opposed by 111 of 119 respondents. In partial concession to critics of the proposal, the government has said it will introduce fee waiver and exemption schemes in certain cases. However, these plans are as yet unspecified and are likely to increase the bureaucratic burden on migrants. Continue reading

“British Troops to be Exempted from Human Rights Law” the headline of the leading article in The Times today.

Theresa May vows to end ‘vexatious claims’ against service personnel. In the UK about £100 million has been spent since 2004 dealing with thousands of cases lodged against soldiers who served in Iraq. Many were launched under ECHR laws on rights to life and liberty.

Apparently the Prime Minister will announce today that under proposals she has put forward, Britain plans to opt out of international human rights law when it goes to war. British troops will be free to take “difficult decisions” on the battlefield without fear of legal action when they come home. This move follows an outcry over investigations into thousands of claims against soldiers by a government body examining alleged human rights abuses in Iraq. Mrs May said that the plan would

put an end to the industry of vexatious claims that has pursued those who served in previous conflicts.

Britain will put in place temporary derogations against parts of the Convention before planned military actions.

Since the Convention has been extended to cover actions by soldiers outside the jurisdiction of the UK and other signatory states, many senior officers have warned that operations will be undermined by soldiers wary of taking risks. Continue reading

‘Real risk’ that extradition of Scottish businessman to Taiwan would be incompatible with Article 3 – Seonaid Stevenson

taiwanflagimage1Zain Taj Dean v The Lord Advocate and the Scottish Ministers [2016] HCJAC 83 – read judgment

The High Court of Justiciary Appeal Court ruled last week that the extradition of Zain Dean to Taiwan would be incompatible with article 3 of the Convention as a result of the conditions in Taipei prison.

The appellant, a 44-year-old marketing consultant, had been living and working in Taiwan when he was involved in a road traffic accident in which a local delivery driver was killed. He was sentenced to four years in prison by the Taiwanese authorities. He absconded to Scotland and became the subject of Taiwan’s first ever extradition case.

The appeal was lodged under sections 103 and 108 of the Extradition Act 2003. Section 87 of this Act requires the judge to decide whether the person’s extradition would be compatible with Convention rights. The appellant argued that evidence was now available which had not been available at the initial extradition hearing. Under s.104 of the Act, the court may allow the appeal if evidence is available and this evidence would have resulted in the judge at the extradition hearing deciding a question before him differently, resulting in the person’s discharge.

It was therefore for the court to determine whether new evidence suggested that the conditions in which the appellant would be held in Taipei prison were not article 3 compliant. Continue reading

Down the Rabbit Hole: a close look at the CJEU standing Rules – Michael Rhimes

entrepreneur-rabbit_holeUnderstanding Standing: Post 2 of 3  Art 263(4) TFEU

Has Art 263(4) of the Lisbon Treaty achieved Advocate General Jacobs’ ideal of “the law itself [being] clear, coherent and readily understandable.” (See UPA Opinion at [100])?

No. As shall be seen in this post, to continue the maritme metaphor in this series, standing is still a rough and unpredictable sea to navigate. Many a case have been scuppered on the reefs of inadmissibility. Quite why this is the case requires us to pick apart the three notions of “implementing measures”, “direct concern” and “regulatory act”.

To some extent, this post will be rather technical. It is aimed for those who are interested in an overview of the operational problems and internal inconsistencies that lie in the third head. Given the limits of space, it is not possible to discuss at great length all of the finer nuances. Those who are interested may find my article in the European Journal of Legal Studies here which puts the flesh on the bones of this necessarily skeletal overview. Continue reading

Strasbourg again favouring safety of conviction over cross-examination of witnesses?

Strasbourg_ECHR-300x297Simon Price v. the United Kingdom, Application no. 15602/07, 15 September 2016 – read judgment.

In a unanimous decision, the European Court of Human Rights has held that the proceedings that lead to the conviction of an individual for drug trafficking charges were entirely compliant with Article 6, ECHR. Despite the inability to cross-examine a key prosecution witness, the Court considered that in light of the existence of supporting incriminating evidence (amongst other factors) the proceedings as a whole were fair.


In June 2004 a ship, entering the port of Rotterdam, was searched by customs officials and found to contain a quantity of cocaine worth £35 million. The applicant, Simon Price, was arrested after he made enquiries into the container shortly after. He was subsequently charged with an offence under s.20, Misuse of Drugs Act 1971, and with the attempted importation of drugs from Guyana to the United Kingdom via the Netherlands and Belgium. Continue reading

No finding of discrimination for British Gurkha pension scheme

Joanna-Lumley-and-Gurkha--003British Gurkha Welfare Society and others v. The United Kingdom, Application no. 44818/11 – read the judgment here

The Court has rejected claims that the cut-off scheme for British Gurkha pensions was in violation of Article 14 in conjunction with Article 1 of Protocol 1, but leaves open space for future proceedings.


The Gurkha have a long and storied history within the British Army. Originally serving in the (British) Indian Army, Gurkha regiments have remained within the British armed forces since 1815. More than 200,000 Gurkha soldiers fought in the two world wars, and in the past fifty years they have served in Hong Kong, Malaysia, Borneo, Cyprus, the Falklands, Kosovo, Iraq and Afghanistan.

Today these soldiers form the Brigade of Gurkhas, an administrative entity that ensures that Gurkha units are able to be integrated into the British Army. Since July 1997 the Brigade’s home base has been in the United Kingdom, due to the completion that year of the handover of Hong Kong – its previous home base – to China.

In October 2004 the Immigration Rules were changed to permit Gurkha soldiers who retired on or after 1 July 1997 with at least four years’ service to apply for settlement in the United Kingdom. Approximately 90 per cent of the 2,230 eligible Gurkha soldiers have since applied successfully to settle in the UK with their qualifying dependants. A further amendment was introduced in May 2009, allowing former Gurkhas who had served in the British Army for at least four years to settle permanently in the UK. Approximately thirty-five per cent of those eligible have since applied for resettlement. Continue reading

Arguments in the referendum challenge now available


The imminent  litigation concerning the government’s response to the Brexit vote is much anticipated. The skeleton arguments have now been filed. The High Court has just resisted an application for partial redaction of the arguments, so they are open for public perusal.

A quick reminder of what this is all about:

In R (on the Application of Gina Miller) and others v Secretary of State for Exiting the European Union the claimants seek a declaration that it would be unlawful for the defendant secretary of state or the prime minister on behalf of HM Government to issue a notification under Article 50 (TEU) to withdraw the UK from the EU without an act of parliament authorising such notification.

Here is the  skeleton argument from one of the groups supporting that case (People’s Challenge), and here are the Government defendants’ grounds of resistance

Prerogative Power

People’s Challenge

The triggering of Article 50 requires a prior step: the decision to withdraw from the EU in response to the referendum result. It is only once this decision is taken that it can be notified to the European Council.

This first step cannot be made as an exercise of the royal prerogative, which is the power of the government to take action without consulting parliament.  This power has been weakened over time – mainly whittled away by parliamentary legislation – and is so residual now that it cannot be exercised to implement Brexit. Consequently, the executive does not have power to decide that the UK should withdraw from the EU, and without putting the matter to vote in Parliament, ministers cannot notify the European Council of any such decision to withdraw.

Because parliament brought us into the UK, only parliament can authorise a decision to leave.

Since the prerogative forms part of the common law,  the courts have jurisdiction to determine the extent of this power in accordance with ordinary judicial review principles.


Prerogative powers cannot be reduced by implication. In any event, withdrawal from the EU by governmental fiat has not been prohibited by any statute.

The Act that parliament passed to authorise the referendum was predicated on the “clear understanding” that the government would respect the outcome, and this is a lawful and constitutional step. Parliament has a role, but only in the negotiations following the decision to leave, not in the taking of the decision itself, which follows the outcome of the referendum. That is for the government, under its prerogative treaty making powers.

The referendum result cannot be attacked in the way the challengers contend; the vote concerned the decision to leave the EU. As articulated, this result should be given effect by use of prerogative powers.

Courts have no more power to adjudicate on the decision to withdraw from the EU as they did on the decision to join it. This is now, and was then, a matter of “highest policy reserved to the Crown”. Treaty-making, with the European Union or any other body, is not generally subject to parliamentary control.

Citizens’ Rights

People’s Challenge

Even if the government has prerogative power to deal with this, it cannot be used in any way to modify “fundamental rights”, in particular “citizenship rights”; these rights include employment, equal pay and healthcare rights.


Article 50 was drafted to allow member states to determine their own requirements for withdrawal, free from interference from EU law. This is a provision of the EU Treaties which regulates states and does not confer rights upon individuals. As such, it cannot be invoked in a complaint such as the one at hand, regarding the activation of Article 50.

In any event, no particular rights have been asserted by the claimant that might be infringed by this process, and therefore they are not justiciable.


People’s Challenge

The devolved legislatures of Scotland, Northern Ireland and Wales are bound by EU law to protect the rights of their citizens. Furthermore, Northern Ireland and the Irish Republic cannot be separated by different rules on free movement of EU citizens.


The government’s use of its prerogative powers has nothing to do with devolution. The conduct of foreign affairs is a “reserved” matter so that the devolved governments have no competence over it.

Concluding statements

People’s Challenge

If Article 50 is triggered without the authorisation of MPs, this would create a precedent preventing any future parliament from legislating to hold a second referendum on EU withdrawal.


It is “entirely appropriate” under the UK’s unwritten constitution for the government to implement the outcome of the resolution without the need for parliamentary authorisation.

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