Unlimited Immigration Detention and the Right to Liberty – the Round-up

Photo credit: RT

In the news

The absence of fixed time limits in the UK system of immigration detention does not breach Article 5 of the Convention (the right to liberty), according to a recent decision of the European Court of Human Rights in JN v United Kingdom.

The applicant was an Iranian national who was refused asylum in the UK and issued with a deportation order. He was detained in an immigration removal centre for more than four and a half years, following completion of a custodial sentence for indecent assault. The applicant complained that in the absence of fixed time limits, domestic law was unclear and did not produce foreseeable consequences for individuals.

This argument was rejected by the Court, which re-iterated that Article 5 does not lay down maximum time limits for detention pending deportation. The issue was said to be whether domestic law contained sufficient procedural safeguards against arbitrariness, and in this regard the UK did not fall short of Convention requirements. However, the Court did find that between January 2008 and September 2009 deportation of the applicant had not been pursued with “due diligence”, and his detention during this period was therefore in breach of his right to liberty.

The decision will come as a disappointment to campaigners, who point out that the UK is the only EU Member State which places no time limit on the detention of foreign nationals. According to the UNHCR, detention can have “a lasting, detrimental impact on the mental and physical health of asylum seekers”, and both a cross-party Parliamentary Inquiry and a recent report of the UN Human Rights Committee have called on the UK to adopt an upper limit.

It remains open to the Government to do so. However, in light of the judgment in JN, the introduction of a statutory time limit would now appear unlikely. A spokeswoman told the Guardian that the Home Office were pleased with the outcome of the case: “We maintain that our immigration detention system is firm but fair”.

In other news

The Queen’s Speech has declared that “proposals will be brought forward for a British Bill of Rights” – wording that is near identical to last year’s commitment to ‘bring forward proposals for a British Bill of Rights”. Speaking to the Huffington Post, Policy Director at Liberty, Bella Sankey remarks that if this “felt like groundhog day, it was because little progress has been made” towards the scrapping of the Human Rights Act. UKHRB founder Adam Wagner provides a useful list of reactions and coverage here.

A report from the European Commission points to evidence that “the migration crisis has been exploited by criminal networks involved in trafficking in human beings”, who target the most vulnerable. According to official figures, in 2013-2014 there were 15,846 registered victims of trafficking in the EU, although the true number is considered to be “substantially higher”. The BBC reports on the findings.

The Supreme Court has upheld an interim injunction in the ‘celebrity threesome’ case, until after the full trial for invasion of privacy. The Court of Appeal had been wrong to enhance the weight attached to freedom of expression (article 10 ECHR) as compared with the right to respect for privacy (article 8 ECHR) – neither article had preference over the other in the balancing exercise. David Hart QC provides an analysis of the decision for the UKHRB – a summary of the main points can be found on RightsInfo

In the courts

The applicants were Hungarian nationals and members of parliament, who had been issued with fines for engaging in protests that were disruptive of parliamentary proceedings. They complained that this had violated their right to freedom of expression (article 10 ECHR).

The Court observed that Parliaments were entitled to react when their members engaged in disorderly conduct disrupting the normal functioning of the legislature. However, on the present facts domestic legislation had not provided for any possibility for the MPs concerned to be involved in the relevant disciplinary procedure. The interference with the applicants’ right to freedom of expression was therefore not proportionate to the legitimate aims pursued, because it was not accompanied by adequate procedural safeguards. Accordingly, the Court found a violation of Article 10.

The applicant’s husband had died in circumstances where there had been a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, although that negligent failure was not necessarily causative. In its Chamber judgment of 15 December 2015, the European Court of Human Rights held that there had been a violation of Article 2 (right to life) of the Convention as to the right to life and, unanimously, that there had been a violation of Article 2.

Analysis of that decision is provided by Jeremy Hyam QC for the UK HRB. On 2 May 2016 the Grand Chamber Panel accepted the Portuguese Government’s request that the case be referred to the Grand Chamber.

Publications

Those in need of some summer reading might consider: Five Ideas to Fight For, by Anthony Lester, recently published. The book describes the development of English law in relation to human rights, equality, free speech, privacy and the rule of law, explaining how our freedom is under threat and why it matters.

UK HRB posts

CA says ex-pats cannot say yes or no to Brexit – David Hart QC

The British Bill of Rights Show: Series 14, Episode 9…*Zzzzzzz* – Adam Wagner

Three Way in the Supreme Court: PJS remains PJS – David Hart QC

The National Preventive Mechanism of the United Kingdom – John Wadham

Bank Mellat’s $4bn claim: CA rules out one element, but the rest to play for – David Hart QC

MoJ signals interest in specialist courts – the Round-up

Lady Justice above the Old Bailey in London

Photo credit: The Guardian

In the news

The Ministry of Justice has signalled an interest in the potential of specialist courts for cases of domestic abuse. It has been considering a report published last week by the Centre for Justice Innovation, which recommends an integrated approach whereby criminal, family and civil matters would be heard under a ‘one judge, one family’ model.

The report highlights evidence from the United States, Australia and New Zealand that integrated courts increase convictions and witness participation, lower re-offending, enforce protection orders more effectively and reduce case processing time. Victims would no longer find themselves “jumping from forum to forum” to resolve matters that are “all facets of the same underlying issue.”

Specialist domestic abuse courts could moreover use post-sentence judicial monitoring of perpetrators, and place a greater emphasis on the rehabilitation of offenders. In a speech to the Magistrates’ Association, justice secretary Michael Gove said he had been “impressed” by the potential of problem-solving courts during a recent visit to the US, and was “keen to look more” at what could be done in this area.

However, the proposals under examination are unlikely to allay fears that government cuts are putting women at risk. Under the ECHR, domestic authorities have a duty to “establish and apply effectively a system by which all forms of domestic violence [can] be punished,” and ensure “sufficient safeguards” are provided for the victims [Opuz v Turkey].

Yet current safeguards are under considerable strain, with domestic abuse incidents reported to the police having increased by 34% since 2007/2008. Campaigners warn that austerity measures, which have led to Portsmouth City Council recently announcing a “sizeable reduction” of £180,000 to its domestic abuse service, are likely to put further pressure on authorities already at breaking point.

Other news

  • Daily Telegraph: The Government has announced plans to establish an improved help-line for victims of modern slavery, which will be set up with a £1 million contribution from Google. The service will be modelled on a similar helpline in the US, which provides advice to people who have been subjected to forced labour or servitude, and collates data to combat human trafficking.
  • The Guardian: Health inspectors from the Care Quality Commission have issued a report critical of the wide variations of treatment received by people detained under the Mental Health Act. The inspectors found no evidence of patients’ views being considered in a quarter of the care plans examined, which Deputy Chief Inspector Dr Paul Lelliott said could “hinder their recovery, and lead to potential breaches in meeting their human rights.”
  • BBC: A High Court judge has ruled Lord Janner unfit to plead, with the result that the former politician will not stand trial over allegations of indecent assault and sexual abuse. Mr Justice Openshaw found that the 87-year-old peer had “advanced and disabling dementia that has deteriorated and is irreversible”. A “trial of the facts” is scheduled to take place next April.
  • Civic institutions, laws and practices need to better reflect the UK’s less religious, more diverse society, according to a report by the Commission on Religion and Belief in British Public Life. The Commission, led by former High Court judge, Baroness Butler-Sloss, has suggested that schools should no longer face a legal requirement to provide daily acts of worship of a Christian character, and has pointed to a number of “negative practical consequences” of selection by religion in faith schools. The Guardian reports.

 In the courts

The case concerned the complaints of seven Lithuanian nationals that the conditions of their detention in various correctional facilities had fallen short of standards compatible with article 3 of the Convention. In particular, it was submitted that they were held in overcrowded dormitory-type rooms. Some of the applicants further maintained that they were detained in conditions that violated basic hygiene requirements, and that they lacked access to appropriate sanitary facilities.

The Court found that the compensatory remedies made available by the Lithuanian authorities had been insufficient. It held that there had been a violation of article 3 (prohibition of inhuman or degrading treatment) in respect of four of the applicants, and made awards of pecuniary compensation accordingly.

This case concerned the asylum applications of two Afghan nationals who married in a religious ceremony in Iran when ZH had been 14-years old. The Swiss authorities did not deem the couple to be legally married, and considered their applications separately, resulting in the removal of RH to Italy after the rejection of his appeal. The applicants alleged that the expulsion of RH amounted to a breach of article 8 ECHR (the right to family life).

The Court held that article 8 of the Convention could not be interpreted as imposing on a member state an obligation to recognise a marriage contracted by a child, in view of article 12 (right to marry) which expressly provided for regulation of marriage by national law. At the time of the removal of RH to Italy, the Swiss authorities had been justified in considering that the applicants were not married. The Court therefore found no violation of article 8.

Events

If you would like your event to be mentioned on the Blog, please email the details to Jim Duffy, at jim.duffy@1cor.com.

Court of Session: Partners in Crime Have no ‘Family Life’

O’Neill and Lauchlan v Scottish Ministers [2015] CSOH 93, 28th October 2015 – read judgment

The Outer House of the Court of Session has dismissed challenges brought by two convicted paedophiles to the Scottish Prison Service’s refusal to allow them to visit each other in prison. The decisions were challenged under articles 8 and 14 ECHR, as it was claimed that the prisoners were in a homosexual relationship. Continue reading

Challenge to prosecution policy on assisted suicide in Scotland fails – Fraser Simpson

Holyrood-GettyRoss, Re Judicial Review, [2015] CSOH 123 – read judgment

The Outer of House of the Court of Session has refused an individual’s request for clarification of the prosecution policy relating to assisted suicide in Scotland.

Factual Background

The Petitioner, Mr Ross, suffers from Parkinson’s disease and currently resides in a care home due to his dependence on others. Although not wishing to currently end his life, Mr Ross anticipates that in the future he will wish to do so and will require assistance.

In July 2014, the Petitioner requested from the Lord Advocate – the head of the prosecution service in Scotland – guidance on the prosecution of individuals who assist others to commit suicide. The Lord Advocate replied that such cases would be referred to the Procurator Fiscal – the Scottish public prosecutor – and dealt with under the law of homicide. The Lord Advocate further stated that decisions regarding whether prosecution would be in the public interest would be taken in line with the published Crown Office and Procurator Fiscal Service Prosecution Code (“COPFS Code”). However, he admitted that it would often be in the public interest to prosecute such serious crimes as homicide. Continue reading

Controversial named person scheme upheld by the Court of Session

The Christian Institute (and others) v Scottish Ministers [2015] CSIH 64, 3rd September 2015 – read judgment

The Court of Session’s appeal chamber – the Inner House – has unanimously rejected challenges to the Scottish government’s controversial named person scheme. Three individual petitioners, as well as The Christian Institute, Family Education Trust, The Tymes Trust, and Christian Action Research and Education (CARE), contested the appointment of named persons and the scheme’s provisions for data sharing.

The Named Person Scheme

The named person scheme is part of a package of measures introduced by the Children and Young People (Scotland) Act 2014. According to the Scottish government, the aim of the legislation is to ensure that the rights of children are respected across the public sector. Continue reading

Supreme Court: no-win-no-fee costs regime compatible with Article 6

11769Coventry v. Lawrence [2015] UKSC 50, 22 July 2015, read judgment here

The pre-April 2013 Conditional Fee Agreement system, under which claimants could recover uplifts on their costs and their insurance premiums from defendants, has survived – just. It received a sustained challenge from defendants to the effect that such a system was in breach of their Article 6 rights to a fair trial.

In a seven-justice court there was a strongly-worded dissent of two, and two other justices found the case “awkward.”

The decision arises out of the noisy speedway case about which I posted in March 2014 – here. The speedway business ended up being ordered to pay £640,000 by way of costs after the trial. On an initial hearing (my post here), the Supreme Court was so disturbed by this that they ordered a further hearing to decide whether this was compatible with Article 6 .

Continue reading

Divisional Court strikes down DRIPA communications data law

David-Davis-Tom-Watson-HOCR (ota Davis et al) v. Secretary of State for Home Department [2015] EWHC 2092 – 17 July 2015 read judgment

When a domestic Act of Parliament is in conflict with EU law, EU law wins. And when a bit of the EU Charter (given effect by the Lisbon Treaty) conflicts with an EU Directive, the EU Charter wins.

Which is why the Divisional Court found itself quashing an Act of Parliament on Friday – at the behest of four claimants, including two MPs, the Tories’ David Davis and Labour’s Tom Watson. 

The doomed Act is the Data Retention and Investigatory Powers Act 2014 or DRIPA. It was in conformity with an underlying EU Directive (the Data Retention Directive 2006/24/EC or DRD – here). However, and prior to DRIPA, the DRD had been invalidated by the EU Court (in the Digital Rights Ireland case here)  because it was in breach of the EU Charter.

All this concerns communications data, which tell us who was sending an email, to whom, from where, and when – but not the content of the email. DRIPA in effect compels telecoms providers to keep communications data for 12 months, and to make it available to public bodies such as intelligence and law enforcement agencies.

Continue reading