Category: Article 8 | Right to Privacy / Family

Home Office policy on forced marriage violates Article 8 family life

13 October 2011 by Rosalind English

R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant); R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45 – read judgment.

The Supreme Court has ruled that the Home Secretary’s refusal to grant visas to non-resident spouses under a certain age breached their right to family life under Article 8 of the Convention. A strong dissent from Lord Brown touches on the raw nerve of judicial competence and the role of Article 8 in policy making.  

The Supreme Court press summary sets out the factual details of the two cases. Essentially, the issue  was whether the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, contained in Paragraph 277 of the Immigration Rules, was a lawful way of deterring or preventing forced marriages, or at least those associated with assisting a claim for UK residency and citizenship. The minimum age requirement – recently raised from 18 to 21 – was designed to prevent young women who have UK citizenship or residence permission from being pressurised into sponsoring a fiancée or spouse seeking admission to this country. 
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National security concerns do trump human rights, sometimes

12 October 2011 by Alasdair Henderson

AM v. Secretary of State for the Home Department [2011] EWHC 2486  – read judgment 

The Home Secretary Theresa May was lambasted last week for an inaccurate reference to cats, but the more general view expressed by her and most of the media that the Human Rights Act is routinely getting in the way of national security interests is also arguably misleading.

Ironically, in the same week as the Home Secretary was telling the Conservative Party conference that ‘the Human Rights Act must go’ the High Court emphatically upheld her decision to renew a control order on a suspected terrorist.

There is a handy guide to the control orders regime here, and to “TPIMs”, their proposed successor, here. Essentially, control orders are strict conditions imposed on a terrorist suspect such as a curfew, electronic tagging or regular searches. In this case the suspect’s conditions included a ban on any internet access at his home, a ban on using USB memory sticks to transfer any data from his home to his university, restrictions on his access to the internet at university or when he visited his parents, and a requirement to make a phone call every day to a monitoring company.

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Big Brother or crime fighting? DNA evidence under the microscope

10 October 2011 by Isabel McArdle

A proposal to retain DNA samples taken from people who have been arrested but not charged with a crime for up to five years has come under criticism from the Joint Committee on Human Rights.

The committee has been reviewing the Protection of Freedoms Bill for its compatibility with human rights (see our post: Protections of freedom bill under scrutiny and the Committee’s conclusions). The retention of DNA has long been a hot topic.

On the one hand, many people feel strongly that retention of something as personal as someone’s genetic code should never be done when the person has not been convicted of a crime. As DNA analysis gets more advanced, it can reveal increasingly large amounts of information about a person.

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Gay marriage on the way… but not quite yet

10 October 2011 by Adam Wagner

In his Conservative Party Conference speech the Prime Minister David Cameron signalled his strong support for the legalisation of gay marriage. He said:

Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.

We have covered the slow progress towards legalised gay marriage in a number of posts since this blog launched in March 2010: see the links below. Where are we up to now?

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What the first #catgate appeal judgment actually says

6 October 2011 by Adam Wagner

Updated |I have been sent the first appeal judgment in the political frenzy which has been termed “Catgate”. I had promised myself not to do any more Catgate posts or use any more cute pictures of kittens, but I have now broken that promise.

Having read the short, 6-page judgment dated 9 October 2008 by Immigration Judge JR Devittie – reproduced here by Full Fact – I will quote from it at length (apologies for any transcribing errors) and say the following. 

First, on any reading, the judgment does not support the proposition the Home Secretary made in her speech: “The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.” For similar reasons, it does not support the Daily Mail’s headline from this morning: Truth about Tory catfight: Judge DID rule migrant’s pet was a reason he shouldn’t be deported. Back on to the legal naughty step, Daily Mail.

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Cat had nothing to do with failure to deport man

4 October 2011 by Adam Wagner

Updated | Today the Home Secretary Theresa May gave a speech to the Conservative Party Conference in which she announced new immigration rules which would make it easier to deport foreign criminals.

May also gave three examples in support of the view that the Human Rights Act “has to go”:

We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had pet a cat.

The most startling of those examples is of course the final one, that an illegal immigrant could not be deported because he “had a pet cat”. As regular readers of this blog will know, there are plenty of mythical examples regularly peddled in order to criticise human rights law. Is the cat deportation one of them?

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Ferdinand v MGN – a “Kiss n’ Tell” public interest defence succeeds – Lorna Skinner

2 October 2011 by Guest Contributor

Ferdinand v Mgn Ltd (Rev 2) [2011] EWHC 2454 (QB) – Read judgment

In the first “misuse of private information” trial against a newspaper since Max Mosley in 2008, Mr Justice Nicol dismissed a claim brough by England and Manchester United footballer Rio Ferdinand against the “Sunday Mirror”.

The Judge found that, although the claimant’s Article 8 rights to private and family life were engaged, there was a public interest in correcting a false image promoted by the claimant.  It was also held that the article contributed to a debate as to the claimant’s fitness to be a role model in the light of his appointment as England football captain.

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When is family life family life? A look at deportation cases – Lourdes Peroni

27 September 2011 by Guest Contributor

In A.A. v. the United Kingdom, a recent case involving the deportation of a young Nigerian man, the Court faced, once again, the question whether relationships between adult children and parents/siblings amount to family life in deportation cases. The Court’s Fourth Section did not give a clear answer to this question. The 24-year-old applicant resided with his mother and did not have children of his own [also see Rosalind English’s post].

In this post, I take a quick look at the Fourth Section’s reasoning on this issue and try to situate it in the wider context of the Court’s deportation case law. One word of caution:  this is an attempt to briefly look at one specific question the Court asks to decide whether the deportation has interfered with an applicant’s right to respect for her family life. Do the ties invoked by the applicant constitute family life within the meaning of Article 8 § 1? To be more specific, do relationships between adult children and parents/siblings amount to family life in deportation cases?

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Misrepresenting the law on squatting

26 September 2011 by Adam Wagner

Today, an open letter from 158 lawyers and academics has been published in The Guardian claiming that the law on squatting, on which the Government has proposed reforms, has been misrepresented by politicians and the media.

I am one of the letter’s signatories. Amongst other things, it states that:

a significant number of recent media reports have stated that squatters who refuse to leave someone’s home are not committing a criminal offence and that a change in the law – such as that proposed by the government – is needed to rectify this situation.

The accompanying article is here. One interesting aspect of this campaign is that it was organised in part by one of the longest standing and best legal blogs, Nearly Legal. Nearly Legal have used social media, which an ever increasing number of lawyers follow, to gather many of the signatures. Their response is here and some of their previous posts on the topic here and here.

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Rape conviction carries little weight against right to family life, rules Strasbourg

21 September 2011 by Rosalind English

 A.A. v. THE UNITED KINGDOM – 8000/08 [2011] ECHR 1345 – Read judgment

The Strasbourg Court has ruled unlawful the deportation of a Nigerian man convicted of rape. Considering the facts of his case afresh, the Court came to the conclusion that the 24 year old student’s right to family life would be violated if he were removed to Nigeria. 

The applicant arrived in the United Kingdom in 2000 at the age of 13 join his mother. At the age of 15, he was convicted of rape. After serving less than two years of his four-year sentence he was released on licence in 2004.  The Home Office served him with a notice of liability to a deportation order on account of the rape conviction. Although the Immigration Judge of the Asylum and Immigration Tribunal (“the AIT”) allowed the applicant’s appeal, the Secretary of State’s appeal against this finding ultimately prevailed since it was found that the various factors in respect of his family life and his good conduct in remand did not outweigh the presumption in favour of deportation in accordance with the current version of the Immigration Rules.
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Some information on local sex offence teachers must be disclosed, rules tribunal

16 September 2011 by Guest Contributor

In Colleen Smith v IC and Devon & Cornwall Constabulary (EA/2011/0006), the requester asked for information on the number of school teachers in specified towns who had been investigated, cautioned and charged under the Sexual Offences Act 2003 between January 2005 and November 2007. The Constabulary eventually relied on the personal data at section 40(2) of the Freedom of Information Act (‘FOIA’).

The Commissioner found that, where the answer was “zero”, this was not personal data and should be disclosed; otherwise, the information could be withheld under section 40. The Tribunal has upheld this decision, albeit for different reasons.

This decision is worth noting on a number of grounds.

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Analysis – Camden Council must disclose list of empty properties to squatting campaigner

15 September 2011 by Matthew Flinn

Voyias v Information Commissioner and the London Borough of Camden EA/2011/0007 – Read Judgment

The First Tier Tribunal has overturned a decision of the Information Commissioner and ordered Camden Council to provide information about empty properties in the borough to a former member of the Advisory Service for Squatters.

When one thinks of the term “human rights”, the first example that springs to mind is likely to be the right to life, or the right not to be tortured or enslaved – fundamental guarantees that protect the basic dignity of our human condition. Yet human rights are also intended to serve the core goal of preserving and enhancing the strength and rigour of democratic and pluralistic societies, and so the European Convention of Human Rights (EHCR) also contains provisions guarding against discrimination, and protecting freedom of religion and expression.

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Opening up the family courts – Lucy Series

14 September 2011 by Lucy Series

Last month the Ministry of Justice published a report of a pilot project that ran last year whereby participating family courts produced and published on Bailii written judgments of specified Children Act 1989 cases.  The project had three main aims:

• to increase transparency and improve public understanding of the family justice system by publishing anonymised judgments in all serious children cases;

• to help parties by providing written judgments in all cases, even where a matter was not contested;

• to provide  judgments which the children involved could access in later life.

The family courts are often perceived as ‘secretive’ or aloof; Munby LJ has made excellent arguments for greater transparency far more eloquently than I could hope to do in this speech (pdf)

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Inquiry into disability-related harassment reports

13 September 2011 by Adam Wagner

The Equality and Human Rights Commission has published Hidden in plain sight, a report into disability-related harassment and how well this is currently being addressed by public authorities.

The report, which finds a “systemic failure by public authorities to recognise the extent and impact of harassment and abuse of disabled people” can be downloaded here, the “easy read” version here and the executive summary here. I have also reposted the Executive Summary via Scribd below. The Inquiry found, amongst other things:

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Telegraph wrong again on foreign deportation

8 September 2011 by Adam Wagner

In a recent speech about the August riots, the Prime Minister bemoaned the “twisting and misrepresenting of human rights”. Unfortunately, this practice is common in the press, sometimes by accident but often by design.

One common accusation against the Human Rights Act is that it prevents the state deporting some foreign criminals. This is sometimes true; for example, the state cannot deport anyone if to do so would put them at a real risk of being tortured. But other law can be “to blame” too for preventing deportation of criminals, as was the case with Learco Chindamo, the killer of head teacher Philip Lawrence. This has not prevented the Daily Telegraph from again using his case as an example of human rights gone wrong.

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