The Claimants in this case are 10 individual asylum-seekers from Syria, Iraq, Iran, Vietnam, Sudan and Albania who entered the UK irregularly by crossing the English Channel in small boats, together with one charity, Asylum Aid.
The Upper Tribunal (Immigration and Asylum Chamber) has found that Priti Patel breached her procedural obligations under Article 2 of the ECHR in respect of deaths in immigration detention.
The application for judicial review arose following the death of Oscar Lucky Okwurime on 12 September 2019 in his cell at IRC Harmondsworth. Mr Okwurime had tried but failed to secure healthcare at the centre. He was not provided with his obligatory ‘Rule 34’ GP appointment within 24 hours of his arrival.
Priti Patel was subject to a legal requirement to assist the coronial inquest by identifying and securing evidence from potential witnesses. Instead, she elected to continue with her plans to remove a number of potential witnesses, including the Applicant, Mr Lawal, a close friend of Mr Okwurime.
Later, the Area Coroner for West London required Mr Lawal to attend the inquest on the basis that he was “an important witness of fact.” The jury later found that “multiple failures to adhere to healthcare policy” and “neglect” contributed to Mr Okwurime’s death from coronary heart disease.
The court found that Patel acted unlawfully in deciding to remove the Applicant in that she failed to take to take reasonable steps to secure the applicant’s evidence concerning the death of Oscar Okwurime. Aditionally, the absence of a policy directing caseworkers on how to exercise immigration powers in a case concerning a witness to a death in custody was unlawful. This was contrary to her Article 2 procedural obligations.
A Home Office spokesperson has said that, in light of the judgment, its processes were being refreshed and a checklist was being introduced to ensure all potential witnesses are identified.
The decision comes as Patel faces criticism for “serious mistakes” and “fundamental failures of leadership and planning” by the Home Office in managing former military sites as makeshift accommodation for asylum seekers. The Home Office is also being sued by a female asylum seeker who claims that staff at her asylum accommodation refused to call an ambulance for three hours after she told them she was pregnant, in pain and bleeding. When she was eventually taken to a nearby hospital, she learned that her baby had died.
In Other News:
Helena Kennedy QC, a leading human rights barrister and author of Eve Was Framed, has been included on the list of those sanctioned by the Chinese government for criticism of the human rights abuses against Uighur Muslims in Xinjiang province. Together with David Alton, a crossbencher, she helmed an ultimately unsuccessful attempt to persuade the UK government to create a procedure that would have enabled the English high court to make a determination on whether the evidence reached the threshold for genocide. China has imposed sanctions on 10 other UK organisations and individuals, including the former leader of the Conservative party Iain Duncan Smith, over what it called the spreading of “lies and disinformation” about human rights abuses in Xinjiang.
The investigatory powers tribunal (IPT), which examines allegations that the state has misused its surveillance powers, has heard from an environmental activist who was deceived into a long-term sexual relationship by an undercover Metropolitan police officer that his managers knew about the deception and allowed it to continue. A judge-led public inquiry into the activities of undercover officers is ongoing; Phillipa Kaufmann QC, who represents women deceived into sexual relationships, has called the practice “endemic”.
In the Courts:
Hamilton & Ors v Post Office Ltd  EWCA Crim 577: the Court of Appeal quashed the convictions of thirty nine men and women employed by the Post Office as sub-postmasters, sub-postmistresses, managers or counter assistants; three other former employees’ appeals failed and were dismissed. All the appellants were prosecuted by their employer and convicted of crimes of dishonesty. The reliability of the computerised accounting system, “Horizon”, in use in branch post offices during the relevant period, was essential to the prosecutions. Despite repeated assertions by the Post Office that the system was robust and reliable, it has become clear that it was critically undermined by bugs and glitches which cause it to incorrectly record shortfalls. The court called the convictions “an affront to the public conscience.” A public inquiry chaired by Sir Wyn Williams, President of Welsh Tribunals, is currently trying to establish an account of the implementations and failings of the system.
Howard, R (On the Application Of) v Secretary of State for the Home Department  EWHC 1023 (Admin): the High Court ruled that the Home Office’s handling of a Windrush citizenship application was irrational and unlawful. Hubert Howard was repeatedly denied British citizenship over the course of a decade, despite having lived in the UK since he arrived from Jamaica at the age of three in 1960, on the grounds that a number of minor convictions prevented him from meeting a “good character” requirement, which is an eligibility criteria for citizenship.
Elkundi & Ors, R (On the Application Of) v Birmingham City Council  EWHC 1024 (Admin): the High Court has ruled that Birmingham City Council has been operating an unlawful system for the performance of its main housing duty under the Housing Act 1996. The Council had been operating on the basis that an applicant owed the main housing duty may be left in unsuitable accommodation while the Council takes a reasonable time to secure permanent suitable accommodation. Steyn J held that this was unlawful; the main housing duty is an “immediate, unqualified and non-deferrable” duty to secure suitable accommodation. Putting applicants on a waiting list was not a lawful means of performing that duty.
On the UKHRB:
Caroline Cross covers a recent case in which the boundaries of causation in mesothelioma deaths were tested and clarified.
Martin Forde QC summarises the High Court’s decision (set out briefly above) that the Home Office’s handling of a Windrush citizenship application was unlawful
Conor Monighan brings us the latest updates in human rights law
In the News:
Internationally there were a number of developments which have significant consequences for human rights. In Russia a prominent critic of Vladimir Putin has allegedly been poisoned. Alexei Navalny, who is known for exposing corruption within the country, suddenly fell ill last week after drinking tea.
Supporters claim the Russian state has tried to silence Mr Navalny’s criticism of President Putin, and then attempted to cover up its actions by stopping Mr Navalny from being treated abroad. Despite initial resistance from doctors, who said that Mr Navalny was too ill to be moved, the leader has now been flown out of Russia. Critics say the developments are part of a wider crackdown on freedom of speech within the country.
Conor Monighan brings us the latest updates in human rights law
In the News:
A landmark piece of legislation was passed this week, with significant consequences for civil liberties. The Coronavirus Act 2020, which was passed in only 4 days, is designed to mitigate the impact of Covid-19.
It gives the police a number of powers, including:
A power to restrict events and shut down premises such as non-essential shops (Schedule 22).
The ability to forcibly isolate or detain individuals who are thought to be at risk of spreading Covid-19.
A reduction in the care duties imposed on Local Authorities.
The Act also produces a number of changes designed to help workers:
Employers can reclaim the cost of paying statutory sick pay from HMRC.
Employees can claim sick pay from the day they stop working, rather than there being a delay of three days before payments are made.
The Act has attracted criticism for the range of powers it grants to the executive, and the speed with which it was passed. To help address these concerns, the Act will automatically expire after two years. Matt Hancock MP, the Health Secretary, also said that the Act will be debated and voted on every six months. This commitment is reflected in s.98. A statement of compatibility with the ECHR has been made. Continue reading →
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The Government has announced that civil partnerships will be available to all couples, not just those which are same-sex. The government has said the move will address the “imbalance” of the current system. It will also provide a way of giving couples and their families greater security.
Concerns have previously been raised about the precarious state of cohabiting couples, many of whom incorrectly believe they possess similar rights to married couples. Widening access to civil partnerships may go some way to solving this issue.
Civil partnerships were originally created in 2004, and offer homosexual couples legal and financial benefits resembling those available under a marriage. Marriage for same-sex couples was subsequently legalised by the Marriage (Same Sex Couples) Act 2013, giving them a free choice between the two.
The proposed change comes in response to R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development, which was decided by the Supreme Court in June. There, the court ruled that precluding mixed-sex couples from entering into a civil partnership was incompatible with Article 14 ECHR (when read in conjunction with Article 8). The Civil Partnership Act 2004 will, therefore, need to be amended or replaced. Continue reading →
Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018
This year’s ALBA conference featured an impressive list of speakers and they did not disappoint. Delegates heard from a Supreme Court judge, an Attorney General, top silks, and some of the best legal academics working in public law.
The conference dedicated much of its time to public international law, a discipline which is often thought to have little relevance for most public lawyers. In fact, the conference showed that domestic public law is heavily intertwined with international law. This post summarises the key points from the conference, with a particular focus on human rights. Continue reading →
R (On the application of) DSD and NBV & Ors v The Parole Board of England and Wales & Ors & John Radford:in a landmark ruling, the High Court has quashed the Parole Board’s decision to release black cab driver and serial sex offender John Worboys, on grounds of irrationality. The Board acted irrationally in that it “should have undertaken further inquiry into the circumstances of his offending and, in particular, the extent to which the limited way in which he has described his offending may undermine his overall credibility and reliability” .
Conor Monighan brings us the latest updates in human rights law
Photo credit: The Guardian
In the News:
Over 100 female detainees have gone on hunger strike at Yarl’s Wood Immigration Removal Centre.
The women began their strike on the 21st February, over “inhuman” conditions, indefinite detentions, and a perceived failure to address their medical needs. The UK is the only European state that does not put a time limit on how long detainees can be held.
This week, the strikers were given a letter from the Home Office warning their actions may speed up their deportation. Labour criticised the letter, but Caroline Nokes, the Immigration Minister, said the letter was part of official Home Officer guidance and was published last November on its website. Continue reading →
UK charity Migrants Rights Net have been granted permission to proceed with their challenge to the data-sharing agreement between the Home Office, the Department of Health and NHS Digital. The agreement has meant that the Home Office may require the NHS to hand over patients’ personal non-clinical information, such as last known address, for immigration enforcement purposes.
Currently, the Home Office makes thousands of requests per year, of which only around 3% are refused. A joint response from Home Office and health ministers suggested that opponents of the agreement had downplayed the need for immigration enforcement, and that it was reasonable to expect government officers to exercise their powers to share this kind of data, which ‘lies at the lower end of the privacy spectrum.’ However, critics of the agreement argue that it compromises the fundamental principle of patient confidentiality, fails to consider the public interest, and results in a discrepancy in operating standards between NHS Digital and the rest of the NHS. The good news for Migrants Rights Net was twofold: the challenge will proceed to a full hearing with a cost-capping order of £15,000.
There is no general immunity for police officers investigating or preventing crime. In this case, Mrs Robinson suffered injuries when two police officers fell on top of her, along with a suspected drug dealer resisting arrest. The officers had foreseen Williams would attempt to escape but had not noticed Mrs Robinson (who was represented by 1 Crown Office Row’s academic consultant Duncan Fairgrieve).
The recorder found that, although the officers were negligent, Hill v Chief Constable of West Yorkshire  gave them immunity from negligence claims. The Court of Appeal ruled the police officers owed no duty of care, and even if they did they had not broken it. It also found most claims against the police would fail the third stage of the Caparo test (i.e. it would not be fair, just and reasonable to impose a duty of care upon the police in these situations). The Court found Williams had caused the harm, not the police, so the issue was based on omission rather than a positive act. Finally, even if officers had owed the Appellant a duty of care, they had not breached it.
Mrs Robinson appealed successfully to the Supreme Court.
The Government’s flagship scheme to deport foreign criminals first and hear their appeals later was ruled by the Supreme Court to be incompatible with the appellants’ right to respect for their private and family life (reversing the decision below).
SS (Congo) v Entry Clearance Officer, Nairobi,  UKSC 10 – read judgment.
The Supreme Court has ruled that, in principle, the need for spouses or civil partners in the UK to have an annual minimum income of £18,600 in order to obtain entry clearance for their non-EEA spouse/civil partner to be compliant with the European Convention on Human Rights (“ECHR”). However, the Supreme Court stated that the relevant Immigration Rules relating to such Minimum Income Requirements (“MIR”) failed to adequately take account of the need to safeguard and promote the welfare of children when making an entry decision. Finally, the prohibition on taking into account prospective earnings of the foreign spouse or civil partner when applying the MIR was inconsistent with the evaluative exercise required under Article 8, ECHR.
Asylum seeker’s claim that he cannot be returned to Belgium under the Dublin III Regulations due to non-compliance with time limits by authorities fails.
by Fraser Simpson
The petitioner in this case, Bahri Mucaj, was an Albanian that arrived in Belgium in November 2011. After unsuccessfully claiming asylum in Belgium, the petitioner entered the UK and sought asylum here in late December 2014. The petitioner then sent a “take back” request to Belgium under The Dublin III Regulations (“Dublin III” – available here) in order for the Belgian authorities to reconsider his original application. This request was accepted on 7 January 2015 by the Belgian authorities. Consequently, the Secretary of State refused to consider the petitioner’s asylum application due to the fact that there was the possibility to send the individual back to a “safe” country – Belgium. The petitioner then wrote to the Secretary of State alleging that sending him back to Belgium would result in violations of both Article 3 and 8 of the European Convention on Human Rights. This claim was based on the living conditions that they had endured whilst originally in Belgium and the likelihood that they would be subject to similar conditions on return. This claim was refused and removal directions were issued to return the petitioner and his family to Belgium. The petitioner subsequently challenged this removal decision.
As was her policy at the time, the Secretary of State cancelled her removal directions pending the court’s decision. At this point, in mid-2015, there were a number of similar Judicial Review requests concerning the return of asylum seekers to European countries under Dublin III and the potential violation of Article 3. Following the leading decision in AL v Advocate General for Scotland,  CSOH 95, which found in favour of the respondents, the petitioner in the current proceedings made amendments to their arguments. Instead of pursuing substantive challenges to the removal decision based on human rights grounds, the petitioner argued that the authorities had not complied with the time limits for return in Dublin III.
The applicant, VM, entered the UK illegally on 18 November 2003 with her son (S). Soon after, her son became the subject of an interim care order and the applicant was charged with child cruelty under the relevant legislation. Following an unsuccessful application for asylum due to fears for her life back in Nigeria, VM pleaded guilty to the child cruelty charges in August 2004. However, following the granting of bail pending the next hearing in February 2005, VM absconded for a period of over two years.
In September 2007 the applicant was again arrested, this time on charges relating to possession of false documentation with intent to commit fraud. Following conviction she was sentenced to nine months in prison. The applicant was also eventually convicted of the child cruelty charges in April 2008. Before sentencing, a psychological report was produced that indicated the applicant suffered from depressive and psychotic symptoms. However, such symptoms were being adequately managed through therapy and medication. Accordingly, there was no need to consider specialised treatment in a hospital or prison healthcare wing under the Mental Health Act 1983. The applicant was therefore sentenced to twelve months imprisonment, with an additional three months due to the failure to surrender to bail, in July 2008. At this point, due to the severity of the offences, the domestic judge recommended that the applicant be deported. Continue reading →
J.N. v. the United Kingdom, Application no. 37289/12, 19 May 2016 – read judgment.
Photo credit: The Guardian
The European Court of Human Rights has ruled that the general system for detention of individuals prior to deportation in the United Kingdom, which lacks specific maximum time-limits, complies with Article 5, ECHR (Right to liberty and security of the person). However, in the proceedings involving J.N., the authorities had not acted with sufficient “due diligence”, which resulted in a violation of Article 5.
by Fraser Simpson
The applicant, known as J.N., arrived in the UK in early 2003 and unsuccessfully sought asylum soon after. In February 2004 he was convicted of indecent assault and sentenced to 12 months imprisonment. Following his release he was subjected to a number of conditions which he failed to comply with. This led the Secretary of State to issue an order deporting J.N. back to Iran. On 31 March 2005 the applicant was detained pending deportation.
Complications arose when attempts were made to obtain the necessary travel documents from the Iranian Embassy. Eventually, in November 2007, the Embassy agreed to issue the documents if the applicant signed a “disclaimer” consenting to his return. The applicant refused to sign this disclaimer.
Despite being released for one month following review of his detention by the Administrative Court in December 2007, the applicant was once again detained in January 2008. He continued to refuse to sign the disclaimer that was necessary to obtain the travel documents and to effect the deportation. During this second period of detention the authorities considered prosecuting the applicant for failing to comply with the Secretary of State’s request to take specific action to obtain a travel document (under s. 35, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004). But no prosecution was forthcoming. Additionally, J.N. agreed to sign the disclaimer if he was compensated for the periods of detention. However, the UK Border Agency refused to do so.
J.N.’s refusal to sign the disclaimer continued until late-2009 when J.N.’s solicitors began judicial review proceedings challenging the lawfulness of his detention. In considering the lawfulness of the detention pending deportation, the judge considered the four principles established in R v. Governor of Durham Prison, ex parte Hardial Singh,  WLR 704:
The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
The deportee may only be detained for a period that is reasonable in all the circumstances;
If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
The Secretary of State should act with reasonable diligence and expedition to effect removal.
The judge considered that the authorities responsible for the deportation had acted with a “woeful lack of energy and impetus”. They had failed to change their approach to the situation, they refused to bring a prosecution under the relevant legislation. Further, they had not approached the Iranian authorities to see if they would change their position regarding the need for a disclaimer. The Secretary of State had fallen short of the fourth requirement established in Hardial Singh. Accordingly, the judge found that the applicant’s detention had been unlawful from 14 September 2009 onwards.
The Strasbourg Court
Article 5 protects the right to liberty and security of persons. Restrictions of liberty are permissible if they fall within one of the specific grounds highlighted in Article 5(1). Article 5(1)(f) relates to detention “of a person against whom action is being taken with a view to deportation or extradition”. Any detention in pursuance of this objective must be prescribed by, and comply with, domestic law. Additionally, the domestic law must be “sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness”. To satisfy this “quality of law” requirement, domestic law should include clear provisions on the ordering and extension of detention as well as effective remedies that can be used by the individual to challenge the lawfulness of their detention. These requirements act as safeguards against arbitrary detention.
The applicant complained that the UK system for detention pending deportation did not specify maximum time limits for such detention and that this led to a violation of Article 5(1). Additionally, there was a need for automatic judicial scrutiny of any detention as opposed to requiring the individual to initiate judicial review proceedings themselves. Finally, the applicant submitted that if the UK’s system was said to satisfy the “quality of law” requirement, then the entirety of his detention had been unlawful, and in violation of Article 5, as at no point had there been a realistic prospect of removal (see paras. 59-63).
Lack of time-limits within the UK system (paras. 90-93)
The ECtHR had previously held that Article 5(1)(f) does not impose maximum time limits for detention pending deportation. However, the absence of such time-limits will be a factor in assessing whether domestic law satisfies the “quality of law” requirement. But other protections against arbitrariness, including the ability to review the lawfulness of the detention, are equally important.
The ECtHR held that Article 5(1)(f) does not require states to establish time-limits for detention pending deportation. The UK has sufficient procedures to allow the lawfulness of detention to be tested. Accordingly, the failure of the UK system to establish such limits, in light of the other procedural safeguards against arbitrariness, was not in violation of Article 5(1).
Lack of automatic judicial review of immigration detention (paras. 94-96)
The ECtHR refused the applicant’s submissions that Article 5(1)(f) required automatic judicial scrutiny of immigration detention. Article 5(4) provides all individuals who have been detained or had their liberty deprived with a right to take proceedings to examine the lawfulness of the detention. An entitlement to take proceedings, as opposed to automatic review, is all that is required by Article 5.
Was J.N.’s detention in accordance with Article 5? (paras. 102-108)
Finally, the ECtHR considered whether J.N.’s second period of detention, from 14 January 2008 to 14 September 2009 (the date on which the domestic court ruled that the detention had become unlawful) was in compliance with Article 5(1)(f) (for the reasons for restricting the scope of review to this period see paras.48-57)
The ECtHR saw no justification for the domestic courts to have restricted the “unlawful detention” to the period following 14 September 2009. Despite the repeated refusal of J.N. to cooperate, this could not be “be seen as a ‘trump card’ capable of justifying any period of detention” (para. 106). The ECtHR considered that the authorities had shown, to use the language of the domestic court, a “woeful lack of energy and impetus” from mid-2008 onwards. As a result, the detention had not been pursued with “reasonable diligence and expedition” from mid-2008 and therefore was not in accordance with domestic law and the principles established in Hardial Singh.
Accordingly, the detention from mid-2008 to 14 September 2009 was in violation of Article 5(1).
Undoubtedly the EU Returns Directive has resulted in the majority of Council of Europe states having limits for such detention. But as argued by the Government, recognising that Article 5 imposed such time limits may have “subvert[ed] the democratic process” by imposing time limits modelled on the EU Returns Directive from which the UK had lawfully opted out (para. 66).
During parliamentary scrutiny of the recent Immigration Act 2016 (which received Royal Assent on 12 May 2016) amendments were proposed by the House of Lords to limit immigration detention to 28 days – it should be noted that this would not have covered J.N.’s situation as it was not applicable in the event that the Secretary of State had made a deportation order – see para. 84 here). However, this amendment was rejected. In the final version of the Immigration Act a duty to arrange consideration of bail is placed upon the Secretary of State for all individuals detained pending deportation (which would cover J.N.) after four months (Sch. 10, para. 11, Immigration Act 2016). This would clearly act as a further, important safeguard against arbitrariness.
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