Category: Immigration/Extradition
25 May 2010 by Adam Wagner
Human rights challenges to deportation and extradition seem to be constantly in the public eye. Gary McKinnon’s battle against extradition has caught the public, as has the now notorious “Pathway Students” terrorist deportation case. An examination of three recent decisions highlights the various ways in which the courts approach the human rights arguments in such cases.
There have been a steady stream of high-profile deportation and extradition decisions in the past few weeks, none more controversial than the “Pathway students” case, where two suspected terrorists were saved from deportation to Pakistan as they were thought to be at risk of torture or death upon their return. The Daily Telegraph reports that the Human Rights Act is being invoked in a growing number of asylum and immigration case, although it does not say whether the number of successful uses of the Act has increased.
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19 May 2010 by Rosalind English
Abid Naseer, Ahmad Faraz Khan, Shoaib Khan, Abdul Khan and Tariq Ur Rehman (Appellants) v Secretary of State for the Home Department (Respondent), Special Immigration Appeals Commission, 18 May 2010 – Read judgment
Two men suspected of attempting to mount a mass casualty attack can stay in the UK because they risked ill treatment if they were to be sent back to Pakistan. Rosalind English examines whether the extra territoriality reach of Article 3 makes a mockery of the core protections provided by European Convention on Human Rights.
Risk of torture
The alleged operatives appealed against deportation orders/refusals of re-entry on the grounds that they risked ill treatment contrary to Article 3 of the European Convention on Human Rights at the hands of the Pakistani security services. Appeals against deportation were upheld because the reassurances as to the safety of their return was based on evidence that could not be disclosed in open court.
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13 May 2010 by Rosalind English
ZN (Afghanistan) (FC) and others (Appellants) v Entry Clearance Officer (Karachi) (Respondent) and one other action, UKSC 21. Read judgment
The Immigration Rules, which applied lighter requirements for entry clearance for the dependants of persons granted asylum than for other British Citizens, should be interpreted to mean that a person should always be a refugee for the purposes of Rule 352D even though that status has technically expired on grant of citizenship.
This appeal raised a question the true construction of the Immigration Rules, House of Commons Paper 395 (‘HC 395’): what rules apply to family members seeking entry to the United Kingdom, where the sponsor has been granted asylum and has subsequently obtained British citizenship. Put another way, the issue was whether the sponsor must enjoy refugee status at the time his spouse or child seeks to join him under the paras 352A and 352D.
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30 April 2010 by Rachel Marcus
OM (ALGERIA) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2010] EWHC 65 (Admin) – Read judgment
The claimant’s detention pending deportation was unlawful where (1) the Secretary of State had failed to take account of the guidance on immigration detention, which indicated that the mentally ill were usually unsuitable for detention and (2) the Secretary of State had failed to notify the Claimant of his right of appeal once a Court of Appeal had, in a similar case, determined such a right to exist.
Summary
The Claimant, having entered the UK illegally in 1996, had a string of criminal convictions and a Class A drug habit. Although he had claimed asylum in 1999 the whole of his claim was found by the Asylum and Immigration Tribunal (“AIT”) to be a fabrication. He had married and had two young children in the UK. The most significant issue, however, was his diagnosis in 2003 as suffering from schizophrenia.
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5 March 2010 by Rosalind English
Norris v United States [2010] UKSC 9
SC (Lord Phillips, Lord Hope, Lord Rodger, Lady Hale, Lord Brown, Lord Mance, Lord Judge, Lord Collins, Lord Kerr) 24 February 2010
In determining whether interference with an individual’s right to a family life was justified to achieve the aim of extradition, the court should not consider whether the circumstances were exceptional but should consider whether the consequences were exceptionally serious
SUMMARY
The appellant had recently retired from his job as CEO of a company that had been involved in price fixing. He had successfully resisted an extradition order sought by the United States on the grounds that price-fixing in the UK was not illegal (Norris v United States (2008) UKHL 16, (2008) 1 AC 920). However, the court held that the other charge against him – obstructing justice – justified extradition and his case was remitted to a district judge. The district judge decided that he should be extradited. His decision was upheld by the divisional court, which concluded that the obstruction of justice charges were very grave and that a high threshold would have to be reached before the appellant’s rights under Article 8 could outweigh the public interest in extradition ((2009) EWHC Admin 995, (2009) Lloyd’s Rep FC 475).
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28 February 2010 by Rosalind English
The Queen on the Application of MK(Iran) v Secretary of State for the Home Department
CA (Civ Div) (Sedley LJ, Carnwath LJ, Smith LJ) 25/2/2010 [2010] EWCA Civ 115
Directive 2004/83, which recognised the right to asylum as part of EU, did not alter the jurisprudence of the European Court of Human Rights that asylum decisions did not constitute determinations of civil rights under Article 6 of the Convention, and consequently a foreign national had no right under Convention law to claim for damages for the delay in processing his asylum application.
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15 January 2010 by Matthew Hill
KH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1354 (Sedley LJ, Longmore LJ, Aikens LJ):
Only in very exceptional cases would withdrawal of medical treatment as a result of ordering the return of a failed asylum seeker constitute a breach of Article 3 ECHR. The case of an 29 year old man with mental illness and no family support in the country of return was not sufficiently exceptional.
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10 January 2010 by Elspeth Wrigley
JA (Ivory Coast) and ES (Tanzania) v Secretary of State for the Home Department [2009] EWCA Civ 1353 (CA (Civ Div) (Sedley LJ, Longmore LJ, Aikens LJ)
In these two cases, heard together, the Court of Appeal provided clarification of the circumstances in which Art. 8 of the European Convention of Human Rights entitles foreign nationals’ to remain in the UK in order to receive medical treatment.
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13 December 2009 by Adam Wagner
R (on the application of Rex Cart) (2) U (3) XC (Claimants) v (1) Upper Tribunal (2) SIAC (Defendants) & (1) Secretary of State for Justice (2) Secretary of State for the Home Department (3) Public Law Project (Interested Parties) & (1) Child Maintenance and Enforcement Commission (2) Wendy Cart (Interveners) DC (Laws LJ, Owen J) 1 December 2009 [2009] EWHC 3052 (QB)
The supervisory jurisdiction of the High Court, exercisable by way of judicial review, extended to decisions of the Special Immigration Appeals Commission that were not amenable to any form of appeal. It did not, however, extend to decisions of the Upper Tribunal, unless it had acted beyond its statutory remit.
Read the judgment or click the “continue reading” link below to see a comprehensive summary and case comment by Rosalind English.
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Human rights challenges to deportation and extradition seem to be constantly in the public eye. Gary McKinnon’s battle against extradition has caught the public, as has the now notorious “Pathway Students” terrorist deportation case. An examination of three recent decisions highlights the various ways in which the courts approach the human rights arguments in such cases.
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