Category: Immigration/Extradition
10 April 2013 by Rosalind English
Abdi v United Kingdom (application no. 27770/08) 9 April 2013 – read judgment
The Strasbourg Court has ruled that a Somali national’s detention pending deportation was not lawful under domestic law.
The following summary is based on the Court’s press release:
The applicant, Mustafa Abdi, is a Somali national who is currently detained in HMP Brixton. Mr Abdi arrived in the United Kingdom on 7 May 1995 and, although refused asylum, was granted exceptional leave to remain in the United Kingdom until February 2000. On 23 July 1998 he was convicted of a number of offences, including rape, and sentenced to eight years’ imprisonment. On 20 May 2002 the Secretary of State for the Home Department ordered Mr Abdi’s deportation and on 27 May 2002 he issued an authority for detention until the making of a deportation order. On 3 September 2003 Mr Abdi’s release became automatic; however he remained in detention on the basis of the authority issued on 27 May 2002. On 5 April 2004 the Secretary of State for the Home Department authorised Mr Abdi’s detention until his deportation.
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31 March 2013 by David Hart KC
J1 v Secretary of State for the Home Department, 27 March 2013 – read judgment
A UKHRB editor, Angus McCullough QC, was a Special Advocate for J1 before the Court of Appeal, but not in SIAC below. He had nothing to do with the writing of this post
Hot on the Home Secretary’s loss of the Abu Qatada appeal, a reverse for her in another deportation case about someone whom the Court of Appeal described as “an important and significant member of a group of Islamist extremists in the UK,” and who was said to have links – direct or indirect – with men involved in the failed July 21 2005 bombing plot.
The general contours of the case will be familiar to Abu Qatada watchers, with claims under Articles 3 and 6 of the ECHR amongst others – that if J1 was returned to his country of origin (here, Ethiopia), his human rights would not be respected. There are however a number of interesting features about this decision of the Court of Appeal; firstly, it reversed a decision of the Special Immigration Appeals Commission against J1 on Article 3 (recall the heightened regard for SIAC as a specialist tribunal in the Abu Qatada appeal) , and secondly (in dismissing the Article 6 claim) it illustrates graphically some of the dilemmas facing Special Advocates when representing their clients in the imperfect world of “closed procedures” (a.k.a secret trials).
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28 March 2013 by Jim Duffy
Othman (aka Abu Qatada) v Secretary of State for the Home Department [2013] EWCA Civ 277 – read judgment
The Home Office last night assured its 70,000 Twitter followers that “it is not the end of the road”. Yet by the time she had reached page 17 of the Court of Appeal’s dismissal of her latest attempt to deport Abu Qatada, it might well have seemed that way to Theresa May.
In November, the Special Immigration Appeals Commission (SIAC) ruled that Qatada could not be deported to face a retrial for alleged terrorism offences due to the real risk of “a flagrant denial of justice”. Read my post on that decision here. Yesterday, Lord Dyson – the Masters of the Rolls and second most senior judge in England and Wales – together with Lord Justices Richards and Elias, rejected the Home Secretary’s appeal.
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19 February 2013 by Adam Wagner
Sir John Donaldson (National Portrait Gallery)
Another title for this post might have been “they did not want to understand the judgment.”
In light of recent shenanigans, it seems apt to reproduce the first five paragraphs of the 25-year-old Court of Appeal judgment in (1) Nadarajah Vilvarajah, (2) Vaithialingham Skandarajah v Secretary of State For the Home Department 1990 WL 754859 (Update – download from BAILII here), which I was alerted to by a colleague. Sir John Donaldson, then Master of the Rolls, complains in withering style about media coverage of a recent judgment. The last line is the best, although a little depressing.
Lessons learned? The more things change, the more they stay the same. Political posturing over immigration and asylum law long predated the Human Rights Act. And Law in Action was as good then as it is now.
Here is a taster:
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18 February 2013 by Guest Contributor
The Home Secretary, Theresa May, is no stranger to ill-founded outbursts concerning the evils of human rights. Against that background, her recent article in the Mail on Sunday (to which Adam Wager has already drawn attention) does not disappoint. May’s ire is drawn by certain recent judicial decisions in which the deportation of foreign criminals has been ruled unlawful on the ground that it would breach their right to respect for private and family life under Article 8 of the European Convention on Human Rights. Some of these judgments, May contends, flout instructions issued to judges by Parliament about how such cases should be decided.
Those instructions consist of new provisions inserted last year into the Immigration Rules, the intended effect of which was to make it much harder for foreign criminals to resist deportation on Article 8 grounds. The Rules – made by the executive and endorsed by Parliament, but not contained in primary legislation – provide that, where certain criteria are met, “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”. The assumption appeared to be that this would prevent judges – absent exceptional circumstances – from performing their normal function of determining whether deportation would be a disproportionate interference with the Article 8 right.
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17 February 2013 by Adam Wagner
The Home Secretary has launched a major attack on immigration judges in today’s Mail on Sunday, in language which even the Mail says is “highly emotive”. She finds it “depressing” that judges are consistently refusing to allow deportation of foreign criminals in “defiance of Parliament’s wishes”.
We will cover the issue in more detail by way of a guest post tomorrow, and you can read our analysis of the rulings which have caused her such annoyance but first I thought I would share a few thoughts.
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12 February 2013 by Guest Contributor
Case C-396/11 Radu [2013] ECR I-0000 – Read judgment
The European Court of Justice’s Grand Chamber has ruled that the Charter of Fundamental Rights does not allow refusal to execute a European Arrest Warrant (EAW) on the basis that the person was not heard by the issuing authority.
With reform of the EAW at the centre of the debate concerning the UK’s big 2014 opt-out decision, all eyes were on the Court of Justice of the EU (CJEU) when it gave judgment in this case widely seen as an opportunity for it to address some key issues in the operation of the EAW system. There is some disappointment at the outcome.
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4 February 2013 by Rosalind English
Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) – read judgment
The Upper Tribunal has concluded that new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8 of the ECHR.
This is the second determination of the “fit” between the immigration rules, introduced last year, and the UK’s obligations under Article 8 of the Convention. I covered the Upper Tribunal’s assessment of the rules in MF (Article 8–new rules) Nigeria [2012] UKUT 00393 (IAC) in a previous post and it will be remembered that the Tribunal held there that the new rules fall short of all Article 8 requirements.
Background
The claimant was a Nigerian national who had raised a claim to private and family life under Article 8 of the European Convention on Human Rights as part of a claim for asylum. She had travelled to the UK previously, with periods of overstaying and having obtained employment by using false identity papers. Whist in the UK she met her husband, a dual British/Nigerian citizen and argued that her removal would interfere with her right to family life under Article 8.
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6 January 2013 by Adam Wagner
In a wide-ranging interview with the Sunday Telegraph, the Prime Minister has previewed a new ‘deport first, appeal second’ approach to deportation cases:
… in specific response to the never-ending Abu Qatada case, and vexatious use of the European Convention on Human Rights, the PM is looking at a new and radical option. “I am fed up with seeing suspected terrorists play the system with numerous appeals. That’s why I’m keen to move to a policy where we deport first, and suspects can appeal later.” Under this new arrangement, deportees would only be able to appeal against the decision while still in this country – thus suspending their removal – if they faced “a real risk of serious, irreversible harm”.
It seems to me that this approach is anchored in last month’s European Court of Human Rights (Grand Chamber) decision in DE SOUZA RIBEIRO v. FRANCE – 22689/07 – HEJUD [2012] ECHR 2066 (summary here). See in particular paragraphs 82
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28 November 2012 by Alasdair Henderson
C.N. v. THE UNITED KINGDOM – 4239/08 – HEJUD [2012] ECHR 1911 – read judgment here.
The European Court of Human Rights recently held that the UK was in breach of Article 4 of the European Convention on Human Rights by failing to have specific legislation in place which criminalised domestic slavery.
Thankfully Article 4 cases (involving slavery and forced labour) are rare in the UK. Indeed this is only the fifth post on this blog about Article 4, which perhaps shows just how few and far between they are, and the UK has a proud history of seeking to prevent slavery. Although British merchants and traders, to their great shame, played a major part in the trans-Atlantic slave trade throughout the 1600s and 1700s, Britain was then at the forefront of the abolition of the slave trade and slavery from 1807 onwards and the common law has always considered slavery to be abhorrent (as the famous case of ex parte Somersett in 1772 made clear).
Tragically, however, slavery has not been consigned to the history books. Across the world new forms of slavery are prevalent. The International Labour Organisation estimates that there are a minimum of 12.3 million people in forced labour worldwide, and one particular form of modern slavery – human trafficking – is one of the fastest-growing forms of human rights abuse. The UK, as a major destination country for trafficking victims, is not immune from this trend.
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13 November 2012 by Jim Duffy
Othman (Abu Qatada) -v- Secretary of State for the Home Department (appeal allowed) [2012] UKSIAC 15/2005_2 – read judgment
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in these proceedings before SIAC. He is not the author of this post.
Earlier today, Abu Qatada was released from Long Lartin prison following his successful appeal before the Special Immigration Appeal’s Commission (SIAC). Qatada was challenging the decision to deport him to Jordan, where he faces a retrial for alleged terrorism offences.
For most of the last decade, Abu Qatada has been detained pending deportation to his home country. At his two original trials, he was convicted in absentia and sentenced to full life imprisonment with 15 years’ hard labour.
In his latest challenge to his deportation, SIAC concluded, as the European Court of Human Rights had in May 2012, that due to the real risk of a flagrantly unfair trial in Jordan, Qatada could not be deported there.
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8 November 2012 by Rosalind English
MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) – read judgment
This tribunal decision is the first to tackle the so-called “codification” of Article 8 considerations in immigration law (see Adam’s post on the Home Office’s proposals earlier this year).
Before the new immigration rules were introduced in July, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights. In immigration decisions, there was no doubt that human rights were rooted in primary legislation: s.84(1)(c) and (g) of the Nationality, Immigration and Asylum Act 2002, the “2002 Act”) allows an appeal to be brought against a decision which unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights. In addition to this, there is s.33(2) of the UK Borders Act 2007 which provides, as one of the statutory exceptions to the automatic deportation regime, “…where removal of the foreign criminal in pursuance of a deportation order would breach (a) a person’s Convention rights”.
But then there was a move to set out an extensive, codified definition of the Article 8 balancing factors, in order to
unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life.
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19 October 2012 by Rosalind English
EM (Eritrea) and others v Secretary of State for the Home Department – read judgment
A member state was entitled to return a refugee to the EU state of first embarkation unless it is proved that there are “systematic deficiencies” in the asylum procedures of the receiving state.
These four cases raised one central question: was it arguable that to return any of the claimants to Italy, either as an asylum-seeker pursuant to the Dublin II Regulation or as a person already granted asylum there, would entail a real risk of inhuman or degrading treatment in violation of Article 3 of the ECHR? In determining that question, the evidence provided by the UN Refugee Agency was decisive for the court.
The Dublin II Regulation provides for a system whereby asylum claims are processed and acted on by the first member-state in which the asylum-seeker arrives. Under this Regulation asylum-seekers and refugees may be returned to that state if they then seek asylum or take refuge elsewhere in the EU. The assumption underlying this system is that every member state will comply with its international obligations under not only the 1951 Refugee Convention and the European Convention on Human Rights but also the Qualification Directive and the EU Charter.
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9 October 2012 by Lois Williams
R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) – read judgment
1 Crown Office Row’s Robert Kellar was instructed for the Defendant in this case. He is not the writer of this post.
The High Court has ruled that the failure to consider the continued detention of a mentally ill failed asylum seeker in accordance with immigration policy rendered his detention unlawful in part.
The Claimant applied for asylum based upon his account of an attack during the Rwandan genocide and subsequent events. The Home Secretary refused the application and the Claimant appealed. At the appeal he was unrepresented and he adduced no medical evidence. The Immigration Judge dismissed his appeal, disbelieving the entirety of his account. Once his appeal rights had been exhausted (that is, he was unable to appeal any further through the courts), the Secretary of State detained him on 19 October 2010 for the purpose of removal.
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27 September 2012 by Adam Wagner
UPDATED | I have been sent the Statement of Facts and Grounds for Judicial Review on behalf of Abu Hamza, dated 25 September 2012. These are open court documents and have been obtained directly from the Royal Courts of Justice.
Abu Hamza’s extradition has been put on hold whilst this Judicial Review claim is being dealt with this coming Tuesday [update – I understand that another issue is being dealt with on Tuesday, and that the passport point is not the one which has held up the extradition]. I think this may be a ‘permission hearing’ (the first hurdle a JR claim has to surmount) although it may well be a ‘rolled up’ hearing, which means the permission and substantive aspects will be dealt with all at once. A few points to note (nb. this is my quick summary, and is only of course of one side of the case – Abu Hamza’s):
This particular claim is very limited. He applied for and was granted a passport on 11 November 2011 and although this was sent on 20 November 2011 to Belmarsh Prison, where he was located, the passport has not yet been given to him. He has also requested photocopies, to no avail.
He claims that the failure to provide him with his passport or copies of it is contrary to Home Office Guidance Note 20, as well as potentially Article 8 of the European Convention on Human Rights (the right to private and family life) and the EU Citizen’s Directive 2004/38/EC. For what it’s worth, this is fundamentally a legality challenge under ordinary public law principles – the human rights aspect of it is likely to be in the background. So although it would technically be correct to say he is challenging this decision on human rights grounds, that aspect is only likely to play a small part in the claim.
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Abdi v United Kingdom (application no. 27770/08) 9 April 2013 – read judgment
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