Category: Immigration/Extradition


Immigration judges ‘named and shamed’ by Sunday Telegraph [updated]

17 June 2012 by

Updated | Today the Sunday Telegraph (ST) has named and shamed the “three judges who allowed the most appeals” in cases involving the deportation of foreign criminals (Judges who allow foreign criminals to stay in Britain).

Apparently:

The investigation looked at all 184 appeals against deportation by foreign criminals in the 12 months up to June 1 which were brought under Article 8, in whole or in part, in the Upper Tribunal of the Immigration and Asylum Chamber.

David Barrett (who has form on this blog for poor reporting) and Josie Ensor, who wrote the piece, do not reveal the source of the investigation. Why ever not?

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Article 8 and a half – wider than thought, but will it work?

13 June 2012 by

The Home Office has released its Statement of Intent on Family Migration, which, amongst other things, makes the position a little clearer on its plans for Article 8 of the European Convention on Human Rights, as discussed in my earlier post (thank you to Obiter J for linking to the document in his post).

In short, the changes are much wider than initially thought. The plan is not to simply ask Parliament to approve a declaration of intent on Article 8 as some suspected, but rather to ask Parliament to approve amended Immigration Rules which will 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.

The plans, which are set out from paragraph 27 of the report, are therefore more significant than I and others had been speculating, in that they will apply not just to the deportation of foreign criminals as was the focus of the press coverage and Home Secretary Theresa May’s statement to Parliament, but to the whole of immigration law. They also set out the legal reasoning as to why this is expected to bind judges, which appears to originate from an obiter comment in paragraph 17 of the 2007 House of Lords case of Huang.
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Article 8 and a half

10 June 2012 by

Tomorrow, the Home Secretary will announce to Parliament plans to give judges guidance on how to interpret Article 8 ECHR (the right to private and family life) in foreign criminal deportation cases. There has been already significant speculation as to whether the long-heralded changes will make much or even any difference.

It is not yet clear whether the Home Secretary intends to restrict the use of Article 8 in foreign deportation cases completely, as suggested here, or rather attempt to tweak the way it is applied by judges. The latter is more likely.

We will report in full when the proposals are revealed. But in the meantime, a quick comment on the slightly odd coverage of the story in the press. For example, the BBC reports:

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Assange kills off Pupino, but ambiguity remains – Alex Tinsley

7 June 2012 by

In last week’s judgment in Assange v The Swedish Prosecution Authority [2012] UKSC 22, the Supreme Court decided that the words ‘judicial authority’ in s 2(2) of the Extradition Act 2003 include prosecutors as well as courts. This was because the European Arrest Warrant (EAW) Framework Decision, to which the Part 1 of 2003 Act gave effect, uses the expression in that broad sense, and the presumption is that Parliament meant the same thing (summary here).

The EAW Framework Decision has always guided the interpretation of the Part 1 of the 2003 Act. Until Assange, there were two different reasons for this: (i) a domestic rule of statutory interpretation; and (ii) the rule expounded by the Court of Justice of the EU in Case C-105/03 Criminal proceedings against Maria Pupino.

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Abu Qatada detention will continue through Olympics

31 May 2012 by

Mohammed Othman v Secretary of State for the Home Department, 28 May 2012 – read judgment

This was a further application for bail to the Special Immigration Appeals Commission (SIAC) after the appellant had failed in his application to the Grand Chamber of the Strasbourg Court earlier this month, but had launched an appeal to be heard by SIAC, against the Home Secretary’s refusal to revoke his deportation order.

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in these proceedings before SIAC. He is not the author of this post.

A full hearing will take place in October. Until then, bail has been refused and Abu Qatada will remain in detention.

Given the evidence before him, Mitting J had to base his judgment on the assumption that the Secretary of State would not have maintained the deportation order unless convinced that she was in possession of material which could support her resistance to the appellant’s appeal and which could satisfy “the cogently expressed reservations of the Strasbourg Court about the fairness of the retrial”which the appellant would face in Jordan.

Two consequences flowed from these developments, according to the judge. One is that SIAC’s final decision in October is likely to put an end to this litigation. The second is that the risk of Qatada absconding has increased, if he assumes, in the light of the expressed determination of the Secretary of State, that he would not avoid deportation to Jordan by litigation in and from the United Kingdom.
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Assange: does it matter if ministers mislead Parliament?

31 May 2012 by

Assange v. The Swedish Prosecution Authority [2012] UKSC 22, read judgment

Today, the Supreme Court held that Julian Assange should be extradited to Sweden for alleged rape. This is subject to further submissions on one point (concerning the Vienna Convention on Treaties), well covered by Joshua Rozenberg in his post on the lively proceedings when the judgment was handed down.

The whole of the appeal turned on one technical point, simple to state, but it took the Court 266 paragraphs to answer. Was the European Arrest Warrant which triggered the extradition request signed by a”judicial authority,” given that it was signed by a prosecutor? Most English lawyers, unburdened with the detail, would say – no, a prosecutor is not a judicial authority, indeed he or she is the opposite of that, a party. But, according to the Supreme Court, they are wrong, and so are the ministers who told Parliament that a judicial authority has to be some sort of judge or court.

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Time and time again: Article 6 to the rescue

28 May 2012 by

Last week Rosalind English did a summary post on the important Supreme Court case of Lukaszewski and others, R (on the application of Halligen) v Secretary of State for the Home Department [2012] UKSC 20 – read judgement.

The technicalities of this decision about extradition time limits are set out in her post. Here, I explore the potential implications for other cases.

The Extradition Act contains firm rules that appeals need filing and serving within 7 or 14 days, depending on the procedure. The Supreme Court decided that there should be a discretion in exceptional circumstances for judges to extend time for service of appeal, where the statutory time limits would otherwise operate to impair the right of appeal and therefore be in breach of  the right to a fair trial afforded by Article 6(1) of the Human Rights Convention. And it is this discretion which is important for a whole range of appeals  where mandatory time limits are laid down by statutes.

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When does an expert report constitute “independent evidence” of torture?

2 May 2012 by

R (on the application of AM) v Secretary of State for the Home Department [2012] EWCA Civ 521 – Read judgment

Whether expert evidence relied upon by an asylum seeker amounted to “independent evidence” of torture was the key issue before the Court of Appeal in this case . The issue arose in the context of AM’s claim against the Home Office for wrongful imprisonment contrary to the UK Border Agency’s  Enforcement Instructions and Guidance. The Guidance, which contains the policy of the Agency on detentions (amongst other things), says that where there is “independent evidence” that a person has been tortured, that person is suitable for detention only in “very exceptional circumstances”.

AM, an Angolan national, was detained pending removal following an unsuccessful appeal from the refusal of her asylum claim, the Asylum and Immigration Tribunal having found her to have “no credibility whatsoever” and rejected her evidence that she had been raped and tortured. She later launched a fresh asylum claim on the basis of new evidence, in the form of an expert report by a wound and scar specialist, Ms Kralj, which linked the various scars on her body to torture. The claim was refused again but AM won her appeal. The Tribunal this time found that she had been raped and tortured as she had claimed, causing the scars on her body.

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Time, time, time, look what’s become of me

2 May 2012 by

In law, time can be everything. Every lawyer will have experienced waking up in the middle of the night in a cold sweat at the realisation that a time limit has been missed. Courts often have the discretion to extend litigation time limits, such as under rule 3.1 of the Civil Procedure Rules, but simple mistakes by lawyers rarely generate sympathy from judges. Even scarier, judges sometimes do not even have the power to extend time at all, however unfair the circumstances. The idea is to encourage certainty and predictability in the legal system.

The lesson of principle is that lawyers should never take risks on time limits. The practical reality is that this is a very easy to say  in retrospect. And so we reach the difficult case of Abu Qatada, in which 5 European Court of Human Rights judges are to decide next Wednesday 9 May whether an appeal by the preacher  will be heard in full by the court’s Grand Chamber. Whoever you think was right, Abu Qatada’s lawyers or Home Secretary Theresa May, this controversy has demonstrated that rules designed to provide certainty can have exactly the opposite effect in practice.

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Irrational, inhuman and degrading: detention of a mentally ill asylum-seeker was unlawful

23 April 2012 by

R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) – Read judgment

The detention of a mentally ill person in an Immigration Removal Centre (IRC) amounted to inhuman and degrading treatment and false imprisonment, and was irrational, the High Court has ruled.

Mr Justice Singh heard a judicial review application by a Nigerian National against decisions to continue to detain him under the UK Borders Act 2007 and the conditions of that detention. From August 2009, HA, an overstaying visitor and asylum seeker, was detained at various IRCs following his release from prison for a drug-related offence which triggered the automatic deportation provisions of the 2007 Act. His behaviour during detention became increasingly disturbed and strange. In January 2010, he was seen by a psychiatrist who recommended HA’s transfer to a mental hospital for assessment and treatment.

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Abu Qatada and the law of time – Carl Gardner

19 April 2012 by

The BBC reported yesterday that there’s “doubt” about the deportation of Abu Qatada, following his arrest on Tuesday and now his appeal to the European Court of Human Rights – which the Home Secretary Theresa May says is out of time. So: is she right? Is the appeal out of time? How has the Home Office got into this apparent mess? And what if any difference does this appeal make?

The European Court’s judgment in Abu Qatada’s case was dated January 17th 2012. Of that there’s no doubt; and it’s irrelevant whether the government or anyone else was given notice of the judgment before, or received it later.

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Man can be deported despite living in UK since age of three

15 April 2012 by

Balogun v UK [2012] ECHR 614 – Read judgment

It has been a week of victories for the UK government in deportation cases in the European Court of Human Rights. On the same day as the ECtHR found that Abu Hamza and four others could be extradited to the US on terrorism charges, it also rejected a case of a man facing deportation despite having lived in the UK since the age of three.

The applicant, born in 1986, had a number of criminal convictions. The Court accepted that he had been in the UK since the age of three, although he had only acquired indefinite leave to remain in December 2003. In 2007 he pleaded guilty to possession of Class A drugs with intent to supply. He was jailed for three years and later in 2007, he was given notice that the Secretary of State intended to have him deported to Nigeria, as he is a Nigerian national.

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US press response to Abu Hamza extradition decision

11 April 2012 by

Waking up in New York this morning, I find the newspapers are much exercised by the recent decision of the Strasbourg Court to allow the extradition of certain terror suspects to the US, as discussed in Isabel McArdle’s post. The colourful New York Post declares unambiguously that “Thugs face Extradition” (April 11),  following its banner headline of yesterday “UK can extradite hook-handed clerk, 4 other terrorists to US”. And just in case any passing reader failed to get the point, the strapline says

Britain can extradite a one-eyed, hook-handed radical Muslim cleric and four other suspects to the United States to face terrorism charges, Europe’s human rights court ruled today.

Giving rather more detail by way of background, today’s edition of The New York Times explains that Britain

has struggled to balance civil liberties and domestic security in the face of entrenched Islamic extremism and repeated terrorist attacks, and has sought to deport some of the dozens of subjects it has detained in scores of possible plots over a decade

According to the NY Times, the director of the national prison project for the American Civil Liberties Union found the ruling “disappointing”, and showed that the Strasbourg Court seemed willing to accept “dubious” assurances from the United States.
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Abu Hamza and Babar Ahmad can be extradited to USA, rules human rights court

10 April 2012 by

BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM – 24027/07 [2012] ECHR 609 – Read judgment / press release

The European Court of Human Rights (Fourth Section), sitting as a Chamber, has found that five men accused of serious terrorist activities can be extradited from the UK to the US to face trial.

They had argued that their article 3 rights (article 3 prohibits torture, inhuman and degrading treatment) would be violated if they were extradited and convicted. A sixth man’s case has been adjourned pending further submissions from the parties to the proceedings.

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No extradition for Shrien Dewani – for now

31 March 2012 by

The Government of the Republic of South Africa v Shrien Dewani- Read decision

The extradition to South Africa of Shrien Dewani, the man accused of murdering his wife on honeymoon there in 2010, has been delayed pending an improvement in his mental health.

The case made headlines in 2010, when the story broke of a honeymooning couple who had been ambushed in the township of Gugulethu, South Africa. Mr Dewani told police he had been travelling in a taxi which was ambushed by two men. He described being forced from the car at gunpoint and the car driving away with his wife still inside. She was found dead shortly after.  However, evidence emerged which led the South African authorities to believe that Mr Dewani had initiated a conspiracy with the taxi driver and the men who ambushed the taxi to murder his new wife. Consequently, they sought his extradition from the UK, to which he had returned, to face a trial for murder.

In an appeal to the High Court from a decision by a Senior District Judge that Mr Dewani could be extradited, Mr Dewani made two arguments:
1.    Prison conditions in South Africa were such that his Articles 2 (right to life) and 3 (prohibition on torture, inhuman and degrading treatment) Convention rights would be violated if he were extradited;

2.    His mental health and risk of suicide were such that his should not be extradited.
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