Somebody call Lord Justice Leveson! The Daily Mail have earned themselves a position on the legal naughty step by ‘naming and shaming’ a “controversial” immigration judge for allowing an appeal on human rights grounds, whilst failing to mention that the Home Office themselves had conceded the point.
XX v Secretary of State for the Home Department  EWCA Civ 742 – Read judgment
The Court of Appeal recently issued its judgment in XX v Secretary of State for the Home Department  EWCA Civ 742, an appeal from a decision of the Special Immigration Appeals Commission (“SIAC”) upholding the Secretary of State’s decision to deport an Ethiopian national on grounds of national security.
XX, who had indefinite leave to remain, had been assessed to have attended terrorist training camps and to have regularly associated with terrorists in the UK. SIAC was satisfied on the facts that XX posed a threat to the national security of the UK and determined that the deportation would not breach Articles 3, 5 and 6 of the European Convention on Human Rights. XX appealed on the ground that in finding no incompatibility with the Convention, SIAC had erred in law.
HH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent); PH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent)  UKSC 25 – read judgment
These appeals concern requests for extradition in the form of European Arrest Warrants (EAWs) issued, in the joined cases of HH and PH, by the Italian courts, and in the case of FK, a Polish court. The issue in all three was whether extradition would be incompatible with the rights of the appellants’ children to respect for private and family life under Article 8 of the ECHR.
Put very briefly, HH and PH had been arrested in Italy on suspicion of drug trafficking. They left Italy in breach of their bail conditions and went to the United Kingdom. They were convicted in their absence. European arrest warrants were later issued. They challenged their extradition on the basis of the effect that it would have on their three children, the youngest of whom was 3 years old.
FK was accused of offences of dishonesty alleged to have occurred in 2000 and 2001. She had left Poland for the UK in 2002 and European arrest warrants had been issued in 2006 and 2007. F had five children, the youngest of whom were aged eight and three. She has not been tried or convicted of the alleged offences yet. Continue reading →
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.
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. Continue reading →
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:
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.
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. Continue reading →
Assange v. The Swedish Prosecution Authority  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.
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  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.
R (on the application of AM) v Secretary of State for the Home Department  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.
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.
R (on the application of HA (Nigeria)) v Secretary of State for the Home Department  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.
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?
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.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.