Category: Immigration/Extradition


Compelling reasons but no need for truly drastic circumstances: second stage immigration appeals revisited

23 March 2012 by

JD (Congo)  and others v Secretary of State for the Home Department, Public Law Project [2012] EWCA Civ 327

The Court of Appeal has considered the test for granting permission at the second stage of appeal in immigration cases, when someone wishes to appeal from the Upper Tribunal to the Court of Appeal. The test requires showing that:

(a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the [Court of Appeal] to hear the appeal.
But these test cases were of special interest, because they involved situations where the appellant has succeeded before the First-Tier tribunal but failed in the UT after the Secretary of State’s appeal succeeded, or where the appellant was unsuccessful at both levels, but the FTT had made a material error of law and the UT made the decision afresh. Previous authority showed no clear approach in these circumstances. The Court stressed that the test for permission at the second stage of appeal is higher than the first stage test.
Continue reading →

No “near miss” principle in immigration cases, despite Article 8

14 March 2012 by

The Court of Appeal has ruled that there is no “near miss” principle in the application of the Immigration Rules. People who miss the five years’ continuous residence requirement – even if by two weeks – will not have met the rules. There is no exception.

Mr Miah’s application for further leave to remain as a Tier 2 (General) migrant was refused by the Home Secretary. As was his application under Article 8 (right to private and family life) of the European Convention on Human Rights, and the application of his wife and child to be his dependents. His appeal to the First Tier Tribunal was unsuccessful, as was his appeal to the Upper Tribunal.

Continue reading →

Italy lose in Europe over asylum seeker boat interception – Henry Oliver

26 February 2012 by

Hirsi Jamaar and Others v. Italy (Application no. 27765/09) – Read judgment

The European Court of Human Rights has held that a group of Somalian and Eritrean nationals who were intercepted by Italian Customs boats and returned to Libya fell within the jurisdiction of Italy for the purposes of Article 1 of the European Convention on Human Rights . The return involved a violation of Article 3 (Anti-torture and inhumane treatment), Article 4 of Protocol 4 (collective expulsion of aliens), and  Article 13 (right to an effective remedy). The patrols that returned migrants to Libya were in breach of the non-refoulement principle.

The applicants were eleven Somalian nationals and thirteen Eritrean nationals who were part of a group of two hundred migrants who left Libya in order to reach the Italian coast. On 6th May 2009 Italian ships intercepted them 35 miles south of Lampedusa and returned them to Triploi, in Libya. During the voyage the migrants were not told where they were going (they assumed they were being taken to Italy), nor were they identified.

Continue reading →

The importance of children in automatic deportation cases

13 February 2012 by

Sanade, Harrison & Walker v Secretary of State for the Home Department [2012] UKUT 00048(IAC) – Read judgment.

This case concerns the application of human rights exceptions to the deportation of individuals who were married to British citizens or who had British children.

The Upper Tribunal (Immigration and Asylum Chamber) (the “Tribunal”) noted that in Mr. Walker’s case, it was accepted before the Court of Appeal that there was an error of law by reason of the failure of the Tribunal to examine the interests of British national children as a primary consideration in light of the guidance in (ZH) Tanzania v SSHD [2011] UKSC 4. It found that similar errors existed in the other two cases and, as such, it would set aside and re-make the decisions.

by Wessen Jazrawi

Continue reading →

Indefinite detention: not very British

8 February 2012 by

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.

‘Human Rights Act to blame!’ is a frequent refrain in the media, as well reported on this blog.  Often, though, the outcome that has attracted media ire is not one that has much to do with the Human Rights Act at all. The decision to release Abu Qatada on bail is one such example.

The decision of the European Court of Human Rights that Abu Qatada cannot, for now, be deported to Jordan because of the risk of a trial using evidence obtained by torture has nothing to do with the Human Rights Act. Unless the UK were to withdraw entirely from the European Convention on Human Rights, that decision would always have been reached with or without our own Human Rights Act.

by Colin Yeo

Continue reading →

Julian Assange: from the UK Supreme Court to The Simpsons

1 February 2012 by

The Julian Assange circus rolls back into London today for the UK Supreme Court’s 2-day hearing of his appeal against extradition. It will be broadcast on Supreme Court live from 10:30am.

The Wikileaks founder was granted permission in November 2011 to appeal to the Supreme Court under Section 32 of the Extradition Act 2003. If he loses, unless he brings a claim at the European Court of Human Rights, he will have to face charges of sexual assault and rape in Sweden.

Continue reading →

Extradition of murder accused to US not breach of human rights

19 January 2012 by

HARKINS AND EDWARDS v. THE UNITED KINGDOM – 9146/07 [2012] ECHR 45 – Read judgment

The European Court of Human Rights has found that there would be no breach of Article 3 ECHR (prohibition of inhuman and degrading treatment) in extraditing two men accused of murder to the US.

The men argued that they face the death penalty or life imprisonment without parole if found guilty. The US had given assurances to the UK government that the death penalty would not be sought. The following summary is based on the Court’s press release (my abridgement):


Continue reading →

Suspected terrorist may not be deported to Jordan – Strasbourg rules

17 January 2012 by

Othman (Abu Qatada) v United Kingdom – read judgment | updated (7/2/2012): Abu Qatada is expected to be released from Long Lartin maximum security jail within days. the special immigration appeals commission (Siac) ruled on Monday that Qatada should be freed, despite the Home Office saying he continued to pose a risk to national security.

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.

The Strasbourg Court has ruled today that whilst diplomatic assurances may protect a suspected terrorist from torture, he cannot be deported to Jordan while there remains a real risk that evidence obtained by torture will be used against him.

The following summary is based on the Court’s press release.

The applicant, Omar Othman (Abu Qatada), is a Jordanian national, currently detained in Long Lartin prison. He is suspected of having links with al-Qaeda.He arrived in the United Kingdom in September 1993 and made a successful application for asylum, in particular on the basis that he had been detained and tortured by the Jordanian authorities in 1988 and 1990-1. He was recognised as a refugee in 1994, being granted leave to remain until June 1998.

While his subsequent application for indefinite leave to remain was pending, he was detained in October 2002 under the Anti-Terrorism, Crime and Security Act. When that Act was repealed in March 2005, he was released on bail and made subject to a control order under the Prevention of Terrorism Act. While his appeal against the control order was still pending, in August 2005 he was served with a notice of intention to deport him to Jordan.
Continue reading →

Are some rights to private life just not cricket?

9 January 2012 by

Mr Abdullah Manuwar and Secretary of State for the Home Department IA26/543/2010 – Read decision

We have posted on this blog previously on some of the poor reporting of human rights cases. Alarm bells were ringing as the Sunday Telegraph reported student Abdullah Munawar’s appeal on human rights grounds against a refusal to grant him leave to stay in the UK, citing his playing cricket as a reason he had a private life under Article 8 of the ECHR.

However, considering the judgment, the Telegraph article makes a valid point on the limits provided by human rights on immigration decisions, and shows that not all journalism critical of the Human Rights Act is inaccurate.


Continue reading →

The ECJ on Aslyum, Greece; the UK Protocol on the EU Charter – Dr Cian Murphy

28 December 2011 by

Last Wednesday, the European Court of Justice issued a flurry of judgments just before the Christmas break. Indeed, there were so many interesting and important decisions amongst the twenty or so handed down that seems foolish to consider any of them the ‘most important’. Nonetheless the judgment in NS and Others v SSHD (C-411/10) must be a contender for the title.

The case concerns an asylum seeker in Britain who first entered the EU through Greece. The Dublin Regulation, which governs this aspect of EU asylum law, would ordinarily dictate that the applicant should be sent to Greece to have his asylum claim considered there. However, Mr Saeedi challenged his transfer to Greece, claiming that his human rights would be infringed by such a transfer as Greece would be unable to process his application. NS was joined with an Irish case, ME & Others v Refugee Applications Commissioner & MEJLR (C-493/10), which raised similar questions for EU law.

Continue reading →

Lawful for Home Secretary to deport Palestinian activist accused of fostering hatred

6 November 2011 by

Raed Mahajna v Secretary of State for the Home Department IA/21/21631/2011 – Read Judgment

1 Crown Office Row’s Neil Sheldon appeared for the Secretary of State in this case. He is not the writer of this post.

The First-Tier Tribunal (Asylum and Immigration Chamber), has upheld the decision of the Home Secretary to deport Raed Mahajna, who had come to the UK to attend a number of meetings and speaking engagements.

Mr. Mahajna  (also known as Raed Saleh) was born in Israel in 1968. He is however of Palestinian origin and has been a vocal critic of the Government of Israel. Aware of his intention to travel to the UK, the Home Secretary issued an exclusion order against him on the basis that he had publicly expressed views that fostered hatred which might lead to inter-community violence in the UK. However, this order was never served upon him, and he entered the UK on 25th June 2011. He was subsequently arrested on 27th June and detained until released on bail on 18th July.

Continue reading →

Julian Assange loses High Court appeal against extradition

2 November 2011 by

Julian Assange -v- Swedish Prosecution Authority – Read judgment / summary

Julian Assange, founder of the whistle-blowing website Wikileaks, has lost his High Court appeal against extradition to Sweden. He lost on all four grounds of appeal.

Unless he is granted permission to appeal to the Supreme Court under Section 32 of the Extradition Act 2003, he must now face charges of sexual assault and rape in Sweden. Appeals to the Supreme Court will only be allowed in cases where there is a “point of law of general public importance involved in the decision”.

Continue reading →

Extradition review could improve European Arrest Warrants – Rebecca Shaeffer

22 October 2011 by

Adam Wagner’s October 19th post on Sir Scott Baker’s Extradition Review Panel report  noted that the document “mostly backed the status quo,” calling attention to its rejection of proposed reforms to the  “forum bar” rule, the US/UK Treaty, and the lack of a  prima facie case requirement.  

While it’s true that the Report left much to be desired for extradition reform campaigners, especially those focusing on US/UK extradition issues, reformers can take  comfort in the Report’s response to proposed reforms of the European Arrest Warrant (EAW), which offered a rather different picture than was reported.

Continue reading →

Extradition review backs status quo, leaves some completely baffled

19 October 2011 by

A review of the UK’s extradition laws by a former Court of Appeal judge has found that existing arrangements between the UK and USA are balanced but the Home Secretary’s discretion to intervene in human rights cases should be removed.

The review by Sir Scott Baker was commissioned shortly after the Coalition Government came to power, fulfilling the pledge in its programme for government to ”review the operation of the Extradition Act – and the US/UK extradition treaty – to make sure it is even-handed”. In my September 2010 post I said that the review marked a victory for campaigners against certain extradition agreements, most notably the supporters of alleged Pentagon hacker Gary McKinnon (pictured).

Continue reading →

What the first #catgate appeal judgment actually says

6 October 2011 by

Updated |I have been sent the first appeal judgment in the political frenzy which has been termed “Catgate”. I had promised myself not to do any more Catgate posts or use any more cute pictures of kittens, but I have now broken that promise.

Having read the short, 6-page judgment dated 9 October 2008 by Immigration Judge JR Devittie – reproduced here by Full Fact – I will quote from it at length (apologies for any transcribing errors) and say the following

First, on any reading, the judgment does not support the proposition the Home Secretary made in her speech: “The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.” For similar reasons, it does not support the Daily Mail’s headline from this morning: Truth about Tory catfight: Judge DID rule migrant’s pet was a reason he shouldn’t be deported. Back on to the legal naughty step, Daily Mail.

Continue reading →

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Disclaimer


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.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: