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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. Continue reading →
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.
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. Continue reading →
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 →
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.
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.
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) Tanzaniav 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.
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.
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.
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):
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 →
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.
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.
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.
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”.
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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
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.
Hirsi Jamaar and Others v. Italy (Application no. 27765/09) – 
Sanade, Harrison & Walker v Secretary of State for the Home Department [2012] UKUT 00048(IAC) – Read 
The Julian Assange circus rolls back into London today for the UK Supreme Court’s 2-day hearing of 
HARKINS AND EDWARDS v. THE UNITED KINGDOM – 9146/07 [2012] ECHR 45 – 
Raed Mahajna v Secretary of State for the Home Department IA/21/21631/2011 – 
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