Category: Immigration/Extradition


Seizure of passport actionable in law

9 June 2011 by

Atapattu, R. (On the Application of) v The Secretary of State for the Home Department [2011] EWHC 1388 (Admin) – read judgment

 

1 Crown Office Row’s John Joliffe appeared for the Secretary of State the Home Department in this case. He is not the writer of this post.

This case on the wrongful retention of the passport of a Sri Lankan national raises some interesting questions about the scope of the duty  owed by the Home Office’s agents when exercising their powers of entry clearance under the Immigration Act 1971.

The question in this case was whether the claimant, who had applied for a United Kingdom student visa, could sue the Secretary of State for the Home Department for damages for conversion under the Torts (Interference with Goods) Act 1977. There were other submissions, that the withholding of the passport breached his rights under the European Convention on Human Rights 1950 and that the Secretary of State was liable to him in negligence.
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Effective “amnesty” in UK asylum system, says report

2 June 2011 by

The House of Commons Home Affairs Committee has today published a report, The work of the UK Border Agency (November 2010–March 2011), which accuses the UKBA of effectively creating an amnesty for hundreds of thousands of asylum seekers whose cases have been delayed for years.

The report is not particularly easy to find online – it should be available on the Home Affairs Committee website, but isn’t for some reason. You can download a PDF here, see the previous reports here or read on this page via Scribd.

As has been picked up in media reports, the report concludes that the UKBA’s success in clearing a backlog of around 400,000 to 450,000 unresolved asylum cases has been achieved

through increasing resort to grants of permission to stay… or the parking of cases in a controlled archive, signifying that the applicant cannot be found and the Agency has no idea whether or not the applicant remains in the UK, legally or otherwise.

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When detaining foreign criminals the rules are the rules, says Supreme Court

2 June 2011 by

Kambadzi v Secretary of State for the Home Department [2011] UKSC 23 – Read judgment

The Supreme Court has decided by a majority that a failure to review the detention of an immigration detainee, in accordance with immigration policy, meant that his detention was unlawful.

Immigration law always has the potential to be a political tinderbox, particularly in tough economic times when unemployment rates are high. Indeed, persistent governmental rhetoric about taking net migration “back to the levels of the 1990s” and “protecting the public” might seem to suggest that “tough on immigration” is the new “tough on crime”. The issues can be particularly acute in relation to foreign national prisoners (“FNPs”). This was demonstrated in 2006 when the Home Secretary Charles Clarke was urged to resign when it was discovered that about 1,000 FNPs had been released without being considered for deportation.

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Closing the escape hatch for foreign criminals?

25 May 2011 by

AP (Trinidad & Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551  Read Judgment    

In the ongoing controversy over the deportation of foreign offenders, the Court of Appeal has decided that the Immigration Tribunal had not made a mistake of law in deciding that a foreign citizen who had lived in the UK since the age of 4 and had been convicted and sentenced to 18 months imprisonment for a drugs offence, following a string of other offences, should not be deported.  

The Court of Appeal also commented on the interaction between the Tribunal and appellate courts and a potential distinction between ‘foreign criminals‘ as defined by the UK Borders Act 2007 and other foreign offenders.


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What can we do about foreign criminals “using family rights to dodge justice”?

25 April 2011 by

The Telegraph has launched a campaign to “Stop foreign criminals using ‘family rights’ to dodge justice“. The perceived inability of judges to deport foreign criminals as a result of the European Convention on Human Rights, and in particular the right to family life, is one of the most commonly heard criticisms of human rights law. 

In an editorial yesterday, the Telegraph argued that the Human Rights Act has become “a means of undermining public safety, not of helping to protect it.” The newspaper claims that last year 200 foreign convicts avoided deportation by citing the right to family life”, which is “an absurd state of affairs”.

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Council disregards new equality duties in terminating free legal services

21 April 2011 by

Rahman, R (on the application of Birmingham City Council) [2011] EWHC 944 (Admin) (31st March 2011) – read judgment

The Prime Minister recently called upon immigrant communities to integrate more fully in British Society, criticising in particular those who fail to learn English.

But three longstanding residents of Birmingham who communicate poorly in English and rely upon legal entitlement advice centres to provide services in their mother tongue, have successfully argued that the Defendant Council unlawfully failed to discharge its Public Sector Equality Duty in ceasing to fund the centres. Two further Claimants, with disabilities, also succeeded in their challenge to the Council’s decision to cease funding another centre that was providing free assistance in welfare benefit appeals.

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Students, visas and the points system: difficulties in enforcement

12 April 2011 by

R(New London College) v Secretary of State for the Home Department  [2011] EWHC 856 (Admin) – read judgment

When she introduced the latest changes  to the points-based system for allowing entry into the United Kingdom the Home Secretary Theresa May said that “this package will stop the bogus students, studying meaningless courses at fake colleges…it will restore some sanity to our student visa system” (March 22 2011)
Whether these changes will alleviate any of the difficulties of applying the criteria to institutions that provide study courses for foreign nationals, only time will tell. This case illustrates some of these problems of enforcement.  


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Secret foreign nationals detention policy was “serious abuse of power”

23 March 2011 by

Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 (23 March 2011) – Read judgment / press summary

The Supreme Court has ruled that it was unlawful and a “serious abuse of power” for the Home Office to follow an unpublished policy on the detention of foreign national prisoners which contradicted its published policy.  Two convicted prisoners were therefore unlawfully detained.

This  fascinating 6-3 majority decision could be important in respect of setting the boundaries for the courts’ scrutiny of executive powers. It is also, for the record, not a decision which is based on human rights. The appellants are both convicted criminals (and foreigners too), so the court may be criticised for upholding their human rights despite their criminal actions. But this is a case decided on traditional public law grounds, which preceded the human rights act by many years. As Lord Hope put it:

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Where do I belong?

23 March 2011 by

AS v Secretary of State for the Home Department [2011] EWHC 564 (Admin) – Read Judgment

In a strange case, reminiscent of the film The Terminal in which Tom Hanks plays a person unable to leave an airport because he is temporarily stateless, an Applicant lost a judicial review application despite being unable to enter the UK lawfully and unable to acquire travel documents to return to Kuwait.

This was an application for judicial review of the decision by the Secretary of State to refuse to treat further representations by a failed asylum seeker as a fresh claim. The Applicant claimed to be a Bedoon, a member of an ethnic group mostly living around the borders of Iran, Iraq, Syria, Saudi Arabia and Kuwait. The Kuwaiti government is not permitting Bedoon outside Kuwait to return there, and since the 1980s the country has taken away from the Bedoon a great number of rights and benefits. It was accepted by both parties that in Kuwait, the Bedoon are at risk of persecution.


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The right to know the case against you

14 March 2011 by

R (BB) v. Special Immigration Appeals Commission and Home SecretaryRead judgment.

The Divisional Court has ruled that bail proceedings before the Special Immigration Appeals Commission (“SIAC”) are subject to the same procedural standard under Article 5(4) of the European Convention (the right to liberty) whether they take place before or after the substantive judgment. That standard is that the applicant must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations, as set out in A v United Kingdom and R (Cart) v. SIAC.

This decision forms the latest in a string of cases considering the extent to which the Government can rely on secret or ‘closed’ evidence in defending appeals by individuals challenging decisions made against them. A judgment by the Supreme Court is imminently expected in the conjoined cases of Al-Rawi v. Security Service and Tariq v. Home Office (see helpful summary here and our analysis of the broader issue of open justice here), which consider this issue in relation to civil damages claims and employment law claims. However, BB is the High Court’s most recent pronouncement on the position in the fraught area of immigration and national security.


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Julian Assange must face rape charges in Sweden, rules court

24 February 2011 by

The judicial authority in Sweden -v- Julian Paul Assange – Read judgment

Julian Assange, the founder of the whistle-blowing website Wikileaks, must face charges of sexual assault and rape in Sweden, the chief magistrate Howard Riddle has ruled.

The case will almost certainly be appealed, so in reality there may not be a final decision for many months. Assange has a right of appeal on law or fact to the High Court under section 26 of the Extradition Act 2003. Assange has 7 days to appeal, but otherwise the extradition would usually take 10 days to execute.

Assange’s skeleton argument, that is a summary of his legal arguments during the hearing, can be found here. You can find my previous post on the subject here, including an explanation of the law surrounding his potential extradition. Carl Gardner, of the Head of Legal blog, also provides an excellent post here.

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Football “rioter” Garry Mann loses Euro human rights appeal

23 February 2011 by

Garry Norman MANN v Portugual and the United Kingdom – 360/10 [2011] ECHR 337 (1 February 2011) – Read judgment

Garry Mann, a football fan who was convicted to two years in a Portuguese jail for rioting after an England match in 2004, has lost his appeal to the European Court of Human Rights against his conviction and extradition.

Mann has always denied taking part in the riot. The full background to the case is set out here. The case has been subject to a number of court hearings in the UK, including two judicial review hearings against his proposed extradition to Portugal to serve his prison sentence. He has also already had a claim in the European court rejected.

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Protesting here and risk of persecution there

16 February 2011 by

BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC) – read judgment – and SA (Iranian Arabs-no general risk) Iran CG [2011] UKUT 41(IAC) – read judgment.

The Upper Tribunal (Immigration and Asylum Chamber) last week allowed two asylum appeals by Iranian political activists, and laid down guidance on the factors the Home Office and immigration tribunals should take into account when deciding asylum applications and appeals based on political activities here in the UK.

In the midst of all the excitement over the events in Tunisia and Egypt, it is important to remember that most countries in the wider Middle East are still under the control of authoritarian regimes which give scant regard to basic human rights. In particular, the success of the recent protests in removing Presidents Ben Ali and Mubarak from office are a reminder of the very similar, but unsuccessful, protests in Iran following the re-election of President Ahmadinejad in June 2009. The Iranian regime brutally suppressed the protesters in 2009, and there has been a crack-down on opposition activists since. The same reaction by the regime has been evident at renewed protests yesterday and today. The Upper Tribunal had to consider the ongoing situation in Iran in two recent decisions.


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Julian Assange extradition hearing: what’s going on

7 February 2011 by

Updated | Julian Assange, the founder of the whistle-blowing website Wikileaks, is in court today for the beginning of a two-day extradition hearing. Sweden have issued a European Arrest Warrant against Assange on suspicion of sexual assault.

Journalist tweeters at Assange’s bail hearings prompted a flurry of new court guidance on tweeting in court, culminating last week with the Supreme Court.

Unsurprisingly, a number of people are tweeting from the hearing, including the Times’ Alexi Mostrous, Joshua Rozenberg, the Guardian’s Esther Addley and Channel 4’s Marcus Edwards (click on their names to see their Twitter feeds). Guardian.co.uk is also publishing live updates.

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Analysis: Children’s “best interests” and the problem of balance

2 February 2011 by

ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) – Read judgment

This case (see yesterday’s summary) is illustrative of two misconceptions about rights that we are all in thrall to from time to time.

One is that there is a fundamental hierarchy of human rights which allows certain interests to prevail over others in all situations; the other is that this hierarchy is determined by considerations that are morally and politically neutral. A prime example of this kind of principle is the idea of the “overriding rights of the child”, a consideration with a perfectly orthodox role in family law, but one whose application to human rights as a whole is questionable.
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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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