Category: LEGAL TOPICS
13 October 2011 by Rosalind English
R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant); R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45 – read judgment.
The Supreme Court has ruled that the Home Secretary’s refusal to grant visas to non-resident spouses under a certain age breached their right to family life under Article 8 of the Convention. A strong dissent from Lord Brown touches on the raw nerve of judicial competence and the role of Article 8 in policy making.
The Supreme Court press summary sets out the factual details of the two cases. Essentially, the issue was whether the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, contained in Paragraph 277 of the Immigration Rules, was a lawful way of deterring or preventing forced marriages, or at least those associated with assisting a claim for UK residency and citizenship. The minimum age requirement – recently raised from 18 to 21 – was designed to prevent young women who have UK citizenship or residence permission from being pressurised into sponsoring a fiancée or spouse seeking admission to this country.
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12 October 2011 by Alasdair Henderson
AM v. Secretary of State for the Home Department [2011] EWHC 2486 – read judgment
The Home Secretary Theresa May was lambasted last week for an inaccurate reference to cats, but the more general view expressed by her and most of the media that the Human Rights Act is routinely getting in the way of national security interests is also arguably misleading.
Ironically, in the same week as the Home Secretary was telling the Conservative Party conference that ‘the Human Rights Act must go’ the High Court emphatically upheld her decision to renew a control order on a suspected terrorist.
There is a handy guide to the control orders regime here, and to “TPIMs”, their proposed successor, here. Essentially, control orders are strict conditions imposed on a terrorist suspect such as a curfew, electronic tagging or regular searches. In this case the suspect’s conditions included a ban on any internet access at his home, a ban on using USB memory sticks to transfer any data from his home to his university, restrictions on his access to the internet at university or when he visited his parents, and a requirement to make a phone call every day to a monitoring company.
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10 October 2011 by David Hart KC
Case C-366/10 The Air Transport Association of America and Others, CJEU, 6 October 2011, Opinion of Advocate-General Kokott
In a recent post on US climate change litigation, I said that, by contrast with the US Courts, there was relatively little such strategic litigation in the UK and the EU.
But that all changes when the US lawyers come over here – exactly the issue in this case. US airlines said to the EU Court that their rights under international aviation law have been infringed by a European Directive on greenhouse gas emissions from airlines. This EU Court Opinion goes right to the heart of how two systems of supra-national law fit together. EU law hits International Law. And, unsurprisingly, an EU lawyer thinks that EU law wins – so far, anyway, before the full EU Court of Justice decides the case.
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10 October 2011 by Isabel McArdle
A proposal to retain DNA samples taken from people who have been arrested but not charged with a crime for up to five years has come under criticism from the Joint Committee on Human Rights.
The committee has been reviewing the Protection of Freedoms Bill for its compatibility with human rights (see our post: Protections of freedom bill under scrutiny and the Committee’s conclusions). The retention of DNA has long been a hot topic.
On the one hand, many people feel strongly that retention of something as personal as someone’s genetic code should never be done when the person has not been convicted of a crime. As DNA analysis gets more advanced, it can reveal increasingly large amounts of information about a person.
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10 October 2011 by Adam Wagner
In his Conservative Party Conference speech the Prime Minister David Cameron signalled his strong support for the legalisation of gay marriage. He said:
Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.
We have covered the slow progress towards legalised gay marriage in a number of posts since this blog launched in March 2010: see the links below. Where are we up to now?
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7 October 2011 by Rosalind English
Ambrose Harris (Procurator Fiscal), HM Advocate v G : HM Advocate v M [2011] UKSC 43 (6 October 2011) – read judgment
Reliance on evidence that emerged from questioning a person without access to a lawyer did not invariably breach the right to a fair trial under Article 6. The principle established by Salduz v Turkey (36391/02) (2009) 49 EHRR 19 did not apply to questioning outside a police station.
The Supreme Court was required to rule on references from the High Court of Justiciary regarding whether the Crown’s reliance on evidence obtained from police questioning prior to an individual having had access to legal advice breached his rights under Article 6. We posted previously on another referred case, Cadder (Peter) v HM Advocate (2010) UKSC 43, where the Court followed the Strasbourg Grand Chamber decision in Salduz that the Crown’s reliance on admissions made by an accused without legal advice had given rise to a breach of his right to a fair trial. The difference here was that the evidence had been obtained by questions put by the police otherwise than by questioning at a police station. The issue to be determined was whether the right of access to a lawyer prior to police questioning, as established in Salduz, applied only to questioning which had taken place when the person had been taken into police custody.
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6 October 2011 by Guest Contributor
Equality and Human Rights Commission v Prime Minister & Ors [2011] EWHC 2401 (Admin) – Read judgment
A challenge to published guidance for intelligence officers interviewing detainees overseas has been partially successful.
Mr Al Bazzouni and the EHRC argued that the guidance as to what officers should do if they suspect detainees might be subject to torture or to cruel, inhuman or degrading treatment or punishment (“CIDT”) was unlawful.
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6 October 2011 by Adam Wagner
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.
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5 October 2011 by Adam Wagner
Updated x 2 | What can we learn from yesterday’s gaff by the Home Secretary Theresa May involving Maya the cat?
First, when referring to a legal judgment in a speech make sure you get the outcome right. Particularly when prefaced by “I am not making this up”. Secondly, if said speech is being broadcast live, there are plenty of lawyers on Twitter who will enjoy nothing more than tracking down the judgment, reading it and exposing the fact that you have got it wrong.
These lessons are important. But they relate to any amusing but forgettable political gaff. There is, however, a third lesson. There has been for a number of years a trend of wilfully or recklessly misreporting human rights cases. This trend is not just mischievous; it threatens to do real damage to our legal system.
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4 October 2011 by Adam Wagner
Updated | Today the Home Secretary Theresa May gave a speech to the Conservative Party Conference in which she announced new immigration rules which would make it easier to deport foreign criminals.
May also gave three examples in support of the view that the Human Rights Act “has to go”:
We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had pet a cat.
The most startling of those examples is of course the final one, that an illegal immigrant could not be deported because he “had a pet cat”. As regular readers of this blog will know, there are plenty of mythical examples regularly peddled in order to criticise human rights law. Is the cat deportation one of them?
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3 October 2011 by Adam Wagner
A quick note to highlight this very interesting looking seminar entitled Strasbourg and the UK: Dialogue or Conflict? It is tonight (Tuesday 4 October) at Inner Temple Hall 17:45-19:15.
The stellar speakers will be Lord Justice Laws, Lord Pannick QC and Professor Philip Leach. The event is open to all, no pre-registration required.
The seminar is jointly hosted by the Constitutional and Administrative Bar Association (ALBA) and the new Bingham Centre for the Rule of Law. 1.5 CPD points have been applied for.
For those who cannot make it, we will of course be posting on the event. I will try to live tweet too – hashtag #ALBAevent
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2 October 2011 by Adam Wagner
The Home Secretary Theresa May’s has told the Sunday Telegraph that she would “like to see the Human Rights Act go“.
There is plenty of nonsense out there about the Human Rights Act. For example Emma McClarkin – a member of the European Parliament no less – said on BBC’s Politics Show (at 5:15) that we are “hamstrung by the European Charter of Human Rights”; a charter which does not exist.
There will more of this before the Conservative party conference is over, so let’s go back to basics with a few questions and answers about the Human Rights Act.
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2 October 2011 by Rachit Buch
Mahajna v Secretary of State for the Home Department [2011] EWHC 2481 (Admin) (30 September 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 High Court has ruled that detention of a Palestinian activist, whilst he was challenging the decision to deport him on public policy grounds, was lawful in principle. However, the failure to explain to Raed Salah Mahajna the reasons for his detention in a language he could understand rendered the first 35 hours of detention unlawful.
The treatment of foreign nationals pending deportation has provoked a good deal of controversy, as reported recently. These cases are primarily ones where deportation is considered to be conducive to the public good because of serious criminal offences committed by the individual. In this case however, no crime was committed, but a history of activism perceived as anti-semitic preaching was considered a threat to security in the UK.
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2 October 2011 by Guest Contributor
Ferdinand v Mgn Ltd (Rev 2) [2011] EWHC 2454 (QB) – Read judgment
In the first “misuse of private information” trial against a newspaper since Max Mosley in 2008, Mr Justice Nicol dismissed a claim brough by England and Manchester United footballer Rio Ferdinand against the “Sunday Mirror”.
The Judge found that, although the claimant’s Article 8 rights to private and family life were engaged, there was a public interest in correcting a false image promoted by the claimant. It was also held that the article contributed to a debate as to the claimant’s fitness to be a role model in the light of his appointment as England football captain.
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27 September 2011 by Guest Contributor
In A.A. v. the United Kingdom, a recent case involving the deportation of a young Nigerian man, the Court faced, once again, the question whether relationships between adult children and parents/siblings amount to family life in deportation cases. The Court’s Fourth Section did not give a clear answer to this question. The 24-year-old applicant resided with his mother and did not have children of his own [also see Rosalind English’s post].
In this post, I take a quick look at the Fourth Section’s reasoning on this issue and try to situate it in the wider context of the Court’s deportation case law. One word of caution: this is an attempt to briefly look at one specific question the Court asks to decide whether the deportation has interfered with an applicant’s right to respect for her family life. Do the ties invoked by the applicant constitute family life within the meaning of Article 8 § 1? To be more specific, do relationships between adult children and parents/siblings amount to family life in deportation cases?
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R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant); R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45 – read judgment.
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