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 Rosalind English
Schrödinger would be rolling in his grave. The nation is abuzz with talk of a cat. A cat that is simultaneously there or not there. The speakers at yesterday’s seminar at Inner Temple hall on Strasbourg and the UK: Dialogue or Conflict, felt it incumbent to start each of their talks with a Cat Joke. But behind all this mirth about a supposedly “ridiculous” Article 8 decision, lie three serious points, some of which were touched on during the seminar though perhaps not with the detail they deserved.
First, it is not the cat that has toxified the debate about Article 8 and the vexed question of deportation. The right to respect under Article 8 is not only to family ties – however absurdly extended – but to private life itself. Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, (Niemietz v Germany (1992)). Therefore if a court wants to prevent the what it perceives as the unjust deportation of the individual before it, it has a much wider constellation of interests to turn to than the family circle, whether or not that involves companion animals. Some might even take the view that attachment to such an animal may evince a more genuine emotional tie than many that have been advanced to claim the protection of Article 8.
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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 Rosalind English
A niggle has broken into a very public row between the British government and the European Commission which may yet become a bare-knuckle fight – not over the Eurozone crisis or bailouts or anything in the headlines, but over the availability or not of certain classes of benefits to EU claimants who do not satisfy this country’s “right to reside” test.
British social welfare arrangments provide for a class of non-means tested benefits such as Child Benefit and Income-based Employment Allowance that are only available to people who have resided legally in the UK for five years. The European Commission has declared this fencing-off to be in breach of EU law since it indirectly discriminates non-UK nationals coming from other EU Member States. EU rules on the social security coordination (EC Regulation EC 883/2004) allow the UK to grant social benefits to those persons who habitually reside in the UK; this EU test is satisfied by those who have been resident in the UK for two years or less. It is a common law test – a question of fact on the balance of probabilities, to be determined by looking at all the circumstances in each case. But those who pass this latter qualification can only claim means-tested benefits.
Confusing? Yes, and it gets worse.
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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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3 October 2011 by Melina Padron
Leap back
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news
An eventful week in Europe
Advocate-General Trstenjak has issued her opinion in NS v SSHD, a case currently pending before the Court of Justice of the EU. As reported by Cian Murphy for the Guardian, the case involves an Afghan asylum seeker who arrived in the EU via Greece before making his way to the UK to seek refuge.
Under the Dublin regulation it is for the EU country of first entry to consider the asylum claim, so the UK sought to return the claimant to Greece. The claimant then challenged his transfer by claiming that Greece was unable to process his case and that return would violate his fundamental rights. If he is successful, no asylum seeker could be returned to Greece under current conditions. In her opinion, AG Trstenjak made recommendations on a number of points, including the following:
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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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30 September 2011 by Daniel Sokol
W (by her litigation friend, B) v M (by her litigation friend, the Official Solicitor) and others [2011] EWHC 2443 (Fam). Read judgment.
In the first case of its kind, the Court of Protection ruled that withdrawing artificial nutrition and hydration from a person in a minimally conscious state was not, in the circumstances, in that person’s best interests. The Court also made general observations for future cases.
See our earlier posts here and here for a summary of the facts of this case.
The judgment
Since M had left no legally valid advance decision expressing her wishes to forego life-sustaining treatment, the court had to determine whether it would be in M’s best interests to withdraw artificial nutrition and hydration (ANH).
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30 September 2011 by Rosalind English
We posted earlier on the Court of Protection’s refusal to declare that doctors could lawfully discontinue and withhold all life-sustaining treatment from a patient in a minimally conscious state (MCS) – “just above” a vegetative state (VS), which itself is slightly higher than a coma – read judgment.
The message underlying this ruling is clear: if you want to avoid the risk of spending years of your life subject to aggressive medical intervention whilst imprisoned in a cage of bare-consciousness, make a living will. The Mental Capacity Act is remorseless, and courts will no longer come to the aid of those of us optimistic enough to think “it will never happen”.
We do not tend to think specifically about ending up in state of total dependency on medical support and therefore there is very little likelihood of any significant section of the population making a formal advance decision in accordance with the Act. On the other hand, how many of us have said, as patient M said in this case, that if such a situation were to arise, we would want to “go quickly”? [para 230]
Such generalities however are to no effect. Despite the universal human instinct to live in denial of contingent disasters, the court refused to give due weight to M’s previously expressed wish not to live a life dependent on others, because those these statements were not “specifically directed” at the consequences of withdrawing artificial nutrition and hydration (ANH) when conscious. Baker J could not consider those statements as a clear indication some eight years on from the onset of her illness, of what M would now want to happen.
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29 September 2011 by Rosalind English
M and others v NHS Primary Healthcare Trust – read judgment
For the first time the courts have been asked to consider whether life-supporting treatment should be withdrawn from a patient who was not in a persistent vegetative state (PVS) but was minimally conscious. The patient’s family sought a declaration for the withdrawal of artificial nutrition and hydration withdrawn and said the woman, referred to as M in court, would not want to live “a life dependent on others”.
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29 September 2011 by Daniel Sokol
R (on the application of S) v Secretary of State for the Home Department [2011] EWHC 2120 (Admin) – read judgment
The High Court has found that the Secretary of State unlawfully detained a mentally ill foreign national who was awaiting deportation. By failing to notify the claimant of the deportation order in good time or to follow the Home Office’s own published policies on the detention of mentally ill persons, and by detaining the claimant in degrading conditions, the Secretary of State had breached Article 3 (prohibition of inhuman and degrading treatment) and Article 5 (right to liberty and security of person) of the Convention.
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28 September 2011 by Rosalind English
C v United Kingdom Application no. 37334/08 – read judgment
The Strasbourg Court has rejected as manifestly ill-founded a complaint that the offence of strict liability for rape of a child under 13 violated the right to a presumption if innocence under Article 6 and respect for private life under Article 8.
This admissibility decision touches a sensitive nerve in the relationship between Strasbourg and national authorities by exploring the extent to which the Convention rights should influence prosecutorial policy. Section 5 of the 2003 Sexual Offences Act creates an offence of strict liability, which means that penile penetration of a child under the age of 13 is an offence whether or not the victim gave consent and irrespective of the belief of the perpetrator regarding the victim’s age. This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence; even if a child under 13 is fully capable of understanding and freely agreeing to such sexual activity, the law says that it makes no difference. He or she is legally disabled from consenting. Although absence of consent is not an ingredient of the offence, presence of consent is, material in relation to sentence which under Section 5 of the 2003 Act can range from absolute discharge to life imprisonment.
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