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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27 September 2011 by Rosalind English
Oao Neftyanay Kopaniya Yukos v Russia (Application no. 14902/04) – read judgment
The collapse of the Russian oil giant Yukos following enforcement proceedings for multi-billion tax evasion has not prevented the ghost of the now-defunct company appearing in Strasbourg as a “victim” of the Convention. After majority shareholder Mikhail Khodorkovsky was prosecuted and imprisoned for fraud, the assets of Yukos were seized and the company was declared insolvent in 2006, and liquidated a year later. Nevertheless, the Strasbourg Court accepted its application because the issues raised by the case “transcended the person and the interests” of the applicant company. Striking out such claims, said the Court,
would undermine the very essence of the right of individual applications by legal persons, as it would encourage governments to deprive such entities of the possibility to pursue an application lodged at a time when they enjoyed legal personality…
The case raises interesting questions with regard to the policing and punishment of tax evasion, a matter which Strasbourg generally prefers to leave to national authorities. Whilst the wide margin of appreciation generally granted to a national governments cannot be boundless, there glimmers behind this ruling a reflection of troubled water between the Council of Europe and its largest constituent. By admitting and upholding some of the complaints, Strasbourg signals its readiness to castigate failures in due process. But the rejection of the more fundamental charge of political motivation, though not exactly an olive branch, is proffered at least as a sign of non-aggression.
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26 September 2011 by Adam Wagner
The Guardian published an editorial today arguing that court judgments should be opened up to the public. The editorial challenges the fact that BAILII, the charity which currently publishes most judgments online, is not searchable on Google.
Broadly speaking, it is good to see The Guardian taking up this somewhat esoteric but important topic. As I have argued on a number of occasions (see e.g. Making Law Accessible to the Public) the Ministry of Justice needs to do more to make “raw” law, that is judgments and legislation, accessible online. But it is important to focus on the right issues.
Case law should, ideally, be searchable on Google. BAILII explains the reason for not making it so:
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26 September 2011 by Rosalind English
Updated |NS v Secretary of State for the Home Department (Principles of Community law) [2011] EUECJ C-493/10 (22 September 2011) – read opinion
The Common European Asylum System was designed to establish a fair and effective distribution of the burden on the asylum systems of the EU Member States. Regulation No 343/2003 was passed in order to introduce a clear and workable method for determining which single Member State is responsible for determining any given asylum application lodged within the European Union. The measure was also intended to prevent forum shopping by asylum seekers.
Where a third-country national has applied for asylum in a Member State which is not primarily responsible for examining that application under the Regulation, it provides for mechanisms for the transfer of the asylum seeker to the Member State which is primarily responsible.
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26 September 2011 by Adam Wagner
Today, an open letter from 158 lawyers and academics has been published in The Guardian claiming that the law on squatting, on which the Government has proposed reforms, has been misrepresented by politicians and the media.
I am one of the letter’s signatories. Amongst other things, it states that:
a significant number of recent media reports have stated that squatters who refuse to leave someone’s home are not committing a criminal offence and that a change in the law – such as that proposed by the government – is needed to rectify this situation.
The accompanying article is here. One interesting aspect of this campaign is that it was organised in part by one of the longest standing and best legal blogs, Nearly Legal. Nearly Legal have used social media, which an ever increasing number of lawyers follow, to gather many of the signatures. Their response is here and some of their previous posts on the topic here and here.
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26 September 2011 by Melina Padron
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
Reiterating the last roundup’s call, if you know an individual, campaign group or NGO which deserves to have its local or national human rights work recognised, nominations for The Liberty Human Rights Award close on 30th September 2011, so there’s still time to get nominating!
In the news
Dale farm evictions
Last week residents at the UK’s largest illegal travellers’ site, at Dale Farm in Essex, won a court injunction delaying their planned eviction. A High Court decision on an injunction halting the eviction of residents from the UK’s largest illegal travellers’ site will take place today.
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22 September 2011 by David Hart KC
Case C‑442/09 Bablok et al v. Freistaat Bayern, Monsanto intervening
The result of this decision by the CJEU is summed up in a pithy summary by EU Business entitled “EU court backs angry honeymaker in GM pollen row.” The underlying question arose when food law met honey law (yes, there is one) met GMO licensing law, It was all about whether adventitious contamination of honey and pollen deriving from GMO maize renders the honey a GMO product.
Paradoxically the beekeeper sought that outcome in what we would call statutory tort proceedings. He sued the State of Bavaria who owned various experimental GM maize plots, for damaging his honey via GM pollen. Monsanto, the real object of the case, said that it didn’t matter really that its GMO pollen was in the pollen, and it didn’t cause damage for which our apiarist could sue. As we shall see, the CJEU decided it did matter – a lot.
Not all of you will know that EU legislators have dedicated a whole Directive to honey; of Council Directive 2001/110/EC. In the lyrical yet precise prose of the Eurocrat: ‘Honey is the natural sweet substance produced by Apis mellifera bees from the nectar of plants or from secretions of living parts of plants or excretions of plant‑sucking insects on the living parts of plants, which the bees collect, transform by combining with specific substances of their own, deposit, dehydrate, store and leave in honeycombs to ripen and mature.’ : Annex I. Honey consists predominantly of sugars but also contains solid particles derived from honey collection, as Annex II tells us.
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21 September 2011 by Rosalind English
A.A. v. THE UNITED KINGDOM – 8000/08 [2011] ECHR 1345 – Read judgment
The Strasbourg Court has ruled unlawful the deportation of a Nigerian man convicted of rape. Considering the facts of his case afresh, the Court came to the conclusion that the 24 year old student’s right to family life would be violated if he were removed to Nigeria.
The applicant arrived in the United Kingdom in 2000 at the age of 13 join his mother. At the age of 15, he was convicted of rape. After serving less than two years of his four-year sentence he was released on licence in 2004. The Home Office served him with a notice of liability to a deportation order on account of the rape conviction. Although the Immigration Judge of the Asylum and Immigration Tribunal (“the AIT”) allowed the applicant’s appeal, the Secretary of State’s appeal against this finding ultimately prevailed since it was found that the various factors in respect of his family life and his good conduct in remand did not outweigh the presumption in favour of deportation in accordance with the current version of the Immigration Rules.
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21 September 2011 by Adam Wagner
Liberty, the human rights advocacy organisation, is currently recruiting for trainees, pupils, solicitors and barristers to volunteer on its evening Advice Line.
The Advice Line runs on Mondays and Thursday 6:30pm – 8:30pm and gives advice to members of the public on human rights and civil liberties (members of the public can call on 0845 123 2307 or 020 3145 0461).
For further information contact Laura Milne (LauraM@liberty-human-rights.org.uk). I volunteered at the Advice Line for a year during my pupillage (training) and it was a great experience. It is a perfect way to learn more about human rights law, meet lawyers of all levels of seniority and help people with interesting problems for whom Liberty is usually the last resort. You will also get to see Liberty’s flash new offices!
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20 September 2011 by Adam Wagner
Doncaster Metropolitan Borough Council v Watson [2011] EWHC 2376 (Fam) (01 September 2011) – Read judgment
Sir Nicholas Wall, the President of the Family Division, has suspended a nine-month prison sentence for contempt of court given to Elizabeth Watson, a “private investigator” who published online sex abuse allegations which had been rejected by a series of judges.
The case has involved many of the foot soldiers in a bitter and public battle between the family law system and campaigners who say it is corrupt and not fit for purpose. Recognised this, Lord Justice wall used the opportunity to “dispel a number of myths”. First,
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20 September 2011 by Graeme Hall
As we recently posted, the UK Commission on a Bill of Rights has published its interim advice to Government on reform of the European Court of Human Rights. The Commission made recommendations to achieve the “effective functioning of the Court over the long term”, following which Joshua Rozenberg stated that “everybody now agrees on the need for fundamental reform. It has to happen. And it will.”
But if there is such agreement, can the Commission’s recommendations produce any meaningful reform? Or do the proposals simply rehash old ideas?
by Graeme Hall
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20 September 2011 by Adam Wagner
I posted recently on the ongoing saga surrounding the UK’s implementation of the Hirst No. 2 case, in which the European Court of Human Rights found that the UK’s blanket ban on prisoners voting was a breach of the European Convention on Human Rights. The correspondence between the court and the UK Government is now available and I have reproduced it below.
In short, the UK previously had until 11 October 2011 to “introduce legislative proposals” to end the ban. But it has now been given a reprieve as a result of seeking to intervene in another case, Scoppola v Italy (No. 3) (available in French, English press release here), which is going to the court’s Grand Chamber This is another prisoner voting case.
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19 September 2011 by Graeme Hall
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.
First, if you know an individual, campaign group or NGO which deserves to have its local or national human rights work recognised, nominations for The Liberty Human Rights Award close on 30th September 2011, so there’s still time to get nominating!
by Graeme Hall
In the news
Gagging the press
In an uncompromising piece in the Guardian, Geoffrey Robertson QC attacks the attempt of the Metropolitan Police to use the Official Secrets Act 1989 (OSA) to force the Guardian to disclose its source(s) which revealed the hacking of Milly Dowlers’ phone. Robertson not only describes Scotland Yard’s recourse to the OSA “blunderbuss” as misguided given that there is no evidence of the Guardian “inciting” this information from the police, but he also urges Parliament to revisit the OSA and insert a public interest defence to protect press freedom.
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19 September 2011 by Adam Wagner
Updated x 2 |Following on from Obiter J’s guest post, when considering the Metropolitan Police Commissioner’s attempt to force a Guardian journalist to disclose her source, it is worth revisiting the seminal case of Shayler, R [2002] UKHL 11. The case, which arose shortly after the Human Rights Act came into force, shows how heavily stacked the law is against those accused of causing to leak state secrets, but may also reveal some limited hope for journalists too.
Although it now appears that the case is being brought under section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984, it is still worth examining the powers which the police have under both PACE and the Official Secrets Act.
Simply, according to the House of Lords in Shayler, there is no public interest defence to the charges under sections 1 and 4 and none will be implied by the courts as a result of human rights law. However, section 5 was not considered and may still bear fruit should a prosecution be brought under it.
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18 September 2011 by Guest Contributor
Updated |Nine years ago, in March 2002, Amanda “Milly” Dowler (aged 13) was on her way home from school. She was kidnapped and murdered and her body was found in September 2002. In June 2011, Levi Bellfield was convicted of her murder and sentenced to a “whole life” tariff. When Milly went missing, journalists of the News of the World newspaper “hacked” into her voicemail. The fact that this had happened came to public prominence in July 2011 when The Guardian newspaper revealed the story.
The Metropolitan Police are now seeking an order that The Guardian journalists reveal their sources of information about the hacking. There is a suggestion that the Official Secrets Act 1989 may have been breached. The Guardian plans to resist this “extraordinary demand to the utmost” – see The Guardian 17th September – “Hacking: Met use Official Secrets Act to demand Guardian reveals sources.”
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