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UK Human Rights Blog - 1 Crown Office Row
Search Results for: justice and security bill/page/29/www.bailii.org/eu/cases/ECHR/1975/1.html
The applicant, VM, entered the UK illegally on 18 November 2003 with her son (S). Soon after, her son became the subject of an interim care order and the applicant was charged with child cruelty under the relevant legislation. Following an unsuccessful application for asylum due to fears for her life back in Nigeria, VM pleaded guilty to the child cruelty charges in August 2004. However, following the granting of bail pending the next hearing in February 2005, VM absconded for a period of over two years.
In September 2007 the applicant was again arrested, this time on charges relating to possession of false documentation with intent to commit fraud. Following conviction she was sentenced to nine months in prison. The applicant was also eventually convicted of the child cruelty charges in April 2008. Before sentencing, a psychological report was produced that indicated the applicant suffered from depressive and psychotic symptoms. However, such symptoms were being adequately managed through therapy and medication. Accordingly, there was no need to consider specialised treatment in a hospital or prison healthcare wing under the Mental Health Act 1983. The applicant was therefore sentenced to twelve months imprisonment, with an additional three months due to the failure to surrender to bail, in July 2008. At this point, due to the severity of the offences, the domestic judge recommended that the applicant be deported. Continue reading →
The Illegal Migration Bill has been presented in parliament and published. The bill has sparked extensive legal discussion over potential issues of compatibility with the European Convention of Human Rights. Indeed, the government stated their wish to proceed with the bill in the absence of being able to make a statement of convention rights compatibility under s.19(1)(a) Human Rights Act 1998. This in conjunction with Suella Braverman’s widely quoted statement that this “does not mean the provisions in the bill are incompatible with convention rights, only that there is a more than 50 per cent chance that they may not be”, has been less than reassuring and many anticipate future challenges under the ECHR. Human Rights Watch have gone as far as to state that the bill is “unworkable”.
The Home Office and Department for Education have been threatened with legal action if they fail to stop housing unaccompanied asylum-seeking children in hotels on the basis that this fails to ensure crucial protection and scrutiny over children’s welfare. Meanwhile, 21 London borough councils have signed a letter to the home secretary regarding the treatment of asylum seekers and urging the government to overturn their hotel policy and establish alternative placement options.
The big news this week is that the UK government will only accept another 150 unaccompanied refugee children under the Dubs Amendment.
What’s the Dubs Amendment?
Alfred Dubs, who himself came to the UK via Kindertransport, introduced an amendment to the Immigration Act 2016. The amendment, which became Section 67 of the Act, mandated that a number of unaccompanied child refugees in Europe would be allowed to come to the UK. The number was left unspecified, until this week.
Since the law was passed in May, it has brought around 900 children to the UK, many from the camp (the ‘Jungle’) in Calais. Many of these came over when French authorities ransacked the Jungle in October 2016.
(FYI, the Dubs Amendment is not to be confused with the Dublin rules, an EU Regulation governing how asylum claims are handled and shared between EU countries. Amber Rudd herself has on occasion gotten it wrong. For news this week on the Dublin Regulations and time limitations, see here).
What just happened?
Now Amber Rudd has announced (in a written statement the day before Parliamentary recess) that the number of children brought by the Dubs Amendment will not exceed 350. That includes 200 already transferred, and only children who were in Europe before the Immigration Act was passed in May 2016 are eligible (at least under this provision – the Syria Vulnerable Persons Resettlement Scheme and the Vulnerable Children’s Resettlement Scheme are still in operation).
What now?
Well, the charity Help Refugees had already launched an application for Judicial Review for the government’s failure to properly implement the Dubs Amendment, back in 2016. The claim (brought by three barristers from Doughty Street, instructed by Leigh Day) asserts that the government failed to properly consult with local authorities as required by statute (as per Section 67.2 of the 2016 Act), and therefore both unlawfully and incorrectly calculated the number of children to bring. The case characterises the government’s figure as woefully low, and the claim won a pretty significant victory in December 2016: the court found that the Dubs Amendment was an additional obligation that the government did not meet by acting in accordance with EU law, specifically Dublin III above.
The next hearing for this case is actually today, in the High Court. This in an interesting one to watch in light of these recent developments, so watch this space!
TRANSGENDER PARENTING
The Family Court in Manchester has denied a transgender parent access to her five Orthodox Jewish children. J, a transgender woman, left her wife and the Charedi Jewish community in 2015 and has been fighting a legal battle for access to her children since.
In family law, the welfare of the children is the paramount consideration: any decision regarding parental access must be made with that in mind. A parent’s presence in a child’s life is presumed to be beneficial unless the contrary is shown.
Mr Justice Peter Jackson, in his judgment, had the unenviable task of balancing J’s rights on the one hand, to see her children and to be free from discriminatory treatment as a transgender women, and the potential harm to the children. The judge, who said that “it is not for the court to judge the way of life of the ultra‐Orthodox Jew or of the transgender person,” found “with real regret” that the overriding concern was the risk, amounting to a probability, that the children and their mother would be rejected by their Orthodox community if they continued to have a relationship with J.
(J v B and The Children (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4)
MARRIAGE LAWS
Two separate judgments this week have been a win for unmarried couples.
The ECHR found that to exclude children born out of wedlock from their inheritance rights is discriminatory. German legislation previously provided that children born out of wedlock before 1st July 1949 were precluded from the right to inherit, and the ECHR followed the direction of movement in both national and EU-wide case law to find that this was unlawful. (Mitzinger v. Germany, Application no. 29762/10 ECHR)
Closer to home, the Supreme Court found in favour of a Northern Irish woman, Denise Brewster, who applied for Judicial Review after she was denied her deceased partner’s pension. Unmarried cohabitees in Northern Ireland were required to nominate their partners with a designation form, whereas married couples would benefit from automatic entitlement. Because Ms Brewster’s partner didn’t fill out the nomination form before his sudden death, she was not entitled to his pension. The five sitting justices in the Supreme Court found unanimously that the requirement for an opt-in form should be removed. This judgment is predicted to have wide implications for the rights of cohabiting couples in other areas.
RIGHTS OF DISABLED PEOPLE
Various charities for disabled individuals have published reports finding that the UK government is violating the UN Convention on the Rights of Persons with Disabilities. These will be submitted to the UN Committee on the Rights of Persons with Disabilities, which announced in 2015 that it would conduct an inquiry into the UK government’s treatment of disabled people.
The UK has the (very) dubious honour of being the first: no other government has yet been investigated under this Convention. The Optional Protocol mandates the UN Committee to investigate where they have reliable evidence of ‘grave and systemic violations’ of the Convention, but this had not yet been used since the Convention was adopted in 2008.
The UN released a damning report in October 2016, finding that the UK government has systemically violated the rights of disabled people and making eleven policy recommendations. It delves into policies going back to 2010, including vicious cuts to welfare and social security benefits. Westminster’s response is expected later this year.
IN THE NEWS:
Trump’s executive order mandating a travel ban on citizens from seven countries has been found unlawful in multiple US appeals courts. With lawsuits currently moving through 11 out of the 13 US appeal court circuits, it’s easy to anticipate that the controversial order will provide grounds for litigation for months and perhaps years to come. The likelihood that the US Supreme Court will rule on the ban is growing, as Trump’s administration shows willing to defend the policy throughout the courts, and meanwhile the American Civil Liberties Union is moving towards international legal action, and applying for an emergency hearing before the Inter-American Commission on Human Rights.
The Bar Council and the Citizenship Foundation are creating lessons for secondary school pupils on constitutional law to explain the role of the judiciary in democracy. The move was prompted by the backlash against the judiciary after the Miller ruling about triggering Article 50, in particular the personal attacks against the three High Court judges. (BBC).
MP Liz Saville Roberts has tabled a Sexual Offences (Amendments) Bill 2017, which is attracting significant cross-party support. The Bill would tighten up existing laws on the use of sexual history evidence in rape cases, including questions in cross-examination. (Guardian)
IN THE COURTS THIS WEEK:
The High Court is hearing an application for Judicial Review on the government’s decision to continue selling arms to Saudi Arabia, despite warnings from senior civil servants that they might be used to kill Yemeni civilians. (Guardian)
EVENTS:
If you missed 1 Crown Office Row’s event in collaboration with Leigh Day, “Brexit and Fundamental Rights”, you can find the podcast here. Chaired by Joshua Rozenberg QC, no less, it’s well worth a listen!
There is no general immunity for police officers investigating or preventing crime. In this case, Mrs Robinson suffered injuries when two police officers fell on top of her, along with a suspected drug dealer resisting arrest. The officers had foreseen Williams would attempt to escape but had not noticed Mrs Robinson (who was represented by 1 Crown Office Row’s academic consultant Duncan Fairgrieve).
The recorder found that, although the officers were negligent, Hill v Chief Constable of West Yorkshire [1989] gave them immunity from negligence claims. The Court of Appeal ruled the police officers owed no duty of care, and even if they did they had not broken it. It also found most claims against the police would fail the third stage of the Caparo test (i.e. it would not be fair, just and reasonable to impose a duty of care upon the police in these situations). The Court found Williams had caused the harm, not the police, so the issue was based on omission rather than a positive act. Finally, even if officers had owed the Appellant a duty of care, they had not breached it.
Mrs Robinson appealed successfully to the Supreme Court.
The Home Secretary, Theresa May, is no stranger to ill-founded outbursts concerning the evils of human rights. Against that background, her recent article in the Mail on Sunday(to which Adam Wager has already drawn attention) does not disappoint. May’s ire is drawn by certain recent judicial decisions in which the deportation of foreign criminals has been ruled unlawful on the ground that it would breach their right to respect for private and family life under Article 8 of the European Convention on Human Rights. Some of these judgments, May contends, flout instructions issued to judges by Parliament about how such cases should be decided.
Those instructions consist of new provisions inserted last year into the Immigration Rules, the intended effect of which was to make it much harder for foreign criminals to resist deportation on Article 8 grounds. The Rules – made by the executive and endorsed by Parliament, but not contained in primary legislation – provide that, where certain criteria are met, “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”. The assumption appeared to be that this would prevent judges – absent exceptional circumstances – from performing their normal function of determining whether deportation would be a disproportionate interference with the Article 8 right.
In R (Reprieve & Ors) v Prime Minister [2020] EWHC 1695 (Admin), the High Court made a preliminary ruling that Article 6(1) of the ECHR does not apply to the forthcoming judicial review of the Government’s decision not to establish a public inquiry into allegations that the UK intelligence services were involved in the torture, mistreatment and rendition of detainees in the aftermath of 9/11. It was further held that the claimants are not entitled to the level of disclosure of open material outlined in SSHD v AF (No 3) [2009].
Angus McCullough QC of 1 Crown Office Row was instructed as a Special Advocate in this case.
David Gale and his ex-wife Teresa were accused of drug trafficking, money laundering and tax evasion in the UK, Spain, Portugal and elsewhere. They were never convicted. The Serious Organised Crime Agency (SOCA), whose job it is to identify and recover the fruits of criminal activity, nonetheless sought to recover these fruits from David Gale and Teresa (‘the appellants’) by recovering property worth about £2 million. SOCA obtained an order to do so under Part 5 of the Proceeds of Crime Act 2002 (POCA).
On Monday the Ministerial and other Maternity Allowances Act 2021 came into force, allowing the Attorney General, Suella Braverman QC, to be the first minister to take maternity leave. The Act grants cabinet ministers six months’ maternity leave whilst retaining their government post, whereas in the past MPs would have to resign to take time off to give birth. The Act is not without its critics, including those saying it should apply to MPs outside the Cabinet, and include provisions for paternity, adoption and shared parental leave. There was also heated debate in the Lords on the gender-neutral phrasing of the original Bill, with the Lords voting to replace ‘person’ with ‘mother’ in the final Act, despite its potential exclusion of trans and non-binary people.
A new offence of non-fatal strangulation has been included in the Domestic Abuse Bill following a campaign by the Centre for Women’s Justice, other organisations and the Victims’ and Domestic Abuse Commissioners. The Bill is passing through the House of Lords and now includes the offence of intentionally strangling another person or otherwise affecting their ability to breathe. Currently perpetrators are usually charged with common assault, with a maximum of just six months in jail. The Bill also includes amendments strengthening the laws on ‘revenge porn’, making it an offence to threaten to share intimate images of a person with the intention to cause distress, and extends the coercive control offence to situations where perpetrators and victims do not live together. The Victims’ and Domestic Abuse Commissioners welcomed the amendments but urged the Government to go further in creating a defence for people who commit offences due to domestic abuse.
On Friday the Women and Equalities Committee published the Government’s response to its report on the impact of coronavirus on BAME people, in relation to inequalities in health, employment, universal credit, housing, and the no recourse to public funds policy. The Committee’s inquiry found that comorbidities in BAME people place them at risk of experiencing coronavirus more severely and with graver health outcomes. Specific risks to BAME people include difficulty in accessing Government guidance, the disproportionate impact on BAME people of zero-hour contracts and being denied furlough, difficulties in applying for Universal Credit, and overcrowded housing due to housing inequality.
The Department of Health and Social Care on Friday published new guidance for care homes and visitors, to take effect on 8 March. This is not a change in the law, as visits to care homes have never been unlawful, but the new guidance sets out the government’s advice on safe visiting practices. This is that:
The number of hate crimes committed in England and Wales has risen since the previous year, according to statistics released by the Home Office. In the year ending March 2025, 115,990 hate crimes were recorded by the police: this marks a 2% increase overall, a 6% increase in race hate crimes, and a 3% increase in religious hate crimes. A 19% increase in religious hate crimes targeting Muslims coincided with the time of the Southport murders and the subsequent race riots across the country.
Kemi Badenoch has confirmed at the Conservative Party Conference that her party would withdraw the UK from the European Convention on Human Rights and repeal the Human Rights Act if they form the next Government. This follows a legal review by the Shadow Attorney General, Lord Wolfson, into the impact of remaining in the ECHR. The Wolfson Report concluded that ‘it is hard to overstate the impact the ECHR has had on government decisions’, placing ‘substantial’ limitations on government policies to do with immigration, veterans’ rights, benefits, and reforms to sentencing and protest laws. Read Rosalind English’s summary of the Report here: The UK can, and should leave the Human Rights Convention (7 October 2025).
In International News:
A ceasefire has been agreed for the war in Gaza. The deal, brokered by the US, provides for a cessation in the conflict between Israel and Hamas which has been ongoing since 2023. The full text of the deal — entitled ‘Implementation steps for President Trump’s proposal for a comprehensive end of Gaza War’ — has not been publicised, though parts have been published by Israeli media. Trump’s 20-point plan, announced last week, provided for Gaza to be a ‘deradicalised terror-free zone’ which will be ‘redeveloped for the benefit of the people of Gaza’; all hostages will be released, and full aid will be sent to the Gaza Strip.
In the Courts:
An asylum seeker unsuccessfully challenged the housing and financial support given to him by Enfield Council. In R (on the application of BLV) v Secretary of State for the Home Department [2025] EWHC 2516 (Admin), the Claimant was a disabled man suffering from deafness, impaired eyesight, and major depressive and anxiety disorders. The Defendant was obliged, under the Immigration and Asylum Act 1999, to provide ‘adequate’ accommodation and other ‘essentially living needs’ to the Claimant; under the Equality Act 2010 and Human Rights Act 1998, it was also bound to adjust its general approach to providing support under the IAA 1999 to account for the Claimant’s specific disabilities. The Defendant contended that Enfield’s support was inadequate for two reasons:
His accommodation was inadequate, because it was too far away from his support network and did not have a suitable disabled lift;
His internet access was inadequate, because it was not sufficient for him to access mental health and other support services via video-call (his deafness made it impossible to rely on voice call alone).
The court applied the ‘twin-track’ test, namely: 1) whether the Secretary of State met an objective ‘minimum standard’ for ‘ensur[ing] full respect for human dignity and a dignified standard of living, maintain[ing] an adequate standard of health and meet[ing] the subsistence needs of the asylum seeker’; 2) even if the minimum standard has been met, whether the Secretary of State complied with public law standards including rationality. The court found that (stage 1) the Claimant’s accommodation did meet the minimum standard. Furthermore, (stage 2) the Defendant’s treatment of the Claimant did not violate its duties under the EA 2010, HRA 1998, or other public law principles.
An interesting aspect of this case was that internet video calling was deemed capable of being an ‘essential living need’ because of the Claimant’s disabilities. The court ruled that ‘the concept of ‘need’ is…affected by technological progress and consequent changes in societal expectations’, and that ‘internet-based communication… has become essential for interacting with other people and accessing public services.’
This is not a post about the conflict between the provisions of the Illegal Migration Bill and the European Convention on Human Rights (an issue which has already attracted a considerable amount of critical academic commentary – see here and here). Instead, it is a post about the Bill’s potential conflict with the EU Charter of Fundamental Rights (‘CFR’) and the UK’s commitments under the EU-UK Withdrawal Agreement, whether (and why) such a conflict matters in domestic law and how (if at all) that conflict could be resolved.
This might appear to be a quixotic line of discussion. We have been told, after all, that Brexit is done and that the CFR has been excised from the UK’s domestic legal systems (section 5(4) of the European Union (Withdrawal) Act 2018) and that other aspects of EU rights and equality law can be overwritten at will by Westminster. But, as we explore, this is not necessarily the case. Article 2 of the Northern Ireland Protocol (or Windsor Framework under the recent rebrand), the measure’s rights and equality provision, moreover, has important implications for legislative developments that the UK is seeking to pursue on a UK-wide basis.
Environmental campaign group Friends of the Earth, a disability rights activist, and a victim of coastal erosion are challenging the UK government’s climate adaptation programme (‘NAP3’) in the European Court of Human Rights. Published under section 58 of the Climate Change Act 2008, NAP3 outlines the government’s objectives and policies for adapting to climate change. The claimants argue that its failings—particularly with regards to vulnerable individuals—violate their rights under the Human Rights Act 1998 and the European Convention on Human Rights (ECHR). Norfolk resident Kevin Jordan’s coastal home was demolished following damage caused by Storm Ciaran and rising sea levels, and had to be housed elsewhere by the local authority. Doug Paulley, a wheelchair user whose long-term health conditions are severely worsened by extreme heat, was concerned about NAP3’s lack of planning and funding across health and social sectors to alleviate the impact of heatwaves.
Their application for judicial review was dismissed by the High Court in October last year and they have since been refused permission to appeal. Chamberlain J rejected arguments that the policy was insufficiently specific or ambitious, holding that s.58 merely required NAP3 to ‘address’ identified climate risks not to eliminate or minimise them. The court was not obliged under s.3 of the Human Rights Act to construe the statute in a way that better promoted the interests protected by the ECHR, over an interpretation that promoted those interests less effectively. Applying Verein KlimaSeniorinnen Schweiz v Switzerland, the court found the UK’s approach fell within its margin of appreciation. For similar reasons, the judge rejected the substantive claims that the inadequacies of NAP3 were sufficient to breach their human rights to life (Article 2), private life (Article 8) and peaceful enjoyment of possessions (A1P1), nor were they discriminated against on account of their vulnerable situations (Article 14). Chamberlain J considered the Secretary of State had breached the Public Sector Equality Duty in failing to assess the impacts of NAP3 on disabled and elderly people, but declined to quash the decision on this basis. A retrospective assessment in response to the legal challenge was sufficient to discharge the obligation, because the conclusion was that the programme should remain unchanged. It remains for the European Court of Human Rights to determine whether the UK courts’ stance complies with the Convention’s principles.
The European Court of Human Rights continues to make it clear that a failure by member states to protect people from domestic violence is likely to cross the high hurdle of the prohibition on degrading and inhumane treatment under Article 3.” It isn’t all about women. In the latest decision, Affaire Buturuga v Romania (App No. 56867/15), (available only in French) the Court found a breach of articles 3 and 8 in respect of a failure to investigate adequately and/or take action on complaints of domestic violence and awarded €10,000 general damages.
At a “rolled up” hearing on both permission and substantive merits, a challenge was considered by the High Court to the decision of the Foreign and Commonwealth Office’s (“FCO”) that Anne Sacoolas, the wife of a member of the US Government’s Technical and Administrative staff stationed at RAF Croughton, was entitled to diplomatic immunity from prosecution.
The challenge to this decision was dismissed on all grounds. However, permission to appeal to the Court of Appeal has been granted.
Communist prisoners held during the Malaya emergency Photograph: Jack Birns/Time & Life Pictures
Chong Nyok Keyu and ors v Secretary of State for Foreign and Commonwealth Affairs and another [2012] EWHC 2445 (Admin), read judgment
Although the High Court has rejected an attempt to force the Government to hold a public inquiry into an alleged massacre of unarmed civilians by British troops in 1948, the case represents a further example of the use of the Courts to redress historical grievances.
There are two German words for dealing with the traumatic recent past, neither of which has a direct equivalent in English. This linguistic quirk reflects history and national self-identity. The defeats of the Kaiser, the Nazis and the GDR Communists led to national introspection in Germany, whereas the United Kingdom, on the winning side in each of the those three struggles, evaded such soul-searching. The post-war decline was relatively gentle and easy to fit in to the national myth of historical continuity. An Empire absent-mindedly acquired was considered to be the subject of an orderly and benevolent liquidation, with lasting benefits of railways and the rule of law left to the inheritors.
On 22 September 2022, the UN Human Rights Committee found that the Australian Government had violated the human rights of various Torres Strait islanders through climate change inaction.
The rights in issue arose under the International Covenant of Civil and Political Rights of 1966, and in particular the right to life (Article 6), the right to be free from arbitrary interference with privacy, family and home (Article 17), the rights of the child (Article 24), and the right of indigenous minorities to enjoy their culture – all of which rights should be respected and ensured to all individuals (Article 2).
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The Home Secretary, Theresa May, is no stranger to 
Gale & Anor v Serious Organised Crime Agency [2011] UKSC 49 – 
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