Another brief guide to the admissibility conditions to the Strasbourg Court. This one is on the “six months rule” laid down in paragraph 1 of Article 35.
The Court may only deal with the matter … within a period of six months from the date on which the final decision was taken.
Easy enough to state; the difficulty lies in identifying the “final decision”, in other words the point at which the six months starts to run. Here are the broad guidelines to be identified from the case law (and for this I am indebted to Karen Reid’s excellent and detailed Practitioner’s Guide (Third Edition 2008 Sweet & Maxwell).
1. No waiver
It is worth mentioning at the outset that the six month rule is imposed irrespective of the wishes of the parties or court; the rule cannot be waived (X v France (1982):
The Contracting States cannot, on their own authority, put aside the rule of compliance with the six-months time limit. The deposit bv a State of a declaration made under Article 25[now 35] of the Convention does not affect the running of this delay Continue reading →
Ten human rights campaign groups and the lawyers for a number of detainees alleging UK involvement in their mistreatment have confirmed that they will be boycotting the impending Detainee Inquiry.
We recently posted on the publication of the Terms of Reference and the Protocol for the Detainee Inquiry and set out some of the reaction to it. At the time, a number of lawyers representing those who claimed to have suffered mistreatment threatened to boycott the inquiry, claiming it would be a whitewash. As the BBC has reported, they have now been joined by a number of Human Rights organizations, and it seems that the clear intention is for the boycott to go ahead.
M and Others v Her Majesty’s Treasury, Case C‑340/08, 29 April 2010 – Read judgment
The European Court of Justice (ECJ) has ruled that social security benefits cannot be withheld from family members of those suspected of being associated with the Al Qaeda terrorist network.
The Government will probably now have to change the law, although The Times reports that the judgment will only affect less than a dozen people living in Britain.
The United Nations implemented measures shortly after the 11 September 2001 attacks to freeze all assets of terror suspects. The UK had up to now taken a wide view of these measures, and had frozen not just the benefits of the suspects themselves, but also of their families.
The Treasury’s reasoning had been that money spent by, for example, a suspect’s wife on the running of the family household will be “for the benefit” of him. For example, if she buys food for a communal meal in which he participates, the money will have been spent for his benefit.
TM (Kenya) concerned a 40 year old Kenyan woman who faced deportation after her applications for leave to remain and asylum were rejected by the Home Office. She had been detained at Yarl’s Wood Immigration Removal Centre in advance of proceedings to remove her from the country, during which time she had been uncooperative with staff. In light of her behaviour and in advance of her removal to Kenya, she was removed from free association with other detainees. Such detention was authorised by the Home Office Immigration Enforcement Manager at Yarl’s Wood, who was also the appointed “contract monitor” at the centre for the purposes of section 49 of the Immigration and Asylum Act 1999.
She sought judicial review of the decision to deprive her of free association. The initial application was refused. She appealed to the Court of Appeal where she advanced three grounds, including that her detention was not properly authorised.
The court found no conflict in the dual positions held by the manager at Yarl’s Wood. The Home Secretary had legitimately authorised her detention under the principles described in Carltona Limited v Commissioners of Works  2 All ER 560. In addition, there was no obligation to develop a formal policy concerning removal from free association, as Rule 40 of the Detention Centre Rules 2001 was sufficiently clear to meet the needs of transparency. Continue reading →
J.N. v. the United Kingdom, Application no. 37289/12, 19 May 2016 – read judgment.
Photo credit: The Guardian
The European Court of Human Rights has ruled that the general system for detention of individuals prior to deportation in the United Kingdom, which lacks specific maximum time-limits, complies with Article 5, ECHR (Right to liberty and security of the person). However, in the proceedings involving J.N., the authorities had not acted with sufficient “due diligence”, which resulted in a violation of Article 5.
by Fraser Simpson
The applicant, known as J.N., arrived in the UK in early 2003 and unsuccessfully sought asylum soon after. In February 2004 he was convicted of indecent assault and sentenced to 12 months imprisonment. Following his release he was subjected to a number of conditions which he failed to comply with. This led the Secretary of State to issue an order deporting J.N. back to Iran. On 31 March 2005 the applicant was detained pending deportation.
Complications arose when attempts were made to obtain the necessary travel documents from the Iranian Embassy. Eventually, in November 2007, the Embassy agreed to issue the documents if the applicant signed a “disclaimer” consenting to his return. The applicant refused to sign this disclaimer.
Despite being released for one month following review of his detention by the Administrative Court in December 2007, the applicant was once again detained in January 2008. He continued to refuse to sign the disclaimer that was necessary to obtain the travel documents and to effect the deportation. During this second period of detention the authorities considered prosecuting the applicant for failing to comply with the Secretary of State’s request to take specific action to obtain a travel document (under s. 35, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004). But no prosecution was forthcoming. Additionally, J.N. agreed to sign the disclaimer if he was compensated for the periods of detention. However, the UK Border Agency refused to do so.
J.N.’s refusal to sign the disclaimer continued until late-2009 when J.N.’s solicitors began judicial review proceedings challenging the lawfulness of his detention. In considering the lawfulness of the detention pending deportation, the judge considered the four principles established in R v. Governor of Durham Prison, ex parte Hardial Singh,  WLR 704:
The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
The deportee may only be detained for a period that is reasonable in all the circumstances;
If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
The Secretary of State should act with reasonable diligence and expedition to effect removal.
The judge considered that the authorities responsible for the deportation had acted with a “woeful lack of energy and impetus”. They had failed to change their approach to the situation, they refused to bring a prosecution under the relevant legislation. Further, they had not approached the Iranian authorities to see if they would change their position regarding the need for a disclaimer. The Secretary of State had fallen short of the fourth requirement established in Hardial Singh. Accordingly, the judge found that the applicant’s detention had been unlawful from 14 September 2009 onwards.
The Strasbourg Court
Article 5 protects the right to liberty and security of persons. Restrictions of liberty are permissible if they fall within one of the specific grounds highlighted in Article 5(1). Article 5(1)(f) relates to detention “of a person against whom action is being taken with a view to deportation or extradition”. Any detention in pursuance of this objective must be prescribed by, and comply with, domestic law. Additionally, the domestic law must be “sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness”. To satisfy this “quality of law” requirement, domestic law should include clear provisions on the ordering and extension of detention as well as effective remedies that can be used by the individual to challenge the lawfulness of their detention. These requirements act as safeguards against arbitrary detention.
The applicant complained that the UK system for detention pending deportation did not specify maximum time limits for such detention and that this led to a violation of Article 5(1). Additionally, there was a need for automatic judicial scrutiny of any detention as opposed to requiring the individual to initiate judicial review proceedings themselves. Finally, the applicant submitted that if the UK’s system was said to satisfy the “quality of law” requirement, then the entirety of his detention had been unlawful, and in violation of Article 5, as at no point had there been a realistic prospect of removal (see paras. 59-63).
Lack of time-limits within the UK system (paras. 90-93)
The ECtHR had previously held that Article 5(1)(f) does not impose maximum time limits for detention pending deportation. However, the absence of such time-limits will be a factor in assessing whether domestic law satisfies the “quality of law” requirement. But other protections against arbitrariness, including the ability to review the lawfulness of the detention, are equally important.
The ECtHR held that Article 5(1)(f) does not require states to establish time-limits for detention pending deportation. The UK has sufficient procedures to allow the lawfulness of detention to be tested. Accordingly, the failure of the UK system to establish such limits, in light of the other procedural safeguards against arbitrariness, was not in violation of Article 5(1).
Lack of automatic judicial review of immigration detention (paras. 94-96)
The ECtHR refused the applicant’s submissions that Article 5(1)(f) required automatic judicial scrutiny of immigration detention. Article 5(4) provides all individuals who have been detained or had their liberty deprived with a right to take proceedings to examine the lawfulness of the detention. An entitlement to take proceedings, as opposed to automatic review, is all that is required by Article 5.
Was J.N.’s detention in accordance with Article 5? (paras. 102-108)
Finally, the ECtHR considered whether J.N.’s second period of detention, from 14 January 2008 to 14 September 2009 (the date on which the domestic court ruled that the detention had become unlawful) was in compliance with Article 5(1)(f) (for the reasons for restricting the scope of review to this period see paras.48-57)
The ECtHR saw no justification for the domestic courts to have restricted the “unlawful detention” to the period following 14 September 2009. Despite the repeated refusal of J.N. to cooperate, this could not be “be seen as a ‘trump card’ capable of justifying any period of detention” (para. 106). The ECtHR considered that the authorities had shown, to use the language of the domestic court, a “woeful lack of energy and impetus” from mid-2008 onwards. As a result, the detention had not been pursued with “reasonable diligence and expedition” from mid-2008 and therefore was not in accordance with domestic law and the principles established in Hardial Singh.
Accordingly, the detention from mid-2008 to 14 September 2009 was in violation of Article 5(1).
Undoubtedly the EU Returns Directive has resulted in the majority of Council of Europe states having limits for such detention. But as argued by the Government, recognising that Article 5 imposed such time limits may have “subvert[ed] the democratic process” by imposing time limits modelled on the EU Returns Directive from which the UK had lawfully opted out (para. 66).
During parliamentary scrutiny of the recent Immigration Act 2016 (which received Royal Assent on 12 May 2016) amendments were proposed by the House of Lords to limit immigration detention to 28 days – it should be noted that this would not have covered J.N.’s situation as it was not applicable in the event that the Secretary of State had made a deportation order – see para. 84 here). However, this amendment was rejected. In the final version of the Immigration Act a duty to arrange consideration of bail is placed upon the Secretary of State for all individuals detained pending deportation (which would cover J.N.) after four months (Sch. 10, para. 11, Immigration Act 2016). This would clearly act as a further, important safeguard against arbitrariness.
In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland)  UKSC 48- read judgment
An unmarried mother has won a landmark Supreme Court case which could allow cohabitees to claim Widowed Parent’s Allowance, a benefit previously only applicable to married parents.
Widowed Parent’s Allowance (“WPA”) is a contributory non-means-tested, social security benefit payable to men and women with dependent children, who were widowed before March 2017. The widowed parent’s entitlement depends upon the contribution record of the deceased partner. Under the relevant law (“s39A”) the widowed parent can only claim the allowance if he or she was married to or the civil partner of the deceased.
The issue before the court was whether this requirement was an unjustifiable discrimination against the survivor and/or the children on the basis of their marital or birth status, contrary to Article 14 of the Convention on Human Rights together with the right to respect for family life under Article 8, or the protection of property rights in Article 1 of the First Protocol ECHR. Continue reading →
It has been a fascinating year in which to edit this Blog. Political and social challenges – from continued government cuts to the alarming rise of Islamic State – have presented new human rights conundrums that have, as ever, slowly percolated to the doors of the country’s highest courts. And all this during the year of an astonishing General Election result and amid continually shifting sands around the future of the Human Rights Act. Continue reading →
Oversight of the Intelligence Services is a matter of enormous public importance, as counter-terrorism powers are enhanced to combat a pernicious and persistent threat.
A recent Report by the Intelligence Services Commissioner, Sir Mark Waller, assisted by Oliver Sanders of these Chambers, dispels some misconceptions about contact between the intelligence services and Michael Adebolajo, one of 2 men convicted of murdering Fusilier Lee Rigby. It also shines a light on how HMG applies its policy on the treatment of detainees held overseas – in Adebolajo’s case, by a Kenyan partner counter-terrorism unit in 2010. Not all of the Report’s findings make comfortable reading for the Intelligence Services.
1 Crown Office Row’s Robert Wastell is acting for the Treasury in this case – he has had no part in writing this post.
Extraordinary developments in the Supreme Court today as the court, for the first time in its history, conducted a secret hearing during which one of the parties, an Iranian Bank, was not allowed to take part. Full background to the case, Bank Mellat (Appellant) v HM Treasury (Respondent) is here.
If I could just repeat that for effect: the Government, which is being sued, gets to stay in court whilst the person doing the suing – and their lawyers – have to leave. The judges then hear security sensitive evidence which is potentially central to the case. Whilst one side is absent. No wonder Lord Neuberger, who as Master of the Rolls robustly blocked an attempt to introduce closed material procedures in civil trials via the back door (see his judgment in Al Rawi e.g. at para 30), sounds so pained in his statement. Curiously, this final hard-hitting paragraph was sent by the Court to its public email list but was left off the statement published on the Court’s website:
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  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.
This is Part I of Matthew Hill’s feature. Click here for Part II.
A recent decision of the Strasbourg Court has reopened the issue of the State’s obligation to investigate deaths under the European Convention on Human Rights, leaving a tension between the European Court’s view and that of the highest UK court.
In Silih v Slovenia (2009) 49 E.H.R.R. 37, the European Court looked again at the question of whether the investigative obligations under Article 2 ECHR have retrospective effect in domestic law. A majority of the Court held that Slovenia’s failure to provide an effective independent judicial system to determine responsibility for the death of a patient receiving medical treatment violated Article 2 even though the death itself took place before the Convention came into force in that state.
J M v. The United Kingdom – 37060/06  ECHR 1361 – Read judgment
The European Court of Rights has declared that rules on child maintenance prior to introduction of the Civil Partnership Act discriminated against those in same-sex relationships.
The events happened nearly a decade ago and the law in relation to same-sex couples has greatly altered since, so it will be of limited relevance to those paying child benefit now. Of more interest is the reasoning of the majority in deciding the case under the right to peaceful enjoyment of property rather than the right to family life.
The case summary is based on the Court’s press release, and is followed by my comment.
Denry Okpor v London Borough of Lewisham, Bromley County Court 25 October 2011 [Transcript not publicly available]
Adam Wagner represented Mr Okpor in this case. He is not the author of this post.
This was a rolled up permission to appeal and appeal hearing (on which more later) for appeal to a Circuit Judge from a possession order made by a District Judge at Bromley. At issue was whether the District Judge was wrong to reject a) a proportionality defence and b) a gateway B public law defence arising from Lewisham’s failure to follow its own policy. It is interesting as an example of proportionality/gateway B defences in action in the County Court, but also somewhat frustrating, for reasons which will become clear.
Mr Okpor was the secure tenant of Lewisham. At the age of 15 he had been taken into care by Lewisham following abuse. He left care aged 18 in 2006. In 2009, aged 21, he was given the secure tenancy. Mr O went into full time higher education later that year and has remained in full time higher education. This meant that the relevant Children Act 1989 provisions for care leavers continued to apply and would do until he was 24, if still in full time higher education. Mr O was receiving support from the Lewisham Leaving Care Team.
The set of injustices which led to these claims is well known – and see my posts here and here. For the uninitiated, in the 1960s, the US wanted Diego Garcia (one of the Chagos Islands) as a major air base. It spoke nicely to the UK, its owners, who consequently evicted and banned all the inhabitants from it and the neighbouring islands. The constitutional arrangements were apparently decorous. A new UK colony was established (the British Indian Ocean Territory or BIOT) with a Commissioner to make laws for the peace, order and good government of the Territory.
The UN was told that the population consisted of migrant workers, their position had been fully protected, and they had been consulted in the process – none of this in fact happened. Those evicted mainly went to Mauritius and the Seychelles. So the peace, order and good government in fact forthcoming from the UK amounted to total depopulation for military objectives.
Welcome back to the UK Human Rights Roundup, your regular delectable dossier of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
This week, the International Criminal Court has received a dossier detailing the UK’s involvement in abuse in Iraq. Meanwhile, the House of Lords has put up a fight over the so-called ‘annoyance injunctions’, while the Government has sought to find a solution to the European Court of Human Rights’ ruling on whole life tariffs.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.