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Welcome back to the UK Human Rights Roundup, your regular LS Lowry matchstick panorama of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.
With the continuing progress of the Marriage (Same Sex Couples) Bill through Parliament, focus was turned this week to the same issue in the USA. Meanwhile, it was extra-judicial scrutiny being meted upon Chris Grayling’s money-making proposals, and the Sun was censured by the PCC over an EU-ECtHR mix-up.
The Court of Appeal has concluded, by a 2-1 majority, that the detention of five asylum seekers pending their removal to another country where they should first have claimed asylum had been unlawful, and that they were entitled to damages. This article (the first of two) will unpick the reasons behind this legally complex appeal.
Background to the case
The case concerned five individuals who had entered the EU via countries in Eastern Europe and eventually made their way to the UK illegally. All five claimed asylum in the UK.
The Dublin III Regulation – an EU-wide Regulation – creates a system which determines where a person should claim asylum. The key principle is that a person must claim asylum in the first Dublin country they reach, where they should stay.
However, as one example in this case, Mr Hemmati entered Bulgaria and claimed asylum, but then left and entered the UK illegally, where he claimed asylum. The UK therefore asked Bulgaria to take back Mr Hemmati. Bulgaria accepted and Mr Hemmati was detained before removal.
Article 28(1) of Dublin III says that a person cannot be detained if the only reason they are being held is because they are subject to ‘the procedure established by this Regulation.’ The ‘procedure’ is the process whereby a country determines the ‘right’ country where a person’s asylum claim should be determined, in this case when the UK asked Bulgaria to take Mr Hemmati back, and Bulgaria agreed. In plain English, Dublin III prohibited the UK from holding Mr Hemmati in detention if their only justification was that they were submitting a take back request to Bulgaria and waiting for Bulgaria to reply.
However, Article 28(2) says that if there is a significant risk that the person will abscond, then a Member State may detain the person.
Moreover, Article 2(n) defines the phrase “risk of absconding” in Article 28 as meaning “the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third country national or a stateless person who is subject to a transfer procedure may abscond.” This creates an important safeguard regarding the exercise of the power under Article 28(2).
The key point is that in an Article 28 case, i.e. a person who is going through the Dublin III procedure, the only ground for detention is if there is a ‘significant risk of absconding‘, which is defined as reasons based on objective criteria defined by law.
Harry Dunn was killed when his motorcycle collided with a car being driven on the wrong side of the road by Mrs Anne Sacoolas, the wife of a member of the administrative and technical staff of the US Embassy based at RAF Croughton. The Claimants (Harry Dunn’s parents) sought to adduce expert evidence from a retired diplomat Sir Ivor Roberts, and also made an application for specific disclosure.
The Divisional Court summarised the background to the applications as being the judicial review of:-
The decision made by the Foreign Secretary that Mrs Sacoolas had diplomatic immunity under the Vienna Convention on Diplomatic Relations;
The allegedly unlawful obstruction by the Foreign Secretary of a criminal investigation by the Northamptonshire Police;
The allegedly unlawful acceptance by the Northamptonshire Police of the advice of the Foreign Secretary or the Metropolitan Police that Mrs Sacoolas had diplomatic immunity;
The alleged breach of the investigative duty under Article 2 ECHR as a result of the Foreign Secretary and the Northamptonshire Police’s error of law as to Mrs Sacoolas’s diplomatic immunity;
The allegedly unlawful ceding of sovereignty over a military base in the UK without Parliamentary consent; and
The alleged suspension of the laws of the land without Parliamentary consent through affording diplomatic immunity to family members of the relevant personnel.
Welcome back to the UK Human Rights Roundup, your recommended weekly dose of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
Same-sex marriage was the talking point of this week, with the Bill passing its first vote in the House of Commons. The courts have also been passing judgment on various acts of the police and the UK military; and immigration, asylum and extradition remain in the headlines. Keep an eye out on some interesting cases from Russia reaching Strasbourg; and a double-header of events featuring former ECtHR President Jean-Paul Costa (see ‘Upcoming Events’).
In Boyd & Anor v Ineos Upstream Ltd & Ors [2019] EWCA Civ 515, the Court of Appeal handed down a fascinating judgment exploring the tension between the exercise of the rights to freedom of assembly and freedom of expression and the protection of property rights.
The case concerned injunctions ordered against “persons unknown”. In the High Court, the Ineos Group of companies (known for their prominence in the UK shale gas exploration market) had obtained interim injunctions against a collection of as yet unidentifiable defendants. The applications were made to guard against the perceived risk of fracking demonstrations becoming unlawful protests at several sites owned or operated by Ineos.
The Agudas Israel Housing Association (“AIHA”) owns and allocates social housing exclusively to members of the Orthodox Jewish community. In these proceedings it was argued that Z, a single mother with four children, had suffered unlawful discrimination when Hackney council had failed to put her name forward for suitable housing. This was because of AIHA’s practice of only letting its properties to members of the Orthodox Jewish community. Although the nominal respondent in these proceedings was Hackney LBC this was only because in practice Hackney nominates properties owned by the AIHA. Primarily the challenge was to AIHA’s allocation policy.
It was common ground that AIHA’s arrangements constituted direct discrimination on grounds of religion. The question was whether this discrimination was lawful. The Divisional court held that it was, being a proportionate means of compensating a disadvantaged community (at [2019] EWHC 139 (Admin)).
Welcome back to the UK Human Rights Roundup, your regular social media storm of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.
With the judges winding down for their end of term break, this is not such a busy week of news; so instead a good opportunity to think over the role of the European Convention on Human Rights. Various immigration stories keeping the commentators busy, if not making the headlines; and keep up-to-date in public law with the latest from the ALBA conference.
Reminder: there is a Rally for Legal Aid tomorrow, Tuesday 30 July, 4:30-6:30 at the Old Bailey. Full details here.
A child (SM) who was adopted in Algeria by a French couple living in the UK was refused an application for a right of entry as a family member. Having been overturned in the Upper Tribunal, the Entry Clearance Officer (ECO) successfully appealed to the Court of Appeal. SM was not, the court held, a family member of Mr M. A keen human rights observer might think this was an apparent infringement of article 8 ECHR (the right to family life). Continue reading →
Welcome back to the human rights roundup, your weekly buffet of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
Legal aid reforms
The proposed reforms to legal aid are divisive: they are either necessary to combat a society of blame and litigation, or a disastrous reduction of access to justice for those who can’t afford legal fees. The subject is given in-depth treatment on BBC Law in Action with Joshua Rozenberg. The podcast, discusses what effects the reform bill will have on lawyers, claimants and defendants. This post on The Justice Gap, by Alice Forbes, explores some of the more specific effects the reforms will have on the type of advice (and more importantly, legal remedies) available to claimants.
On Tuesday the Court of Appeal handed down its judgment on David Miranda’s detention under the Terrorism Act 2000 and, while upholding the lawfulness of the detention in the immediate case, ruled that the stop powers under Schedule 7 of the Terrorism Act lack sufficient legal safeguards to be in line with Article 10.
by David Scott
See RightsInfo’s coverage here. For our coverage of the High Court’s previous decision see here, and on his original detention here and here.
The Case
Mr Miranda, the spouse of then-Guardian journalist Glenn Greenwald, was stopped and detained by the Metropolitan Police at Heathrow Airport on 18 August 2013 under paragraph 2(1) of Schedule 7 of the Terrorism Act 2000. He was questioned and items in his possession were taken by police, including encrypted material provided by Edward Snowden. Mr Miranda was detained for nine hours, the maximum period permitted at the time (since reduced to six hours). Continue reading →
The latest episode of Law Pod UK features energy expert Thomas Muinzer of Aberdeen University and David Hart QC of 1 Crown Office Row. They discuss the complex provisions of the Climate Change Act 2008, the extent to which the UK has reached its own goals for carbon emission reduction, and two recent challenges in the courts to projects involving GHG emissions:
If you don’t charge your client anything, how can you charge the other side? Answer: completely lawful, it’s all in the statute. Essentially, if you, a pro bono advocate, file a statement of the costs which you would have charged, had you been doing it for money. If you follow the right procedures, you may recover costs from the losing party. And it is as simple as that. If anyone is in any doubt, the Court of Appeal has just followed this rule in Grand v. Gill [2011] EWCA Civ 554, where it made an award of £2,500 to the successful tenant, who had increased her damages on appeal.
Though there was a certain amount of publicity when this provision came in, this case is a good reminder of this power. However, for those pro bono advocates who scent possible recompense for themselves, remember, you are not the beneficiary of the money when paid. It goes to “the prescribed charity,” namely the Access to Justice Foundation. Continue reading →
Schindler and MacLennan v. Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 469 20 May 2016 – read judgment
Last month, I posted here on this challenge to the rule stopping long-time expatriates from voting on the Brexit proposals. The case went swiftly to the Court of Appeal, who, today, swiftly dismissed the expats’ appeal.
The challengers said that the 15 year rule on voting was an unjustified restriction of the rights of freedom of movement under EU law, not least because if the UK were to leave the EU, they would end up without rights of abode in their current EU countries.
Rishi Sunak is expected to be consulting his ethics adviser over allegations that Suella Braverman mishandled a speeding offence charge. The Home Secretary is alleged to have attempted to arrange a private speed awareness course for an offence committed in the summer of 2022, rather than accept three points on her license and a fine or, alternatively, attending a course as part of a group of offenders. She reportedly consulted civil servants and a political advisor about the special arrangements. Sir Philip Rycroft, a former Permanent Secretary, commented that the actions appeared to be a “real lapse of judgment.” Kier Starmer has called for the Prime Minister to sack his minister if she is found to have breached the Ministerial Code. Braverman lost her position as home secretary under Liz Truss for a breach of the Code involving the transfer of official documents through her private email.
The Government’s announcement that eleven local authorities across England would be taking part in voter ID pilots for the 2019 local elections was controversial. There is a heated debate as to whether citizens should have to provide photo identification before receiving their ballot at elections. For some, it is a straight-forward measure to avoid the risk of fraud. For others, it is a policy that, by design or inadvertently, leads to the disenfranchisement of certain groups.
This debate was not considered by the courts in the challenge to the legality of the pilot schemes brought by Mr Neil Coughlan, a former district councillor from Witham Essex. But the consequences of the decision of the Court of Appeal in R (Coughlan) v Minister for the Cabinet Office [2020] EWCA Civ 723 could be profound for our electoral law.
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Welcome back to the UK Human Rights Roundup, your regular LS Lowry matchstick panorama of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.
Welcome back to the UK Human Rights Roundup, your recommended weekly dose of human rights news. The full list of links can be found 
Welcome back to the UK Human Rights Roundup, your regular social media storm of human rights news and views. The full list of links can be found 
Welcome back to the human rights roundup, your weekly buffet of human rights news. The full list of links can be found 
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