This was an application for permission to challenge to the Managed Hotel Quarantine (MHQ) scheme. MHQ was put into place under Schedule 11 to the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 (SI 2021 No.582) (“the 2021 Regulations”). The 2021 Regulations were made on 14 May 2021 and came into force on 17 May 2021. They have been amended at various stages subsequently. Also amended have been the practical arrangements and, in particular, for the purposes of this case, a list of countries known as the “Red List” countries.
The claimants contended that the scheme violated the Article 5 ECHR rights of those who were subjected to it. A particular focus of the proposed claim for judicial review was to identify the category of travellers who came to (or back to) England from Red List countries into the MHQ scheme, and who were required to remain within the scheme, notwithstanding that they could demonstrate that they had been vaccinated.
Ilias v Hungary (Application no. 47287/15) was the first case in which the ECtHR considered a land border transit zone between two member states of the Council of Europe, where the host state, Hungary, was also a member of the EU and had applied the safe third country rule under the EU asylum regime. The Grand Chamber held that the applicants’ detention did not breach Article 5 (the right to liberty and security of the person).
The applicants, Mr Ilias and Mr Ahmed, were both Bangladeshi nationals who had left Bangladesh at different times and in differing circumstances. They met in Greece and then traveled together to the Former Yugoslav Republic of Macedonia, then to Serbia, and then to Hungary. On 15 September 2015 they arrived in Hungary and entered the border transit zone at Röszke. They submitted asylum requests on the same day. Within several hours their requests were rejected as being inadmissible and they were ordered to be expelled from Hungary back to Serbia as a safe third country. The applicants then spent 23 days in the transit zone whilst they appealed this decision. On 8 October 2015, following a final decision of the Hungarian courts which rejected their applications for asylum and ordered the applicants’ expulsion, Mr Ilias and Mr Ahmed were escorted out of the transit zone and crossed the border back into Serbia.
Where a coroner has reason to suspect that a person has died in custody or “otherwise in state detention” and that the death was violent, unnatural or by way of unknown cause, the coroner must hold an inquest with a jury (section 7 Coroners and Justice Act 2009 (“CJA”)). The interesting issue in this case was whether and/or in what circumstances a person who has died whilst in intensive care will be regarded as having died “in state detention”, thus triggering a jury inquest. Continue reading →
Mentally incapacitated people have the same rights to liberty as everyone else. If their own living arrangements would amount to a deprivation of liberty of a non-disabled individual then these would also be a deprivation of liberty for the disabled person. So says the Supreme Court, which has ruled that disabled people are entitled to periodic independent checks to ensure that the deprivation of liberty remains justified. Continue reading →
When assessing whether a patient’s care deprives him or her of their liberty, and thereby entitles them to the procedural protections under Article 5 (4) ECHR, the right to liberty, the Court of Appeal has ruled that the appropriate comparator is an individual with the same disabilities and difficulties who is not in care. The court also provided useful general guidance for deprivation of liberty cases.
P is a 39 year old man with Cerebral Palsy and Down’s Syndrome who lacks the capacity to make decisions about his care and residence arrangements as a result of his physical and learning disabilities.
London Borough of Hillingdon v. Steven Neary  EWHC 1377 (COP) – read judgment here.
The Court of Protection (“COP”) emphatically ruled last week that a local authority unlawfully detained a young man with autism and learning difficulties for almost an entire year, breaching his right to respect for family life as a result.
P and Q by the Official Solicitor, their Litigation Friend v Surrey County Council and Others (Equality and Human Rights Commission, Intervener)  EWCA Civ 190- read judgment
What does it mean to be “deprived of liberty”? This is not an easy question, and there are a wide variety of relevant factors. For instance, the amount of space a person is free to roam in, the degree of supervision and the amount of time away from their main residence are matters which are likely to vary greatly from case to case. There are many borderline cases.
In an important recent case, the Court of Appeal has found that there was no deprivation of liberty, within the meaning of Article 5 of the European Convention on Human Rights, when two people with moderate to severe learning difficulties are cared for in a foster home and a specialist home for adolescents respectively.
The Coalition Government has today launched the “Your Freedom” website, “giving people the opportunity to suggest ideas on restoring liberties that have been lost, repealing unnecessary laws and stripping away excessive regulation on businesses”.
The website can be accessed here, although it appears to be having some bandwidth issues at the moment. Amongst other things, it asks the public “which current laws would you like to remove or change because they restrict your civil liberties?” According to the Number 10 press release, the answers will be taken into account in the Freedom Bill later this year.
In its Program for Government, the Coalition promised a “Freedom” or “Great Repeal Bill”, which is a marrying together of the two parties’ manifesto promises (the Liberal Democrats and Conservatives respectively). Whether the eventual legislation will be as wide-ranging as the draft Bill published by the Liberal Democrats is not clear, although interestingly a substantial number of the Bill’s proposals made it into the Coalition agreement, notably children’s biometrics, freedom of information, trial by jury, ID cards, DNA, regulation of CCTV and the right to public assembly.
BJ (Incapacitated Adult) sub nom Salford City Council V BJ (By His Litigation Friend The Official Solicitor)  EWHC 3310 (Fam) – Read judgment
Where there is a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights, regular reviews by the court are not merely desirable but essential.
This case concerned the application of Article 5 of the European Convention on Human Rights to the ongoing review of the continuing detention of persons lacking capacity. The individual in question was a 23 year old man, BJ. As BJ lacked capacity, it was found that his best interests would be served by his continued residence at a location referred to as “MH”.
As such, the care plan devised by the local authority and approved by Lord Justice Munby (in the original hearing of 16 May 2008), required the deprivation of BJ’s liberty within the meaning of Article 5 of the European Convention on Human Rights.
Given that BJ was being deprived of his liberty, Article 5 required a review by the court of the lawfulness of his detention at ‘reasonable intervals’. Munby LJ had set out the frequency and nature of any review at the previous hearing and at paragraph 10 of this judgment the LJ again highlighted the importance of regular reviews in such circumstances,
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