In response to a legal challenge brought by the Joint Council for the Welfare of Immigrants (JCWI), the Home Office has scrapped an algorithm used for sorting visa applications. Represented by Foxglove, a legal non-profit specialising in data privacy law, JCWI launched judicial review proceedings,, arguing that the algorithmic tool was unlawful on the grounds that it was discriminatory under the Equality Act 2010 and irrational under common law.
In a letter to Foxglove from 3rd August on behalf of the Secretary of State for the Home Department (SSHD), the Government Legal Department stated that it would stop using the algorithm, known as the “streaming tool”, “pending a redesign of the process and way in which visa applications are allocated for decision making”. The Department denied that the tool was discriminatory. During the redesign, visa application decisions would be made “by reference to person-centric attributes… and nationality will not be taken into account”.
This afternoon, health secretary Matt Hancock made a statement in the Commons updating the house on the government’s response to the crisis.
The health secretary announced that anyone in the UK aged five and over who has coronavirus symptoms will be eligible for a test. From today, recognised symptoms include the loss of smell and taste, as well a persistent cough and a high temperature. Hancock confirmed for the first time that the government has recruited over 21,000 contact tracers, including 7,500 health care professionals, to manually trace and get in contact with anyone who has tested positive.
In addition, he offered a degree of clarification in relation to the government’s new contact tracing app. The function of the app is to alert people of the need to self-isolate if they have come into proximity with an individual who reported coronavirus symptoms.
Faced with mounting criticism of his reluctance to impose restrictions on British society in the face of the Covid-19 crisis, this evening Boris Johnson ratcheted up Britain’s response by announcing a strict lockdown across the country. His address to the nation is available in full here.
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.
When she was fifteen Shamina Begum slipped unimpeded out of the country to join ISIL. Only her image, walking with two school friends, was captured as she made her way through Gatwick Airport onto the aircraft. Her return to the UK, five years on is proving more difficult.
After the collapse of ISIL’s stronghold in Raqqa, Ms Begum appeared, heavily pregnant, in a camp in northern Syria, held by the Syrian Democratic Forces. In an interview she said she wanted to return but did not regret having gone to Syria.
On 19 February 2019, the Secretary of State, Mr Javid, informed Ms Begum’s family he considered she posed a threat to national security and issued an order depriving her of her nationality.
As was her right, Ms Begum issued an appeal against the deprivation order to the Special Immigration Appeals Commission (SIAC). Permission to enter the UK to pursue the appeal was refused by the Secretary of State.
Harry Dunn’s family after meeting with the foreign secretary, Dominic Raab, last week. Photograph: Credit: The Guardian, Peter Summers/Getty Images.
The usually obscure concept of diplomatic immunity came to the fore this week after it emerged that the wife of an American diplomat was wanted for questioning in connection with the death of a motorcyclist in Northamptonshire. Anne Sacoolas was spoken to by police after a collision with Harry Dunn in which he was killed whilst riding his motorbike, prior to her return to the United States.
Article 31 of the 1961 Vienna Convention grants immunity from the criminal jurisdiction of the receiving state to diplomats, a feature extended to their family members by article 37. However, both the United Kingdom and the United States were this weekend reported as having agreed that diplomatic immunity was no longer “pertinent” in the case of Mrs Sacoolas. This raised the possibility of the UK seeking her extradition, despite President Trump being photographed this week with a briefing card stating that she would not be returning to Britain.
Meanwhile, the country’s attention turned back towards Brexit, with the week ahead promising to, in the Prime Minister’s words, be “do or die” for the prospects of a negotiated deal. At the beginning of the week it was widely reported that talks had faltered, with Downing St leaks suggesting a deal was “essentially impossible”. However, the mood surrounding negotiations changed significantly on Thursday, with Taoiseach Leo Varadkar describing the emergence of a “pathway” to a deal following his meeting with Boris Johnson. Continue reading →
This week has been dominated by Shamima Begum. On Tuesday last week, Home Secretary Sajid Javid issued an order depriving Ms Begum of citizenship under s.40(2) of the British Nationality Act 1981. The act authorises the Secretary of State to deprive a person of citizenship where this is “conducive to the public good” – but s.40(4) states that the order must not make the person stateless.
The Home Office claimed compliance with s.40(4) on the basis that Ms Begum could claim citizenship from Bangladesh, in light of her Bangladeshi heritage, until the age of 21. However, on Wednesday, the Bangladesh Ministry of Foreign Affairs released a statement that Ms Begum was not a Bangladeshi citizen, and that there was ‘no question’ of her being allowed into the country. Ms Begum herself told the BBC, “I wasn’t born in Bangladesh, I’ve never seen Bangladesh and I don’t even speak Bengali properly, so how can they claim I have Bangladeshi citizenship?”
Conor Monighan brings us the latest updates in human rights law
Credit: the Guardian
In the News:
The Joint Committee on Human Rights (JCHR) has concluded that indefinite detention in immigrations centres must cease. The Committee published a critical report into the issue, which found indefinite detention has a highly detrimental impact upon detainees’ mental health.
The Committee argued that individuals should be held for no more than 28 days. It said this would provide an incentive to the Home Office to speed up case management, thereby reducing costs. Harriet Harman MP, the JCHR’s Chairwoman, noted in an article that the Home Office has paid £20 million over five years to compensate for wrongful detentions. Continue reading →
Paoletti and others (Judgment)  EUECJ C-218/15 (6 October 2016) – read judgment
The Court of Justice of the European Union (CJEU) has ruled that people smugglers can be punished even if the illegal immigrants themselves have subsequently gained EU citizenship by dint of the relevant country’s accession to the EU.
Legal and factual background
The accused in the main proceedings had illegally obtained work and residence permits for 30 Romanian nationals in 2004 and 2005, before the accession of Romania to the EU. They were therefore charged with having organised the illegal entry of these Romanian nationals “in order to benefit from intensive and ongoing exploitation of foreign labour”. This law was introduced to the Italian criminal code in accordance with the EU directive requiring the prevention and punishment of people smuggling (Article 3 of Directive 2002/90 and Article 1 of Framework Decision 2002/946, which provide that such an offence is to be punishable by effective, proportionate and dissuasive penalties). Continue reading →
… well there aren’t exactly fifty ways to leave the European Union, but from the vociferous debate in legal as well as political circles we might be excused for thinking there are a great deal more. Today’s Times reports that “1,000 people join legal fight against Brexit” to ensure that parliament votes before the government formally triggers the exit procedure from the EU. David Pannick will argue the challenge. But against such a legal heavyweight is former law lord Peter Millett, whose letter published in yesterday’s Times declares that the exercise of our treaty rights is a matter for the executive and the triggering of Article 50 does not require parliamentary approval. So whom are we to believe?
In her guest post Joelle Grogan has speculated upon the possible future for rights in the immediate aftermath of the referendum so I won’t cover the same ground. I will simply draw out some of the questions considered in two reports produced before the result of the referendum was known: 1. House of Lords EU Committee Report (HL138) and the more detailed analysis by Richard Gordon QC and Rowena Moffatt: 2 “Brexit: The Immediate Legal Consequences”.
States have an inherent right to withdraw. It would be inconceivable that the member states of such a close economic arrangement would force an unwilling state to continue to participate. The significance of Article 50 therefore lies not in establishing a right to withdraw but in defining the procedure for doing so. Continue reading →
In a speech about Brexit last week, the Home Secretary shared what she called her “hard-headed analysis”: membership of an unreformed EU makes us safer, but – beware the non-sequitur – we must withdraw from the European Convention on Human Rights, which does not.
It is surely time for some clearer Government thinking about these questions. If politicians could put politics to one side, they might recognise that the Convention and the Strasbourg court are not enemies of our sovereignty, but there are aspects of EU law as applied by the Court of Justice in Luxembourg which are.
Two recent Court of Appeal cases, heard together, have considered the legality of the immigration detention of those who are, or possibly are, minors. Such cases involve local authority age assessments, which are to be carried out according to the guidance set out in Merton  EWHC 1689 (Admin). Continue reading →
R (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA  EWHC 2898 (Admin) Blake J, 19 October 2015 read judgment
Not primarily about migration, but a case arising out of the long-running conflict between Morocco, as occupying power, and the Western Sahara as occupied territory. For many years, the UN has recognised the Western Sahara as a non-self-governing territory which is entitled to exercise its right of self-determination. Morocco does not agree, and has done what occupying powers do, namely send in Moroccan nationals to flood the existing populations, add troops, and commit human rights abuses, according to evidence filed in the case.
You may be wondering how this North-West African problem got to London’s Administrative Court. This is because the challenge is to two EU measures concerning Morocco. The first is a preferential tariff (administered by HMRC) applicable to imports from Morocco of goods originating from the Western Sahara. The second concerns the intended application of an EU-Morocco fisheries agreement about fishing in the territorial waters of Western Sahara.
Immigration Minister James Brokenshire has announced proposals to make Britain “tougher on those with no right to be here’. The new measures are to be included in an Immigration Bill due this Autumn. Working illegally in England and Wales is set to be an offence punishable by a sentence of up to six months in prison and an unlimited fine. In addition, businesses suspected of failing to comply with immigration rules could face closure for up to 48 hours.
Policy Director at Focus on Labour Exploitation, Caroline Robinson, is critical of plans for a “labour market enforcement agency”. Far from preventing illegal working, “policies and practices putting immigration control above all else will result in increased forced labour and modern-day slavery in the UK”. Forthcoming research by the organisation highlights the dangers of blurring lines between immigration enforcement and labour inspection, with victims of labour exploitation more likely to avoid inspectors where they fear being reported to immigration officials.
The current system of immigration detention in the UK has also come under close scrutiny this week. Writing for Halsbury’s Law Exchange, Mark Lilley-Tams and Stewart MacLachlan identify potential opportunities for reform. Noting that the UK is unique within Europe in that an individual may be detained under the Immigration Acts for an indefinite period, the authors suggest a review of current government policy “to avoid unnecessary suffering to those being detained, and unnecessary use of public resources where detention is being used”.
Law Society Gazette: A Home Office report has highlighted ‘significant shortcomings’ in the provision of appropriate adults for vulnerable people in custody, putting them at risk of miscarriages of justice and lengthening custody times. Solicitors have called for urgent action to be made on the report’s recommendations.
A leading disability charity has been notified that the UN will be conducting an investigation into whether the UK government’s welfare reforms have caused “grave or systematic violations” of disabled people’s human rights. Figures released by the Department for Work and Pensions have revealed that between 2011 and 2014, 2,380 people have died within six weeks of being found ‘fit to work’. The Independent reports.
The Guardian: The newly appointed UN special rapporteur on privacy, Joseph Cannataci, has called for a universal law on internet surveillance. Cannataci has singled out the oversight mechanism in the UK as being one of the weakest in the western world, describing it as “a rather bad joke at its citizens’ expense”.
Local Government Lawyer: The Court of Appeal has rejected an appeal brought by Unison against rulings of the Divisional Court that the Government’s introduction of employment tribunal fees had not been unlawful. The union has applied for permission to take its legal challenge to the Supreme Court.
Sir John Chilcot is facing legal action to compel publication of his long-delayed report into the Iraq war. A statement by Sir John has attributed the delay in part to the ‘Maxwellisation’ process, in which individuals are given the opportunity to respond to criticism made against them. The BBC reports here.
Western governments are increasingly concerned to establish that they have the power to prevent individuals from traveling to the Middle East to engage in terrorism-related activity (see Rosalind English’s recent post on Jihadi Brides). This has resulted in a spike in passport seizures, especially on the domestic level. Under Chapter 1 of the Counter-Terrorism and Security Act 2015 the UK government has the authority to seize UK passports
where a person is suspected of intending to leave Great Britain or the United Kingdom in connection with terrorism-related activity.
These events encouraged me to revisit a 2010 publication I co-authored with my colleague Jason Reed Struble, entitled ‘The Nature of a Passport at the Intersection of Customary International Law and American Judicial Practice’ (16 Ann. Surv. Int’l & Comp. L. 9 (2010)). In that piece we discussed the very nature of a passport and its role in both international and United States domestic law. This article focussed on the seizure of foreign passports by the U.S. Department of Homeland Security, and the subsequent tribulations that follow. Thus, the work focused on a different spectrum of passport seizures, i.e. a government seizing another government’s passport, as opposed to a government seizing passports of its own nationals. Continue reading →
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