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Laura Profumo brings you the latest human rights happenings.
In the News:
In a critical, though arguably overdue, decision, the Court of Appeal has suspended the fast-track immigration appeals system. The process, under which rejected asylum seekers are detained and given only seven days to appeal, was held “structurally unfair” by the High Court, before being halted altogether by last week’s appeal. The ruling was welcomed by the appellant charity, Detention Action, as meaning “asylum seekers can no longer be detained…simply for claiming asylum”. Previously, the fast-track deadlines could be imposed on any asylum seeker from any country, if the Home Office considered their case could be decided quickly. This marks the third time courts have found the system to be unlawful, yet the suspension will now stay in force until a government appeal is mounted. The decision deals a major blow to a system which is “inefficient, bureaucratic, demeaning and dehumanising”, writes immigration expert Colin Yeo. Whilst there is “no doubt” a replacement fast track will soon be found, in the meantime “let us savour the respite” from such crude expediency.
In other news, the spotlight remains on America, in the euphoric wake of the Supreme Court’s ruling in Obergefell v Hodges. The final paragraph of Justice Kennedy’s judgment, in its stirring clarity, is set to make legal history. Yet not everyone is “enveloped in a warm and fuzzy feeling”, writes UKHRB’s own Jim Duffy. Justice Scalia, the firebrand conservative, “pulled no punches” in his dissent, citing the majority opinion as “egotistic” and a “threat to American democracy”. Scalia’s arrival in London last week further stoked the Obergefell debate. Speaking at a Federalist Society event, Scalia held his colleagues had wrongly used the due process clause to distill a substantive, rather than procedural, right. Defending his position as a constitutional originalist, Scalia maintained the meaning of the Constitution as fixed, rather than the “wonderfully seductive judicial theory” of living constitutions, in which “we can have all sorts of new things, like same sex marriage”. When asked about the proposed Bill of Rights, the Justice’s response was particularly biting: “You can’t do any worse than the situation you’re in now”. Continue reading →
The drowning of several hundred migrants attempting to cross the Mediterranean has dominated headlines in recent weeks, prompting a special meeting of the European Council on 23 April. The UN High Commissioner for Refugees has called for ‘a robust search-and-rescue operation in the Central Mediterranean, not only a border patrol’.
Under the ECHR, migrants rescued at sea cannot be returned if there is a ‘real risk’ of treatment that is incompatible with the absolute provisions of the Convention. Jacques Hartmann and Irini Papanicolopulu consider claims that human rights law therefore creates a perverse incentive for EU Member States not to conduct operations proactively.
Mirza v The Secretary of State for the Home Department [2015] CSIH 28, 17 April 2015 – read judgment
On the same day as it handed down judgment in the Khan case (see Fraser Simpson’s post here), the Court of Session’s appeal chamber – the Inner House – provided further guidance on the relationship between the Immigration Rules and Article 8. Of particular interest in Mirza are the court’s comments on where the rights of a British spouse figure in the context of an application for leave to remain by his or her partner.
This week we welcome to the Blog our new team of commentators on Scottish human rights issues – Fraser Simpson, David Scott and Thomas Raine.
Khan v. The Advocate General for Scotland, [2015] CSIH 29 – read judgment.
A Pakistani national refused leave to remain in the UK after expiry of his visitor visa has had his successful challenge to that decision upheld by Scotland’s civil appeal court, the Inner House of the Court of Session.
The request for leave to remain was initially refused under the Immigration Rules due to a lack of “insurmountable obstacles” preventing Mr Khan from continuing his family life in Pakistan. That decision was reduced (quashed) by the Lord Ordinary – a first-instance judge in the Outer House of the Court of Session – as although the decision had been in accordance with the Immigration Rules, the decision-maker had failed to undertake a proportionality assessment of the decision as required under Article 8 ECHR (read the Outer House judgment here).
Laura Profumo runs through the week’s human rights headlines.
In the News:
The Conservative party published its manifesto last week. The document makes for curious reading, writes academic Mark Elliott. The manifesto confirms the party’s pledge to scrap the Human Rights Act and to replace it with a British Bill of Rights, reversing the “mission creep” of current human rights law.
Yet the polarising references to “Labour’s Human rights Act” illustrate the Act’s failure to secure supra-political constitutional status, being tossed between the parties like a “political football”, writes Elliott.
R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 1216 (31 July 2014) – read judgment
The United Kingdom was not in breach of the human rights of those individuals ineligible for student loans because they did not have indefinite leave to remain in the country. The relevant legislation limits eligibility for student loans to those who are “settled” in the United Kingdom (within the meaning of the Immigration Act 1971 ) and who have been ordinarily resident in the UK for three years. According to the Court of Appeal, requiring the Secretary of State to link criteria for educational eligibility to changes in immigration rules would “enmesh” him into immigration policy:
His picking and choosing candidates for settlement as eligible for student loans, while not … unconstitutional, would be a fragile and arbitrary basis for policy in an area where clarity and certainty are required.
This appeal turned on issues in relation to the right to education under Article 2 of the first protocol (A2P1) and the prohibition of discriminatory treatment under Article 14 of the European Convention on Human Rights.
MM(Lebanon) and Others, R (on the application of ) v Secretary of State for the Home Department & Anor [2014] EWCA Civ 985 (11 July 2014) – read judgment
Neil Sheldon of 1 Crown Office Row acted for the appellant Secretary of State in this case. He has not had anything to do with the writing of this post.
Provisions in the Immigration Rules which impose income requirements on individuals living in the United Kingdom, who wish to bring their non-European Economic Area citizen spouses to live with them, are not a disproportionate interference with their right to family life under Article 8 of the European Convention on Human Rights. The Court of Appeal has also underlined the important (but often misunderstood) point that there is no legal requirement that the Immigration Rules should provide that the best interests of the child should be determinative. Section 55 of the Borders, Citizenship and Immigration Act 2009 is not a “trump card” to be played whenever the interests of a child arise. Continue reading →
A case to get the Sun leader writers confused, in that the Strasbourg Court was making sure that Italy did not get away with refusing to refer a case to the EU Courts.
Mr Dhahbi lives in Italy. He was of Tunisian origin, and was not at the time of this case an Italian citizen. He applied for and was refused a household allowance on the sole ground of nationality. He relied upon an entitlement to this allowance in an association agreement between the EU and Tunisia (known as the Euro-Mediterranean Agreement). The Italian court refused his application to have the case determined by the CJEU in Luxembourg.
Strasbourg decided that there had been a violation of his fair trial rights under Article 6, and discrimination on grounds of status under Article 14, when read with Article 8.
A Local Authority v SY [2013] EWHC 3485 COP (12 November 2013] – read judgment
A judge in the Court of Protection has ruled that a man who had “exploited and took advantage” of a young woman for the purpose of seeking to bolster his immigration appeal had engaged in an invalid marriage ceremony. The man, said Keehan J, had
“deliberately targeted” the respondent because of her learning difficulties and her vulnerability.
The courts would not tolerate such “gross exploitation.”
This was an application by a local authority in the Court of Protection in respect of the capacity of the respondent, SY, to litigate and to make decisions in relation to her life. Continue reading →
MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 – read judgment
In what circumstances can a foreign criminal resist deportation on the basis of his right to family life under Article 8 of the Convention? Until 2012 this question was governed entirely by judge-made case law. Then rules 398, 399 and 399A were introduced into the Immigration Rules HC 395. I have posted previously on the interpretation of these rules here and here.
The rules introduced for the first time a set of criteria by reference to which the impact of Article 8 in criminal deportation cases was to be assessed. The intention of the legislature in introducing these rules was to state how the balance should be struck between the public interest and the individual right to family life:
Ignaoua, R (On the Application of) v Secretary of State for the Home Department [2013] EWHC 2512 (Admin) – read judgment
The Government’s termination of existing judicial review proceedings via certification under the Justice and Security Act was “troubling” but lawful. Parliament’s intention was clear, even though there were no new rules in force yet.
The claimant was challenging her exclusion from the UK on national security grounds in proceedings commenced in 2010. The proceedings were terminated under special powers conferred by the Act. The challenge could proceed instead before the Special Immigration and Appeals Commission (SIAC), which has all the powers of the divisional court to conduct a judicial review of his exclusion.
The question before the court was whether the certificate had been lawfully made and not an abuse of process. Continue reading →
SS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888 – read judgment
This case concerns a hitherto little-explored aspect of the right to a private and family life: a parent’s opportunity to teach their offspring about their own religious faith.
This is also a subset of the right under Article 9 to practise one’s own religion. This question was raised in EM(Lebanon) (FC) v Secretary of State for the Home Department [2008] UKHL 64 but was only tangential to the main issue, which was the relationship between the appellant mother and her son as opposed to the father whose entitlement to custody would have been secured under Islamic law. Continue reading →
I have an opinion piece in today’s Times on Abu Qatada. It is behind a paywall so I can’t reproduce it here, but you can probably guess from the title what my theme is: Abu Qatada’s case shows the human rights system works. Enjoy (if you have access).
ZZ v Secretary of State for the Home Department [2013] EUECJ C-300/11 – Read judgment
The European Court of Justice has, in recent days, handed down a judgment that hits several hot buttons: UK immigration law, EU human rights, secret evidence, and suspicions of terrorism. In ZZ the Court has had to rule on the use of secret evidence before the Special Immigration Appeals Commission (SIAC).
Mr ZZ is an Algerian citizen. However, of crucial importance to his case is that he is also a French citizen, and therefore as an EU citizen, he is entitled to travel to and live the UK. Mr ZZ’s wife is a UK citizen and he was resident in the UK for a over a decade until 2005. In that year he travelled to Algeria but, upon return, was refused admission to the UK on national security grounds.
J1 v Secretary of State for the Home Department, 27 March 2013 – read judgment
A UKHRB editor, Angus McCullough QC, was a Special Advocate for J1 before the Court of Appeal, but not in SIAC below. He had nothing to do with the writing of this post
Hot on the Home Secretary’s loss of the Abu Qatada appeal, a reverse for her in another deportation case about someone whom the Court of Appeal described as “an important and significant member of a group of Islamist extremists in the UK,” and who was said to have links – direct or indirect – with men involved in the failed July 21 2005 bombing plot.
The general contours of the case will be familiar to Abu Qatada watchers, with claims under Articles 3 and 6 of the ECHR amongst others – that if J1 was returned to his country of origin (here, Ethiopia), his human rights would not be respected. There are however a number of interesting features about this decision of the Court of Appeal; firstly, it reversed a decision of the Special Immigration Appeals Commission against J1 on Article 3 (recall the heightened regard for SIAC as a specialist tribunal in the Abu Qatada appeal) , and secondly (in dismissing the Article 6 claim) it illustrates graphically some of the dilemmas facing Special Advocates when representing their clients in the imperfect world of “closed procedures” (a.k.a secret trials).
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I have an opinion piece in today’s Times on Abu Qatada. It is behind a paywall so I can’t reproduce it here, but you can probably guess from the title what my theme is: 
ZZ v Secretary of State for the Home Department [2013] EUECJ C-300/11 – 
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