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Israeli PM Benjamin Netanyahu reaffirmed Israel’s rejection of Hamas’ offer for the return of all hostages in return for the end of the war in Gaza on Sunday, claiming such a deal would ‘leave Hamas intact’ and render ‘the next October 7th only a matter of time’. The main conflict at the peace negotiations underway in Cairo appears to remain whether a ceasefire would be temporary, allowing Israel’s recovery of hostages, or permanent, as Hamas insists it must be. The US State Department also announced this week that they have found five Israeli military units committed gross violations of human rights before October 7th. Israel claims corrective action has been taken against four of these units but has declined to give any details. A spokesperson for the Secretary of State declined to confirm whether the US would therefore impose sanctions in line with the Leahy Law, which prohibits the US from allocating funds to foreign forces in the light of evidence of gross human rights violations. Netanyahu has said that ‘to impose a sanction on a unit in the IDF [would be] the height of absurdity and a moral low’ at a time when Israeli soldiers ‘are fighting the monsters of terror’. Meanwhile, the International Court of Justice ruled in a 15-1 vote last week against imposing emergency measures to prevent military exports from Germany to Israel in a case brought by Nicaragua earlier this year. However, the Court also declined to throw out Nicaragua’s case in its entirety, taking the opportunity to ‘remind all states of their international obligations relating to the transfer of arms to parties to an armed conflict, in order to avoid the risk that such arms might be used’ to violate international law.
The debate about single-sex spaces has come back into the news this week after ministers have announced plans for transgender patients in hospital to be treated in separate wards. The Government argues that there is a legitimate basis for the segregation and that the measures are proportionate, thus preventing the policy from breaching the Equality Act 2010 or the ECHR. The proposals have received cross-party support; Sir Keir Starmer supported the proposition in an interview on ITV’s Good Morning Britain, stating that his views on gender ‘start with biology’. The plans were announced amongst other changes proposed to the NHS Constitution, including the right for patients to insist on having their care carried out by a doctor of their biological sex. Kemi Badenoch, Minister for Women and Equalities, has made a call for evidence of organisations who are ‘wrongly stating that people have a legal right to access single-sex spaces according to their self-identified gender’. The information will be used to ensure the Government’s ‘policymaking continues to tackle any confusion’ so that ‘single-sex spaces can be maintained’. Matthew Taylor, chief executive of the NHS Confederation, pleaded following the announcement that the NHS not be ‘dragged into a pre-election culture war’. Ministers should rather be ‘bringing forward detailed plans to improve NHS funding, tackle the decrepit state of many health facilities and get waiting times for A&E care and planned surgery back to the levels that existed when the constitution was first published in 2012.’
In the Courts
Several groups have announced legal challenges to the UK’s Rwanda Migrant Scheme in the wake of the passing of the Safety of Rwanda Bill in April. Asylum Aid announced last Friday their intent to challenge the legality of a Home Office policy document published last week on the grounds that it ‘fundamentally misunderstands the Act’. The policy requires caseworkers to consider Rwanda safe even in the face of compelling evidence that Rwanda would not be safe for the individual – ignoring Section 4 of the Act which provides a limited right to appeal against removal on the grounds that Rwanda would not be safe given the asylum seeker’s individual circumstances. The FDA Trade Union has also commenced proceedings on the grounds that the policy creates a conflict for civil servants between their obligations under the Civil Service Code and following the instructions of ministers. The Civil Service Code imposes a legal obligation upon civil servants to ‘uphold the rule of law’, which may not be possible if given instructions by a minister to ignore a Rule 39 Order from the ECHR – a breach of international law. Dave Penman, General Secretary for the FDA, has emphasised that the legal action is not a political decision nor about the policy itself, but about protecting civil servants and ‘the integrity of the Civil Service Code’. The case is to be heard the first week of June. In the meantime, detentions have begun for the first migrants set for removal to Rwanda, with more to come over the next few weeks. It has been suggested detentions have begun so far in advance – over nine weeks before the departures of the first flights – in anticipation of legal challenges. Earlier this week, a bus intended to remove asylum seekers from a South London hotel for transfer to the Bibby Stockholm barge had to leave empty after protestors surrounded the vehicle in a successful attempt to disrupt the removal. 45 protesters were arrested in total following the clash with over 100 Metropolitan police officers.
The Supreme Court has ruled unanimously that the lack of protection given to workers on strike constitutes a breach of their human rights. The right to strike is protected under Article 11 ECHR, which ensures freedom of assembly and association. However, UK domestic law provides workers with no protections against detriments short of dismissal for exercising that right. While s146 of the Trade Union and Labour Relations (Consolidation) Act 1992 protected workers from detriment for engaging in trade union activities, strike action has not been considered to qualify – a situation which the Supreme Court said ‘nullifies the right to take lawful strike action’. The Court found that the current legal position fell short of a fair balance between the interests of employers and Article 11 rights, and consequently has declared the relevant statute incompatible with human rights. A significant victory for worker’s rights, the Claimant, Fiona Mercer, has said: ‘I am delighted at today’s outcome. Although it won’t change the way I was treated, it means irresponsible employers will now think twice before behaving badly towards their unhappy staff.’ It remains to be seen whether legislation will now be amended to protect the rights of striking workers against detriment. While the government are under no legal duty to respond, Professor Alan Bogg, who was part of the Claimant’s legal team, has suggested not to do so would be ‘constitutionally surprising’.
The Court of Appeal in Northern Ireland has ruled it is not a breach of human rights for schools to exclusively teach about Christianity in religious education classes. The Court upheld a previous finding that the curriculum is not taught in an ‘objective, critical, and pluralistic manner’ and stated that the finding was ‘capable of constituting evidence supporting an inference that the forbidden line (of indoctrination) had been crossed’. However, this did not breach Article 2 Protocol 1 of the ECHR – the right to education – as parents are granted an unfettered statutory right to withdraw their children from religious education and collective worship. The law in Northern Ireland demands that state-funded schools organise ‘collective worship’ in at least one assembly per day; while parents can withdraw their children from this activity, pupils are not granted the right to withdraw themselves. The Court recognised the ongoing review into teaching in Northern Ireland, suggesting that policymakers may soon implement a ‘refresh to the Northern Ireland curriculum that will inevitably include consideration of religious instruction to take into account the complexion and changing needs of our society’. The Claimant intends to appeal to the Supreme Court.
At the conclusion of the inquest into the death of Scott Rider, the coroner described Rider’s treatment in prison as “inhumane and indefensible”. Rider died by suicide in June 2022 after serving 17 years of an “imprisonment for public protection” (IPP) sentence, a form of indeterminate prison sentence. A few weeks before his death Rider told a member of prison staff that he felt as though his sentence had ruined his life and there was no hope of release. IPP sentences were abolished in 2012, but the abolition did not apply retrospectively to those who had already received the sentence. As of 31 December 2022 there were 2,892 prisoners serving IPP sentences. The coroner sent a Prevention of Future Deaths Report to the prisons minister, writing that “if action is not taken to review all prisoners sentenced to IPP then there is a risk of further deaths occurring”.
The purpose of inquest proceedings also came under scrutiny this week, with the outgoing Chief Coroner, HHJ Thomas Teague KC, describing “a long-latent tension” at the heart of what the coronial service is trying to achieve in his Annual Report published on Thursday. He criticised the pressure on coroners to expand the scope of their investigations and expressed his view that “an inquest should remain a hearing that is narrowly focused on establishing a person’s immediate cause of a death, as opposed to in effect becoming a surrogate public inquiry”.
Finally, the Safety of Rwanda (Asylum and Immigration Act) 2024 was passed into law on Thursday. The Act requires decision makers to “conclusively treat the Republic of Rwanda as a safe country”, where a “safe country” means a country to which a person may be removed without violating the UK’s obligations under international law. Speaking on 22 April, Prime Minister Rishi Sunak said that he anticipated that first flight removing people to Rwanda would leave in 10-12 weeks, stating that “these flights will go come what may” and that “no foreign court will stop us from getting flights off”.
In international news
Major campus protests have broken out across the US regarding the ongoing conflict in Gaza, with students calling for their universities to divest from companies with ties to Israel. Hundreds of arrests have been made over the last week. At New York University 120 people who had erected an encampment were arrested and all but four were charged with trespass. Hundreds more arrests were made at Emerson University, Yale University, Columbia University, the University of South California and the University of Texas. At the University of Texas, the state Governor called in troopers with the Texas Department of Public Safety, who wore riot gear and were seen using their bikes to push protesters back.
In the Courts
The High Court dismissed the Solicitor General’s claim against Ms Trudi Warner in a judgment handed down on Monday. On 27 March 2023 Warner had stood outside a court where members of an environmental protest group were due to be tried with a placard that read “JURORS YOU HAVE AN ABSOLUTE RIGHT TO ACQUIT A DEFENDANT ACCORDING TO YOUR CONSCIENCE”. The Solicitor General alleged that Warner’s conduct was intended to interfere with the administration of justice and amounted to contempt of court. Mr Justice Saini held that it was “fanciful” to suggest that Warner’s behaviour could be considered to fall within the category of contempt. The content of the placard “accurately informed potential prospective jurors about one of their legal powers… It is not unlawful to accurately communicate the bare principle of law to potential jurors in a public forum”.
Exemption for allies of the UK overseas, such as Afghan service veterans
Ensuring that Rwanda is only considered a safe country when the arrangements provided for in the Rwanda Treaty are fully implemented and adhered to in practice.
The Bill is going back to the House of Commons this week and may soon come into law despite the disputes between the Commons and the Lords.
In international news
The US Supreme Court has announced that it will not hear the case of Mckesson v Doe. This was an appeal against a lower court decision which held that a protest organiser could be held liable in tort and face steep financial consequences if a single participant at a mass protest commits an illegal act. The case arises out of a Baton Rouge protest following a police shooting. DeRay Mckesson, one of the organisers of the protest, was sued by a police officer, identified only as John Doe, who was seriously injured when a participant in the protest threw a rock at him. The Supreme Court’s decision not to hear the case means that the lower court’s decision remains good law in Louisiana, Mississippi and Texas, and has been criticised for having a stifling effect on protest rights.
In the courts
The High Court held that Michaela Community Schools Trust’s decision to ban ritual prayer practices was lawful. The challenge was brought by a Muslim student at the school who wished to be permitted to pray for five minutes during the lunchtime break. The court rejected arguments that the ban was a breach of Article 9 of the European Convention on Human Rights (freedom of thought, conscience, and religion) and indirect religious discrimination against the school’s Muslim students. The High Court held that there was no interference with the claimant’s Article 9 rights as the claimant impliedly consented when she enrolled at the school, which is a secular school, that she would be subject to restrictions on her ability to manifest her religion and she would be able to “make up” for missed prayers when she got home (Qada prayers). Alternatively, the prayer ban was a proportionate means of promoting social cohesion at the school and preventing students from being pressured into participating in the prayers.
This week multiple UN institutions responded to the deteriorating humanitarian conditions in Gaza. The UN Security Council passed a resolution, with the USA abstaining, demanding “an immediate ceasefire for the month of Ramadan…leading to a lasting sustainable ceasefire” and the release of all Israeli hostages taken by Hamas during the 07 October attack. The UN Special Rapporteur on the situation of human rights in the occupied Palestinian Territory has released a report critical of Israel’s military operation in Gaza, which argues that “there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met”.
Meanwhile, South Africa’s case against Israel at the International Court of Justice (ICJ) continues. The ICJ has imposed further provisional measures in response to the “famine setting in”. The ICJ’s order requires Israel to cooperate with the UN to ensure “the unhindered provision at scale” of humanitarian assistance including food, water, medical supplies etc. Micheál Martin TD, the Minister for Foreign Affairs and Minister for Defence for the Republic of Ireland, has announced that Ireland will intervene in South Africa’s case at the ICJ.
This week the US Supreme Court heard what may be the most significant case regarding reproductive rights since Dobbs v Jackson Women’s Health Organisation, which overturned Roe v Wade. The case is about whether the abortion medication Mifepristone was correctly approved by the Food and Drug Administration. It was brought by several individual doctors and doctors’ groups opposed to abortion. The arguments this week focused on whether these individuals and groups had standing to sue, i.e. that they have a close enough connection to the issue to bring the case.
On Tuesday the government published its response to the public inquiry into Brook House Immigration Removal Centre. The inquiry was a response to a 2017 investigative documentary, which included footage of staff abusing detained people. The inquiry’s report was published on 19 September 2023. In its response the government described the documentary footage as “utterly shocking”, but emphasised the fact that “[d]etention is and will remain a fundamental element of the immigration system”. The government rejected the report’s key recommendation that it should set a time limit on detention. The response sought to highlight changes that have been made across the immigration detention estate since the events of 2017, such as the improved ratio of custodial staff to detained persons and the introduction of accredited training and a code of conduct for staff. The government stated that a “comprehensive review” into complaints and whistle blowing processes is being undertaken.
In other news, a memorandum disclosed to the Afghanistan Inquiry shows that in 2011 a UK Special Forces commander raised concerns that “there is in effect an unofficial policy… to kill wherever possible fighting aged males on target, regardless of the immediate threat they pose to our troops. In some instances this has involved the deliberate killing [of] individuals after they have been restrained… and the subsequent fabrication of evidence to suggest a lawful killing in self-defence”. The inquiry is investigating alleged unlawful conduct by UK Special Forces in Afghanistan between 2010 and 2013 and the adequacy of the Ministry of Defence’s response to concerns that were raised at the time. Johnny Mercer MP, the Minister for Defence People and Veterans, has stated in his witness statement that he was shown a copy of the memorandum but not allowed to keep it. Mercer been ordered to disclose the names of those who told him about alleged war crimes to the inquiry.
In international news
The Hong Kong government passed new national security legislation known as ‘Article 23’. The new law increases prison sentences for national security related offences, including a maximum jail sentence of 10 years for sedition where an ‘external force’ is involved. Any speech which is critical of the government could potentially come under the scope of sedition, and Hong Kong’s justice minister has since stated that a person might commit an offence if they share criticism of the legislation online. The legislation gives the police the power to detain someone for 16 days without charge and to prohibit the person from consulting with a lawyer for 48 hours. UK Foreign Secretary David Cameron previously stated that the legislative proposals would “have a negative impact on the people of Hong Kong in the exercise of their rights and freedoms”. The EU has expressed concerns over the legislation’s ‘sweeping provisions and broad defintions’ and described the increased penalties, which have extraterritorial reach, as “deeply worrying”.
In the courts
The Court of Appeal ruled that an individual’s views on climate change do not form part of the ‘circumstances’ of criminal damage which is committed as part of a protest. Previously, climate protesters had successfully relied on the defence that they honestly believed the owner of the property would have consented to the damage if they had known of the damage “and its circumstances”. The Court emphasised that the “circumstances must belong to the damage, not to the defendant”, and that there “must be a sufficient connection between the damage and its circumstances”. The case under consideration involved a climate protester (“C”) who had caused damage to the offices of various charities and political parties. The court held that “what C had to say about the facts of or effects of climate change could not amount to the circumstances of the damage” and that such evidence would be inadmissible in relation to the consent defence.
The Government has announced a new definition of extremism. Michael Gove, communities secretary, told ministers on Thursday that they should not interact with any groups labelled as extremist or that do not maintain ‘public confidence in government’. While the former definition encompassed ‘vocal or active opposition’, the new definition refers to the ‘promotion or advancement of ideology’. This move away from physical acts into ideas has been criticised as having the potential to infringe on the right to freedom of thought when there is no harmful consequence – Miriam Cates MP warned of its potential to ‘chill speech of people who have perfectly legitimate, harmless views’. Any organisations judged to fall within the remit of the new definition will be excluded from receiving funding or having an audience with any minister. If a group feels that their labelling as extremist is incorrect, they can challenge the ministerial decision before the courts – but there is no process for internal appeal. The chief executive of MEND, one of the organisations mentioned by Mr Gove, told the BBC he would pursue legal action if the organisation was labelled extremist. Brendan Cox, widower of Jo Cox MP, told The Guardian in the wake of the change that ‘extremism deserves to be treated seriously and soberly, not used tactically to seek party political advantage’.
On Wednesday, the House of Commons passed the Post Office (Horizon System) Offences Bill, which automatically quashes the convictions of hundreds of sub-postmasters wrongly convicted as a result of the Horizon IT scandal. This is the first time a piece of legislation has been used in order to vacate convictions en masse. On top of the £179m already paid to those wrongly convicted, a £600,000 lump sum has been made available to sub-postmasters wrongly convicted, and a £75,000 payment was approved for any who, though not convicted, suffered mistreatment. Though the subject of the Bill is uncontroversial, some lawyers have been left feeling uneasy about its methods; legal experts have warned that legislating to overturn convictions threatens to override the judicial process and could set a dangerous precedent.
In wider news
Voting in Russia’s presidential election began on Friday with ballots continuing to be cast over the weekend. Vladimir Putin is standing for his fifth term as president after amendments to the constitution were made in 2020 to allow a candidate to stand for fifth and sixth terms; another term will see him having served 30 years in power. Although a handful of candidates are running against him, others have been disqualified and many consider that those remaining pose no credible threat. Nations have been called upon by the Parliamentary Assembly of the Council of Europe to refuse to recognise and legitimate the results of this weekend’s election, which has been referred to as a ‘carefully staged legitimisation ritual’.
Five years after the proposal for regulation was first tabled, the EU voted in a plenary session on Wednesday to adopt the Artificial Intelligence (AI) Act, now expected to receive final approval within weeks. The Act categorises the risk level of various programs and imposes stepped restrictions accordingly, including banning any system of AI deemed to pose an ‘unacceptable risk’ (with exemptions for military and national security use). The response to the Bill has been mixed – while many are praising the EU for being the first to create a set of binding regulations on AI, the Act has been criticised both for being too burdensome and stifling competition in the tech sector and for its silence on crucial human rights matters such as biometric mass surveillance and predictive policing. Amnesty International has suggested that the failure of EU lawmakers to ban the export of AI incompatible with the new legislation will allow companies to profit from technologies the Union itself has deemed excessively dangerous and harmful, establishing ‘a dangerous double standard’.
An open letter signed this week by twelve Israeli human rights organisations has accused Israel of ignoring the provisional ruling delivered by the ICJ over the military campaign in Gaza. 25 NGOs have also sent a letter this week to President Joe Biden calling for the United States to end their ‘support for the ongoing catastrophic humanitarian situation’ by terminating the provision of weapons and security assistance. This comes as the President announced a floating pier would be built for aid to access Gaza while President of the EU Commission Ursula von der Leyen announced that a sea corridor would be opened into Gaza to supply food amid fears of an impending famine.
In the courts
On Tuesday, the ECHR published a judgment confirming that the right to conscientiously object to military service is protected by the right to freedom of conscience and religion under Article 9 of the European Convention on Human Rights and Freedoms. The applicant, Murat Kanatlı, was convicted for refusing to perform compulsory Turkish military service on the grounds that he conscientiously objected. The statutory provisions did not allow him to undertake any other kind of civilian service in substitution, and therefore there was no possibility a fair balance between his interests and the interests of society had been struck. Accordingly, the Court found a breach his rights under Article 9.
Two courts in Japan ruled last week that the country’s ban on same sex marriage was unconstitutional. In separate rulings, the Sapporo High Court ruled that the lack of recognition of same sex marriage in the Civil Code violated the constitution while the Tokyo District Court declared that the ban violated the dignity of the individual and was therefore unconstitutional. These are the latest in a slew of Japanese judgments over the last five years suggesting the that the legislature should recognise same sex marriage in order to honour the rights of citizens. Though polls suggest same sex marriage enjoys support from up to 70% of the population, the government have shown no indication that this is likely to occur in the near future.
Thirty-three Metropolitan police officers are suing the Met for trauma stemming from the Grenfell Tower fire. Civil claims are being pursued for psychiatric injury suffered during the tragic event in 2017 which killed 72 people. Mediation is ongoing and it is hoped an out of court settlement will be reached. The proceedings have commenced against the Met Police after it was announced last month by the Fire Brigades Union that the claims of firefighters responding to the tower fire had been settled for over £20m. It is expected that the second and final report of the Grenfell Tower Inquiry will be published this spring or summer and will inform the Met Police’s decision as to whether to bring criminal charges against any parties, including corporate and gross negligence manslaughter.
Nicaragua has filed an application to the International Court of Justice instituting proceedings against Germany for alleged violations of its obligations under the Genocide Convention and other norms of international law in relation to the Gaza Strip. Nicaragua’s application argues that by providing political, financial and military support to Israel and withdrawing its funding from the UN’s Relief and Works Agency for Palestine (“UNRWA”), Germany “is facilitating the commission of genocide and, in any case has failed in its obligation to do everything possible to prevent the commission of genocide”. The application calls for the ICJ to indicate provisional measures, including that “Germany shall immediately suspend its aid to Israel, in particular its military assistance including military equipment” and that “Germany must reverse its decision to suspend the funding of UNRWA as part of the compliance of its obligations to prevent genocide”. Germany is one of several countries, including the UK and the United States, which have suspended funding to UNRWA following allegations that some of its staff members were involved in the October 7 Hamas attacks.
In Russia, the human rights activist Orleg Orlov was sentenced to two and a half years in prison after he was found guilty of “repeatedly discrediting” the Russian armed forces. The sentence was ordered at a retrial. Orlov had initially received a 150,000 rouble fine (approximately £1,290) in October 2023. Orlov stated in his closing statement that “[w]e know the real reason why we’re being detained, tried, arrested, sentenced and killed. We are being punished for daring to criticise the authorities. In present-day Russia this is absolutely prohibited.”
In the courts
The High Court of Northern Ireland has disapplied sections of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (“the Legacy Act”) in a judgment handed down on Wednesday. The applicants in the lead case were relatives of individuals who had been killed during the Troubles and the victim of a shooting.
The court held that sections of the Legacy Act 2023 which provide conditional immunity from prosecution for crimes committed during the Troubles breached Articles 2, 3 and 6 ECHR and were incompatible with Article 2 of the Windsor Framework. Article 2 WF provides that the UK shall ensure that no diminution of a right set out in the Good Friday Agreement occurs as a result of the UK’s withdrawal from the European Union. The court considered that in enacting the immunity provisions, the UK government had acted incompatibly with EU law. It held that this could not have occurred if the UK had remained in the EU, and that the provisions therefore breached Article 2 WF. The court concluded that the immunity provisions should be disapplied [613].
The court made no order in relation to sections of the act which provide for the suspension of criminal investigations into Troubles-era offences and prevent new Troubles-related civil claims being brought. In relation to criminal investigations, the court found that the Legacy Act left sufficient scope for the Independent Commission for Reconciliation and Information Recovery to conduct an effective investigation as required under Articles 2 and 3 ECHR. In relation to the ban on civil proceedings, the court found that this provision did interfere with Article 6 rights, but that it was a lawful interference because it pursued the legitimate aim of promoting reconciliation.
In separate proceedings this week the High Court dismissed a challenge to a coroner’s ruling not to relist the inquest into the death of Patrick Duffy, an IRA man who was shot 14 times by undercover soldiers in Derry in 1978. A fresh inquest had been granted in March 2019 but was subject to various delays and was not relisted because it could not be completed before the 1 May 2024 deadline provided for in the Legacy Act.
This week the International Court of Justice held public hearings on the request for an advisory opinion regarding the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. This is in response to a vote by the United Nations General Assembly to request an advisory opinion on (in the words of the UN General Assembly):
What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?
How do the policies and practices of Israel referred to in [the] paragraph…above affect the legal status of the occupation and what are the legal consequences that arise for all states and the United Nations from this status?
In the UK
As the Russia-Ukraine war reached its second anniversary, the Home Office has published a statement of changes to the Immigration Rules closing the Ukraine Family Scheme. This scheme allowed UK residents to sponsor Ukrainian family members to come to the UK. Ukrainians currently in the UK will be able to apply for the Ukraine Extension Scheme, which will provide them with an additional 18 months’ permission to stay in the UK on the expiry of their visa. The Ukraine Extension Scheme will close on 16 May 2024. This means that the only remaining “bespoke” visa for Ukrainians outside the UK will be the Homes for Ukraine Scheme. The statement of changes has reduced the length of the Homes for Ukraine Scheme visa from three years to 18 months. It has also restricted who is eligible to be a sponsor. Previously, to be a sponsor you had to hold at least six months’ permission to stay in the UK from the date of the visa application, now you have to be a British or Irish citizen or have indefinite leave to remain in the UK.
In the courts
Shamima Begum has lost her appeal against the removal of her British citizenship. The Court of Appeal rejected the argument that in depriving Ms Begum of British citizenship, the Home Secretary was in breach of article 4 ECHR (prohibition of slavery and forced labour) by failing to consider that she was a potential victim of trafficking, to protect her from trafficking, to discharge legal obligations owed to potential victims of trafficking. The Home Secretary did not fail to take into account the risk of trafficking as a relevant consideration, and did not fail to consider Ms Begum’s de facto statelessness after the deprivation of her British nationality. The Court of Appeal also rejected arguments based on procedural fairness and breach of public sector equality duty.
Russia’s state prison service released a public statement on Friday reporting that opposition leader and vocal Kremlin critic Alexei Navalny has died in prison. Russian authorities are reportedly refusing to release the body, raising questions about the manner of his death. Navalny was sentenced in 2023 to 19 years imprisonment on a plethora of extremism charges, which he was serving in the Polar Wolf penal colony in the Arctic Circle. Lord Cameron, Foreign Secretary, said to broadcasters at the Munich Security Conference that ‘we should hold Putin accountable for this. And no one should be in any doubt about the dreadful nature of Putin’s regime in Russia after what has just happened’, while UK Security Minister Tom Tugendhat, in a post on X (formerly Twitter), has directly accused Vladimir Putin of murdering Navalny in order to silence him. Multiple judgments have been previously issued by the European Court of Human Rights finding that Navalny’s rights to fair trial, liberty and security, and freedoms of expression and association had been violated by Russian authorities.
The Home Office has announced its intention to create new offences relating to actions taken by attendees at protests. The plans include making it an offence to possess flares or pyrotechnics at a protest, to wear a face covering at a protest, and to climb on war memorials. The changes will be added as amendments to the Criminal Justice Bill. The Home Office has emphasised that the new rules are not a blanket ban on face coverings, and only apply where the protester’s intention is to conceal their identity. Police officers already have the power to order a person to remove any item which the officer reasonably believe is being worn wholly or mainly for the purpose of concealing their identity. The changes will mean that a protestor who flouts such an order could be subject to a £1,000 fine or a one-month custodial sentence. The Home Office also added their intention to amend the law to prevent protestors from “using the excuse of protest to avoid prosecution” for offences such as criminal damage.
In international news
Israeli Prime Minister Benjamin Netanyahu has ordered the evacuation of civilians from the city of Rafah in southern Gaza ahead of an anticipated offensive operation. Rafah had a pre-war population of approximately 280,000 people and is now believed to be sheltering an additional 1.4 million Palestinians, making it home to over half the population of Gaza. The plans have attracted widespread international criticism. US President Joe Biden said that Israel should not conduct a military operation in Rafah without a “credible and executable” plan to protect civilians. Irish Minister for Foreign Affairs Micheál Martin went further, stating that a military operation would “entail grave violations of international humanitarian law” and that the evacuation order “risks mass forced displacement”. Netanyahu has said that the offensive is necessary to achieve Israel’s strategic goal of eliminating Hamas and that the IDF will pursue a “combined plan for evacuating the population and destroying the [Hamas] battalions”.
In the Courts
On 5th February the Employment Tribunal handed down judgment in David Miller v University of Bristol. The Claimant had been dismissed from his position at the University following comments he made which included his view that Zionism is a “racist, violent, imperialist ideology premised on ethnic cleansing” which “has no place in any society”. The Tribunal held that the Claimant’s anti-Zionist beliefs constitute a protected philosophical belief under the Equality Act 2010. The Tribunal concluded that the University’s decision to dismiss the Claimant was a disproportionate interference with his Article 9 and 10 rights to freedom of conscience and freedom of speech, and that his dismissal was unfair and wrongful. The Tribunal emphasised that the Claimant’s views were worthy of respect in a democratic society because he was not fundamentally opposed to the idea of Jewish self-determination, but rather to “the exclusive realisation of Jewish rights to self-determination within a land that is home to a very substantial non-Jewish population”, and because he did not support violence as a means of opposing Zionism [237]. The Tribunal reduced the Claimant’s compensatory award for unfair dismissal by 50% because his behaviour in commenting on individuals students and student societies was deemed culpable and blameworthy and had contributed to his dismissal [472].
The government has confirmed the dateson which various significant changes to the Immigration Rules will come into effect:
On 14 March, the Immigration Rules will increase the minimum income for Family visas from £18,600 to £29,000. This will come into force from 11 April. The threshold will be increased in stages to £34,500 and finally to £38,700 by early 2025.
On 19 February, the Immigration Rules will be changed to remove the right for care workers and senior care workers to bring dependants (partners and children). This change will come into force on 11 March 2024.
On 14 March, the Immigration Rules will be changed to increase the earnings thresholds for those arriving on the Skilled Worker route, with the minimum threshold raising from £26,200 to £38,700. This change will come into force on 4 April 2024.
On 14 March, the Immigration Rules will be changed to remove the 20% going rate discount for occupations on the Shortage Occupation List, and temporarily add further occupations to the new Immigration Salary List, which will replace the current Shortage Occupation List.
The Home Affairs Select Committee has sent a letter regarding the living conditions aboard the Bibby Stockholm to Michael Tomlinson KC MP, the Minister for Countering Illegal Migration. The Bibby Stockholm is a barge used to accommodate asylum seekers awaiting decisions regarding their asylum claims.
The letter comes after the Committee members’ visit to the barge. It mentions, among other issues, that the inhabitants share cabins designed for one person with up to six people. The inhabitants reported limited access to GPs, mental health services, religious services for Muslims, and the local communities in Portland and the surrounding areas.
In international news:
The Secretary-General of the UN, António Guterres has appealed to countries which have suspended funding the UN agency assisting Palestinian refugees (UNRWA) to reconsider their decisions. Countries including the USA, UK, Germany, Italy, the Netherlands and others suspended funding after allegations emerged that 12 employees of the agency participated in the 07 October attack on Israeli civilians. The news agency Reuters carried a news report on allegations of involvement in 07/10 attack.
On Friday, A 17-judge panel at the International Court of Justice delivered an interim ruling imposing provisional measures on the state of Israel in order to alleviate the ‘catastrophic humanitarian situation’ in Gaza. Though stopping short of calling for the complete suspension of military operations requested by South Africa, the court ordered that Israel must do everything in its power to prevent the commission of acts of genocide. President of the Court, Judge Joan E Donoghue, emphasised in judgment that the court does not need to find that Israel has broken the Genocide Convention in order to impose provisional measures. Rather, they must only find that Israel’s acts are ‘capable of falling within’ the remit of the Genocide Convention, and that the right of Palestinians in Gaza to be protected from genocide was plausibly under threat. The Court held that this was the case, and that there was a risk of the situation deteriorating further before final judgment could be delivered.
16 members of the court, including Israel’s own Judge Aharon Barak, voted that Israel must take ‘immediate and effective measures’ to address the ‘adverse conditions of life’ in the Gaza strip. The Court also directed that Israel produce a report within one month on the actions it has taken to give effect to the order. Judge Donoghue concluded by reiterating that this interim ruling ‘in no way prejudges’ the jurisdiction of the court to deal with the case, or the merits of the case itself – a case which may take years to reach final judgment.
In Other News
During the ECHR’s annual press conference on Thursday, President of the ECHR Síofra O’Leary reminded the UK Government of its duty to comply with the Rule 39 injunction against flights to Rwanda. This comes as the House of Lords are due to discuss the Safety of Rwanda (Asylum and Immigration) Bill on Monday, a bill which clearly provides that it is at the discretion of ministers whether they comply with the injunction. The Rwanda Scheme has come under further scrutiny this week after it has been reported that the housing secured by the UK Government for refugees has been sold on or reserved for Rwandan nationals. An undercover reporter at openDemocracy, posing as an international investor, was told at a meeting with the sales team of the housing developer that the homes were ‘not for refugees’.
The UK and the US jointly launched a second set of air strikes on Houthi targets in Yemen on Monday night. As ships affiliated with Israel and the West travelling through the Red Sea trade route continue to be attacked, the UK Government has released a statement on the legality of military action against Houthi targets. A letter sent by the Houthi-controlled Foreign Affairs Ministry to the UN’s humanitarian coordinator for Yemen on Wednesday has ordered US and British nationals, including all humanitarian aid workers, to leave the country within one month. The removal of aid workers is likely to cause further deterioration of the fragile humanitarian situation in Yemen, with opposition leader Keir Starmer asking what steps are being taken to materially support Yemenis who have already “suffered terribly as a result of that country’s civil war”. UK Foreign Secretary Lord Cameron is planning to visit the region in the coming days.
Commentators are claiming a ‘blow to the rule of law’ as Hong Kong’s Court of Final Appeal overturned the acquittal of pro-democracy protester and human rights barrister Chow Hang-tung last week. Chow had originally been convicted of ‘inciting others to take part in an unauthorised assembly’ following her involvement in organising and hosting the Tiananmen Vigil in 2021, a vigil which had been held annually for the last thirty years. Despite being later acquitted, the prosecution successfully appealed the decision. The Court of Final Appeal found by a 3-2 majority that the prohibition of the vigil had been a lawful and proportionate restriction of freedom of assembly, thereby reinstating Chow’s conviction. She remains in a maximum-security prison and is now facing a potential life sentence under a separate national security charge.
In the Courts
The High Court held this week that the Home Secretary’s withholding of decisions on leave to remain for victims of trafficking was in breach of articles 8 and 14 ECHR. The Home Office had neglected to issue decisions on leave to remain for victims of trafficking who had applied for asylum while the seminal case of R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 Admin progressed through the upper courts. The High Court and Court of Appeal had found in KTT that in order for the United Kingdom to comply with its duties under the European Convention Against Trafficking, confirmed victims of trafficking who are claiming asylum in the UK (at least in part for fear of re-trafficking) must be granted leave to remain while their asylum case is being decided. The Home Secretary was seeking to appeal this decision, though permission to appeal to the Supreme Court was eventually refused in October 2022.
Judgment was handed down on Tuesday in the case of XY v Secretary of State for the Home Department [2024] EWHC 81 (Admin), where a confirmed victim of trafficking had been denied a decision on his leave to remain while his asylum case was decided for over 18 months. Consequently, the claimant was unable to rent a property, open a bank account, or otherwise fulfil the necessary prerequisites to participating in society. Lane LJ held that this amounted to a breach of Article 8(1) ECHR, the right to respect for private and family life. A breach of Article 14 (protection from discrimination) was also found on the grounds of the differential treatment between trafficking victims who had applied for asylum and those who had not, given that both groups had equal need for a decision on leave to remain.
As of 30th January 2023, decisions on leave to remain for trafficking victims are now made according to the Nationality and Borders Act 2022.
And do listen to the latest episode of Law Pod UK, in which Rachel Marcus and Marcus Coates-Walker of 1 Crown Office Row join Lucy McCann to explore the principle of the scope of duty in the context of clinical negligence claims.
The Post Office is being investigated by the Metropolitan Police for potential fraud offences committed in what has been termed the Horizon IT Scandal. This investigation builds on a pre-existing one into potential offences of perjury and perverting the course of justice in relation to prosecutions carried out by the Post Office. Between 1999 and 2015 hundreds of sub-postmasters were prosecuted by the Post Office for alleged theft, fraud, and false accounting, despite evidence having come to light in 2010 that the Post Office’s Fujitsu accounting systems were faulty. The prosecutions resulted in over 700 sub-postmasters being handed criminal convictions as well as being forced to pay back apparent shortfalls. A 2019 high court case overturned some of these convictions and led to partial victim compensation but the Post Office continues to oppose appeals. In the wake of a new ITV drama concerning the scandal, 50 new potential victims have come forward. Rishi Sunak has signalled that the government is taking steps to exonerate victims of the faulty technology.
Other nations have come under pressure to support South Africa’s case against Israel at the ICJ, which accuses the wartime state of committing genocide against Palestinians. The application stated that Israel’s recent actions have violated the 1948 Genocide Convention “because they are intended bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group”. The White House has criticised South Africa’s accusation as “meritless … counterproductive and completely without any basis in fact whatsoever.”
The Irish government has announced it will challenge the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 in the European Court of Human Rights. The Act, which came into force in September 2023, was created to address the ‘legacy of the Northern Ireland Troubles’. The legislation has been controversial because it allows individuals accused of Troubles-related offences to be granted immunity in return for cooperation with the newly-formed Independent Commission for Reconciliation and Information Recovery (ICRIR). The Act is already facing a number of legal challenges in the Belfast High Court. In this latest challenge, the Irish government will ask Strasbourg whether the Act is compatible with the UK’s obligations under the European Convention on Human Rights.
Meanwhile, in France, new legislation has been passed which significantly toughens French immigration rules. The bill went through several iterations, with the final version including much harsher provisions than originally proposed. It includes measures for reducing access to social security benefits for immigrants, migrant quotas, and toughened rules for family members of migrants. The bill has been criticised by Human Rights Watch for putting ‘the rights of foreigners at risk.’
In the US, Donald Trump has been disqualified from running as a presidential candidate in Colorado and Maine. The Colorado Supreme Court was the first state to rule that Donald Trump should not be allowed to run for president because of Section 3 of the 14th Amendment, which disqualifies people who engage in ‘insurrection or rebellion’ from holding any office. The Colorado ruling has been appealed, and the Supreme Court is expected to decide whether to intervene on the issue early this year.
In other news
Before the Christmas break, the Court of Appeal ruled that the government’s approval of the planned Sizewell C nuclear plant in Suffolk was lawful. The legal challenge was brought by Together Against Sizewell C (TASC), who argued the government had failed to consider the need for a water supply when it approved the nuclear plant in Suffolk. The Court of Appeal disagreed, holding it was logical for the government to consider the issue of water supply separately from the plant itself. The protest group has said it would continue to fight against the development.
Fighting in Gaza paused this weekend, as Hamas and Israel agreed to a temporary, four-day reprieve. Twenty-six hostages have been released by Hamas and 39 Palestinian detainees held in pre-trial detention have been allowed to return to the West Bank. Under the terms of the agreement negotiated by Qatar, a total of 50 Israeli hostages and 150 Palestinian detainees are meant to be exchanged between the parties. The temporary pause in fighting has also allowed much-needed humanitarian assistance and fuel to reach the Gaza strip.
The Covid-19 Inquiry heard evidence this week from Sir Patrick Vallance (former Government Chief Scientific Adviser), Professor Sir Chris Whitty (Chief Medical Officer for England) and Professor Sir Jonathan Van-Tam (former Deputy Chief Medical Officer for England). In his statement, Sir Patrick Vallance said the Government’s scientific advisers were not consulted on Rishi Sunak’s Eat Out to Help Out scheme and ‘didn’t see it before it was announced.’ This undermines written comments made by Rishi Sunak to the Inquiry, where he said that no one raised concerns with him about the policy. Meanwhile, Sir Chris Whitty said in March 2020, ministers mistakenly understood ‘herd immunity’ to be a government policy objective, and he tried to stop the idea from being discussed publicly because herd immunity would have been ‘inconceivable.’ The inquiry will hear further evidence this coming week.
Meanwhile, Ian Fry, the UN’s Special Rapporteur on the promotion and protection of human rights in the context of climate change, has recently condemned the jail sentences for two Just Stop Oil protesters who scaled a bridge on the Dartford Crossing last October. The activists were given two and three year prison sentences for causing a public nuisance, and were refused permission to appeal to the Supreme Court on the basis that their sentences met the ‘legitimate aim’ of deterring others from similar offending. Ian Fry raised concerns about the length of the activist’s sentences, and the political flow-on effect the sentences could have on activists expressing concerns about the environmental crisis ‘and the impacts of climate change on human rights and on future generations’. Fry said the new Public Order Act was a ‘direct attack on the right to the freedom of peaceful assembly.’ There has not been any response from the Government.
In other news
The Information Commissioner’s Office (ICO) said this week that some companies are not giving users ‘fair choice’ about the use of cookies. Cookies are small files that store on your computer and collect analytical data about website usage. They are often used to personalise ads based on a user’s browsing history. The law regulating the use of cookies (the Privacy and Electronic Communications Regulations) will be altered by the proposed Data Protection and Digital Information Bill, which is due its third reading in the House of Commons on 29 November 2023. Under the proposed reforms, some information – for improving website service or security – will be collected without consent, resulting in fewer ‘pop-ups’ requesting the user consent to cookies. The ICO has not yet named the companies it thinks are falling short of current guidance, but will provide an update in January.
Meanwhile, the National Women’s Prisons Health and Social Care Review was published this week. Established in 2021, the Review is intended to improve health and social care outcomes for women in prison and upon their release. Conducting a review of the 12 women’s prisons in England, the Review found healthcare across women’s prisons to be ‘inconsistent’ and not always ‘gender specific’ or sensitive to women with protected characteristics. It suggests ‘fabric improvements’ across the women’s estate should be made.
Finally, the independent review into Lancashire Police’s handling of Nicola Bulley’s death was also released this week. Bulley went missing in January, and was found three weeks after her disappearance in the River Wyre. Amongst other findings, the report says Lancashire Police should have been better prepared to communicate sensitive medical information about Bulley in a more ‘carefully constructed manner’.
In the Courts
The “Bille and Ogale Group Litigation”. Mrs Justice May handed down the latest judgement in the ongoing litigation between communities and individuals of the Niger Delta, and the oil giant, Shell. The case concerns oil contamination affecting two regions of the Niger Delta – the Bille and Ogale regions. In her judgement, Mrs Justice May held the claimants could bring new causes of action under the African Charter and Nigerian Constitution, which recognise ‘as a fundamental right the right to a clean and healthy environment’. There is no limitation period for human rights claims brought under the Nigerian Constitutional framework. Mrs Justice May also refused the Defendant’s application to strike out the claims. The case continues.
In Independent Workers Union of Great Britain (“IWGB”) v Central Arbitration Committee (“CAC”) and another [2023] UKSC 43the Supreme Court held that Deliveroo drivers are not in an employed relationship for the purposes of Article 11 ECHR (freedom of assembly and association). The case concerned Deliveroo riders in London who became members of the IWGB and sought formal recognition of the Union by Deliveroo for collective bargaining on behalf of Deliveroo drivers in Camden and Kentish Town. The Supreme Court stated that the right to form a trade union arises in the context of an employment relationship. Applying this to the facts of the case, the CAC rightly found there was no employment relationship between Deliveroo and its riders, as the riders can appoint a substitute to take their job, can work or not as convenient to them, and are not prevented from working for Deliveroo’s competitors. Thus, in this case, the riders are unable to rely on the trade union rights conferred by Article 11. The appeal was dismissed.
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