Archives For Human rights

Court of Appeal grants permission on Article 3 and 8 health cases

Important grant of permission from the Court of Appeal in six linked cases addressing issues arising from D and N cases at Strasbourg and subsequent treatment by the UK courts. For some legal background see this earlier blog post. In granting permission Maurice Kay LJ says:

I have indicated that I propose to grant permission to appeal in this case. I do so for a number of reasons. The first is that I accept the submissions on behalf of the applicants that there are arguable issues as to the precise scope of D and N, given the factual circumstances in which those decisions were made. They concern effectively illegal entrants who can properly be described as “health tourists”. None of these six applicants falls into that category, although BA has never enjoyed lawful status in this country.

The second point is that not only are there features in the cases such as lawful residence prior to diagnosis and treatment, or long and mainly lawful residence, there is room for clarification of the criterion of exceptionality which derives from D and N. For example, virtually certain death within two weeks on return following a period of lawful and sometimes lengthy residence in this country may be susceptible to accommodation within exceptionality. It may be that Lady Hale’s judgment in N permits such an approach. In any event it seems to me that there is room for a decision providing clarification.

My colleague Rebecca Chapman is acting for one of the appellants and Duran Seddon for another.

Shahzad (Art 8: legitimate aim) Pakistan [2014] UKUT 85 (IAC)

Like a bad itch that it can’t help but scratch, the tribunal returns again to the subject of Article 8 and ‘the proper approach’. Regretfully the distasteful, injudicious and simply impolite phrase “a run of the mill case” is again deployed, albeit this time in the context of a student rather than a pensioner and his wife. The Home Office appeal succeeds against an allowed First-tier Tribunal determination. Headnote as follows: Continue Reading…

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It is sad when a judge tasked with deciding whether a British pensioner should live out his last days with his wife or without comments that

this was a very run of the mill case

Maybe for the judge. In which case the judge should consider his or her position as a judge. It certainly is not ‘run of the mill’ for those affected. Unfortunately, this patrician insouciance when determining other people’s lives infects many who work in immigration law.

In this case Cranston J goes on to comment that the pensioner concerned only “relatively recently became a British citizen”. He is but a ‘Plastic Brit‘, as The Daily Mail would say.

Continue Reading…

SD (military service – sexual identity) Turkey CG [2013] UKUT 612 (IAC)

Official headnote:

(1) All Turkish males are required to undergo military service but exemption can be granted on the grounds of physical or mental disability which includes “sexual identity disorder”.

(2) Homosexuality is regarded by the Turkish army as a sexual identity disorder but the perception of homosexuality in Turkey is not reduced to a person’s sexual preference but is informed by an assessment of his whole personality including his outward appearance and behaviour. It is associated with the passive role which is seen as unmanly whereas taking the active role does not attract the same disapproval and is not considered to undermine the essence of manliness.

(3) The exemption process for determining whether a recruit is entitled to exemption generally includes intrusive requirements which do not properly respect the human dignity of someone whose sexual identity would qualify him for exemption such that it can properly be categorised as degrading and involving a real risk of a breach of article 3.

(4) If during his military service a recruit (whether he has not sought exemption or has been refused) is discovered or is perceived to be homosexual as understood in Turkey, there is a reasonable degree of likelihood of ill-treatment of sufficient severity to amount to persecution on the basis of his sexual identity and there is no sufficiency of protection. The risk of such discovery or perception arising during his service will require a fact sensitive analysis of an individual’s particular circumstances including his appearance and mannerisms, the way in which he describes his sexual identity, the extent to which he fits the stereotype of a homosexual as understood within Turkish society and the extent to which he will conceal his sexual identity for reasons not arising from a fear of persecution.

(5) Any such risk likely to arise during service is not negated by the fact that there is an exemption process as that process itself carries a real risk of a breach of article 3.

(6) MS (Risk- Homosexual) Turkey CG [2002] UKIAT is no longer to be regarded as providing country guidance.

Interesting example of the tribunal getting stuck into anthropological issues in order to determine risk. However, I doubt I’m alone in feeling rather unhappy about the requirement the Upper Tribunal here imposes for asylum judges to assess “an individual’s particular circumstances including his appearance and mannerisms, the way in which he describes his sexual identity, the extent to which he fits the stereotype of a homosexual as understood within Turkish society and the extent to which he will conceal his sexual identity for reasons not arising from a fear of persecution.” It sounds pretty intrusive and demeaning and there is considerable potential for lawyers and judges to humiliate the individuals concerned, whether by accident or otherwise. It is also almost an invitation to dismiss cases because the individual concerned is the wrong sort of gay.

DRC map

In R (on the application of P (DRC) v Secretary of State for the Home Department [2013] EWHC 3879 (Admin), handed down on 9 December 2013, Mr Justice Philips held that P would be at risk of treatment in breach of Article 3 of the ECHR if deported to the Democratic Republic of the Congo. He stated that he reached this conclusion “with considerable regret” [paragraph 54] but was persuaded by the objective material. The risk does not extend to failed asylum seekers for whom the position remains the same as in BK (Failed Asylum Seekers) DRC CG [2007] UKAIT 00098. Continue Reading…

blood transfusion

Human rights medical treatment expulsion cases are perhaps some of the most stark, most difficult and most challenging cases faced by a human rights lawyer. They concern life itself and will often involve a miserable, painful death if unsuccessful. The claimant and his or her family will be understandably desperate to succeed.

Politicians, civil servants and even judges characterise these cases as ‘health tourism’ and reply that individual cases are very sad but the NHS cannot provide universal health care for the entire world.

Human rights lawyers instructed by those reliant on medical treatment in the UK who resist removal face the difficult task of attempting to achieve a good outcome for the client in a very hostile environment amid some very unhelpful case law.

However, recent developments offer hope to some individuals. Continue Reading…

blood transfusion

The Court of Appeal has held that a different test applies to children in human rights health cases. These difficult cases involve a person seeking to remain in the UK in order to receive life-saving medical treatment not available in his or her home country. The recent case of Rose Akhalu is one well known example and we discussed this type of challenge recently here on Free Movement.

In a new judgment, R (on the application of SQ (Pakistan) & Anor) v The Upper Tribunal Immigration and Asylum Chamber & Anor [2013] EWCA Civ 1251 the Court of Appeal holds that the Article 3 high test of exceptionality does apply in cases involving children, but that the threshold for meeting that test may nevertheless be lower: Continue Reading…

CRAZY May

Theresa May spent over a year saying her new immigration rules would weaken Article 8 rights for “foreign criminals” but conceded the point within a day at the Court of Appeal.

MF (Nigeria) v SSHD [2013] EWCA Civ 1192 makes clear that the Immigration Rules governing deportation now provide a ‘complete code’ for the Article 8 rights of foreign criminals. But they do not change the substantive law relating to Article 8 proportionality assessments and do not create a legal test of exceptionality for succeeding where the Rules are not met.

Continue Reading…