Archives For Article 3

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A child referred to in court only as “Maya” is six years old. She has Spina Bifida and is very severely disabled. She also has severe learning difficulties and extremely complex needs. For the last five years she has received highly specialised medical treatment and has attended a special school in Enfield which provides her with a very high level of support. The situation of Maya and her family is a hard one.

It is a situation made all the harder by the twin facts that Maya is Algerian and that the Home Office want to send Maya back there. Continue Reading…

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.

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…

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…

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…

The case of Rose Akhalu (health claim: ECHR Article 8) [2013] UKUT 400 (IAC) offers a glimmer of hope to some migrants dependent on health care in the UK facing removal. These cases can involve people being sent to their country of origin to die an avoidably early and unpleasant death. It is an extraordinarily difficult and emotive subject and has been covered here on this blog before (GS (India) and medical treatment cases). Continue Reading…

Round up

Free Movement — 
Round up

Round up

There are some detailed blog posts to come on some of the more important things that happened in the last fortnight, but for those who missed their beloved Free Movement updates here is a brief round up of developments I’ve spotted looking through my emails on my return from holiday. In no particular order…

The Home Office’s self inflicted wounds caused by bad legislative drafting and rushed legislation continued with a rare example of the Court of Appeal upholding a major legal ruling by the Upper Tribunal, that of Ahmadi on section 47. As previously discussed this potentially causes huge problems down the line for the Home Office as setting later lawful removal directions will often trigger a further right of appeal. The more normal pattern was resumed with a grant of permission to appeal to the Court of Appeal to the Claimants in the never ending Zimbabwe Country Guidance litigation.

The universal policy of granting separated children three years Discretionary Leave without regard to their welfare was held by the High Court to be unlawful.

A new Immigration Act was announced in the Queens Speech. Details are sketchy but look ominous. The Government briefing says the main elements of the Bill will be:

Access to services

  • The Bill would enable tough action against businesses that use illegal labour, including more substantial fines.
  • The Bill would regulate migrant access to the NHS, ensuring that temporary migrants make a contribution 
  • The Bill would require private landlords to check the immigration status of their tenants
  • The Bill would prevent illegal immigrants from obtaining UK driving licences

Enforcement and appeals

  • The Bill would ensure that only those cases that raise the most important immigration issues would have a right of appeal.
  • The Bill would close a number of gaps in enforcement officer’s powers.

Article 8

  • The Bill would contain provisions to give the full force of legislation to the policy we have already adopted in the Immigration Rules.
  • The courts would therefore be required to properly reflect the balance given to the public interest when ruling on immigration cases.

There’s a good Adam Wagner article in the New Statesman on the rebalancing of Article 8.

Corum Children’s Legal Centre issued a new report called Happy Birthday? Disputing the age of children in the immigration system. The report includes some simple, practical and implementable changes to the existing age assessment process, which is currently harming rather than protecting too many young people.

Judgment in Alarape and Tijani C-529/11 was finally given by the Court of Justice of the European Union on the issue of whether third country nationals who are family members of a Union citizen resident under Article 12 of Regulation No 1612/68, as amended by Directive 2004/38, build up an entitlement to permanent residence. Deciphering CJEU judgments is always a little trying but it doesn’t look like a helpful judgment at first glance.

The latest judgment in the Zambrano saga was also handed down by the Court of Justice, the case of Ymeraga C-87/12. It is a significant case in a legal sense but offers little by way of practical guidance on the meaning of “the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen”.

The Identity and Passport Service is to be renamed Her Majesty’s Passport Office, a title that emphasises the Government’s recent eagerness to assert prerogative powers over the issuing of passports. Perhaps because they seem to already have lost such prerogative powers over immigration control in the Supreme Court judgment in Alvi?

In the case of Khatoon v The Entry Clearance Officer Islamabad [2013] EWHC 972 (Admin) paragraph 27 of the Immigration Rules was held by the High Court not to require the Secretary of State (or an Entry Clearance Officer) to treat a person as if they were a child when in fact they were not for human rights and child best interests purposes.

There were a couple of interesting immigration articles on Open Democracy, one by Dr Frank Arnold on the utterly unfounded allegation of self scarring in Tamil torture cases and another on observations of bail hearings.

More soon…

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No Removals to Cyprus

Claire Physsas — 

flag-of-cyprus-europeThe Court of Appeal in the UK has very recently granted stays preventing the removal of asylum-seekers to Cyprus under Dublin II. The proceedings have been stayed pending the appeal against the judgment in EM (Eritrea) & Ors v SSHD [2012] EWCA Civ 1336.

The cases are:

- MD (Guinea) v SSHD C4/2012/3166 (Order granted on the 7th March 2013)

- ZJ (Iran) v SSHD C4/2012/2988 (Order dated the 8th March 2013)

- FJ (Iran) v SSHD C4/2012/3361 (Order dated the 14th March 2013)

EM concerns Dublin returns to Italy. In that case, the appellants challenged their removal to Italy on the basis that the conditions there for asylum-seekers and refugees breached Article 3 of the European Convention on Human Rights (prohibition of torture).

The Court of Appeal dismissed the appellants’ challenge because they had not shown there were systemic deficiencies in the conditions for asylum-seekers and refugees in Italy. It was held that:

62. [T]he sole ground on which a second state is required to exercise its power under article 3(2) Regulation 343/2003 to entertain a re-application for asylum or humanitarian protection, and to refrain from returning the applicant to the state of first arrival, is that the source of risk to the applicant is a systemic deficiency, known to the former, in the latter’s asylum or reception procedures. Short of this, even powerful evidence of individual risk is of no avail.

The judgment in EM impacts upon Dublin cases generally.  This is because it confirmed that the test in challenging removal to a Dublin State is to show systemic deficiencies in the general conditions, not ‘simply’ a real risk of a breach of ECHR rights.

Further, individual risk is insufficient to challenge removal.

The Court considered that this was the test set out by the Court of Justice of the European Union (“CJEU”) in NS (European Union law) [2011] EUECJ C-411/10.

The Court proceeded to grant a stay on the removal of the appellants in that case pending their applications for permission to appeal to the Supreme Court.

In making the Order, the Court seemed to doubt the correctness of its own judgment by stating that:

[I]t should be for the Supreme Court to decide whether to grant permission to appeal, but this Court recognises it as problematical that NS and MSS may pull in different directions and that, whilst NS binds the Court, so does the EU principle of not undercutting ECHR rights such as those articulated in MSS.

NS and MSS v Belgium and Greece – 30696/09 [2011] ECHR 108 both concerned the removal of asylum-seekers to Greece under Dublin II.

In MSS the European Court of Human Rights found that the conditions for asylum-seekers in Greece breached Article 3 ECHR. In turn, Belgium had violated Article 3 by returning an asylum-seeker to Greece under Dublin II. The Court held:

[T]he existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention” (§35).

NS was a referral to the CJEU by the Court of Appeal on points of law regarding the application of the Dublin II Regulation. The Court endorsed the approach in MSS and held:

[I]f there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision” (§86).

Permission to appeal was granted by the Supreme Court in EM on the 6th March 2013.

The Court of Appeal’s recent stays in the Cyprus cases shows that EM has implications for Dublin cases generally and not just for returns to Italy.

In the Cyprus cases, an Article 3 ECHR challenge is made. Removal is also challenged under Article 5 ECHR (right to liberty and security) and Article 13 (right to an effective remedy.

Clarification of the test by the Supreme Court would shed light on the test for other ECHR rights.

A further issue is whether the systemic deficiencies test (if correct) applies where there is an individual risk to the asylum-seeker, for instance a suicide risk.

The High Court has previously decided that there is no risk of refoulement and/or breach of Article 3 ECHR rights for asylum-seekers in Cyprus, in . However the applicants are relying on fresh evidence, which post-dates that judgment.

We are here dealing with a fast developing area of law, which is in part a response to the changing fortunes of the European Union.

This was the observation of Jackson LJ in AB (9th January 2013), which concerned Dublin returns to Italy. The Court of Appeal in that case has granted permission to appeal against an order of the High Court refusing to grant stays pending EM.

In the Cyprus cases, the SSHD has applied to the Court of Appeal for the Orders to be discharged.

Claire Physsas is Counsel for the Applicants, instructed by Duncan Lewis Solicitors.

Translation of Singh v Belgium

Colin Yeo — 

After seeing the Strasbourg case of Singh v Belgium (33210/11) highlighted here on Free Movement, Balkrishna Gurung of Howe + Co Solicitors (with assistance from David Saldanha) has commissioned a translation and offered to share it with blog readers. Many thanks!

The key paragraphs concerning the authentication of the documents are at  paragraphs 101 to 105. The commissioned translator is not familiar with the house style of Strasbourg, but it is clear that the failure to attach any weight to the documents submitted led to a finding that the national authorities had breached the right to an effective remedy protected by a combination of Articles 3 and 13 of the Convention.

Where document authentication by a national authority would be ‘easy to do’ and is highly material to the outcome, as in this case, the ‘careful and rigorous investigation’ always required of national authorities in protection cases requires that authentication process to take place, otherwise effective protection is not given against treatment contrary to Article 3.

The recent case of the Afghan interpreter who had been blown up on active service with UK forces provides a striking example of the total passivity of the UK Border Agency when it comes to verification, even where it would be simple to do. Media pressure happily brought about a good outcome to that case, but that level of interest is very rare. The Singh case clearly requires a rethink of the old and much criticised Tanveer Ahmed tribunal case, which pushes the burden to the claimant to authenticate any document relied on. Assuming that the UK Border Agency remains unwilling and incapable of even basic investigations or verification, the solution would seem to lie in barring the Agency from asserting that easily verifiable documents are inauthentic and in a new statement of principle from the tribunal disavowing or at least modifying Tanveer Ahmed.