Expert reports in human rights cases must be up to scratch

In HK, HH, SK and FK v Secretary of State for the Home Department [2017] EWCA Civ 1871 the Court of Appeal found that asylum seekers could be returned to Bulgaria under the Dublin III Regulation. Removal would not violate the appellants’ Article 3 rights, despite medical reports on their poor mental health and NGO evidence on the poor treatment of asylum seekers by the Bulgarian authorities. Two aspects of the case are valuable for lawyers representing asylum seekers. First, Lord Justice Sales made some promising obiter comments on the (widening) scope of Article 3. Second, the Court of Appeal reiterated the importance of NGOs complying with expert evidence requirements. Challenging removal …

1st December 2017 By Clare Duffy

Tribunal rejects softer Strasbourg approach to Article 3 medical cases

When is it a breach of Article 3 to remove someone with a severe, possibly terminal, medical condition to a country where they will not receive the care they need? When they’re days away from death? When it will halve their lifespan? What level of pain is required? What constitutes inhuman and degrading treatment? The answers to these questions cry out for some humanity, but the history of medical Article 3 cases has instead been cruel and dispiriting. In EA & Ors (Article 3 medical cases – Paposhvili not applicable) [2017] UKUT 445 (IAC) the Upper Tribunal keeps even the glimmer of hope offered us by the European Court of…

20th November 2017 By Chai Patel

High Court: potential homelessness not a justification for detention

The High Court in R (MS) v Secretary of State for the Home Department [2017] EWHC 2797 (Admin) has found that in circumstances where a person would have no option but to stay on the streets after release from detention, the Home Office has a duty under Article 3 of the European Convention on Human Rights to provide them with suitable bail accommodation with reasonable speed. Potential homelessness cannot be a reason for prolonged detention. The factual background MS, an alcoholic, had been convicted of various criminal offences in Poland. In November 2015 he came to work in the UK but was “controlled by men who took most of his wages…

15th November 2017 By Paul Erdunast

BBC Panorama exposes the culture of abuse in immigration detention

Panorama, Undercover: Britain’s Immigration Secrets is required viewing for anyone interested in immigration in the UK. It is also deeply uncomfortable viewing. It documents an undercover investigation into Brook House, one of the UK’s 13 Immigration Removal Centres. The episode shows detainees subjected to severe violence, taunting, and mistreatment. A widespread culture of disdain towards the detainees among staff permeates the detention centre. The investigation sheds light on alarming issues surrounding immigration detention, which have been subject to criticism and legal challenge since the beginning of the proliferation of detention in the UK. This tweet from the Panorama account gives a sense of the programme: WATCH: undercover footage shot by…

6th September 2017 By Thomas Beamont

Article 3 and the extradition of a British national to Taiwan

The Supreme Court in the case of the Lord Advocate (representing the Taiwanese Judicial Authorities) (Appellant) v Dean (Respondent) (Scotland) [2017] UKSC 44 considered the first occasion on which Taiwan has sought to extradite a British national. On appeal from the Appeal Court of the High Court of Justiciary (‘the Appeal Court’) the Supreme Court considered the correct test for Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) within extradition cases and, in doing so, it reviewed the prison conditions that may reach the Article 3 threshold. This case may extend beyond extradition cases and could be useful guidance for other cases including…

11th August 2017 By Chris Desira

Ukrainian prison conditions breach Article 3 but draft evaders can still be sent back says Upper Tribunal

Official headnote: 1. At the current time it is not reasonably likely that a draft-evader avoiding conscription or mobilisation in Ukraine would face criminal or administrative proceedings for that act, although if a draft-evader did face prosecution proceedings the Criminal Code of Ukraine does provide, in Articles 335, 336 and 409, for a prison sentence for such an offence. It would be a matter for any Tribunal to consider, in the light of developing evidence, whether there were aggravating matters which might lead to imposition of an immediate custodial sentence, rather than a suspended sentence or the matter proceeding as an administrative offence and a fine being sought by a…

9th March 2017 By Colin Yeo

Strasbourg revisits approach to serious illness, medical treatment and Article 3

On 13 December 2016, the Grand Chamber handed down its much-awaited decision in Paposhvili v Belgium (Applcn No. 41738/10). The decision: (1) clarifies, widens and provides guidance on the circumstances in which an alien suffering from a serious illness can resist removal under art 3 ECHR; and (2) gives rise to serious questions as to whether the present UK jurisprudence is in step with the standards set in Strasbourg. The circumstances of the case The Applicant, Mr. Georgie Paposhvili, was a Georgian national, born in 1958, who had been living in Belgium with his wife and children, from November 1998. He claimed (and was refused) asylum in Belgium. From December…

27th December 2016 By Duran Seddon

Kidney transplant patient loses human rights immigration case

Hareef, R (On the Application Of) v Secretary of State for the Home Department [2016] EWHC 873 (Admin) is a case that was heard in the wake of GS (India), & Ors v SSHD [2015] EWCA Civ 40, which concluded that in asylum claims, Article 3 can have no real application in respect of an asylum seeker suffering from a serious medical condition who will not be able to acquire the necessary medical treatment back home if deported. Like the claimants in GS, Mr Hareef suffered from chronic renal failure. On arriving from Afghanistan in 2009, he collapsed and was taken to hospital and received dialysis. His application for asylum…

29th April 2016 By Chris McWatters

Article 3 medical treatment cases not to be reconsidered by Supreme Court

The case of N v SSHD will stand: the Supreme Court has refused permission to appeal (see p9) from the Court of Appeal in the linked medical treatment cases on Article 3 ECHR with the words: With regret, the Panel can foresee no reasonable prospect of this Court departing from N v SSHD. In the Court of Appeal the cases were GS (India), EO (Ghana), GM (India), PL (Jamaica), BA (Ghana) & KK (DRC) v The Secretary of State for the Home Department [2015] EWCA Civ 40. The four whose appeals were dismissed by the Court of Appeal and who suffer from end stage kidney disease now face an early and unpleasant death within weeks following…

13th August 2015 By Colin Yeo

No broadening of Article 3 test in health cases

Unfortunately the Court of Appeal’s judgment in the Article 3 health test cases in GS (India) & Ors v The Secretary of State for the Home Department [2015] EWCA Civ 40 (30 January 2015) does not change very much for migrants with serious health conditions seeking to remain in the UK.

4th February 2015 By Abigail Smith

Home Office presses to remove severely ill 6 year old child

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.

27th May 2014 By Colin Yeo

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…

8th April 2014 By Colin Yeo

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…

2nd January 2014 By Colin Yeo

Criminals deported to DRC are at risk says High Court

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.

10th December 2013 By Abigail Smith

Human rights, expulsion and medical treatment cases: a review

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…

27th November 2013 By Colin Yeo

Test in health human rights removal cases different for children

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…

23rd October 2013 By Colin Yeo

Medical treatment human rights cases and Rose Akhalu

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).

11th September 2013 By Colin Yeo

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…

21st May 2013 By Free Movement

No Removals to Cyprus

The 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…

28th March 2013 By Claire Physsas

Translation of Singh v Belgium

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…

14th November 2012 By Colin Yeo

Freedom from Torture: A risk category in itself?

Human Rights Watch and a proxy terror front group -Freedom from Torture, clamored that the flights should be suspended because some ‘ethnic’ Tamils were subjected to cruel treatment in the island nation. This is what the Sri Lankan government’s own Ministry of Defence has to say about the charity Freedom for Torture (FfT). The link to the relevant Ministry of Defence website page can be found here. In addition to the many resources referred to in recent posts relating to the charter flight to Sri Lanka this week, it may be useful for those drafting JR grounds to note that those who have been assessed and/or examined by FfT may fall within a further risk…

17th September 2012 By Kezia Tobin

What is the magic number?

How many torture claims from returnees to Sri Lanka are necessary before the UKBA and the Courts decide that the time has come for review? This graph (click link to see further details) attempts to collate the data from recent reports and compare it against a broad pattern of removals and shows a correspondence between increased returns in 2011 and increased torture claims documented by credible and reputable organisations.  Since the last country guidance was promulgated there have been 69 claims of torture in respect of those who were returned or chose to return to Sri Lanka.  69 is a high figure and so surely the time has come to take stock….

17th September 2012 By Shivani Jegarajah

Charter flight(s): materials in support of claims against removals

Below is a list of materials which can be used in connection/in support of  claims against decisions to remove on the charter flight(s) bound for Sri Lanka next week. The list will be updated as and when relevant materials are published and/or circulated, so watch this space.  Not a comprehensive list, but a start: – Letter from TSol to the Administrative Court dated 14.09.2012 re “Enforced returns to Sri Lanka by charter flight on Wednesday 19 September 2012 at 15.30hr” [some removal directions have seemingly also been set for 20.09.2012 but no mention in this letter of a charter flight on that date…] – Freedom from Torture briefing dated 13.09.2012…

15th September 2012 By Shivani Jegarajah

GS (India) and medical treatment cases

Some time ago, I put up an angry post (it is never a good idea to publish in anger) about the case of  GS (Article 3 – health exceptionality) India [2011] UKUT 35 (IAC), in which it was held that a diabetic man on dialysis who would be painfully and unpleasantly dead within two weeks of removal nevertheless had to go back. It seemed a case that any human with a modicum of compassion or common sense would consider to be ‘a very exceptional case, where the humanitarian grounds against the removal are compelling’, the legal test established by Strasbourg in N v United Kingdom (26565/05) [2008] ECHR 453. The excellent team in…

17th May 2012 By Free Movement

More unlawful detention cases

There has been a flood of judgments in the last few weeks on the issue of unlawful detention. With immigration detention used more frequently and for longer periods than ever before, the aftermath of the secret and unlawful presumption of detention policy and the ongoing travails of the UK Border Agency, it seems likely that many more such judgments will be seen in the coming months. Amougou-Mbarga: Detention in excess of 4 years lawful Already some cases involve extreme periods of administrative detention at the whim of a Government department equivalent to heavy criminal sentences for genuinely serious offences. R (on the application of Amougou-Mbarga) v Secretary of State for the Home Department…

9th May 2012 By Free Movement

Dublin returns to Cyprus

R (on the application of Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin) (11 August 2011) The case concerned a challenge to the removal of a mandate refugee to the Republic of Cyprus under the Dublin Regulations II. In a judgment by Mr Justice Sales, the judicial review claim was refused on all grounds. Significantly, the judgment provides guidance on the domestic approach to cases under the Dublin Regulations II following the European Court of Human Rights judgment in MSS v Greece & Belgium, concerning the return of an asylum-seeker to Greece. There must be reliable sources of evidence showing a real risk of refoulement or…

11th August 2011 By Claire Physsas

Deaths in detention centres

The news coverage over the weekend reporting on the very recent deaths of three men in detention centres is yet another reminder that the system is, in my view, truly abhorrent. The Guardian reported that two men died from suspected heart attacks at Colnbrook near Heathrow airport.  One of the men is Muhammad Shukat, who was 47 years old and of Pakistani nationality.  He died on 2 July.  The article reports that there was some considerable delay between the time that Muhammad Shukat collapsed at 6am and when his roommate raised the alarm and the time when an ambulance was actually called at 7.20am.  A post-mortem found the provisional cause of…

10th August 2011 By Sarah Pinder

Medical treatment case: look away now

This is stomach turning stuff, I’m afraid, and has left me quivering with anger. A new case on Article 3 has just been reported: GS (Article 3 – health exceptionality) India [2011] UKUT 35 (IAC) The facts of the case and the medical evidence were undisputed. That evidence was as follows: “He (the respondent) is dependant on this treatment to remain alive and well, and would expect he would die after a period of one to two weeks if the treatment was discontinued.  (The respondent) is a good candidate to receive renal transplant, and we have been discussing with him whether any of his family could offer a live kidney…

24th February 2011 By Free Movement

Good news in an HIV/AIDS case

This is another from last week’s luggage carousel – I’m still catching up, I’m afraid. In the case of JA (Ivory Coast) & Anor v Secretary of State for the Home Department [2009] EWCA Civ 1353 the Court of Appeal has allowed the appeal of a woman with HIV/AIDS (albeit only to the extent of remitting it to the tribunal) on the basis that she was a lawful entrant, had previously been granted leave on the basis of her medical condition and had been lawfully resident in the UK for quite some time on that basis. These features were found to distinguish the case from Article 3 cases like D v…

22nd December 2009 By Free Movement