Issue 41 June 2008 - Current Awareness

ECHR ARTICLES INDEX

Article 2-Case 1

Article 3-Cases 2, 3, 4

Article 8-Cases 2, 4

Article 14--Case 2

 

ADMINISTRATIVE LAW 

(1) Kennedy and Black v The Lord Advocate and Scottish Ministers [2008] CSOH 21, Lord Mackay of Drumadoon 

These petitions were raised by the relatives of two people, K and B, who died after they had become infected with the Hepatitis C virus. That infection occurred whilst they were under the care of the National Health Service. The Lord Advocate refused to hold Fatal Accident Inquiries into the deaths of the deceased. The petitioners sought the judicial review of those decisions. The petitioners sought review of the refusal of the Scottish Ministers to set up public inquiries into those deaths. Some years prior to their deaths both the deceased had became infected with the Hepatitis C virus. In each instance, that occurred as a consequence of the medical treatment they received whilst patients of the National Health Service in Scotland. The petitions were raised against the Lord Advocate and the Scottish Ministers. It was accepted on behalf of both the Lord Advocate and the Scottish Ministers that the deaths were contributed to by having become infected with the Hepatitis C virus as a consequence of blood transfusions. The blood products had been contaminated with the Hepatitis C virus. The petitioners have never made any criticisms of any of the doctors and other medical staff who were directly involved in the care of their relatives. Their concerns relate to the circumstances in which blood donations from donors infected with the Hepatitis C virus came to be used in the blood transfusions, which the deceased both received, and in the blood products with which Mr B was also treated. Over several years, B and K called for public inquiries to be held into the deaths of their relatives. On April 18, 2006, the Health Committee of the Scottish Parliament called upon the Scottish Ministers to set up an inquiry into matters pertaining to Hepatitis C in Scotland. On June 15, 2006, the Lord Advocate decided not to seek Fatal Accident Inquiries into the deaths. On June 16, 2006 the Health Minister of the Scottish Executive issued a press release giving notice of the decision of the Scottish Ministers refusing to hold a full judicial inquiry into the infection of patient’s with Hepatitis C in Scotland through NHS treatment. 

Held: Lord Mackay of Drumadoon allowed the petitions (1) Since the deaths both the Lord Advocate and the Scottish Ministers have acted in a manner incompatible with the Convention rights of the deceased under Art.2 which provides that "everyone's right to life shall be protected by law...' . (2) When a person dies following upon treatment in hospital, obligations arise under Art.2 which require the United Kingdom to have in place a system that is capable of providing a practical and effective investigation of the facts relating to the death of that person and the determination of any civil liability relating to their death. That system can include the possibility of criminal, civil or disciplinary proceedings and the initiation of an investigation by the State, which in respect of a death in Scotland could include the Lord Advocate seeking a Fatal Accident Inquiry before the Sheriff or the setting up of a public inquiry by the Scottish Ministers. (3) In the present cases, factual issues arise as to when each of the deceased became infected with the Hepatitis C virus and whether the Scottish National Blood Transfusion Service and the National Health Service in Scotland could have introduced the heat treatment of blood products and the screening of blood donations by earlier dates than they did: (4)On the basis of the submissions Lord Mackay reached the conclusion that there has never been any possibility of criminal proceedings founded upon the circumstances leading up to the deaths. No disciplinary proceedings have ever been taken against any individual involved in the collection of blood donations or the supply of blood and blood products for the transfusions. (5) Lord Mackay also reached the conclusion that whilst it would have been open to each of the petitioners to have raised civil proceedings seeking damages, in the particular circumstances leading up to the deaths there has never been any realistic prospects that such civil proceedings would have led to practical and effective investigations of the facts relating to those deaths. (6) In the particular circumstances of these cases, Lord Mackay reached the conclusion that the only means by which a practical and effective investigation into the deaths could be achieved would be if the State were to initiate a public inquiry. That could be done by the Lord Advocate seeking the holding of a Fatal Accident Inquiry before a Sheriff or DY the Scottish Ministers setting up a public inquiry under the provisions of the Inquiries Act 2005. (7) Given the continuing refusal of the Lord Advocate and the Scottish Ministers to set up such public inquiries, Lord Mackay has reached the conclusion that, in the particular circumstances relating to the deaths the system in place to meet the State's obligations under Art.2 has not proved capable of providing a practical and effective investigation into either death. As a consequence both the Lord Advocate and the Scottish Ministers had acted in breach of the Convention rights of the deceased. (8) Lord Mackay quashed the decisions of the Lord Advocate not to hold Fatal Accident Inquiries into the deaths. He did so because the Lord Advocate had acted in breach of the Art.2 rights of the deceased and also on account of errors of law on the part of the Lord Advocate that were apparent in the letter of June 15,2006 giving notice of the Lord Advocate's decisions. Lord Mackay refrained from setting aside the decision of the Scottish Ministers of June 16, 2006, on account of the fact that the decision of the Scottish Ministers had been taken as being their response to a call for a public inquiry made by the Health Committee of the Scottish Parliament, rather than their reply to calls from the petitioners for inquiries into toe deaths. In reaching that decision Lord Mackay also had regard to the fact that on June 16, 2007 the Scottish Government re-affirmed its commitment to hold a "general public inquiry" to "find out why people were infected with Hepatitis C through NHS Treatment". The remit, scope, and form of that inquiry has yet to be determined. Lord Mackay took the view that it would be premature to grant any further orders against the Lord Advocate and the Scottish Ministers. He continued the petitions to a further hearing, to allow the Lord Advocate and the Scottish Ministers the opportunity to consider what action they intend to take in light of the terms of his Opinion.  

(2) ASYLUM AND IMMIGRATION LAW 

FNG v Secretary of State for the Home Department [2008] CSOH 22, Lord Hodge

FNG sought judicial review of a decision of the respondent to certify under s.94 (2) of the Nationality, Immigration and Asylum Act 2002 that both his asylum claim and the human rights claim were clearly unfounded. FNG is a citizen of Liberia, is aged 23 and is deaf. He sought asylum under the Refugee Convention. He also submitted that an order removing him from the United Kingdom would, if implemented, be a breach of Arts 3, 8 and 14. This certification had the effect that the petitioner cannot appeal the respondent's decision through the statutory appeal framework while remaining in the United Kingdom. In the petition the petitioner sought to challenge the certification in relation to his ECHR claim and thereby open his right of appeal to the Asylum and Immigration Tribunal. He accepted the certification of his claim under the Refugee Convention. His submission was that the certification that his ECHR case was clearly unfounded was unreasonable in the Wednesbury sense. He relied in particular on the difficulties faced by deaf people in Liberia. 

Held: petition dismissed (1) Following the approach of Lord Bingham in R (Razgar) v Secretary of State for the Home Department [2004J 2 A.C. 368 the respondent was entitled in this case to certify that the petitioner's claim was clearly unfounded. (2) The case did not concern the breaking up of family or other connections which the petitioner had made in the United Kingdom. It related to the petitioner's circumstances were he to be returned to Liberia. The only fact relating to the petitioner which he had to support an Art.8 claim, which came to be the focus of his case, was his deafness. (2) The petitioner's surviving family (his mother, 7 brothers and 1 sister) lived in Monrovia and he communicated with them through the Red Cross. He also had aunts and uncles in Liberia. He was able to communicate in the American Sign Language which was used in Liberia. He was also able to write in English and use the computer. Notwithstanding his deafness he managed to support himself and travel from Liberia to the United Kingdom over a period of 30 months via the Ivory Coast, Burkina Faso, Algeria, Morocco, Spain and France. (3) While the objective evidence about conditions in Liberia disclosed it to be a very poor country which is only slowly recovering from the effects of its civil war and that there can be difficulty in obtaining appropriate medication in Monrovia, the petitioner is healthy and does not need medication. (4) At most for the petitioner it could be asserted that the government provided no significant support to or facilities for deaf people and that NGOs provided only very limited assistance to the deaf. (5) In para.17 in Razgar Lord Bingham stated that the reviewing court must ask the questions which the Immigration Judge would have to answer. Those were: (i) will the proposed removal be interference by a public authority with the exercise of the applicant's right to respect for his private life? (ii) If so, will such interference have consequences of such gravity as potentially to engage die operation of Art.8? (iii) If so, is such interference in accordance with the law? (iv) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (v) If so, is such interference proportionate to the legitimate public end sought to be achieved? (6) Whilst it might be arguable that the answer to question (i) in this case could be positive, Lord Hodge was satisfied that the answer to question (ii) would or should be negative. There was no doubt that the facilities available in the United Kingdom to assist deaf people are generally, much better and more accessible than those in Liberia, but the issue is not one of comparative advantage. There is nothing in the material which suggested that the petitioner would not be able to establish and develop relationships with other human beings in Liberia or that he would otherwise suffer a denial of his physical and psychological integrity. There was no reasonable basis on which one could hold otherwise.  

(3) RAB v Secretary of State for the Home Department [2008] CSIH 17, Inner House 

This was an application for leave to appeal against a decision of the Asylum and Immigration Tribunal. The applicant lived with her husband, E.B., in Chechnya, and arrived in the United Kingdom via Georgia on April 7, 2003. Her husband had arrived in the United Kingdom in January 2000. The applicant did not immediately apply for asylum. Her husband’s application for asylum was refused on appeal on November 17, 2004. The applicant eventually claimed asylum on August 17, 2005. She was interviewed in connection with her claim on September 1, 2005. By letter dated October 17, 2005 the Home Office refused her application. Her initial appeal against that decision was refused, but on reconsideration it was held that the Immigration Judge who had made that decision had made a material error in law, and the appeal therefore came before another Immigration Judge for a full rehearing. That resulted in the decision of August 7, 2006 which was the subject of this application. The appeal was again refused. Leave to appeal against that refusal was refused by the Tribunal on September 7, 2006 and leave to appeal was sought from the Inner House. The applicant claimed that to return her to Russia would be contrary to the obligations of the United Kingdom, the Refugee Convention and also Arts 2 and 3. She claims persecution due to her religion and because her husband was in the Russian army. She claimed to have had problems because of her Christian Orthodox faith and that she was verbally assaulted and abused because of her religion. She stated she faced problems in Chechnya because her husband was connected with the Russian military, that he had flown planes for the Russian military in the past and that in August 1999 he received call-up papers to take part in the war in Chechnya. He did not want to fight against the people where he lived so he refused to take part in further military service. The Chechens in her area did not believe her husband was not serving in the Russian military. 

On November 29, 1999 she stated that two men in camouflage entered her home, tied her up and searched her house. Both men raped her because they believed her husband was In the Russian military. As a consequence of this she leftChechnya and travelled with her son to Georgia on November 30, 1999. During the journey the bus was stopped and her son was kidnapped by Chechen militants. When she arrived back in Grozny (in or after the summer of 2002) she was beaten by a group of women and two police officers, was struck on the head and lost consciousness and was taken to hospital. After a day in hospital she returned to Georgia where she spent almost a month in hospital recovering from her injuries, leaving Georgia in March 2003, travelling by car to Turkey before travelling to the United Kingdom in a lorry, arriving in the United Kingdom on April 7, 2003. She fears that she and her husband would be killed if returned to Russia. The Immigration Judge rejected her account as incredible. He rejected her claims of rape and assault. He took into account the fact that she had not mentioned these incidents when she gave evidence in the appeal brought by her husband. 

Held: application refused. (1) It was submitted that the applicant's failure to mention the alleged rape in her evidence at her husband's appeal was irrelevant to her claim. Even so while the applicant's husband's claim was differently focused from her own, the Court was unable to accept that the absence of reference to the rape from the evidence of the applicant before the Adjudicator can be explained in that way. The consideration he identified of failing to mention these incidents was one which he was entitled to give considerable weight when considering the credibility of the applicant's evidence. (2) In submissions weight was placed on a passage in the US Department of State Annual Report on Russia (2005) where it is stated that many victims never reported rape due to social stigma. Counsel for the applicant described that as a "critical item of evidence", and criticised the Immigration Judge for not relying on it. However the Court was unable to find that the Immigration Judge had been referred to that passage. The Court did not consider that the Immigration Judge could be said to have made an error of law by failing to pick out of a country report a short passage not specifically drawn to his attention. In any event the Immigration Judge did specifically deal with the question of whether shame might explain the failure to mention the alleged rape. (3) It was submitted that the consistency of the applicant's evidence, comparing her interview with her evidence before the Immigration Judge, and the support which her evidence obtained from that of her husband, ought to have satisfied the Immigration Judge that she was credible in her account of the rape. That argument however disclosed no error of law on the Immigration Judge's part. It was no answer to the considerations which he regarded as damaging to her credibility. Moreover, her husband's evidence was so much blander than might be expected if he came home to find her, as she described in her interview, with her clothes torn and herself covered in bruises and scratches. (4) Insofar as it was argued that the Immigration Judge should not have taken the applicant's husband's claim into account at all reliance was placed on AA (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ. 1040 and Devaseelan [2004] UKIAT 00282 as to the proper approach to be adopted by a second tribunal dealing with a human rights appeal at the instance of an appellant whose asylum appeal has already been considered. However the present appeals arose out of the same factual matrix. The Immigration Judge started with the simple point that doubt was cast of the applicant's credibility by her failure to claim asylum upon arrival. It is in that context that he considered the fact that she was waiting for the outcome of her husband's appeal, and noted that her husband's account was not accepted. He regarded that as not determinative, but a starting point. That was not an error of law.  

(4) Ivanov v Secretary of State for the Home Department [2008] CSOH 15

I sought judicial review of a decision of the former Immigration Appeal Tribunal refusing him leave to appeal against the determination of an adjudicator dismissing I's appeal against the respondent's decision in refusing the petitioner's application for asylum. I is a national of Moldova. He claimed asylum in 2002. The respondent refused that application for asylum and gave reasons for that refusal in a letter. The basis of the claim of I was that he was homosexual and that the authorities in Moldova would not protect him from homophobic assaults and that indeed had been the source of persecution. I appealed to the adjudicator arguing that he had a well founded fear of persecution under the Refugee Convention and Arts 3 and 8. The adjudicator refused I's appeal. In refusing I's application for leave to appeal, the IAT concluded that there was nothing in the grounds of appeal presented to it to indicate a real prospect of success for an appeal. 

Held: petition allowed. (1) It was clear the adjudicator was satisfied that in his home area I was at a real risk of being persecuted because of his homosexuality. He accepted that I had been subjected to regular beatings by the police and that a sufficiency of protection for him did not exist. In coming to that latter conclusion, as disclosed it was the totality of the evidence before him that prompted him to make the clear finding in fact that "... in Moldova homosexuals are beaten by the police and people generally insult homosexuals". That finding was not limited in any way to 1's local area and plainly applied to Moldova generally. In light of that finding the adjudicator's reasoning in para.41 of his determination that I could live elsewhere was surprising. (2)There was an apparent contradiction between that reasoning and the clear finding in fact he made. In particular his finding in fact did not limit the attitude of the police to homosexuals to any particular area and, on the face of it, applied to Moldova as a whole. (3) In giving the adjudicator's determination anxious scrutiny the Court decided that the adjudicator, in an unreasonable way, failed to follow through the logic of his own finding in fact, based as it was on background material that he was prepared to accept and the evidence of I and his sister as to general attitudes in Moldova. Having made such a clear and unqualified finding in fact, it was incumbent upon the adjudicator if, notwithstanding that finding, he was going to conclude that I could relocate safely, to have given clear and cogent reasons for such a conclusion.