Issue 43 November 2008 - Human Rights Stop Press

HUMAN RIGHTS STOP PRESS

With the Court of Session only now back from vacation there has been a decrease in cases being brought and decisions made in human rights cases. Asylum and immigration continues to be a large part of the workload of the Court as the case digest for this issue shows. 

Also argued before the Lords in June was the case of Fatima Helow v Advocate General for Scotland and Lord Advocate. The Scottish Human Rights Journal has commented on this case before. The appellant appealed against a decision of the Inner House to dismiss her claim that Lady Cosgrove acted in a way which gave rise to a reasonable suspicion of the appearance of bias in dismissing her final appeal against the refusal of her asylum claim. That decision can be found at [2007] CSIH 5. The appellant is a Palestinian and claims to have been involved with the PLO. She also claims to have been involved in the attempted Belgian prosecution of Ariel Sharon for his alleged involvement in the Sabra/Shatila massacre in Lebanon in 1982. The basis of the bias claim is that Lady Cosgrove is a member of the International Association of Jewish Lawyers and Jurists. The appellant argued that the Association maintained views hostile to Palestinians, the PLO and the Belgian proceedings. The decision of the House of Lords is awaited. 

Towards the end of June the House of Lords considered the application of art.8 in two cases with great relevance to the situation of asylum seekers throughout the United Kingdom. The first decision appears to lie to rest the controversy over the extent to which the Asylum and Immigration Tribunal can take into account the Convention rights of persons other than the appellant when determining an appeal against removal. This often arises in cases where the appellant claims that their removal would not only breach their right to respect for family or private life but also the rights of United Kingdom relatives or partners that they would have to leave behind. 

In B v Secretary of State for the Home Department [2008] UKHL 39, decided on June 25, 2008, the appellant (B) appealed against a decision that, on an appeal under the Immigration and Asylum Act 1999 s.65, regard should be had only to the human rights of the appellant and not to those of his family. B, a citizen of Sierra Leone, had arrived in the United Kingdom in 1997 just short of his 19th birthday following a military coup in his native country. His elder sister, a British citizen, had lived here since 1993. He was followed to the UK by his mother, father and a younger sister. His father registered as a British citizen in 1998 but died that year. Under the immigration policy then in force, B's mother and younger sister, as dependants, were both granted indefinite leave to remain; B was unable to benefit from the policy. He was initially granted 12 months' leave to enter as a student, but his application for leave to remain was refused by the respondent Secretary of State. The adjudicator allowed his appeal under s.65 against that decision, having found that B's family was close-knit and interacted on a very regular basis; that he had a strong relationship with his sisters; that he currently resided with his mother and younger sister; that his mother relied on him for emotional support; that his family would not return to Sierra Leone even if he was returned; and that his return to Sierra Leone would be disproportionate so as to breach art.8. The then Immigration Appeal Tribunal allowed the appeal by the respondent, having concluded that the adjudicator had "placed too much emphasis on the position of [B's] mother and siblings" and that his approach was "flawed to the extent that it places considerable importance on the position of other members of [B's] family". The IAT's decision was upheld by the Court of Appeal. B argued that the legislation allowed, indeed required, the appellate authorities, in determining whether an appellant's art.8 rights had been breached, to take into account the effect of his proposed removal on all the members of his family unit. The Secretary of State argued that the wording of the legislation was clear and restrictive in that both s.65 of the 1999 Act and s.84 of the Nationality, Immigration and Asylum Act 2002 referred repeatedly to the appellant's human rights and to no-one else's. 

The appeal was allowed. The House of Lords held that it would be appropriate to adopt the wider construction of s.65 argued for by B. The disadvantages of the narrow approach were manifest. It would be very inconvenient to have an appellant's art.8 rights taken into account in one proceeding (the s.65 appeal) and other family members' rights in another (a separate claim under the Human Rights Act 1998 s.7). It was unlikely that the very legislation which introduced "one-stop" appeals (the shoulder note to s.77 of the 1999 Act) should have intended the narrow approach to s.65. Parliament was surely attempting to streamline and simplify proceedings. Further, it would be strange if the respondent and the Strasbourg Court had to approach an appellant's art.8 claim to remain on one basis and the appellate authorities on another. Only the clearest statutory language would support such a conclusion; here, the language was far from decisive. Once it was recognised that there was only one family life and that, assuming the appellant's proposed removal would be disproportionate looking at the family unit as a whole, each affected family member was to be regarded as a victim, s.65 seemed comfortably to accommodate the wider construction. 

The second decision examines the extent to which an asylum seeker or illegal immigrant can rely on delay on the part of the Home Secretary in deciding their case to argue that it would breach art.8 to remove them when the delay has allowed them to put down roots in this country. Delay based arguments are commonly deployed before the Asylum and Immigration Tribunal in art.8 cases. 

In HB (Ethiopia) v Secretary of State for the Home Department; JL (Sierra Leone) v Secretary of State for the Home Department; EB (Kosovo) v Secretary of State for the Home Department; FI (Nigeria) v Secretary of State for the Home Department [2008] UKHL 41 the appellant asylum seeker (E) appealed against a decision ([2006] EWCA Civ 1713, [2007] Imm. A.R. 396) upholding a decision of the respondent to remove him from the United Kingdom. E, a Kosovar, and his cousin had arrived in the UK as unaccompanied minors and claimed asylum. E lived with his uncle. The UK policy at the time was that such minors would be granted exceptional leave to remain in the UK, liable to be removed at any time. A majority of the House of Lords held that a relationship so entered into may well be imbued with a sense of impermanence, but if months passed without a decision to remove being made, and months became years, it was to be expected that that sense of impermanence would fade and the expectation would grow that if the authorities had intended to remove the applicant they would have taken steps to do so. 

Finally, when considering the proportionality of removal, delay may be relevant in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control if the delay was shown to be the result of a dysfunctional system that yielded unpredictable, inconsistent and unfair outcomes. In the instant case E's cousin, whose position had not been materially different, had been granted exceptional leave to remain. Plainly, the respondent's delay in resolving E's claim was relevant in the first way considered. The AIT had to consider whether, and to what extent, the delay in resolving the claim, and the manner of its handling, were relevant when considering the overall proportionality of ordering the removal of E. That required a judgment in the round. Such a judgment had not yet been made and it should be made. The matter was remitted for a fresh hearing by the AIT. Lords Brown and Scott took a different approach. Lord Brown considered that delay was not relevant in reducing the weight to be accorded to the requirements of fair and firm immigration control. Lord Scott considered that E's complaint was not simply of delay. In the circumstances, it was grossly unfair for E to be deprived of the benefit of the policy that had been applied to his cousin and would have been applied to him had his application been properly dealt with. The case should not be remitted. 

The Strasbourg Court has also handed down a very important decision in the field of deportation of young offenders. Again art.8 was pivotal. 

In the case of Maslov v Austria (app. no.1638/03) the Grand Chamber held by 16 votes to 1 that there had been a violation of art.8. Juri Maslov is a Bulgarian national who was born in 1984. He arrived in Austria in 1990 at the age of six, spent the rest of his childhood and his adolescence there and speaks the language. He was a legal resident in Austria with his parents and brother and sister and obtained an unlimited settlement permit in March 1999. The Strasbourg case concerned the 10-year exclusion order issued against Mr Maslov when he was 16 years old under s.36 of the 1997 Aliens Act. The measure became final when he reached his majority at the age of 18 and was still living with his parents. The exclusion order was made following Mr Maslov's convictions by the Vienna Juvenile Court in September 1999 and then in May 2000 for offences committed when he was between 14 and 15 years old. 

The applicant's first conviction resulted in an 18- month prison sentence, 13 months of which were suspended on probation, for a series of aggravated burglaries, extortion and assault. Mr Maslov was also instructed to start therapy for his drug addiction. The second conviction resulted in a 15-month prison sentence for a further series of aggravated burglaries. When determining the sentence the Juvenile Court considered the number of offences and Mr Maslov's rapid relapse into crime after his first conviction to be aggravating circumstances. As he had not undergone therapy for his drug addiction, the court revoked the suspension of the prison term imposed in respect of the first conviction. 

Mr Maslov was released in May 2002, and ultimately deported to Bulgaria in December 2003.  

The Court considered that the to-year exclusion order had not been necessary in a democratic society. In the Court's view, the decisive feature of the case was the young age at which the applicant had committed the offences and, with one exception, their non-violent nature. The majority of the offences had concerned breaking into vending machines, cars, shops or restaurants and stealing cash and goods. The one violent offence had consisted in pushing, kicking and bruising another boy. The acts of which the applicant was found guilty were acts of juvenile delinquency. Where expulsion measures against a juvenile offender were concerned, the obligation to take the best interests of the child into account included an obligation to facilitate his or her reintegration. Reintegration would not be achieved by severing family or social ties through expulsion, which must remain a means of last resort in the case of a juvenile offender.  It saw little room for justifying the expulsion of a settled migrant on account of mostly non-violent offences committed when a minor. 

After noting the length of time Mr Maslov had been legally resident in Austria, the Court examined his conduct from the time he had committed his last offence up until he was actually deported. Of that period the applicant had spent two years and three and a half months in prison and had stayed a further one and a half years in Austria without reoffending. Knowing little about the applicant's conduct in prison-except that he had not benefited from early release-and not knowing to what extent his living circumstances had stabilised after his release, the Court considered that the time that had elapsed since the offences and the applicant's conduct during that period carried less weight as compared to the other applicable criteria, in particular the fact that the applicant had committed mostly non-violent offences when a minor. 

The Court observed that the applicant had his main social, cultural, linguistic and family ties in Austria, where all his relatives lived, and noted that there were no proven ties with his country of origin. 

Lastly, the limited duration of the exclusion order was not considered decisive in the present case. Having regard to the applicant's young age, a 10-yearexclusion order banned him from living in Austria for almost as much time as he had spent there and for a decisive period of his life. 

Article 8 arose in a very different context that of privacy and the interception of communications- in the important case of Liberty&Other Organisations v the United Kingdom (app. no.58243/00) concerned the applicant organisations' allegation that, between 1990 and 1997, their telephone, facsimile, e-mail and data communications, including legally privileged and confidential information, were intercepted by an Electronic Test Facility operated by the Ministry of Defence. The applicants lodged complaints with the Interception of Communications Tribunal, the Director of Public Prosecutions and the Investigatory Powers Tribunal to challenge the lawfulness of the alleged interception of their communications, but to no avail. They found that there was no contravention to the Interception of Communications Act 1985. 

The Court recalled that it had previously found that the mere existence of legislation which allowed communications to be monitored secretly had entailed a surveillance threat for all those to whom the legislation might be applied. In the applicants' case, the Court therefore found that there had been an interference with their rights as guaranteed by art.8. 

Section 3(2) of the 1985 Act allowed the British authorities extremely broad discretion to intercept communications between the United Kingdom and an external receiver, namely the interception of "such external communications as described in the warrant". 

Indeed, that discretion was virtually unlimited. Warrants under s.3 (2) of the 1985 Act covered very broad classes of communications.  In their observations to the Court, the British Government accepted that, in principle, any person who sent or received any form of telecommunication outside the British Islands during the period in question could have had their communication intercepted under a s.3 (2) warrant. Furthermore, under the 1985 Act, the authorities had wide discretion to decide which communications, out of the total volume of those physically captured, were listened to or read. 

Under s.6 of the 1985 Act, the Secretary of State was obliged to "make such arrangements as he considered necessary" to ensure a safeguard against abuse of power in the selection process for the examination, dissemination and storage of intercepted material. Although during the relevant period there had been internal regulations, manuals and instructions to provide for procedures to protect against abuse of power, and although the Commissioner appointed under the 1985 Act to oversee its workings had reported each year that the "arrangements" were satisfactory, the nature of those "arrangements" had not been contained in legislation or otherwise made available to the public. 

Finally, the Court noted the British Government's concern that the publication of information regarding those arrangements during the period in question might have damaged the efficiency of the intelligence-gathering system or given rise to a security risk. However, in the United Kingdom, extensive extracts from the Interception of Communications Code of Practice were now in the public domain, which suggested that it was possible for the State to make public certain details about the operation of a scheme of external surveillance without compromising national security.  

In conclusion, the Court considered that the domestic law at the relevant time had not been indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the State to intercept and examine external communications. In particular, it had not set out in a form accessible to the public any indication of the procedure to be followed for examining, sharing, storing and destroying intercepted material. 

The interference with the applicants' rights had not therefore been "in accordance with the law", in violation of art.8. The Court did not consider it necessary to examine separately the complaint under art.13.  

In Ahtinen v Finland (application no. 48907/99) September 23, 2009, the applicant, was a parish priest with the Evangelical Lutheran Church for more than ten years at a specified parish. 

Mr Ahtinen's complaint was that in November 1998 he was transferred to another parish 100 km away without his consent and without being heard properly on the real reasons for his transfer. He relied on art.6 (1) (right of access to a court). 

The Court noted that under Finnish law the Evangelical Lutheran Church had the right to run its own affairs and, in particular, was independent to decide on such matters as the appointment of its priests, including how long and where they were to carry out their pastoral activity. On having agreed to serve as a parish priest with the Lutheran Church, the applicant had undertaken to abide by those rules. The Court also reiterated that it had already found in a previous case that the judicial determination of issues such as the continuation of a priest's service would be contrary to the principles of autonomy and independence guaranteed by, among other things, the Charter of Fundamental Rights and Freedoms. The Court concluded that there was no basis either in domestic law or in the Court's case-law to hold that the applicant had a "right" within the meaning of art.6 (1) and therefore held unanimously that there had been no violation of that article. 

In K and AK v the United Kingdom (38000/05) September 30, 2008. The applicants, a married couple have a daughter, M., who was born in July 1998. In September 1998 M. was taken to hospital with a fractured femur; doctors concluded that the injury had not been accidental and she was placed in the care of her aunt. Following another injury, M. was diagnosed with brittle bone disease. She was returned home in April 1999. The case concerned the applicants' complaint that their daughter was placed temporarily in care due to a medical misdiagnosis. They relied on arts 8 and 13. 

It was not disputed that the interim care order had interfered with the applicants' right to respect for their family life. That interference had been "in accordance with the law" and pursued the legitimate aim of protecting M. Indeed, the authorities, medical and social, had a duty to protect children and could not be held liable every time genuine and reasonably-held concerns about the safety of children in their families were proved, retrospectively, to have been misguided. 

The Court considered that M., a three-month old baby, had suffered a serious and unexplained fracture and that the social or medical authorities could not be faulted for not immediately diagnosing brittle bone disease, a very rare and difficult condition to identify in small infants. Moreover, the baby had been placed within her extended family and in close proximity to her parents' home so that they could frequently and easily visit. As soon as another fracture had occurred outside of the applicants' care, further tests had been carried out and, within weeks, M. had been returned to her home. The Court was therefore satisfied that the domestic authorities had had relevant and sufficient reasons to take protective measures, which had been proportionate in the circumstances and had given due and timely account to the applicants' interests. Accordingly, the Court held unanimously that there had been no violation of art.8. 

However, the Court found that the applicants should have had available to them a means to claim that the local authority's handling of procedures had been responsible for any damage they had suffered and to claim compensation.As such redress had not been available at the relevant time, the Court held unanimously that there had been a violation of art.13 and awarded the applicants, jointly, €10,000 in respect of non-pecuniary damage and €18,000 for costs and expenses.