News & Views Monday 24th February to Sunday 1st March 2020

‘Misconceived’: ECtHR Chief Hits Back At Lord Sumption Over Rights

[In a lecture delivered on the 20th of November, Lord Sumption, the United Kingdom Supreme Court judge, mounted a direct attack on the legitimacy of the European Court of Human Rights. The Strasbourg Court, he claimed, makes new law by continuously expanding the scope of the rights protected under the European Convention on Human Rights (ECHR).]

Now is a dangerous time to roll back judicial power, the vice president of the European Court of Human Rights has said in a public rebuff to Lord Sumption's high profile criticism of 'law's expanding empire'.  Robert Spano, vice president of the Strasbourg court, inaugurated the Bonavero Institute's annual human rights lecture last week with a challenge to what he called the 'more-politics-less law' thesis set out in Lord Sumption's BBC Reith Lectures and book Trials of the State - Law and the Decline of Politics. Such a view 'seems to me an overly idealised view of politics' Spano said.

Meanwhile, Sumption's description of judicial processes in human rights cases 'is to some extent misconceived'.  Spano rebutted Lord Sumption's assertion that the Strasbourg court had ‘invented rights’ and 'interfered with national political processes in a manner which undermines democracy'. Sumption's criticism of the creeping scope of the Article 8 right to family and private life was itself a process of extrapolation, Spano said.  The Icelandic judge stressed that he was not equipped to comment on the UK political or legal system. But, with 'nationalism, tribalism, dislocation, fears of social change and the distrust of outsiders' on the rise, he asked: 'Is this really the time in European history to place our bet on more politics and less law?

To entrust our destiny to the existence of good faith in the political process and argue in favour of limiting the review powers of independent and impartial judges?' 'With respect. Lord Sumption’s more politics-less-law thesis manifests it seems to me an overly idealised view of politics, a view removed from the realities of every day hardships which, when they engender disputes, require resolution by independent and impartial courts, applying methods of principle,' he said.  Overall, Lord Sumption underestimates the value of human rights law in legitimising public outcomes in a democracy,' he said. 'Together law and politics should seek to work hand in hand in creating stability and a humane society which respects rights and human dignity.'

Source: Law Gazette,

Afghanistan: Civilian Casualties Exceed 10,000 For Sixth Straight Year

Grim milestone:: Almost no civilian in Afghanistan has escaped being personally affected in some way by the ongoing violence. More than 10,000 civilians in Afghanistan were killed and injured last year.  After more than a decade of systematically documenting the impact of the war on civilians, the UN found that in 2019 the number of civilian casualties had surpassed 100,000. “It is absolutely imperative for all parties to seize the moment to stop the fighting, as peace is long overdue; civilian lives must be protected and efforts for peace are underway”, stressed Mr. Yamamoto. The figures outlined in the report, released jointly by UNAMA and the UN Human Rights Office, represent a five per cent decrease over the previous year, mainly due to a drop in civilian casualties caused by the terrorist group ISIL.  However, civilian casualties caused by the other parties rose, including a 21 per cent increase by the Taliban and an 18 per cent surge by the international military forces, mainly due to an increase in improvised explosive device attacks and airstrikes.

“All parties to the conflict must comply with the key principles of distinction, proportionality and precaution to prevent civilian casualties,” said Michelle Bachelet, the UN High Commissioner for Human Rights.  To ensure accountability, the report calls on all conflict parties to conduct prompt, effective and transparent investigations into all allegations of violations of international human rights law and international humanitarian law.  “Belligerents must take the necessary measures to prevent women, men, boys and girls from being killed by bombs, shells, rockets and improvised mines; to do otherwise is unacceptable”, concluded the High Commissioner.

Read more: UN News,

M.A. and Others v. Bulgaria Expulsion Would Breach Articles 2 & 3

The applicants, are Uighur Muslims from the Xinjiang Uighur Autonomous Region in China. The case concerned their intended expulsion on national security grounds to China, where they would allegedly be at risk of death or ill-treatment. All the applicants arrived in Bulgaria in July 2017 from Turkey, where they had been living since leaving China on various dates between 2013 and 2015. The applicants subsequently applied for asylum but the State Refugees Agency rejected their applications in December 2017, decisions which the Haskovo Administrative Court upheld in January 2018.

The court found that the applicants had not shown that they had been persecuted in their country of origin, within the meaning of the Asylum and Refugees Act, or that they were at risk of any such persecution. The applicants had also made assumptions on the risk they faced, based on widely-known facts about the situation in the region they were from. It had not been shown that any problems the applicants had had with the authorities before leaving China had been due to their ethnicity or religion.

In parallel, the head of the State Agency for National Security in January 2018 ordered the applicants’ expulsion on national security grounds. Applications by them for judicial review of that decision were dismissed by the Supreme Administrative Court in May 2019. In decisions made available by the Government on the second, third and fourth applicants, the Supreme Administrative Court concluded that the State Agency for National Security had convincingly shown that they could pose a threat to Bulgaria’s national security owing to, among other things, links with the East Turkistan Islamic Movement (ETIM), which was considered to be a terrorist group.

The World Uighur Congress, the International Uighur Human Rights and Democracy Foundation, Amnesty International and several members of the European Parliament have asked Bulgaria not to remove the applicants. In January 2018 the Court indicated to the Bulgarian Government that the applicants should not be removed while the proceedings before the Court were ongoing.

Relying in particular on Article 2 (right to life) and Article 3 (prohibition of torture and of inhuman or degrading treatment) the applicants complained that if returned to China they would face persecution, ill-treatment and arbitrary detention and could even be executed.

Violation of Article 2 - should the second, third and fourth applicants be removed to China. Violation of Article 3 - should the second, third and fourth applicants be removed to China Interim measure (Rule 39 of the Rules of Court) - not to remove the applicants - still in force until such time as the present judgment becomes final or until further notice.


Many Asylum Seekers Arrive in Europe Legally, EU Agency Says

Increasing numbers of people applying for asylum in the European Union are arriving from countries with visa-free travel agreements with the bloc, notably from Latin America, rather than entering without permission, the EU’s asylum agency said Wednesday.

More than 714,000 people applied for asylum or some form of international protection in Europe last year, up 13% from 2018, the European Asylum Support Office, or EASO, said in its latest report on asylum trends in 2019.

“Most of the increase is accounted for by the large number of applications lodged by applicants who are exempt of visa requirements when entering the Schengen Area,” the agency said, referring to the passport free travel area that includes 22 EU states plus Iceland, Liechtenstein, Norway and Switzerland.

The visa-free applicants were mostly from Venezuela, Colombia, El Salvador and Honduras. Venezuelans lodged 45,000 applications, more than twice as many as in 2018.

Read more: New York Times,

Free Settlement Guide to Help European Kids in Care

The AIRE Centre has launched a free Settlement Guide to help EU children and young people better understand their legal rights after Brexit. It is aimed in particular at the estimated 5,000 EU citizen children in care, and those who have recently left the care system.
The online service explains in very simple terms what the EU Settlement Scheme is and how to apply. Users can also take a short “quiz” to see if they qualify. The answers to the quiz are mapped against relevant aspects of EU/UK law to provide an indication of the decision likely to be made by the Home Office.

The Settlement Guide sits on a dedicated website:

Importance of Public Interest Grounds in Long Residency Applications

The long residency route to settlement may be available to people who have spent 10 lawful and continuous years in the UK in various immigration categories. It is possible that some of these categories may not lead to settlement if relied on independently, but are capable of forming the basis of an application for indefinite leave to remain (“ILR”) in the UK under the 10-year long residency route.

Despite its initial attractiveness, the route has its difficulties and many applicants fail to satisfy the relevant eligibility criteria for ILR, not least because the route requires evidence to be provided for a longer qualifying period than under a normal PBS category leading to settlement.

The initial threshold that needs to be passed is that any qualifying period of residence must be lawful, and it must also be continuous. An applicant’s presence in the UK will be considered lawful if they have valid leave to enter or remain in the UK, they have been granted temporary admission to the UK and leave was subsequently granted or where they have been subject to exemption from immigration control in limited circumstances. The continuity of residence will be interrupted if the applicant spends more than 6 months at any one time or more than 18 months in total outside the UK over the qualifying period.

Public interest considerations will also be taken into account before any decision is made to grant ILR. These are based on the applicant’s personal circumstances such as their age, and strength of connections in the UK and their personal history. Furthermore, the usual requirements for any ILR application must also be fulfilled, such as the applicant’ssuitability under the general grounds for refusal, the passing of the Life in the UK test and English proficiency.

Read more: Gherson Immigration,

Britain Claims It’s Open For But Not With Low-Skilled Immigrants

“Britain is open for business,” Alok Sharma, the new business secretary, declared in an article last week extolling the virtues of the government’s new immigration proposals. But there are major problems with the proposed system. One is purely administrative: the lack of capacity in the Home Office, a notoriously chaotic department, to introduce such a big change. The last such change took four years to implement. The government is planning for this new system to be operational in just seven months’ time.

That is just the start. Many critical sectors of the economy, such as social care, have become reliant on low-paid workers from the EU. There is huge uncertainty about how this system will work for them; most care workers, for example, do not come close to the minimum salary threshold. The government’s argument is that making it harder for low-paid sectors to rely on immigration will force up wages. This is crank economics. Social care is highly skilled work, and of course should be better paid. But it is underpaid not because of immigration, but because it relies on skills that are fundamentally undervalued by society. The government is indirectly the biggest employer of care workers and it is its lack of funding for social care that holds down wages.

Read more: Observer:

Updated Policy Statement on Relocation Support of Unaccompanied Refugee Children

Section 67 of the Immigration Act 2016 provides that arrangements must be made by the Secretary of State to relocate to the UK, and support, a specified number of unaccompanied asylum seeking children (UASC) from across Europe. Unaccompanied children are children who are non-EU nationals, who are stateless, below the age of 18, and arrive on the territory of an EU state unaccompanied by an adult responsible for them. France, Greece and Italy have been invited to make referrals of eligible children, and it is their responsibility to decide which children to refer.

Children to be prioritised for referral are those who are likely to be granted refugee status in the UK, and those who are most vulnerable. Upon individual assessment, a child would become eligible if it were in their best interests to come to the UK, be transferred to another EU Member State or to be reunited with family outside of the EU, rather than remaining in their current host country. Finally, the child must be under 18 at the time of transfer to the UK.

An “Individual Best Interests Determination” must be carried out on a child before they can be transferred to the UK. If it is concluded that firstly, it is in the child’s best interests to be transferred to the UK, and secondly, no concerns arise as a result of security and identity checks, a referral will be made for the child to be placed with a local authority in the UK. The child will not be able to choose to be placed in a specific part of the UK. However, if placement in a specific part of the UK is in the child’s best interests, then that will be taken into consideration in deciding where the child is placed.

Importantly, being transferred under s.67 will not affect the child’s right to claim asylum. Once in the UK the child will undergo a welfare interview and will be advised on how to progress their claim for asylum. This information will also be shared with their local authority social worker. Children transferred to the UK under s.67 will be in addition to those transferred under the Dublin III Regulation.

Posted by: Gherson Immigration,

Vulnerable Adult Witnesses in Immigration Appeals

In certain circumstances, applications can be made for appellants and witnesses in the Immigration Tribunal to be treated as ‘vulnerable’. The Tribunal can also make a finding that an appellant or witness is vulnerable of its own accord. If either an appellant or witness is identified as being vulnerable then the Tribunal will be likely to put special measures in place.

What makes an appellant or witness in immigration appeals ‘vulnerable’?
An individual may be vulnerable because of an innate characteristics (such as age), because of personal characteristics (such as mental health problems) or because of events over which they have or have had no control eg. past detention or torture. This blog post will address the circumstances in which adults may be viewed as vulnerable.

As defined in the President’s Guidance, the Tribunal should attribute the same meaning to ‘vulnerable adult’ as in Section 59 of the Safeguarding Vulnerable Groups Act 2006. This defines circumstances in which an adult will be viewed as vulnerable, including when an individual is in residential accommodation, sheltered housing, detained in lawful custody or who require assistance in the conduct of their affairs.
It is important to note that the measures that will be taken as a consequence of someone’s vulnerability will depend on the degree to which the individual is affected. The Tribunal is required to determine the extent of any identified vulnerability, the effect on the quality of any evidence given and the weight to be placed on the vulnerability in assessing the evidence before taking it into account.

Read more: Jasmine Theilgaard, Richmond Chambers,

"Defending Migrants in the Era of Trump"

Speaker: Professor David Cole

Introduced by Raza Husain QC

Monday, 9 March 2020 6:30pm in the Brunei Gallery at SOAS.

The purpose of the Memorial lectures is to provide a stimulating contribution to the debate around human rights, the rule of law and access to justice.

David Cole is the National Legal Director of the American Civil Liberties Union (ACLU). Before joining the ACLU in July 2016, Cole was the Hon. George J. Mitchell Professor in Law and Public Policy at Georgetown University. David Cole has taken several significant First Amendment cases in the US Supreme Court (see for example Irap v Trump) and the ACLU has been at the forefront of litigation challenging Trump administrations targeting of immigrants, through for example the “Muslim travel ban”, the border wall with Mexico, and the detention of children. He will be raising issues directly relevant to the UK.

This is a free event and the registration details with Eventbrite are available here. Tickets are available on a first-come first serve basis.

3rd Kay Everett Memorial Lecture: