France: Inhuman and Degrading Living Conditions of Homeless Asylum-Seekers Violation of Article 3

In Chamber judgment in the case of N.H. and Others v. France the European Court of Human Rights held, unanimously, that there had been: a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights in respect of the applicants N.H. (no. 28820/13), K.T. (no. 75547/13) and A.J. (no.13114/15). The applications concerned five asylum-seekers, single men, living in France. They complained that they had been unable to receive the material and financial support to which they were entitled under French law and had thus been forced to sleep rough in inhuman and degrading conditions for several months. The Court observed that the applicant N.H. had been living in the street without any resources; this was also the case for K.T. and A.J. who had only received the Temporary Allowance after 185 and 133 days respectively. In addition, before being able to register as asylum-seekers, N.H., K.T. and A.J. had been forced to survive for a certain period without any evidence of that status.

The French authorities had failed in their duties under domestic law. They were found responsible for the conditions in which the applicants had been living for several months: sleeping rough, without access to sanitary facilities, having no means of subsistence and constantly in fear of being attacked or robbed. The applicants had thus been victims of degrading treatment, showing a lack of respect for their dignity. The Court found that such living conditions, combined with the lack of an appropriate response from the French authorities and the fact that the domestic courts had systematically objected that the competent bodies lacked resources in the light of their status as single young men, had exceeded the threshold of severity for the purposes of Article 3 of the Convention. The three applicants N.H., K.T. and A.J. had thus found themselves, through the fault of the French authorities, in a situation that was incompatible with Article 3 of the Convention.

Woman loses Legal Challenge to NHS Charges For Pregnant Migrants

A woman who faces decades of repayments to the NHS for maternity care has lost a case in the high court challenging the government’s healthcare charging regime for migrants. The woman, who cannot be named, brought the legal challenge along with the charity Maternity Action, which works to end inequality and improve healthcare for pregnant women. It will come as a blow to hundreds of impoverished migrant women who are pregnant. Last year Maternity Action provided advice to 400 such women.

The woman, who had been subjected to female genital mutilation and is incurring NHS charges of £10,636 for maternity care – a debt she is paying back at £10 a month – argued that the charging regime for migrants deters, delays or denies access to healthcare for pregnant women, those giving birth or those who need postnatal treatment. She and the charity were seeking permission to judicially review government policies but the judge, Mrs Justice Whipple, rejected the case. Whipple said she was not granting permission for the case to proceed, not because of “a lack of sympathy” for the disadvantaged group the case applied to, but because the case had been brought out of time as it referred to charging rules introduced by the government in 2015. She could not see a legal basis for the claim, which related to matters of policy, which needed to be addressed by parliament, and not to matters of law.

Read more: Dianne Taylor, Guardian, https://is.gd/1tlJHk

Do You Have to be Under 18 to Rely on the Seven Year Long Residence Rule?

Fair play to the litigants and their lay representative for their perseverance in the Scottish appeal case of Saleemi [2020] CSIH 32. Their tenacity is remarkable: the Home Office refused their applications for leave to remain, the First-tier Tribunal refused their appeals, the Upper Tribunal refused to grant permission to appeal, and a judge of the Outer House refused permission for a judicial review. Despite all of those adverse decisions, they managed to persuade the highest court in Scotland that the First-tier Tribunal arguably got it wrong — and that there is an important point of legal principle at stake.

The first of the three litigants was a 17-year-old child on the date of his application under the seven year rule in paragraph 276ADE(1)(iv), which requires the application to be “under the age of 18 years”. By the time his appeal came around, he was 19. The First-tier Tribunal judge did not give him the benefit of the more favourable Article 8 assessment that a minor would receive.

Lord Brodie summarises the issue: should then the FTT have treated the first petitioner as the adult he was at the date of the hearing, or as the child that he had been at the date of his application? The court accepted this is an important point of principle, although this particular judgment does not actually resolve it. That will be for another judge to determine, if the judicial review proceeds to a substantive hearing. So good news for the family — but they still have a long way to go.

Read more: Freemovement, https://is.gd/kAopOB

Five Migrant Families Criticise Further Delay to Birmingham Crush Deaths Case

The families of five migrant workers who were crushed to death at a scrap metal plant four years ago say they have been treated “as if our lives do not matter” after the criminal investigation was hit with further delays. The men, who were from the Gambia and Senegal and were employed on zero-hours contracts, were killed on 7 July 2016 when a 3.6-metre wall and 263 tonnes of metal collapsed on top of them at the Hawkeswood Metal Recycling site in Birmingham. The deaths of Almamo Jammeh, 45, Ousmane Diaby, 39, Bangally Dukureh, 55, Saibo Sillah, 42, and Muhamadou Jagana, 49, are believed to be the single biggest loss of life at a recycling plant in the UK. Despite a four-year criminal investigation by the Health and Safety Executive (HSE) and an inquest’s finding that the risk of the tragedy was foreseeable, no one has yet been arrested or prosecuted over the deaths.

The men’s families say they were distraught after being told recently that the investigation had been delayed further, despite “repeated promises” from the HSE that it would decide whether to prosecute the scrap metal firm Shredmet, which owns the site, before the fourth anniversary next week. The families say they feel they have been treated differently because of their heritage. In a nod to the Black Lives Matter movement, they said: “This news has caused us grief and anguish. We have met with delay at every stage of the process. We demand justice and accountability. We are five black families, from Gambia and Senegal; it is as if our lives do not matter. Our lives do matter.”

Read More: Josh Halliday, Guardian, https://is.gd/8xBGjH

 Tougher Deportation Laws for Illegal Migrants and Offenders

Priti Patel’s latest plans to overhaul the UK Immigration Rules include tightening the laws concerning illegal migrants and offenders in an attempt to “protect our borders” and curb abuses of the asylum system by those who do not have a right to be in the UK. It is understood that the Home Secretary’s ambitious plans would target the “prompt removal” of failed asylum applicants by preventing the pursuit of last-minute appeals and “further submissions” as asylum applicants would be forced to present all their arguments and evidence at the outset of their claim. With regard to foreign offenders, Priti Patel envisages enforcing the “prompt removal” of criminals sentenced to imprisonment of 12 months or more, although she admits this would be a big challenge. Other proposals include automatic prison sentences for deported offenders who return to the UK.

Notwithstanding the UK’s inability (courtesy of the European Convention of Human Rights) to secure the removal of offenders or failed asylum seekers to states where they could be at risk of torture, inhumane treatment or other violence, the proposals may remain “undeliverable due to the legal and logistical obstacles that cannot be easily overcome” said David Wood, a former Director General of immigration enforcement at the Home Office.

Posted by: Gherson Immigration, https://is.gd/gyqlXb

‘Black Lives Matter’ - Taking Legal Action to Combat Police Brutality

Multiple instances of police misconduct have been brought to the public attention as a result of the recent Black Lives Matter movements. The misconduct highlighted has ranged from discrimination against black, Asian and minority communities to overt, unjustified and unnecessary violence – which might unequivocally carry the title ‘brutality’. When police officers behave in this manner, it is likely to constitute a breach of S6 HRA and would therefore constitute a breach of an individual’s human rights. Section 6 of the Human Rights Act 1998 (HRA) makes it unlawful for a public authority to act in a way that is incompatible with person’s rights under the European Convention on Human Rights (‘ECHR’). As a public authority, the police must observe S6 HRA and refrain from behaviour which might contravene ECHR rights. Unfortunately, many people affected by misconduct at the hands from the police may not be aware of the legal options available to them. There is much that can be done to ensure justice is pursued and redress achieved. Claims against the police involve a variety of circumstances and include: Protest related - Wrongful arrests - Assault and battery- False imprisonment / Deprivation of liberty - Unlawful searches

Making a complaint: It is possible to make complaints against the police, against a particular force, an individual officer and any other member of police staff. Complaints can relate to those claims mentioned above but also in some circumstances where police have not followed correct procedures or have otherwise contravened their own Code for Professional Conduct. Complaints made to the police in England and Wales should be made to the relevant police force and can sometimes be investigated, or managed, by the Independent Office for Police Conduct (‘the IOPC’).

Read more: Duncan Lewis, https://is.gd/Wkwvv3

In the case of C-754/18 Ryanair the Court of Justice of the European Union has concluded that a non-EU national who holds a permanent residence card from one EU state, is under EU law, exempt from any domestic law requirement to hold a visa to enter another EU state. The judgment effectively overrules the Court of Appeal judgment in Ryanair v Secretary of State for the Home Department [2018] EWCA Civ 899 (see our write up of that earlier case here: Carriers’ liability: Ryanair challenges the Secretary of State – and loses).

The CJEU reaches this conclusion despite there being no express provision to this effect in Directive 2004/38: only a residence card is specifically mentioned. This was no barrier to the CJEU, which considered it absurd and counterproductive for one of the benefits of a residence card to be lost when the status is upgraded to permanent residence.

The court also finds that other member states must accept a permanent residence card issued in a different member state as proof that status is genuinely held. This runs contrary to the current Home Office interpretation of the significance of possessing residence documentation issued in EU countries.

The judgment is an important one for airlines and for passengers, given that carrier liability laws were until now effectively forcing airlines to deny boarding to non-EU family members with permanent residence cards and no visa.

Read more: Freemovement, https://is.gd/AfrboK