‘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, https://is.gd/imSiNH
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, https://is.gd/mNHDZQ
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.
ECtHR: https://is.gd/m99rRu
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, https://is.gd/S632Wn
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:
https://www.settlementguide.co.uk/
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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, https://is.gd/iYbtIq
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: https://is.gd/co9FFF
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,
https://is.gd/PFXzbw
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, https://is.gd/m97UXd
"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:
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