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Court: High Court

‘Breach of human rights for detainee who was subjected to constant observation for 75 days’

IS (Bangladesh) v SSHD [2019] EWHC 2700 (Admin)

The claimant challenged the legality of his detention for a period of 28 months pending his deportation. He says that it was unlawful to detain him for that period of time having regard to his young age (he was 18 when first detained), his mental health, history of self-harm and risk of suicide, and the conditions of his incarceration. He claims a violation of his rights under the ECHR, art 3, 5 and 8.

Held: The detention of the Claimant between 28 July 2016 and 29 June 2018 was lawful and did not involve a breach of his Convention rights. The detention of the Claimant between 29 June 2018 and 30 November 2018 was unlawful and amounted to a breach of his right to liberty under Article 5 ECHR. His treatment of being subjected to constant observation for a period of 75 days whilst unlawfully detained amounts to a separate breach of the right to respect for private life under Article 8 ECHR. There was no breach of the prohibition on inhuman or degrading treatment under Article 3 ECHR.

High Court dismisses appeal against extradition orders under Article 3 of the European Convention on Human Rights

Henriques v Judicial Authority of Portugal [2019] EWHC 1998 QB (Admin)

The Claimant appealed against two extradition orders to Portugal sought by two Judicial Authorities pursuant to two European Arrest Warrants.

The Claimant resisted extradition on the basis that prison conditions in Portugal were such that, especially in light of his state of health, his extradition would be incompatible with the European Convention on Human Rights, art 3 and that extradition would be oppressive on account of his health under the Extradition Act 2003, s25.

The Court dismissed the appeal. Taking into account the threshold presumption for medical care in prisons in extradition cases and assurances given by the Director General of Prisons, the court was satisfied that Portugal will provide care and treatment to the Claimant which are in accord with the requirements of the ECHR, art 3.

Court holds biological father’s inability to be named on surrogate child’s birth certificate to be a legitimate interference with his private life

R (H) (by her litigation friend B) v Secretary of State for Health and Social Care [2019] EWHC 2095 (Admin)

This case concerns whether the inability of A (the Claimant’s genetic father) to be named on the Claimant’s birth certificate is a breach of the Claimant’s article 8 and 14 ECHR rights. The Claimant applies for a declaration of incompatibility under s.4 of the Human Rights Act 1998 in respect of sections 35 and 38 of the Human Fertilisation and Embryology Act (HFEA) 2008 and for a declaration that those sections breach the Claimant’s human rights.

A and B entered into a surrogacy arrangement with C and D, a married couple. A is the biological father and C is the biological mother. During the course of C’s pregnancy, there was a breakdown in relations between the parties.

C and D registered themselves on H’s birth certificate, however by an Order made on 13 December 2016, A and B, as well as C and D, were given parental responsibility for the Claimant. The child currently resides with A and B but has regular contact throughout the year with C and D.

Held: There is no incompatibility and consequentially no remedy. It is accepted that H’s private life is interfered with by the operation of s.35 and 38, but not her family life. H lives with A and B, and they have day to day responsibility for her life. Her family life with them is fully protected by the terms of the Child Arrangements Order, and the impugned provisions have no real impact on her family life.

This interference, however meets a legitimate aim, and is necessary. The regulation of surrogacy is necessary for three reasons:

in order to provide legal certainty so that the child, and anyone else, can know who that child’s legal parents are;
to meet the objective that gamete donors should not be legal parents;
to ensure that surrogacy arrangements are not enforceable in domestic law.

Furthermore, the interference is relatively limited as A and B can explain H’s genetic heritage, and they have a day to day parental responsibility for her.  

Claimant acquitted for murder not entitled to receive compensation for miscarriage of justice

R (Holdsworth) v The Secretary of State for Justice [2019] EWHC 2079 (Admin)

In December 2008 the claimant was acquitted for a previous conviction of murder. The claimant applied for compensation under Criminal Justice Act 1988, s133, alleging a miscarriage of justice.  This was refused by the defendant in 2009 and they later refused to review this decision in 2011. The  claimant brought a judicial review to quash the 2011 decision, stating it is unlawful.

Held: The 2011 decision was not unlawful. When analysing R (Adams) v Justice Secretary [2011] UKSC 18; [2012] 1 AC 48 it was decided this case fell within category 3, as the claimant failed to lodge her claim within 28 days of the Supreme Court decision. For this reason, the Defendant’s decision not to review the 2009 decision was a lawful application of the policy.

Permission granted to judicially review Home Office policy concerning victims of trafficking

NN and LP v SSHD [2019] EWHC 1003 (Admin)

In an action brought by two victims of modern slavery, the High Court today continued interim relief barring the government from automatically ending support to any victim of trafficking, 45 days from receipt of a positive Conclusive Grounds decision. The judge accepted that the automatic cessation of support after 45 days carried a serious risk of irreparable harm to victims, many of whom have undergone experiences akin to the Claimants, LP (trafficked and repeatedly raped) and NN (trafficked, held in slave conditions and badly beaten).The High Court also granted permission to judicially review the three aspects of the Defendant’s policy concerning victims of modern slavery:(1) A challenge to the 45-day rule, by which the Home Office automatically ceases support to trafficking victims 45 days from a Conclusive Grounds decision. The Claimants contend that support should be provided pursuant to the Trafficking Convention and Directive, unless and until a victim leaves the jurisdiction;(2) A challenge to the Defendant’s policy regarding extensions of support to victims of trafficking beyond 45 days. The Claimants contend that the failure to publish criteria applicable to such decisions is unlawful and that the restrictive unpublished criteria unlawfully fail to give effect to the UK’s obligations under the Trafficking Convention; and(3) A challenge to the scheduling rule, by which the Home Office defers a decision on whether a victim of trafficking is entitled to discretionary leave to remain pending a decision on whether to grant them asylum (a process often associated with prolonged delay and the attendant anxiety of an insecure immigration status). The Claimants contend that the scheduling rule is incompatible with the Trafficking Convention, breaches ECHR, art 14 and contravenes Equality Act 2010, s19 by indirectly discriminating against non-EU nationals.The decision on interim relief has broader significance for the availability generic interim relief in public law proceedings i.e. benefitting a wider class of persons similarly situated to Claimants. The High Court rejected the Defendant’s arguments that (a) Senior Courts Act 1981, s31(2A) statutorily barred such relief and (b) that save in very restrictive circumstances, the grant of relief on behalf of persons unknown was unavailable in judicial review proceedings.