Court: Queen’s Bench Division (Administrative Court)

High Court rules that hearing does not breach Article 6 right of suspected Al-Qaeda affiliate

QX v Secretary of State for the Home Department [2020] EWHC 2508 (Admin)

The High Court has decided that a review under the Counter-Terrorism and Security Act 2015 s.11(2)(d) of “permitted obligations” imposed on a British citizen under a Temporary Exclusion Order (‘TEO’) after his return to the UK from Turkey does not breach that citizen’s Article 6(1) right to a fair trial.

This judgment follows on from an earlier preliminary judgment by the same court in May 2020 ([2020] EWHC 1221 (Admin)) which decided that the right to a fair trial under Article 6 does apply to these review proceedings. Please click here to read the Matrix Judgment post.

In 2018 the claimant, QX, was deported from Turkey on national security grounds as he is believed to have travelled to Syria, become radicalised, and held a “significant leadership role” in a group linked to Al-Qaeda. Upon the claimant’s return to the UK, a TEO was imposed on him at the request of the Secretary of State, obliging the claimant to (1) report daily to a named police station within specified hours, and (2) attend a two-hour appointment with a Home Office mentor and a two-hour appointment with a theologian each week. The claimant seeks to review the imposition of these powers.

Regarding Article 6, the claimant contended that it was impossible for him to respond to the Secretary of State’s allegation that he continued to engage in activities which risk national security since returning to the UK. Specifically, the allegation was too broad and vague to allow him to give effective instructions, contrary to the test in AF (No 3), and so the Secretary of State’s case was bound to fail. By contrast, the Secretary of State contended that it had complied with the court’s orders made as a result of the disclosure process; thus, the claimant had been provided with sufficient material for Article 6 purposes.

Held: the High Court decided in favour of the Secretary of State, that the determination of the issues in the case will be fair and compatible with the claimant’s Article 6 rights. Even taking the allegation about UK activities out of the equation, the Court concluded that Secretary of State still has a strong case against the claimant based on, inter alia, his significant leadership role in Syria. The Secretary of State is entitled to put such a case, and the claimant is able to give effective instructions and order to answer and refute it: hence there is no breach of Article 6.

High Court refuses appeal against extradition to California for murder trial

Miao v Government of the United States of America [2020] EWCA 2178 (Admin)

The Government of the United States had requested the applicant’s extradition to stand trial for the murder of a former business associate. The applicant had resisted extradition, chiefly, on the grounds of mental health and prison conditions in California. The District Judge had decided to send the applicant’s case to the Secretary of State under section 87(3) of the Extradition Act 2003. The applicant appealed on the basis that the Government failed to honour its duty of candour in laying out the problems in the Californian prison estate; the judge should have found that extradition was barred by Articles 2 and 3 of the Convention in consequence of the applicant’s mental illness and risk of suicide and that the judge should have found that extradition is barred by section 91 on the same basis. The question for the High Court was whether there was an arguable basis for saying that the district judge was ‘wrong’ in his conclusions on any or all of the three grounds of appeal.
The High Court refused permission to appeal and held that the District Judge was correct in the conclusions that he reached. The Court was satisfied that the applicant would be properly cared for and his mental health needs and suicide risk appropriately dealt with. The assurances given to that effect were found to be specific and detailed and given in good faith by and on behalf of individuals who have the ability to ensure they are fulfilled.

Adoption and fostering agency’s recruitment policy found to violate the Equality Act and the Human Rights Act for requiring carer applicants to be heterosexual

R (Cornerstone (North East) Adoption and Fostering Service Ltd v Ofsted [2020] EWHC 1679 (Admin)

This case concerned whether it is lawful for an adoption and fostering agency only to accept heterosexual evangelical Christians as the potential carers of fostered children. Cornerstone (North East) Adoption and Fostering Service Ltd sought to judicially review a report by Ofsted, which found its carer recruitment policy to be in violation of equality and human rights laws and required it to change the policy.

Cornerstone operates as an independent fostering agency and is founded on, and operates according to, its perception of evangelical Christian principles. In practice, the only potential carers Cornerstone accepts are evangelical married heterosexual couples of the opposite sex.

The Court held, inter alia, that Cornerstone’s recruitment policy was unlawfully discriminatory in breach of s 29(1) of the EA 2010, alternatively, s 29(6), in both cases read with s 13 and/or s 19, insofar as it requires applicants to refrain from ‘homosexual behaviour’. The policy unlawfully discriminates, directly or indirectly, against gay men and lesbians. The disapplication of the general exemption in [2(3)] of Sch 23 provided by [2(10)] applies because Cornerstone performs functions on behalf of public authorities pursuant to contract.

Cornerstone’s recruitment policy was held to violate Article 14 of the Convention read with Article 8 insofar as it required carer applicants to be heterosexual. Its policy unlawfully discriminated against gay men and lesbians.

High Court quashes DPP decision not to charge employers in domestic servitude case

L v Director of Public Prosecutions [2020] EWHC 1815 (Admin)

The Claimant challenged the decision of the CPS on behalf of the DPP not to bring charges against her former employers for arranging her entry into the UK in circumstances in which they intended to exploit her, contrary to section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
The Claimant had obtained work for a Mr and Mrs Aljaberi in Abu Dhabi through an agency. Mr Aljaberi wanted the Claimant to accompany his family to London and the Claimant contended that he had told her he would reimburse her £1000 monthly for the work done in London. The Claimant was only remunerated £100-£200 per month. The Claimant contended that she was mistreated during her employment. The Home Office had concluded, on the balance of probabilities, that the Claimant had been recruited for the purpose of domestic servitude and had been deceived as to the salary she would receive in the UK and hours she would be required to work. The CPS, however, had decided not to charge Mr and Mrs Aljaberi which the Claimant challenged in the present proceedings.
The Court allowed the claim and quashed the decision not to charge the employers. It held that proper decision making in a charging context requires the prosecutor to assess the available evidence against the elements of the potential offence. In this case the decision maker’s approach was fundamentally flawed.

High Court refuses permission for judicial review challenge to lockdown regulations

Dolan & Ors v Secretary of State for Health and Social Care & Anor [2020] EWHC 1786 (Admin)

The claimants sought permission to bring judicial review proceedings to challenge the Health Protection (Coronavirus Restrictions) (England) Regulations 2020 (as amended) as well as a decision to close schools and educational establishments. The case raised a number of issues for consideration including whether some of the grounds of challenge are now academic and whether the Regulations are unlawful because they are outside the powers conferred by Parliament.

The High Court held that the Secretary of State had the legal power to make the Regulations. In making and maintaining the Regulations, he had not fettered his discretion, had regard to relevant considerations and acted neither irrationally nor disproportionately. The claim to challenge the restrictions on movement and gatherings in the original regulations 6 and 7 were held to be academic as those regulations have been replaced. The challenge to the 18 March 2020 announcement relating to schools was also considered to be academic in the circumstances. Permission to apply for judicial review to challenge those regulations and that decision was therefore refused.

The amended regulation 6 in force on 2 July 2020 requiring persons not to stay overnight other than where they live was held not to be a deprivation of liberty within the meaning of Article 5 of the Convention. Though the Regulations involved a restriction on the freedom of assembly and association, there was no realistic prospect that a court would find that regulations adopted to reduce the opportunity for transmission by limiting contact between individuals was disproportionate. Permission to challenge the Regulations on the basis of Article 8 of the Convention or the first claimant’s property rights under Article 1 of the First Protocol to the Convention was also refused.