Category: Human Rights

Associazione Nazionale Reduci Dalla Prigionia Dall’Internamento E Dalla Guerra Di Liberazione v Germany: ECHR 4 Sep 2007

The applicants complained that they had claims for compensation for forced labour under German civil law prior to the coming into force in August 2000 of a law, referred to as the Foundation Law, which excluded claims going beyond the benefits provided by the Foundation Law, as a result of which their claims were lost. The question was whether the facts of the case attracted the protection of article 14 in conjunction with article 1 of Protocol No 1.
Held: The applicants could not claim to have a legitimate expectation of compensation for their detention and forced labour and that the facts at issue did not fall within the ambit of Protocol No 1

Citations:

45563/04, [2007] ECHR 5556

Links:

Bailii

Statutes:

European Convention on Human Rights

Cited by:

Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.277231

Refah Partisi (The Welfare Party) And Others v Turkey: ECHR 13 Feb 2003

Citations:

41340/98;41342/98;41343/98;…, [2003] ECHR 87

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Citing:

See Also – Refah Partisi (Welfare Party) And Others v Turkey ECHR 31-Jul-2001
Hudoc The claimants said that the dissolution of their political party by the Turkish Constitutional Court infringed their rights. . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.277243

Smirnova v Russia: ECHR 24 Jul 2003

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1+5-3 ; Violation of Art. 6-1 ; Violation of Art. 8 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award

Citations:

46133/99, [2003] ECHR 397, 48183/99

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 19 July 2022; Ref: scu.277258

Reynolds, Regina (on the Application of) v Independent Police Complaints Commission and Another: CA 22 Oct 2008

The court was asked to consider whether the IPCC could investigate the circumstances leading to the arrest of a suspect who fell into a coma after being arrested for being drunk. The IPCC appealed, saying that it did not have jurisdiction to investigate matters before the arrest.
Held: The appeal was dismissed. Longmore LJ said: ‘the IPCC pursuant to section 10 and paragraph 14D of Schedule 3 has both a power and a duty to investigate both cases of death or serious injury in custody and cases in which a complaint is made about the police. In the present case there has been a serious injury which manifested itself while Mr Reynolds was in police custody; the claimant has, moreover, made a formal complaint to the IPCC about that matter. That being the case it is a relevant question whether the injury to Mr Reynolds was caused by the conduct of police officers. It is obviously possible that such injury was caused at the time of arrest and detention when Mr Reynolds’ head hit the ground. It is also possible that it was caused at a time before Mr Reynolds came into contact with the police. It is not possible to determine whether the conduct of the police caused or contributed to Mr Reynolds’ injury without, at least, considering any evidence there might be pointing to a competing cause. If that competing cause occurred prior to police contact, that cause must be considered just as much as if that competing cause was during police custody; otherwise the IPCC cannot determine whether the injury was caused or contributed to by the police which is the whole point of the investigation. ‘ and
‘It is . . for the police not the IPCC to conduct investigations into possible criminal conduct of members of the public. But it is for the Commission to investigate possible misconduct on the part of the police. That will often require the Commission to investigate whether death or serious injury was caused by the police or by someone (or something) else. That is an inquiry into causation. ‘

Judges:

Ward, Longmore, Jackson LJJ

Citations:

[2008] EWCA Civ 1160, [2009] ACD 51, [2009] 3 All ER 237

Links:

Bailii, Times

Statutes:

Police Reform Act 2002 10, Serious Organised Crime Act 2005 160

Jurisdiction:

England and Wales

Citing:

Appeal from – Reynolds, Regina (on the Application of) v Sussex Police and Another Admn 16-May-2008
The complainant’s brother had been arrested for being drunk. After a time in a cell, he was found unwell and fell into a coma. Complaints were made of his treatment. The Police Complaints Commission was to investigate the events after the arrest . .
Cited – Stephen Jordan (No 2) v The United Kingdom ECHR 10-Dec-2002
The applicant was a soldier who had been court marshalled for misuse of travel warrants. He wished to use in his defence his recent epilepsy. There was some delay while medical reports were obtained, and subsequently when the new legal system was . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – Yasa v Turkey ECHR 2-Sep-1998
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); No violation of Art. 2; Violation of Art. 2 (effective investigation); . .
Cited – Menson v United Kingdom ECHR 6-May-2003
There had been a racist attack. The victim was set on fire and killed in the street by assailants. His relatives sought compensation. However the assailants were not agents of the state and they were duly prosecuted, convicted and sentenced. No . .
Cited – Angelova And Iliev v Bulgaria ECHR 26-Jul-2007
The applicants were mother and brother of a Roma man who had been stabbed to death by a gang of teenagers. They did not suggest any direct involvement of the state, but complained of inadequacies in the police investigation.
Held: The absence . .
Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 19 July 2022; Ref: scu.277110

In Re KD (A Minor) (Ward: Termination of Access): HL 1988

The local authority sought to terminate parental contact with a child taken into care under a wardship.
Held: The court had to consider the human rights of the parent as against the welfare interest of the child. Lord Oliver of Aylmerton said: ‘My Lords I do not, for my part, discern any conflict between the propositions laid down by your Lordships’ House in J. v C. and the pronouncements of the European Court of Human Rights in relation to the natural parent’s right of access to her child. Such conflict as exists, is, I think, semantic only and lies only in differing ways of giving expression to the single concept that the natural bond in the relationship between parent and child gives rise to universally recognised norms which ought not to be gratuitously interfered with and which, if interfered with at all, ought to be so only if the welfare of the child dictates it. The word ‘right’ is used in a variety of different senses, both popular and jurisprudential . . Parenthood, in most civilised societies, is generally conceived of as conferring upon parents the exclusive privilege of ordering, within the family, the upbringing of children of tender age, with all that that entails. That is a privilege which, interfered with without authority, would be protected by the courts, but it is a privilege circumscribed by many limitations imposed both by the general law and, where circumstances demand, by the courts or by the authorities upon whom the legislature has imposed the duty of supervising the welfare of children and young persons. When the jurisdiction of the court is invoked for the protection of the child the parental privileges do not terminate. They do, however, become immediately subservient to the paramount consideration which the court has always in mind, that is to say, the welfare of the child. That is the basis of the decision of your Lordships’ House in J. v C. [1970] A.C. 668 and I see nothing in R. v United Kingdom (Case 6/1986/104/152) which contradicts or casts any doubt upon that decision or which calls now for any re-appraisal of it by your Lordships. In particular the description of those familial rights and privileges enjoyed by parents in relation to their children as ‘fundamental’ or ‘basic’ does nothing, in my judgment, to clarify either the nature or the extent of the concept which it is sought to describe.’
Lord Templeman said: ‘Public authorities cannot improve on nature.’ and ‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered.’

Judges:

Lord Oliver of Aylmerton, Lord Templeman

Citations:

[1988] 1 All ER 577, [1988] 2 WLR 398, [1988] AC 806

Jurisdiction:

England and Wales

Citing:

Cited – J v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
Cited – Re O’Hara 1900
(Ireland) FitzGibbon LJ SAID: ‘In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent . .

Cited by:

Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – CG v CW and Another (Children) CA 6-Apr-2006
A lesbian couple had split up and disputed the care of the children. An order had been made but then, in breach of that order, one removed the children overnight to Cornwall. An argument was made that the court had failed to give proper weight to . .
Cited – In Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .
Cited – Re L (Care: Threshold Criteria) FD 2007
Toleration of Diverse Parenting Standards
Hedley J considered the meaning of ‘significant harm’: ‘What about the court’s approach . . to the issue of significant harm? In order to understand this concept and the range of harm that it’s intended to encompass, it is right to begin with issues . .
Cited – Re MA and Others (Children) CA 31-Jul-2009
Children appealed against dismissal of their care proceedings on the basis that the threshold had not been reached. The parents resisted.
Held: It could not be said that the decision so plainly wrong that the judge’s conclusion on the facts . .
Cited – Payne v Payne; P v P CA 13-Feb-2001
No presumption for Mother on Relocation
The mother applied for leave to return to New Zealand taking with the parties’ daughter aged four. The father opposed the move, saying that allowing the move would infringe his and the child’s right to family life. He had been refused residence.
Cited – Re EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .
Cited – Re EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 19 July 2022; Ref: scu.213652

Sadler v The General Medical Council: PC 15 Jul 2003

(The Committee on Professional Performance of the GMC) The distinction drawn in Krippendorf between a practitioner’s current competence and past performance was not to be taken too far. The purpose of the assessment was not to punish the practitioner, but to protect the public. The standard of proof was accordingly the civil standard of balance of probabilities. The Board considered the role of members of the GMC sitting as panel members of its Committee on Professional Performance. It was argued that the presence of GMC members on the CPP panels was contrary to the domestic doctrine of apparent bias or to ECHR article 6.
Held: Lord Hope pointed out that there is no general principle of Convention jurisprudence which prevents such self-regulation and that everything depended on all the relevant circumstances. As to the relevant rules and the protection afforded by them, their Lordships were satisfied that the CPP met the Convention requirements.

Judges:

Lord Rodger of Earsferry, Lord Walker of Gestingthorpe, Sir Phillip Otton

Citations:

[2003] UKHL 59, Times 29-Sep-2003, [2004] Lloyd’s Rep Med 44, [2004] HRLR 8, [2003] 1 WLR 2259

Links:

Bailii, PC, PC

Statutes:

European Convention on Human Rights

Jurisdiction:

Commonwealth

Citing:

Cited – Dr Manjula Krippendorf v The General Medical Council PC 24-Nov-2000
(Reasons for report) When the Committee of Professional Performance was considering the standard of professional practice of a doctor, the committee should consider his actual record of practice as disclosed from the records of his practice, and . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – McAllister v General Medical Council PC 3-Feb-1993
English law had been correctly applied in GMC disciplinary proceedings even though they were heard in Scotland. . .
Cited – Le Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
Hudoc The Court was faced with a disciplinary sanction imposed on doctors which resulted in their suspension for periods between 6 weeks and 3 months: ‘Unlike certain other disciplinary sanctions that might have . .
Cited – Bryan v The United Kingdom ECHR 22-Nov-1995
Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .

Cited by:

Cited – Kaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights, Natural Justice

Updated: 19 July 2022; Ref: scu.185170

Agee v United Kingdom: ECHR 1976

(Commission) The Convention does not create any civil right to nationality or to a right of residence. The Secretary of State had made a deportation order against the applicant, who was a United States citizen, on grounds which included that he had maintained regular contacts harmful to the security of the United Kingdom with foreign intelligence officers. He complained that this infringed a number of his Convention rights, including Article 10. The Commission held that this complaint was manifestly ill-founded, observing: ‘Art 10(1) of the Convention provides inter alia that everyone has the right to freedom of expression and that this right includes freedom ‘to receive and impart information and ideas without interference by public authority . . ‘
However, Art 10 does not in itself grant a right of asylum or a right for an alien to stay in a given country. Deportation on security grounds does not therefore as such constitute an interference with the rights guaranteed by Art 10. It follows that an alien’s rights under Art 10 are independent of his right to stay in the country and do not protect this latter right. In the present case the applicant has not, whilst in the jurisdiction of the United Kingdom, been subjected to any restrictions on his rights to receive and impart information. Nor has it been shown that the deportation decision in reality constituted a penalty imposed on the applicant for having exercised his rights under Art 10 of the Convention, rather than a proper exercise on security grounds of the discretionary power of deportation reserved to States.’

Citations:

(1976) 7 DR 164, 7729/76

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Farrakhan, Regina (on the Application of) v Secretary of State for the Home Department CA 30-Apr-2002
The applicant sought admission to the UK. In the past he had made utterances which were capable of being racist. He claimed to have recanted, and had given undertakings as to his behaviour. At first instance it was held that the Home Secretary had . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.180532

Montgomery and Coulter v Her Majesty’s Advocate: PC 19 Oct 2000

The test of whether a defendant’s common law right to a fair trial had been damaged by pre-trial publicity was similar to the test under the Convention, and also where there was any plea of oppression. The substantial difference is that no balancing exercise was to be carried out under the Convention test. The right to a fair trial is absolute, and unqualified. It was not to be subordinated to the public interest in the detection and suppression of crime. The Court need not look only at the effect on the jurors, but could also allow for the part which the judge would play. A question of Scottish criminal law and procedure falls within the exclusive jurisdiction of the High Court of Justiciary. Lord Hoffmann said: ‘events before the trial may create the conditions for an unfair determination of the charge. For example, an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of Article 6(1) lies not in the use of torture (which is, separately, a breach of Article 3) but in the reception of the evidence by the court for the purposes of determining the charge. If the evidence had been rejected, there would still have been a breach of Article 3 but no breach of Article 6(1).’

Judges:

Lord Hoffmann

Citations:

Times 06-Dec-2000, DRA Nos 1 and 2 of 2000, [2003] 1 AC 641, 2001 SLT 37, [2000] UKHL D1, 2002 SC (PC) 89, 2000 GWD 40-1487, 9 BHRC 641, [2001] UKHRR 124, [2001] 2 WLR 779, 2000 SCCR 1044

Links:

PC, Bailii

Statutes:

European Convention on Human Rights 6(1)

Jurisdiction:

Scotland

Citing:

Appeal from – Her Majesty’s Advocate v Montgomery and Coulter HCJ 14-Sep-1999
. .

Cited by:

Cited – Regina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
Cited – Regina on the Application of Mahfouz v The Professional Conduct Committee of the General Medical Council CA 5-Mar-2004
The doctor requested members of the disciplinary tribunal to recuse themselves when, after the first day of the hearing they saw prejudicial material in newspapers which material was not in evidence. They had further declined to allow an adjournment . .
Cited – Gary Follen v Her Majesty’s Advocate PC 8-Mar-2001
PC High Court of Justiciary (Scotland) The defendant said that a trial under the section infringed his right to a fair trial, because of a ten month delay by the prosecutor. On arrest he had been recalled to . .
Cited – Ramda, Regina (on the Application of) v Secretary of State for the Home Department Admn 27-Jun-2002
The Government of France sought the extradition of Ramda wanted by them for trial in connection with a series of terrorist bombings in France. The applicant resisted extradition to France on the ground that the evidence which would be relied on . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Regina v Abu Hamza CACD 28-Nov-2006
The defendant had faced trial on terrorist charges. He claimed that delay and the very substantial adverse publicity had made his fair trial impossible, and that it was not an offence for a foreign national to solicit murders to be carried out . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Cited – McInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
Cited – HM Attorney General v MGN Ltd and Another Admn 29-Jul-2011
The police arrested a man on suspicion of the murder of a young woman. He was later released and exonerated, and a second man arrested and later convicted. Whilst the first was in custody the two defendant newspapers, the Daily Mirror and the Sun . .
Cited – McGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Cited – HM Attorney General v Yaxley-Lennon QBD 9-Jul-2019
Application by Her Majesty’s Attorney General for an order committing the respondent to prison for contempt of court. . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights, Media, Contempt of Court

Updated: 19 July 2022; Ref: scu.163266

Nicol and Selvanayagam v United Kingdom: ECHR 11 Jan 2001

(Admissibility) The applicants took part in an anti-fishing protest at an angling match on 28 May 1994. Their aim was to sabotage the match by throwing twigs in the water close to the anglers’ hooks so as to disturb the surface, while other protestors sounded horns to frighten the fish. When they refused to stop, they were arrested. The custody record gave the reason for their initial detention as to ‘allow a period of calming, and to determine method of processing’. They were later kept in custody in order to take them before the magistrates for the purpose of being bound over to keep the peace.
Held: The complaint under article 5.1 was manifestly unfounded. The initial detention was to prevent them from committing an offence and their continued detention was for the purpose of bringing them before the court on suspicion of having committed an ‘offence’. Both the initial arrest and their subsequent detention were therefore compatible with article 5.1(c).

Judges:

G Ress P

Citations:

[2001] ECHR 900, 32213/96

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Nicol and Selvanayagam QBD 10-Nov-1995
The appellants appealed a bind-over for a finding that each appellant had been guilty of conduct whereby a breach of the peace was likely to be occasioned. The appellants, concerned about cruelty to animals, had obstructed an angling competition by . .

Cited by:

Cited – Hicks and Others, Regina (on The Application of) v Commissioner of Police for The Metropolis SC 15-Feb-2017
The claimants had wanted to make a peaceful anti-monarchist demonstration during the wedding of the Duke and Duchess of Cambridge. They complained that the actions of the respondent police infringed their human rights by preventing that . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 19 July 2022; Ref: scu.640530

MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another: SC 22 Feb 2017

Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue of discrimination arise under article 14.
However, the appendix with instructions for entry clearance officers considering the situation was inadequate: ‘Rather than treating the best interests of children as a primary consideration, taking account of the factors summarised in Jeunesse, they lay down a highly prescriptive criterion requiring ‘factors . . that can only be alleviated by the presence of the applicant in the UK’, such as support during a major medical procedure, or ‘prevention of abandonment where there is no other family member . . ‘. ‘
and ‘while the rules as such are not open to challenge, there are aspects of the instructions to entry clearance officers which require revision to ensure that the decisions made by them are consistent with their duties under the HRA. In the light of that conclusion, the Secretary of State might wish to consider whether it would be more efficient to revise the rules themselves, to indicate the circumstances in which alternative sources of funding should or might be taken into account, rather than simply to revise the guidance.’
‘The MIR is part of an overall strategy aimed at reducing net migration. Its particular aims are no doubt entirely legitimate: to ensure, so far as practicable, that the couple do not have recourse to welfare benefits and have sufficient resources to be able to play a full part in British life. As accepted by the courts below, those aims are sufficient to justify the interference with, or lack of respect for, the article 8 right . . we would also reject the suggestion that there is no rational connection between those legitimate aims and the particular income threshold chosen. The work of the Migration Advisory Committee is a model of economic rationality. Even though it had to make certain assumptions, it was careful to identify and rationalise these. Making those assumptions, it arrived at an income figure above which the couple would not have any recourse to welfare benefits, including tax credits and housing benefits. That being a legitimate aim, it is also not possible to say that a lesser threshold, and thus a less intrusive measure, should have been adopted. It may, of course, have a disproportionate effect in the particular circumstances of an individual case, but that is not the claim currently before us . . ‘

Judges:

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes, Lord Hodge

Citations:

[2017] UKSC 10, [2017] 1 WLR 771, [2017] Imm AR 729, [2017] HRLR 6, [2017] WLR(D) 124, [2017] INLR 575, UKSC 2015/0011

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video

Statutes:

Immigration Rules, European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Appeal from – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .
Appeal from – The Secretary of State for The Home Department v SS (Congo) and Others CA 23-Apr-2015
The court considered the proper approach to be adopted, in light of new Immigration Rules promulgated in July 2012, to applications for leave to enter the United Kingdom by persons who are family members of someone already present here. . .
Cited – KA and others (Adequacy of Maintenance) Pakistan IAT 4-Sep-2006
The Tribunal adopted the level of income support as the test of adequate maintenance – at that level it could not be said that the family were not properly maintained but neither should it be contemplated that immigrants would live below that level. . .
Cited – AM (Ethiopia) and others v Entry Clearance Officer CA 16-Oct-2008
When applying for entry under a sponsorship arrangement, the three applicable rules disallowed third party support.
Laws LJ said: ‘The immigrant’s article 8 rights will (must be) protected by the Secretary of State and the court whether or not . .
At First Instance – MM and Others v Secretary of State for The Home Department Admn 5-Jul-2013
WLRD When applied to either recognised refugees or British citizens Appendix FM of the Statement of Changes in Immigration Rules (HC 395), as inserted, which prevented entry clearance to a party to a marriage . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Ali and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
Cited – Abdulaziz etc v The United Kingdom ECHR 28-May-1985
Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
Held: The refusals of permission had . .
Cited – Boultif v Switzerland ECHR 2-Aug-2001
The applicant complained under Article 8 that the Swiss authorities had not renewed his residence permit, after which he had been separated from his wife, a Swiss citizen and who could not be expected to follow him to Algeria. Switzerland argued . .
Cited – Tuquabo-Tekle and Others v The Netherlands ECHR 1-Dec-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection dismissed (estoppel); Violation of Art. 8; Pecuniary damage – claim dismissed; Non-pecuniary damage – financial award; Costs and expenses . .
Cited – Rodrigues Da Silva and Hoogkamer v The Netherlands ECHR 31-Jan-2006
A Brazilian mother came to the Netherlands in 1994 and set up home with a Dutch national but not applying for a residence permit. In 1996 they had a daughter who became a Dutch national. In 1997 they split up and the daughter remained with her . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Uner v The Netherlands ECHR 18-Oct-2006
(Grand Chamber) The court considered the application of article 8 considerations in extradition and similar proceedings, and said: ‘the best interests and well-being of the children, in particular the seriousness of the difficulties which any . .
Cited – Neulinger And Shuruk v Switzerland ECHR 6-Jul-2010
(Grand Chamber) The Swiss Court had rejected the claimant mother’s claim, under article 13b of the Hague Convention, that there was a grave risk that returning the child to Israel would lead to physical or psychological harm or otherwise place him . .
Cited – Nunez v Norway ECHR 28-Jun-2011
Article 8 rights can be sufficient to tip the balance in favour against deportation of an immigrant. . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – IAA And Others v The United Kingdom ECHR 13-Jan-2014
. .
Cited – Jeunesse v The Netherlands ECHR 3-Oct-2014
(Grand Chamber) Although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – Ahmut v The Netherlands ECHR 28-Nov-1996
The bond between natural parents and their children is a strong indicator of the existence of family life: ‘from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to ‘family life’, . .
Cited – Sen v The Netherlands ECHR 21-Dec-2001
. .
Cited – Konstatinov v The Netherlands ECHR 26-Apr-2007
The applicant, of Roma origin with a troubled and criminal history. The Court considered the minister’s refusal of her request for a residence permit to enable her to live with her husband (entitled to permanent residence since 1988) and their son . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Cited – Y v Russia ECHR 4-Dec-2008
The applicants complained about the first applicant’s deportation to China, about his unlawful detention, about the disruption of their family life and about the absence of domestic remedies. They referred to Articles 3, 5, 8 and 13 of the . .
Cited – O’Donoghue and Others v United Kingdom ECHR 14-Dec-2010
. .
Cited – Alvi, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of . .
Cited – Zoumbas v Secretary of State for The Home Department SC 27-Nov-2013
The appellant challenged a decision that he did not qualify for asylum or humanitarian protection and that his further representations were not a fresh human rights claim under paragraph 353 of the Immigration Rules. He argued that the return to the . .
Cited – SS (Nigeria) v Secretary of State for The Home Department CA 22-May-2013
Laws LJ’s observed that for a claim under article 8 of the ECHR to prevail, it must be ‘a very strong claim indeed’ . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – AM (Ethiopia) and others v Entry Clearance Officer CA 16-Oct-2008
When applying for entry under a sponsorship arrangement, the three applicable rules disallowed third party support.
Laws LJ said: ‘The immigrant’s article 8 rights will (must be) protected by the Secretary of State and the court whether or not . .
Cited – Jones v First Tier Tribunal and Another SC 17-Apr-2013
The claimant had been injured when a lorry driver swerved to avoid hitting a man who stood in his path. He said that the deceased’s act of suicide amounted to an offence of violence under the 1861 Act so as to bring his own claim within the 2001 . .
Cited – SS (Nigeria) v Secretary of State for The Home Department CA 22-May-2013
Laws LJ’s observed that for a claim under article 8 of the ECHR to prevail, it must be ‘a very strong claim indeed’ . .
Cited – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .
Cited – The Secretary of State for The Home Department v SS (Congo) and Others CA 23-Apr-2015
The court considered the proper approach to be adopted, in light of new Immigration Rules promulgated in July 2012, to applications for leave to enter the United Kingdom by persons who are family members of someone already present here. . .
Cited – Mukarkar v Secretary of State for the Home Department CA 25-Jul-2006
The applicant, a Yemeni citizen, obtained entry clearance as a visitor by deception and then unsuccessfully sought leave to remain as a dependent relative of his many children settled here. He had numerous ailments and his health was continuing to . .
Cited – Mahad (Previously referred to as AM) (Ethiopia) v Entry Clearance Officer SC 16-Dec-2009
The claimants each sought entry to be with members of their family already settled here. The Court was asked whether the new Immigration Rules imposed a requirement which permitted third party support by someone other than the nominated sponsor.
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Family

Updated: 19 July 2022; Ref: scu.575312

Hicks and Others, Regina (on The Application of) v Commissioner of Police for The Metropolis: SC 15 Feb 2017

The claimants had wanted to make a peaceful anti-monarchist demonstration during the wedding of the Duke and Duchess of Cambridge. They complained that the actions of the respondent police infringed their human rights by preventing that demonstration.
Held: The appeal failed.
The fundamental principle underlying article 5 is the need to protect the individual from arbitrary detention, and an essential part of that protection is timely judicial control, but at the same time article 5 must not be interpreted in such a way as would make it impracticable for the police to perform their duty to maintain public order and protect the lives and property of others. These twin requirements are not contradictory but complementary

Judges:

Lord Mance, Lord Reed, Lord Carnwath, Lord Toulson, Lord Dyson

Citations:

[2017] UKSC 9, [2017] WLR(D) 101, [2017] 2 WLR 824, [2017] 1 AC 25

Links:

Bailii, WLRD, Bailii Summary

Jurisdiction:

England and Wales

Citing:

Cited – Albert v Lavin HL 3-Dec-1981
An off duty and out of uniform police officer attempted to restrain the defendant jumping ahead of a bus queue. The defendant struggled, and continued to do so even after being told that of the officer’s status. He said he had not believed that he . .
Appeal from – Hicks and Others, Regina (on The Application of) v Commissioner of Police of The Metropolis CA 22-Jan-2014
The claimants said that the restrictive tactics used by the respondent when policing crowds at a royal wedding.
Held: The appeals failed. The police had reasonable grounds for suspecting that the claimants were likely to cause a breach of the . .
Cited – Steel and Others v The United Kingdom ECHR 23-Sep-1998
The several applicants had been arrested in different circumstances and each charged with breach of the peace contrary to common law. Under the Magistrates’ Court Act 1980, the court can bind over a Defendant to keep the peace, if the Defendant . .
Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
At First Instance – Hicks and Others, Regina (on The Application of) v Commissioner of Police for The Metropolis Admn 18-Jul-2012
The claimants challnged the lawfulness of decisions made by the respondent as to the policing of events surrounding the Royal Wedding in April 2011. . .
Not followed – Ostendorf v Germany ECHR 7-Mar-2013
The applicant was registered on a German database as a person prepared to use violence in the context of sports events. He travelled with a group of others from Bremen to Frankfurt in order to attend a football match. They were kept under police . .
Cited – Lawless v Ireland (No 3) ECHR 1-Jul-1961
The Irish Government derogated from article 5 in July 1957 in order to permit detention without charge or trial, and the applicant was detained between July and December 1957. He could have obtained his release by undertaking to observe the law and . .
Cited – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
Cited – Brogan and Others v The United Kingdom ECHR 29-Nov-1988
ECHR Judgment (Merits) – Violation of Art. 5-3; Violation of Art. 5-5; No violation of Art. 5-1; No violation of Art. 5-4; Not necessary to examine Art. 13; Just satisfaction reserved.
The four applicants . .
Incomplete – Jecius v Lithuania ECHR 31-Jul-2000
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (six month period); Violation of Art. 5-1 as regards the applicant
The applicant complained of violation of his article 5 rights . .
Cited – Nicol and Selvanayagam v United Kingdom ECHR 11-Jan-2001
(Admissibility) The applicants took part in an anti-fishing protest at an angling match on 28 May 1994. Their aim was to sabotage the match by throwing twigs in the water close to the anglers’ hooks so as to disturb the surface, while other . .
Cited – Schwabe and MG v Germany ECHR 1-Dec-2011
. .
Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 19 July 2022; Ref: scu.575310

Johnson, Regina (on The Application of) v Secretary of State for The Home Department: SC 19 Oct 2016

The court was asked: ‘Is it compatible with the European Convention on Human Rights to deny British citizenship to the child of a British father and a non-British mother simply because they were not married to one another at the time of his birth or at any time thereafter? If the parents had been married to one another, their child would have been a British citizen. If the mother had been British and the father non-British, their child would have been a British citizen. If the child had been born after 1 July 2006 he would have been a British citizen. The child is not responsible for the marital status of his parents or the date of his birth, yet it is he who suffers the consequences.’
Held: The appeal was allowed. The liability to deportation by reason of the accident of his birth outside wedlock was unlawfully discriminatory.
The right to a nationality is not as such a Convention right but denial of citizenship when it has
important effects on a person’s identity falls within the ambit of article 8 and so triggers the application
of the prohibition of discrimination in article 14. Birth outside wedlock is a ‘status’ for the
purpose of article 14 and falls within the class of ‘suspect’ grounds where very weighty reasons are
required to justify discrimination. In Mr Johnson’s case, what needed to be justified was his
current liability to deportation when he would not be so liable but for the accident of birth outside
wedlock for which he was not responsible. No justification had been suggested for this and it cannot
therefore be said that his claim that deportation would breach his Convention rights was clearly unfounded.

Judges:

Lady Hale, Deputy President, Lord Kerr, Lord Reed, Lord Hughes, Lord Toulson

Citations:

[2016] UKSC 56, UKSC 2016/0042, [2016] WLR(D) 531, [2017] AC 365, [2017] INLR 235, [2016] 3 WLR 1267, [2017] Imm AR 306, 41 BHRC 711

Links:

Bailii, Bailii Summary, SC, SC Summary, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Genovese v Malta ECHR 11-Oct-2011
The applicant was illegitimate, born to a British mother and a Maltese father. Paternity had been established scientifically and in judicial proceedings. The father refused to recognise his son on the birth certificate, and the applicant’s mother . .
At Admn – Johnson, Regina (on The Application of) v The Secretary of State for The Home Department Admn 17-Jul-2014
The court was asked whether the Claimant’s proposed deportation to Jamaica, following his conviction and imprisonment for a very serious criminal offence, involves a violation of article 14 in conjunction with article 8 of the European Convention on . .
Cited – Johnson, Regina (on The Application of) v The Secretary of State for The Home Department CA 26-Jan-2016
The appellant was Jamaican by birth, but had lived here with his British father since the age of four. Had his parents been married, he would have had British nationality. As he grew to an adult he was convicted on several serious matters. He now . .
At CA – Johnson, Regina (on The Application of) v The Secretary of State for The Home Department CA 26-Jan-2016
The appellant was Jamaican by birth, but had lived here with his British father since the age of four. Had his parents been married, he would have had British nationality. As he grew to an adult he was convicted on several serious matters. He now . .
Cited – K v Netherlands ECHR 1-Jul-1985
Discrimination; Immigration; Nationality; Right to respect for private and family life . .
Cited – Michalak v London Borough of Wandsworth CA 6-Mar-2002
The appellant had occupied for a long time a room in a house let by the authority. After the death of the tenant, the appellant sought, but was refused, a statutory tenancy. He claimed to be a member of the tenant’s family, and that the list of . .
Cited – Karassev v Finland ECHR 12-Jan-1999
Admissibility. The arbitrary denial of citizenship may violate the right to respect for private life under Article 8. The Convention did not guarantee the right to acquire a particular nationality. Nevertheless, it did ‘not exclude that an arbitrary . .
Lists of cited by and citing cases may be incomplete.

Children, Immigration, Human Rights

Updated: 19 July 2022; Ref: scu.570161

IAA And Others v The United Kingdom: ECHR 13 Jan 2014

Citations:

25960/13 – Communicated Case, [2014] ECHR 112

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.521851

JS and Others, Regina (on The Application of) v Secretary of State for Work and Pensions and Others: QBD 5 Nov 2013

The claimants challenged the benefits cap introduced under the 2012 Act, saying that it was discriminatory, affecting more women than men. Mr Eadie QC submitted on behalf of the Secretary of State that, as ‘an international instrument with no binding effect in English law’, the Convention had no bearing on the case.
Held: That suggestion was rejected. Notwithstanding the fact that the UNCRC is an international convention which has not been incorporated into our domestic law, the court should nevertheless have regard to it as a matter of Convention jurisprudence
Elias LJ said: ‘It was obvious from the outset that the introduction of the cap would have severe and immediate consequences for claimants who had been receiving substantially in excess of the relevant amount’ and ‘The two items most likely to trigger the operation of the cap [are] housing benefit [and] the number of children in the family. Housing benefit reflects (but does not necessarily meet in full) the cost of housing, whether social or private. Accordingly, the cap will bear most heavily on those in receipt of benefit who live in areas where rental costs are high. In practical terms, therefore, this means that those who live in London or in the centre of other big cities where rents tend to be high will be most likely to be affected. It is a striking feature of the scheme – and lies at the heart of this application – that the cap applies equally to a childless couple in an area with cheap and plentiful social housing as it does to a lone parent mother of several children in inner London compelled to rent on the private market.’

Judges:

Elias LJ, Bean J

Citations:

[2013] EWHC 3350 (QB), [2013] WLR(D) 425, [2014] PTSR 23

Links:

Bailii, WLRD

Statutes:

Welfare Reform Act 2012, Benefit Cap (Housing Benefit) Regulations 2012, European Convention on Human Rights 14 A1P1, Human Rights Act 1998

Jurisdiction:

England and Wales

Cited by:

Appeal from – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions and Others CA 21-Feb-2014
The claimants challenged the manner of implementation of a benefits cap under the 2012 Act, sayig that it was discriminatory. . .
At first instance – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – MA and Others, Regina (on The Application of) v The Secretary of State for Work and Pensions SC 9-Nov-2016
The appellants claimed housing benefit. They appealed against rejection of their claims that the imposition of limits to the maximum sums payable, ‘the bedroom tax’, was unlawful on equality grounds. The claimants either had disabilities, or lived . .
Lists of cited by and citing cases may be incomplete.

Benefits, Human Rights, Discrimination

Updated: 19 July 2022; Ref: scu.517385

Hicks and Others, Regina (on The Application of) v Commissioner of Police of The Metropolis: CA 22 Jan 2014

The claimants said that the restrictive tactics used by the respondent when policing crowds at a royal wedding.
Held: The appeals failed. The police had reasonable grounds for suspecting that the claimants were likely to cause a breach of the peace, and the arrests and holding for court were not unnecessary.
Held: The decision was upheld, but for differing reasons.
It was well established in the Strasbourg jurisprudence that the words ‘for the purpose of bringing him before the competent legal authority’ govern all the limbs of article 5.1(c) and that English courts should accept that interpretation. It was ‘an irresistible inference that the officers who arrested and detained the [appellants] appreciated that, if only by reference to domestic law, the [appellants] could not be lawfully detained beyond the point at which it was reasonably practicable to take them before the magistrates’ court’.

Judges:

Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division, Lord Justice Leveson, and, Lord Justice Aikens

Citations:

[2014] EWCA Civ 3, [2014] 2 Cr App R 4, [2014] WLR(D) 30, [2014] HRLR 11, [2014] 1 WLR 2152, [2014] Crim LR 681

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – Hicks and Others, Regina (on The Application of) v Commissioner of Police for The Metropolis Admn 18-Jul-2012
The claimants challnged the lawfulness of decisions made by the respondent as to the policing of events surrounding the Royal Wedding in April 2011. . .
Cited – Ostendorf v Germany ECHR 7-Mar-2013
The applicant was registered on a German database as a person prepared to use violence in the context of sports events. He travelled with a group of others from Bremen to Frankfurt in order to attend a football match. They were kept under police . .
Cited – Lawless v Ireland (No 3) ECHR 1-Jul-1961
The Irish Government derogated from article 5 in July 1957 in order to permit detention without charge or trial, and the applicant was detained between July and December 1957. He could have obtained his release by undertaking to observe the law and . .
Incomplete – Jecius v Lithuania ECHR 31-Jul-2000
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (six month period); Violation of Art. 5-1 as regards the applicant
The applicant complained of violation of his article 5 rights . .

Cited by:

Appeal from – Hicks and Others, Regina (on The Application of) v Commissioner of Police for The Metropolis SC 15-Feb-2017
The claimants had wanted to make a peaceful anti-monarchist demonstration during the wedding of the Duke and Duchess of Cambridge. They complained that the actions of the respondent police infringed their human rights by preventing that . .
Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 19 July 2022; Ref: scu.520122

MM and Others v Secretary of State for The Home Department: Admn 5 Jul 2013

WLRD When applied to either recognised refugees or British citizens Appendix FM of the Statement of Changes in Immigration Rules (HC 395), as inserted, which prevented entry clearance to a party to a marriage where the income of the sponsor did not meet the minimum threshold, was a disproportionate interference with the right to respect for family life under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Judges:

Blake J

Citations:

[2013] EWHC 1900 (Admin), [2013] WLR(D) 280, [2014] Imm AR 245, [2014] 1 WLR 2306

Links:

Bailii, WLRD

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Appeal from – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .
At First Instance – MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration, Family

Updated: 19 July 2022; Ref: scu.512208

Ostendorf v Germany: ECHR 7 Mar 2013

The applicant was registered on a German database as a person prepared to use violence in the context of sports events. He travelled with a group of others from Bremen to Frankfurt in order to attend a football match. They were kept under police surveillance. Some (not the applicant) were searched and found to be in possession of things associated with the perpetration of crowd violence. The applicant was arrested at a pub. He was taken to a police station close to the football stadium where he was detained until one hour after the match had ended. In all, he was under arrest and in detention for about four hours. He was not charged at any stage. The German courts rejected his complaints of unlawful arrest and detention.
Held: The arrest and detention were lawful pursuant to Article 5 (1)(b) but not in relation to Article 5(1)(c). It is with Article 5(1)(c) that we are concerned at this stage.
Under the second alternative of subparagraph (c) of Article 5 (1), the detention of a person may be justified ‘when it is reasonably considered necessary to prevent his committing an offence’. Article 5(1)(c) does not, thereby, permit a policy of general prevention directed against an individual or a category of individuals who are perceived by the authorities, rightly or wrongly, as being dangerous or having propensity to unlawful acts. That ground of detention does no more than afford the Contracting States a means of preventing a concrete and specific offence . .
Under the Court’s well established case law, detention to prevent a person from committing an offence must, in addition, be ‘effected for the purpose of bringing him before the competent legal authority’, a requirement which qualifies every category of detention referred to in Article 5(1)(c) (see Lawless v Ireland (No3) . . ).
Subparagraph (c) thus permits deprivation of liberty only in connection with criminal proceedings . . It governs pre-trial detention . . This is apparent from its wording, which must be read in conjunction both with subparagraph (a) and with paragraph 3, which form a whole with it . . Paragraph 3 of Article 5 states that everyone arrested or detained in accordance with the provisions of paragraph 1(c) of Article 5 shall be brought promptly before a judge – in any of the circumstances contemplated by the provisions of that paragraph – and shall be entitled to a trial within a reasonable time . .
The Court . . recalls that under paragraphs 1(c) and 3 of Article 5, detention to prevent a person from committing an offence must, in addition, be ‘effected for the purpose of bringing him before the competent legal authority’ and that the person is ‘entitled to trial within a reasonable time’. Under its long established case law, the second alternative of Article 5 (1)(c) therefore only governs pre-trial detention and not custody for preventive purposes without the person concerned being suspected of having already committed a criminal offence . .
It is, however, clear that the aim of his detention was purely preventive from the outset. As noted above, it is indeed uncontested that the applicant in the present case was not suspected of having committed a criminal offence as his preparatory acts were not punishable under German law. His police custody only served the (preventive) purpose of ensuring that he would not commit offences in an imminent hooligan altercation. He was to be released once the risk of such an altercation had ceased to exist and his detention was thus not aimed at bringing him before a judge in the context of a pre-trial detention and at committing him to a criminal trial.
The Court notes that the Government advocated a revision of the Court’s case-law on the scope of Article 5 ss 1 (c) in this respect. It agrees with the Government that the wording of the second alternative of sub-paragraph (c) of Article 5 ss 1, in so far as it permits detention ‘when it is reasonably considered necessary to prevent his committing an offence’, would cover purely preventive police custody in order to avert imminent specific serious offences which is here at issue.
However, that interpretation could neither be reconciled with the entire wording of sub-paragraph (c) of Article 5 ss 1 nor with the system of protection set up by Article 5 as a whole. Sub-paragraph (c) of Article 5 ss 1 requires that the detention of the person concerned is ‘effected for the purpose of bringing him before the competent legal authority’ and under Article 5 ss 3 that person is ‘entitled to trial within a reasonable time’. As the Court has confirmed in its case-law on many occasions, the second alternative of Article 5 ss 1 (c) is consequently only covering deprivation of liberty in connection with criminal proceedings. In particular, contrary to the Government’s submission, the term ‘trial’ does not refer to a judicial decision on the lawfulness of the preventive police custody. Those proceedings are addressed in paragraph 4 of Article 5.
The Court further observes that, contrary to the Government’s view, the second alternative of Article 5 ss 1 cannot be considered as superfluous in addition to the first alternative of that provision (detention ‘on reasonable suspicion of having committed an offence’). A detention under sub-paragraph (c) of Article 5 ss 1 may be ordered, in particular, against a person having carried out punishable preparatory acts to an offence in order to prevent his committing that latter offence. That person may then be brought before a judge and be put on a criminal trial, for the purposes of Article 5 ss 3, in respect of the punishable preparatory acts to the offence.’

Judges:

Mark Villiger, P

Citations:

15598/08 – HEJUD, [2013] ECHR 197, 34 BHRC 738

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Hicks and Others, Regina (on The Application of) v Commissioner of Police of The Metropolis CA 22-Jan-2014
The claimants said that the restrictive tactics used by the respondent when policing crowds at a royal wedding.
Held: The appeals failed. The police had reasonable grounds for suspecting that the claimants were likely to cause a breach of the . .
Not followed – Hicks and Others, Regina (on The Application of) v Commissioner of Police for The Metropolis SC 15-Feb-2017
The claimants had wanted to make a peaceful anti-monarchist demonstration during the wedding of the Duke and Duchess of Cambridge. They complained that the actions of the respondent police infringed their human rights by preventing that . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police, Torts – Other

Updated: 19 July 2022; Ref: scu.471518

Hicks and Others, Regina (on The Application of) v Commissioner of Police for The Metropolis: Admn 18 Jul 2012

The claimants challnged the lawfulness of decisions made by the respondent as to the policing of events surrounding the Royal Wedding in April 2011.

Judges:

Richards LJ, Openshaw J

Citations:

[2012] EWHC 1947 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Cited by:

Appeal from – Hicks and Others, Regina (on The Application of) v Commissioner of Police of The Metropolis CA 22-Jan-2014
The claimants said that the restrictive tactics used by the respondent when policing crowds at a royal wedding.
Held: The appeals failed. The police had reasonable grounds for suspecting that the claimants were likely to cause a breach of the . .
At First Instance – Hicks and Others, Regina (on The Application of) v Commissioner of Police for The Metropolis SC 15-Feb-2017
The claimants had wanted to make a peaceful anti-monarchist demonstration during the wedding of the Duke and Duchess of Cambridge. They complained that the actions of the respondent police infringed their human rights by preventing that . .
Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 19 July 2022; Ref: scu.462952

O’Donoghue and Others v United Kingdom: ECHR 14 Dec 2010

Citations:

34848/07, [2010] ECHR 2022, [2011] Fam Law 234, 30 BHRC 85, [2011] 2 FCR 197, (2011) 53 EHRR 1, [2011] 1 FLR 1307

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – O’Donoghue and Others v United Kingdom ECHR 17-Nov-2008
. .
Approved – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .

Cited by:

See Also – O’Donoghue and Others v United Kingdom ECHR 2-Dec-2011
Execution of the judgments of the European Court of Human Rights . .
Cited – MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.450030

Nunez v Norway: ECHR 28 Jun 2011

Article 8 rights can be sufficient to tip the balance in favour against deportation of an immigrant.

Citations:

55597/09, [2011] ECHR 1047, (2011) 58 EHRR 17

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration, Family

Updated: 19 July 2022; Ref: scu.441267

Brogan and Others v United Kingdom (Article 50): ECHR 30 May 1989

ECHR Judgment (Just Satisfaction) – Non-pecuniary damage – finding of violation sufficient.

Citations:

[1989] ECHR 9, 11234/84, 11209/84, 11266/84

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – Brogan and Others v The United Kingdom ECHR 29-Nov-1988
ECHR Judgment (Merits) – Violation of Art. 5-3; Violation of Art. 5-5; No violation of Art. 5-1; No violation of Art. 5-4; Not necessary to examine Art. 13; Just satisfaction reserved.
The four applicants . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.443842

Rodrigues Da Silva and Hoogkamer v The Netherlands: ECHR 3 Jun 2010

Citations:

[2010] ECHR 974, 50435/99

Links:

Bailii

Jurisdiction:

Human Rights

Citing:

See Also – Rodrigues Da Silva and Hoogkamer v The Netherlands ECHR 31-Jan-2006
A Brazilian mother came to the Netherlands in 1994 and set up home with a Dutch national but not applying for a residence permit. In 1996 they had a daughter who became a Dutch national. In 1997 they split up and the daughter remained with her . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.428472

Y v Russia: ECHR 4 Dec 2008

The applicants complained about the first applicant’s deportation to China, about his unlawful detention, about the disruption of their family life and about the absence of domestic remedies. They referred to Articles 3, 5, 8 and 13 of the Convention and to Article 1 of Protocol No. 7.

Judges:

Rozakis P

Citations:

(2008) 51 EHRR 21, 20113/07, [2008] ECHR 1585

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.278515

Mosley v News Group Newspapers Ltd: Admn 1 Jul 2008

The claimant the son of a former fascist leader, sought damages for breach of confidence and a right to a private life after the defendant newspaper published stories alleging that his involvement with prostitutes had included nazi rituals. The defendant argued that the claimant’s right to a private life was overborn by greater public interest.
Held: The claim succeeded. To establish a claim in confidence he had to show a reasonable expectation of privacy, and that that right was not set aside by any balancing exercise involving freedom of expression. There had been a breach of the right of private life by the woman who had recorded the events. Here there was no greater good served by publication. The sado-masochism was consensual and involved no threat or children, and involved no issue of public interest. Nor here were there any public claims of impropriety by the claimant.

Judges:

Eady J

Citations:

[2008] EWHC 2341 (QB), Times 30-Jul-2008

Links:

Bailii

Statutes:

European Convention on Human Rights 10

Citing:

See Also – Mosley v News Group Newspapers Ltd QBD 9-Apr-2008
The claimant sought to continue an interim injunction requiring the defendant not to publish a film on its website.
Held: A claimant’s Article 8 rights may be engaged even where the information in question has been previously publicised. . .

Cited by:

See Also – Mosley v The United Kingdom ECHR 22-Oct-2009
. .
See Also – Mosley v The United Kingdom ECHR 10-May-2011
The claimant complained of the reporting of a sexual encounter which he said was private.
Held: The reporting of ‘tawdry allegations about an individual’s private life’ does not attract the robust protection under Article 10 afforded to more . .
Lists of cited by and citing cases may be incomplete.

Defamation, Human Rights, Media

Updated: 19 July 2022; Ref: scu.276983

Renolde v France: ECHR 16 Oct 2008

A prisoner with mental health problems committed suicide during pre-trial detention. It was said that the state had infringed his article 2 right.
Held: The court noted the vulnerability of persons in custody, especially those who were mentally ill, and re-affirmed the duty of state authorities to protect such persons. In relation to the operational obligation, the court stated: ‘However, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources.’

Citations:

5608/05, [2008] ECHR 1085, (2009) 48 EHRR 42

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

Human Rights

Cited by:

Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
Cited – Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
Cited – Rabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
Cited – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 19 July 2022; Ref: scu.276966

Kyriakides v Cyprus: ECHR 16 Oct 2008

The applicant alleged, inter alia, that the denial of compensation for moral damage he had sustained was incompatible with Articles 8 and 13 of the Convention.

Judges:

Christos Rozakis, President

Citations:

39058/05, [2008] ECHR 1087

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Judgment – Kyriakides v Cyprus ECHR 2-Dec-2011
Just satisfaction . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.276964

Haase, Regina (on the Application of) v Independent Adjudicator and Another: CA 14 Oct 2008

The appellant complained that as a prisoner he was subjected to disciplinary proceedings for refusing to co-operate with drugs tests. He said that he had not been informed that there would be a penalty if he did not comply. He now complained that the prosecutor who presented the case against him were not sufficiently independent.
Held: ‘there is no general requirement under Article 6(1) of prosecutorial independence and impartiality and I see no basis for finding such a requirement to exist in the prison disciplinary context. If a lack of prosecutorial independence or impartiality is said to have affected the prosecutor’s conduct or to have had some other effect on the proceedings, that can be taken into account in determining on the particular facts whether the overall requirement of a fair hearing under Article 6(1) has been met. ‘

Judges:

Richards LJ

Citations:

[2008] EWCA Civ 1089

Links:

Bailii, Times

Jurisdiction:

England and Wales

Citing:

Cited – Ezeh and Connors v The United Kingdom ECHR 15-Jul-2002
The applicants were serving prisoners. They had been the subject of disciplinary proceedings in which they had been denied the right to representation. They claimed an infringement of their right to a fair trial.
Held: Both proceedings had . .
Cited – Ezeh and Connors v The United Kingdom ECHR 9-Oct-2003
The applicants were prisoners subject to disciplinary proceedings. The offences were equivalent to criminal charges in domestic law. They were refused legal assistance, and had additional terms added to their sentences.
Held: The charges . .
Appeal from – Haase, Regina (on the Application of) v Independent Adjudicator and others Admn 20-Dec-2007
The claimant prisoner complained that the obligation imposed on him to submit to drugs tests was unlawful. . .
Cited – Findlay v The United Kingdom ECHR 25-Feb-1997
The applicant complained that the members of a court-martial were appointed by the Convening Officer, who was closely linked to the prosecuting authorities. The members of the court-martial were subordinate in rank to the Convening Officer who had . .
Cited – Regina v Stow CMAC 10-May-2005
The defendant appealed his conviction by a naval court-martial. He said that the court-martial was in breach of Article 6 because the naval Prosecuting Authority officer lacked sufficient independence and impartiality, when judged objectively, to . .
Cited – Morris v The United Kingdom ECHR 26-Feb-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 with regard to general structure of court martial system; No violation of Art. 6-1 with regard to specific complaints; No violation of Art. . .
Cited – Cooper v The United Kingdom ECHR 16-Dec-2003
Hudoc Judgment (Merits and just satisfaction)
The claimant had been dismissed from the RAF after a court martial. He complained that the tribunal was not independent, and that his trial was unfair.
Cited – Grieves v The United Kingdom ECHR 16-Dec-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Costs and expenses partial award – Convention proceedings
The claimant had been dismissed from the Royal Navy after a court martial. He . .
Cited – Huber v Switzerland ECHR 23-Oct-1990
It was a breach of Article 5 where the judicial power was exercised by a District Attorney whose impartiality was ‘capable of appearing open to doubt’ by reason of his entitlement to intervene in the subsequent criminal proceedings as a . .
Cited – Padovani v Italy ECHR 26-Feb-1993
Hudoc The Court considered the compatibility with Article 6(1) of a magistrate’s dual function of investigation and judgment.
Held: The summary investigative measures carried out by the magistrate in the . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 19 July 2022; Ref: scu.276841

R and H v The United Kingdom: ECHR 23 Sep 2008

The claimants complained at the procedure used to free their child for adoption against their wishes.

Citations:

35348/06, [2008] ECHR 969

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

See Also – R And H v The United Kingdom ECHR 31-May-2011
The court considered arrangements for an adoption in Northern Ireland where the parent’s consent was withheld.
Held: For parental consent to be overriden there had to be shown an overriding need for the decision. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Adoption, Northern Ireland

Updated: 19 July 2022; Ref: scu.276684

Murphy v The United Kingdom: ECHR 28 Aug 2008

Admissiblity – The applicant’s wife died on 1 February 1996. On 20 September 2000 the applicant applied for widows’ benefits and his claim was rejected. On 28 September 2000 the applicant requested reconsideration; however, the previous decision was confirmed by an appeal tribunal some time later. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.

Judges:

Lech Garlicki, P

Citations:

28044/02, [2008] ECHR 868

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Benefits, Discrimination

Updated: 19 July 2022; Ref: scu.276555