Category: Human Rights

Braithwaite v United Kingdom: ECHR 18 Apr 1991

ECHR a) The fact that a domestic court of appeal is competent to examine proprio motu grounds amounting to a notation of the Convention does not absolve the applicant from the obligation of raising the complaint before the court himself.
b) An applicant who claims that his right to a fair trial has not been respected by a court (United Kingdom) which admitted in evidence a confession made to the police must challenge the admissibility of the confession as evidence at the outset of the trial (by requesting a ‘voire dire’) or after the evidence has been submitted

Citations:

[1991] ECHR 76

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 19 July 2022; Ref: scu.276373

Rassemblement Jurassien Unite Jurassienne v Switzerland: ECHR 10 Oct 1979

(Commission) The right to freedom of expression is one of the foundations of a democratic society. The subjection of meetings in public thoroughfares to an authorisation procedure did not normally encroach upon the essence of the right. The concern is that there should be an ability to hold a peaceful assembly.

Citations:

(1979) 17 DLR 93, 8191/78, [1979] ECHR 7

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – Jones and Lloyd v Director of Public Prosecutions Admn 23-Jan-1997
The appellants had been peacefully protesting at Stonehenge. They were among others who refused to leave when ordered to do so under an order made by the police officer in charge declaring it to be a trespassory assembly under the 1986 Act. They . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.276374

Albert And Le Compte v Belgium: ECHR 10 Feb 1983

Citations:

7496/76, [1983] ECHR 1, [1983] ECHR 10, 7299/75, (1983) 5 EHRR 533

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.276359

Campbell And Cosans v United Kingdom: ECHR 22 Mar 1983

Citations:

7511/76, [1983] ECHR 3, 7743/76

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – Campbell and Cosans v The United Kingdom ECHR 25-Feb-1982
To exclude a child from school for as long as his parents refused to let him be beaten ‘cannot be described as reasonable and in any event falls outside the State’s power of regulation in article 2’. The Convention protects only religions and . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.276360

LCB v United Kingdom: ECHR 9 Jun 1998

The applicant’s father had been present on Christmas Island during British nuclear tests. She was diagnosed with leukaemia. She claimed the UK had been should have warned her parents of the risks associated with exposure to radiation and monitored her health.
Held: The applicant had not proved that her father had actually been exposed to radiation, but nevertheless considered the position as if he had been. The issue was ‘whether, given the circumstances of the case, the State did all that could have been required of it to prevent the applicant’s life from being avoidably put at risk’ as to which ‘the State could only have been required of its own motion to take these steps [i e provide advice to her parents and monitor her health] in relation to the applicant if it had appeared likely at that time that any such exposure of her father to radiation might have engendered a real risk to her health.’
It was not established that: ‘given the information available to the State at the relevant time concerning the likelihood of the applicant’s father having been exposed to dangerous levels of radiation and of this having created a risk to her health, it could have been expected to act of its own motion to notify her parents of these matters or to take any other special action in relation to her.’
Article 2 imposed on the authorities a general obligation to take appropriate steps to protect the lives of those within their jurisdiction. But the applicant was asserting that they had been obliged, of their own motion, to do something specific in respect of her, viz to warn her parents and monitor her health. She was one of millions of people within the jurisdiction of the United Kingdom. Resources are finite. The authorities could not have been expected to monitor the health of each and every individual. How to choose? The Court held that the authorities would have been under this special obligation, of their own motion to advise the applicant’s parents and to monitor her health, if it had appeared likely that any exposure of her father to radiation might have engendered ‘a real risk’ to her health. The trigger for the obligation would have been the authorities’ awareness of the ‘real risk’. On the facts, the Court held that the obligation had not been triggered in respect of the applicant.

Citations:

[1998] ECHR 108, (1998) 27 EHRR 212, [1998] HRCD 628, 4 BHRC 447

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

Human Rights

Cited by:

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 – Powell v United Kingdom ECHR 4-May-2000
A ten-year old boy had died from Addison’s disease. No inquest took place, because the coroner decided that the boy had died of natural causes. The parents, who were also affected by the events, had accepted compensation from the local health . .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.276364

Nelson v Halifax Plc: CA 8 May 2008

A freezing order had been served on the respondent bank in respect of a person with whom the claimant held a joint account. The bank relied on its contractual rights to do so in their standard conditions. The freezing order was set aside, but the claimant said the bank had acted unlawfully and negligently, but the pleadings did not reflect this element. The claimant said that it was his duty to put forward the facts and the court’s duty was to apply the law to them. He declined to amend his pleadings to add either a claim in negligence or ato plead a human rights claim. The court declined to hear the claim in negligence, and the claimant appealed.
Held: Though understandably, the court had erred. The claimant had not abandoned his claims, and the case was remitted to be heard before a different judge.
Rix LJ said:’Litigants in person, with which these courts are entirely familiar, are of course deserving of the court’s sympathy for the difficult role that they must fulfil as non-experts in the law, and of course they also need and deserve help and support as traditionally has always been given them not only by the court but also by opposing counsel, as is understood to be their duty. Nevertheless, this was not a complex matter. Mr Nelson is clearly an intelligent man and – indeed, as we know from past litigation with which he has been concerned and which is mentioned in the bank’s skeleton argument – a very experienced litigator in person over a great number of years. For this court simply to insist that Mr Nelson’s claim must be tried as a claim in contract when Mr Nelson is telling the court repeatedly that he does not have a claim in contract, is, it seems to me, for this court to override the autonomy of the litigant. I say that, as I have made clear, even of the litigant in person. One does not know, and, subject to limits, one is not entitled to enquire, why a litigant takes one course rather than another. It is often the case that the courts look with puzzlement at decisions of litigants, even those advised by senior counsel. Ultimately, however, once the court has made proper enquiries on behalf of a litigant in person the court must, it seems to me, respect the autonomy of the litigant. ‘

Judges:

Sir Andrew Morritt VC, Rix LJ, Rimer LJ

Citations:

[2008] EWCA Civ 1016

Links:

Bailii

Jurisdiction:

England and Wales

Banking, Litigation Practice, Human Rights

Updated: 19 July 2022; Ref: scu.276400

Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2): Admn 29 Aug 2008

The claimant sought release of documents so that he could defend himself in a tribunal in the US. He said the documents would support his assertion that he had been subject to extraordinary rendition and had ‘disappeared’ for two years. Redactions were requested on the basis of British and US security considerations and could not be used before the US Convening Authority. The respondent had served a certificate claimining Public Interest Immunity, saying that release would damage intelligence relations with the US, and the US authorities said that the purposes stated were being satisfied by the US system.
Held: Time should be allowed to the respondent to furnish amended PII certificates addressing the issues raised more explicitly.

Judges:

Thomas J, Lloyd Jones J

Citations:

[2008] EWHC 2100 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – Regina v Chief Constable of West Midlands Police Ex Parte Wiley; Other Similar HL 14-Jul-1994
Statements made to the police to support a complaint against the police, were not part of the class of statements which could attract public interest immunity, and were therefore liable to disclosure.
Lord Woolf said: ‘The recognition of a new . .

Cited by:

See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs, Admn 22-Oct-2008
The claimant was held by the US. He claimed he had been tortured by them, and sought release of dicuments which allow him to present his case. The respondent sought to prevent disclosure using Public Interest Immunity (PII) certificates.
Held: . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 5) Admn 16-Oct-2009
The claimant sought to assert that he had been tortured whilst held by the US Authorities. He sought publication of an unredacted report supplied by the US security services to the respondent. The respondent argued that the full publication was . .
See Also – Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (60 Admn 19-Nov-2009
The respondent had over time refused to allow publication of parts of a document disclosed to him by US security services. The court had previously delivered redacted judgments, and now asked whether and to what extent the redacted parts should be . .
See Also – Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 10-Feb-2010
The claimant had sought discovery and publication of materials supplied to the defendant by US security services which, he said, would support his allegations that he had been tortured by the US and that this had been known to the defendant.
See also – Binyan Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 26-Feb-2010
The claimant had sought public disclosure of documents supplied to the defendant by US security services which might support his claim that he had been tortured by the US, and that the defendant knew of it. The draft judgment was to be handed down . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Media, Human Rights

Updated: 19 July 2022; Ref: scu.276250

Davidson v Revenue and Customs: Excs 25 Jul 2008

VDT EXCISE – seizure of vehicle and goods – whether seizure challenged – restoration refused – whether appeal against non-restoration of vehicle – whether decision not to restore goods proportionate – whether appellant entitled to raise issue of own use – whether abuse of process – No
JURISDICTION – Whether criminal charge – Whether Magna Carta and Bill of Rights 1689 applicable – Whether Appellant denied right to a fair trial – Gora considered – Appeal dismissed.

Citations:

[2008] UKVAT-Excise E01127

Links:

Bailii

Statutes:

Finance Act 1994 14(3), Tobacco Products Duty Act 1979 1(1), Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002, Alcoholic Liquor Duties Act 1979 Sch 36, Beer Regulations 1993 (SI 1993/1228) 15, Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 4, Customs and Excise Management Act 1979 49(1), European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Bowles v Bank of England KBD 4-Nov-1912
The House of Commons Ways and means committee resolved to assent to the imposition of income tax at the required rate for the next year.
Held: Such a resolution was inadequate to authorise the Crown to levy the tax by its deduction from the . .
Cited – Weller v Revenue and Customs VDT 30-Apr-2008
VDT EXCISE – RESTORATION – payment when restoration not possible – amount of payment – goods purchased on cross-channel ferry – ferry operator used simplified scheme under Article 7(9), EU Council Directive 92/12 . .
Cited – Gascoyne v Customs and Excise and Another CA 28-Jul-2004
The Commissioners had found what they considered to be an excess of dutiable goods brought into the country by the tax payer, and had forfeited the car. The court considered the effect of the Gora case.
Held: The difficult statements in Gora . .
Cited – Commissioners of Customs and Excise v Dickinson ChD 15-Oct-2003
The applicant had returned to England with a quantity of goods which the Customs and Excise deemed were not for his personal use. His car was seized, but ordered to be restored by the VAT and Duties Tribunal.
Held: There was now a two track . .
Lists of cited by and citing cases may be incomplete.

Customs and Excise, Human Rights, Natural Justice

Updated: 19 July 2022; Ref: scu.273034

Kats and Others v Ukraine: ECHR 14 Mar 2006

Citations:

29971/04, [2006] ECHR 1201

Links:

Bailii

Statutes:

European Convention on Human Rights

Cited by:

See Also – Kats and Others v Ukraine ECHR 18-Dec-2008
The applicants were the parents and son of a prisoner who died in custody of an HIV related illness. They complained of her treatment in custody.
Held: If someone dies in custody an explanation of the cause of death must be provided, including . .
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.272865

Secretary of State for the Home Department v AP: Admn 12 Aug 2008

The court reviewed the need for the control order made against AP.

Judges:

Keith J

Citations:

[2008] EWHC 2001 (Admin)

Links:

Bailii

Statutes:

Prevention of Terrorism Act 2005, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Appeal from – AP v Secretary Of State for the Home Department CA 15-Jul-2009
. .
At First Instance – Secretary of State for The Home Department v AP SC 16-Jun-2010
The claimant challenged the terms of the control order made against him under the 2005 Act saying that it was too restrictive. Though his family was in London, the control order confined him to a house many miles away for 16 hours a day.
Held: . .
Lists of cited by and citing cases may be incomplete.

Crime, Immigration, Human Rights

Updated: 19 July 2022; Ref: scu.272760

Parekh v The United Kingdom: ECHR 26 Oct 1998

Admissibility – The applicant’s wife died on 18 July 2000 leaving one child born in 1982. On 17 April 2001 the applicant applied for widows’ benefits. On 1 May 2001 the applicant was informed that his claim had been disallowed. The applicant asked for reconsideration. On 14 February 2002 the matter was reconsidered and the decision remained unchanged.
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.
The applicant was in receipt of child benefit at the time of his claim. He ceased to be eligible for such benefit on 25 December 2001. The applicant has been in receipt of income support since his wife’s death which exceeded the rate of Widowed Mother’s Allowance. Moreover, the applicant’s wife had not paid the required national insurance contributions.
Held: Inadmissible

Judges:

Lech Garlicki, P

Citations:

25388/02, [2008] ECHR 614

Links:

Bailii

Statutes:

European Convention on Human Rights

Human Rights, Benefits, Discrimination

Updated: 19 July 2022; Ref: scu.272750

Omoregie And Others v Norway: ECHR 31 Jul 2008

Citations:

[2009] Imm AR 170, 265/07, [2008] ECHR 761

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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 19 July 2022; Ref: scu.272667

Williams v The United Kingdom: ECHR 24 Jun 2008

The claimant’s son had died at the tragedy at Hillsborough football stadium. A senior police officer had opened a gate to allow into enclosures already full, a further 2000 fans. 96 fans died in the resulting crush. The coroner had refused to allow the enquiry to extend beyond events before 3:15pm, saying that evidence, inter alia from the Taylor Inquiry, was that any fans still alive and who dies after that time had already suffered injuries which would make their deaths inevitable. The claimant said that several people remained alive, and that the inquest by that decision had not considered actions which might have saved lives. Some police officers said thaty had been presurised to remove criticisms of their force, and there was medical evidence to support the suggestion that several remained alive after the 3:15pm cut-off.
Held:

Judges:

Lech Garlicki P

Citations:

10170/02, [2008] ECHR 748

Links:

Bailii

Statutes:

European Convention on Human Rights

Human Rights, Coroners

Updated: 19 July 2022; Ref: scu.272595

Malone v Commissioner of the Police for the Metropolis (No 2): ChD 28 Feb 1979

The court considered the lawfulness of telephone tapping. The issue arose following a trial in which the prosecution had admitted the interception of the plaintiff’s telephone conversations under a warrant issued by the Secretary of State. The plaintiff claimed that the interception had been and was unlawful.
Held: Although he dismissed the plaintiff’s claim, the Vice Chancellor said ‘Any regulation of so complex a matter as telephone tapping is essentially a matter for Parliament, not the courts . . this case seems to me to make it plain that telephone tapping is a subject which cries out for legislation.’
‘I am not unduly troubled by the absence of English authority: there has to be a first time for everything, and if the principles of English law, and not least analogies from the existing rules, together with the requirements of justice and common sense, pointed firmly to such a right existing, then I think the court should not be deterred from recognising the right. On the other hand, it is no function of the courts to legislate in a new field. The extension of the existing laws and principles is one thing, the creation of an altogether new right is another.’
‘I readily accept that if the question before me were one of construing a statute enacted with the purpose of giving effect to obligations imposed by the Convention, the court would readily seek to construe the legislation in a way that would effectuate the Convention rather than frustrate it. However, no relevant legislation of that sort is in existence. It seems to me that where Parliament has abstained from legislating on a point that is plainly suitable for legislation, it is indeed difficult for the court to lay down new rules of common law or equity that will carry out the Crown’s treaty obligations, or to discover for the first time that such rules have always existed.’

Judges:

Sir Robert Megarry VC

Citations:

[1979] CLY 2098, [1979] 1 Ch 344, [1980] QB 49, [1979] 2 All ER 620, [1979] EWHC 2 (Ch)

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Cited by:

Cited – Bonalumi v Secretary of State for the Home Department CA 1985
In the course of extradition proceedings, an order was obtained under the 1879 Act. The defendant sought to appeal against the order, and applied to the Court of Appeal.
Held: The procedure under the 1879 Act was in the course of criminal . .
Cited – W, Regina v (Attorney General’s reference no 5 of 2002) CACD 12-Jun-2003
Three serving police officers provided confidential information to a known criminal. The Chief Constable authorised interception of telephones at a police station, a private network. The court accepted that section 17 prevented the defence asserting . .
Appeal from – Malone v The United Kingdom ECHR 2-Aug-1984
COURT (PLENARY) The complainant asserted that his telephone conversation had been tapped on the authority of a warrant signed by the Secretary of State, but that there was no system to supervise such warrants, and that it was not therefore in . .
Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
Cited – Costello v Chief Constable of Derbyshire Constabulary CA 22-Mar-2001
The police seized a car from Mr Costello, believing that it was stolen. The seizure was lawful at the time, by virtue of section 19 of PACE. The police never brought any criminal proceedings against Mr Costello, but they refused to return the car to . .
Cited – Tillery Valley Foods v Channel Four Television, Shine Limited ChD 18-May-2004
The claimant sought an injunction to restrain the defendants broadcasting a film, claiming that it contained confidential material. A journalist working undercover sought to reveal what he said were unhealthy practices in the claimant’s meat . .
Cited – Regina v P and others HL 19-Dec-2000
Where communications had been intercepted in a foreign country, and the manner of such interceptions had been lawful in that country, the evidence produced was admissible in evidence in a trial in England. An admission of such evidence was not an . .
See Also – Malone v The United Kingdom ECHR 26-Apr-1985
Hudoc Judgment (Just satisfaction) Struck out of the list (friendly settlement) . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police, Criminal Evidence

Updated: 19 July 2022; Ref: scu.183549

C, Regina (on the Application of) v Secretary of State for Justice: CA 28 Jul 2008

The court was asked as to what methods of physical restraint were proper in institutions accommodating youths in custody.
Held: The Court had been wrong not to quash the amended rules on the grounds of procedural breaches. The amended rules would have infringed the human rights of the children to whom such restraint was to be applied and were contrary to the requirements of Articles 3 and 8 of the ECHR, because:
i) It reminded itself of the general position under Article 3 of the ECHR that physical force in respect of a person deprived of his liberty that is not strictly necessary diminishes human dignity and is in principle a violation of Art 3.
ii) It noted that the House of Lords in its judicial capacity has declared that Article 3 when applied to children in custody had to be interpreted consistently with the provisions of the UN Convention on the Rights of the Child 1989 in particular Articles 37 and the views of the Committee on the Rights of the Child as the expert monitoring body charged with the implementation of the state’s obligations under the Convention.
[1] It further noted that in General Comment 8 of the UN Committee on the Rights of the Child indicate that deliberate infliction of pain is not permitted as a form of control of juveniles.
iii) It concluded that both pain compliance control techniques, and restraint generally when applied for the purposes contemplated in the amended rules would violate the principles of Article 3, when applied to children.
iv) It rejected a submission on behalf of the Secretary of State that any over-broadness of the amended Rules could be cured when read down in the light of detailed policy instructions that the Secretary of State for Justice would give to staff operating the rule.
v) It concluded that in any event the advice given in the Code of Practice about restricting the use of restraint was uncertain and unsatisfactory and had not been changed to apply to the new regime of the amended rules broadening the power to use restraint in support of good order and discipline.
vi) It rejected the only evidence in the case in which it was suggested that use of restraint was strictly necessary to enforce good order and discipline. This evidence was a statement of Mr. Wilson-Smith director of Hassockfield STC. The Court was critical of this evidence and its consistency with the law at the time of Adam’s death [24]. It noted in particular that the view of the law taken by Mr. Wilson Smith and leading counsel for Serco at the Rickwood inquest was wrong.
vii) It concluded that the amendments could not be justified as strictly necessary to maintain discipline. The amended rules therefore violated both Article 3 and Article 8 ECHR.

Judges:

Buxton LJ, Tuckey LJ, Keene LJ

Citations:

[2008] EWCA Civ 882, [2009] 2 WLR 1039, [2009] QB 657, [2009] UKHRR 688

Links:

Bailii, Times

Jurisdiction:

England and Wales

Citing:

Cited – Mouisel v France ECHR 14-Nov-2002
The applicant had been sentenced to 50 years’ imprisonment for several offences. He had leukemia and was to receive chemotherapy in hospital. He complained of the conditions to which he was subjected during the hospital visits, including the . .
Cited – Faizovas, Regina (on the Application of) v Secretary of State for Justice Admn 9-May-2008
Challenge by elderly prisoner with cancer to be handcuffed whilst attending hospital. He was in prison for a violent sexual offence, and whilst in prison had not engaged in offending reducing programs. . .

Cited by:

Cited – Pounder, Regina (on the Application of) v HM Coroner for the North and South Districts of Durham and Darlington and others Admn 22-Jan-2009
The deceased died aged 14 in a Secure Training Centre by hanging. He had complained of his treatment and restraint methods used. The mother sought judicial review of the conduct of the inquest, wanting the coroner not to have ruled on the legality . .
Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Cited – FGP v Serco Plc and Another Admn 5-Jul-2012
The claimant said that whilst he had been being taken from an immigration detention centre to hospital, he had been restrained by various forms of handcuffs. He said that had been unlawful.
Held: The claim failed: ‘ the recommendation that . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Prisons, Human Rights

Updated: 18 July 2022; Ref: scu.272235

Chikwamba v Secretary of State for the Home Department: HL 25 Jun 2008

The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing human rights grounds. The respondent had a policy that the applicant must return to the home country and make her application from there.
Held: The appeal succeeded. Particularly in cases involving the human rights of children caution must be exercised before requiring out of country applications.
Lord Scott of Foscote: ‘policies that involve people cannot be, and should not be allowed to become, rigid inflexible rules. The bureaucracy of which Kafka wrote cannot be allowed to take root in this country and the courts must see that it does not. ‘ and ‘it must be disproportionate to expect a four year old girl, who was born and has lived all her life here, either to be separated from her mother for some months or to travel with her mother to endure the ‘harsh and unpalatable’ conditions in Zimbabwe simply in order to enforce the entry clearance procedures.’
Lord Brown: ‘This appellant came to the UK to seek asylum, met an old friend from Zimbabwe, married him and had a child. He is now settled here as a refugee and cannot return. No one apparently doubts that, in the longer term, this family will have to be allowed to live together here. Is it really to be said that effective immigration control requires that the appellant and her child must first travel back (perhaps at the taxpayer’s expense) to Zimbabwe, a country to which the enforced return of failed asylum-seekers remained suspended for more than two years after the appellant’s marriage and where conditions are ‘harsh and unpalatable’, and remain there for some months obtaining entry clearance, before finally she can return (at her own expense) to the UK to resume her family life which meantime will have been gravely disrupted? Surely one has only to ask the question to recognise the right answer. ‘

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscot, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

Citations:

[2008] UKHL 40, [2008] 1 WLR 1420, Times 26-Jun-2008, [2009] 1 All ER 363, [2008] HRLR 39, [2008] INLR 502, [2008] UKHRR 1008, [2008] Imm AR 700

Links:

Bailii, HL

Statutes:

Immigration and Asylum Act 1999 65, Nationality, Immigration and Asylum Act 2002 82 84, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Beoku Betts v Secretary of State for the Home Department CA 6-Jul-2005
The appellant arrived aged 19 from Sierra Leone and was granted leave to enter as a student, which leave was extended. His famiy had been politically active and suffered abuse after a coup. When his leave expired he applied for asylum. Other family . .
Applied – Beoku Betts v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had arrived from Sierra Leone and obtained student permits. When they expired he sought asylum, citing his family’s persecution after a coup, and that fact that other members of his family now had indefinite leave, and he said that an . .
Appeal from – Chikwamba v Secretary of State for the Home Department CA 16-Nov-2005
The claimant was ordered to return to Zimbabwe to make her asylum claim from there. She argued that it would infringe her human rights. She now had a young daughter here. The IAT had dismissed her appeal on the basis that the appellant could and . .
Cited – Regina v Secretary of State for Home Department ex parte Mahmood CA 8-Dec-2000
A Pakistani citizen entered the UK illegally and claimed asylum. A week before his claim was refused and he was served with removal directions, he married a British citizen of Pakistani origin. Two children were later born.
Held: Only . .
Cited – Ekinci, Regina (on the Application of) v Secretary of State for the Home Department CA 17-Jun-2003
The appellant, a Turkish citizen entered illegally and claimed asylum. He falsely said he had not sought asylum in another EC country. He had lived in Germany for eight years, and had twice unsuccessfully claimed asylum. Shortly after arrangements . .
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 – Regina (Yaser Mahmood) v Secretary of State for Home Department Admn 9-Aug-2001
The Home Secretary had served notice that the applicant was an illegal immigrant, and liable to deportation. An order had been made for the cross examination of the applicant. He had come to England to study, but soon dropped his immediate plans. He . .
Cited – SB (Bangladesh) v Secretary of State for the Home Department CA 31-Jan-2007
A Bangladeshi woman entered into an arranged polygamous marriage in Bangladesh and many years later dishonestly (led by her husband) obtained entry clearance as a visitor before then unsuccessfully seeking leave to remain as being financially . .

Cited by:

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 – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – MA (Pakistan) v Secretary of State for the Home Department CA 27-Jul-2009
The claimant appealed against refusal of leave to enter and cancelling his leave to remain. He had made his claim on human rights grounds, saying that the refusal would split him from his wife. He had been told that he would have to renew his . .
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 – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .
Cited – Agyarko and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 6-May-2015
Appeals against orders for removal after applicants had each married after expiry of the period of their lawful stay. A conceded that her application fell outside the Rules, but said that it was an appropriate case for the exercise of discretion. . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Children

Updated: 18 July 2022; Ref: scu.270385

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 deteriorate. In allowing his appeal the adjudicator concluded that he needed ‘permanent and constant home help’ and that it was not reasonable to expect any of his children ‘to run the risk of losing their jobs merely to accompany him back to the Yemen to stay for an indeterminate period of time whilst the application is being considered or whilst he is waiting for an appeal to be heard’. He now appealed the AIT’s reversal of that decision, and sought to be allowed to stay in the UK on human rights grounds.
Held: The appeal was allowed. The reforms brought in in 2005 were intended to restrict appeals on factual grounds. Those reforms affected the crown as much as it did applicants, and the minister had a duty to give a lead in respecting those reforms. That might mean that sometimes the government must accept decisions which went against the grain. The adjudicator was entitled to have regard to ‘the timescale likely to be involved and its consequences for the care of the appellant in the meantime. In considering the reasonableness of expecting one or more of his children to leave their commitments in this country to look after him on his return to the Yemen, it was material to consider whether such absence would be for a defined and limited period, or indeterminate.’
Carnwath LJ: ‘Ekinci was a decision on its own facts; it did not purport to lay down any general proposition of law.’ and ‘It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case . . The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law . . Nor does it create any precedent, so as to limit the Secretary of State’s right to argue for a more restrictive approach on a similar case in the future. However, on the facts of the particular case, the decision of the specialist tribunal should be respected.’

Judges:

Auld LJ, Carnwath LJ, Seley LJ

Citations:

[2006] EWCA Civ 1045, Times 16-Aug-2006

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ekinci, Regina (on the Application of) v Secretary of State for the Home Department CA 17-Jun-2003
The appellant, a Turkish citizen entered illegally and claimed asylum. He falsely said he had not sought asylum in another EC country. He had lived in Germany for eight years, and had twice unsuccessfully claimed asylum. Shortly after arrangements . .

Cited by:

Cited – Chikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
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.

Immigration, Human Rights

Updated: 18 July 2022; Ref: scu.243400

Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department: Admn 10 Apr 2006

The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The applicants said this was discriminatory and infringed their human rights.
Held: Legislation which prevented marriages of convenience between aliens and nationals as a means of immigration control could be justified, but the exemption only of marriages conducted in accordance with the rites of the Church of England made the legislation discriminatory: ‘the jurisprudence of the European Commission on Human Rights expressly permits the introduction of legislation to prevent marriages entered into for the purpose of avoiding immigration control notwithstanding that this legislation might interfere with the right to marry.’ and ‘the Secretary of State and Parliament are entitled to substantial deference in determining what restrictions, if any, are appropriate to impose on article 12 rights ‘ There is clear evidence of sham marriages entered into to secure residence in the UK. However there was no evidence to justify the distinction between the use of the different forms of ceremony. The legislation took no account of steps which would be taken by other religions which might have the same protective effect as those of the rites of the Church of England. The legislation took no account either of evidence that the relationship to be solemnised may have been demonstrably long standing and loving. ‘[T]he new regime is not rationally connected to the legislative objective as it regards the only and crucial relevant factors in determining whether a non EU national can marry in this country as his or her immigration status or the length of an outstanding application . .’, and nor were those present for less than three months allowed to make any representations. The regime was not proportionate.

Judges:

Silber J

Citations:

[2006] EWHC 823 (Admin), Times 14-Apr-2006, [2007] 1 WLR 693, [2006] 36 Fam Law 535, [2006] 2 FLR 645, [2006] 2 FCR 131, [2006] 3 All ER 608

Links:

Bailii

Statutes:

European Convention on Human Rights 12 14, Asylum and Immigration (Treatment of Claimants etc) Act 2004 19-25, Immigration (Procedure for Marriage) Regulations 2005, Marriage Act 1949, Immigration Rules and the Immigration (European Economic Area) Regulations 2000

Jurisdiction:

England and Wales

Citing:

Cited – Taylor v Lancashire County Council and others CA 17-Mar-2005
The tenant occupied his farm under a lease limiting his use of the farm. He was found to be trading in breach of his covenant and a notice to quit was issued and possession sought. He argued that the 1986 Act was discriminatory and inadequate to . .
Cited – Hamer v United Kingdom ECHR 1979
(Commission) The Commission considered the right of a prisoner in prison to get married.
Held: A rule against such marriages was incompatible with article 12. The Commission explained the power of national laws in relation to article 12: ‘Such . .
Cited – F v Switzerland ECHR 18-Dec-1987
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 12; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Klip and Kruger v Netherlands ECHR 1997
The Commission heard a complaint that the parties’ article 12 rights were infringed because under Dutch Act on prevention and suppression of marriages of convenience, there had to be a systematic examination of all intended marriages involving . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – Sanders v France ECHR 1996
A male Turkish national and a female French national, living together in Istanbul, complained of delays in obtaining a certificate of capacity to marry under French law. The issue as to the obtaining of a certificate related to (alleged) concerns . .
Cited – A v United Kingdom ECHR 1982
The Commission considered a complaint where entry clearance was refused for the Philippine fiancee of a disabled man of limited means on the basis that she did not have the means to maintain and support herself without access to public funds.
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Cited – Vervaeke v Smith HL 1983
A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was . .
Cited – Netherlands ECHR 1985
(Commission ) The first applicant (a Moroccan) had come to the Netherlands and obtained a residence permit on the strength of a permanent relationship with a Dutch woman. That had failed, but he now wished to marry another Dutch national. The . .

Cited by:

See Also – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department and Another Admn 10-May-2006
The claimants had successfully brought judicial review of the defendant’s policies concluding that the defendant had unlawfully interfered with their right to family life by effectively preventing them marrying under the 2004 Act. They now sought . .
See Also – Baiai and Another, Regina (on the Application of) v Secretary of State for Home Department Admn 16-Jun-2006
The 2004 Act and Regulations operated to prevent the claimant marrying. He succeeded in challenging the regulations, and now sought damages. . .
Appeal from – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
See Also – 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 . .
Lists of cited by and citing cases may be incomplete.

Family, Immigration, Human Rights, Discrimination

Updated: 18 July 2022; Ref: scu.240336

Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department and Another: Admn 10 May 2006

The claimants had successfully brought judicial review of the defendant’s policies concluding that the defendant had unlawfully interfered with their right to family life by effectively preventing them marrying under the 2004 Act. They now sought damages.

Judges:

Silber J

Citations:

[2006] EWHC 1035 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights 12 14, Asylum and Immigration (Treatment of Claimants etc) Act 2004 19, Immigration (Procedure for Marriage) Regulations 2005

Jurisdiction:

England and Wales

Citing:

See Also – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .

Cited by:

See Also – Baiai and Another, Regina (on the Application of) v Secretary of State for Home Department Admn 16-Jun-2006
The 2004 Act and Regulations operated to prevent the claimant marrying. He succeeded in challenging the regulations, and now sought damages. . .
See Also – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
See Also – 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 . .
Lists of cited by and citing cases may be incomplete.

Immigration, Family, Human Rights

Updated: 18 July 2022; Ref: scu.241606

Baiai and Another, Regina (on the Application of) v Secretary of State for Home Department: Admn 16 Jun 2006

The 2004 Act and Regulations operated to prevent the claimant marrying. He succeeded in challenging the regulations, and now sought damages.

Judges:

Silber J

Citations:

[2006] EWHC 1454 (Admin), [2006] HRLR 39, [2007] 1 WLR 735, [2006] 4 All ER 555

Links:

Bailii

Statutes:

European Convention on Human Rights 12 14, Immigration (Procedure for Marriage) Regulations 2005, Asylum and Immigration (Treatment of Claimants etc) Act 2004 19

Jurisdiction:

England and Wales

Citing:

See Also – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
See Also – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department and Another Admn 10-May-2006
The claimants had successfully brought judicial review of the defendant’s policies concluding that the defendant had unlawfully interfered with their right to family life by effectively preventing them marrying under the 2004 Act. They now sought . .

Cited by:

See Also – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
See Also – 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 . .
Lists of cited by and citing cases may be incomplete.

Immigration, Family, Human Rights

Updated: 18 July 2022; Ref: scu.242573

Sezen v The Netherlands: ECHR 31 Jan 2006

The case concerned ‘a functioning family unit where the parents and children are living together’. The court considered wehether a deportation would infringe the human rights of te applicant: ‘The Court has previously held that domestic measures which prevent family members from living together constitute an interference with the right protected by article 8 of the Convention and that to split up a family is an interference of a very serious order. Having regard to its finding . . that the second applicant and the children cannot be expected to follow the first applicant to Turkey, the effect of the family being split up therefore remains the same [as when a 10 year exclusion order remained in force] as long as the first applicant continues to be denied the right to reside in the Netherlands.’

Citations:

50252/99, [2006] ECHR 87, (2006) 43 EHRR 621, (2006) 43 EHRR 30

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

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 – Beoku Betts v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had arrived from Sierra Leone and obtained student permits. When they expired he sought asylum, citing his family’s persecution after a coup, and that fact that other members of his family now had indefinite leave, and he said that an . .
Cited – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 18 July 2022; Ref: scu.239476

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 father. It was eventually confirmed by the Dutch courts that it was in her best interests to remain with her father and his family in the Netherlands even if this meant that she would have to be separated from her mother. In practice, however, her care was shared between the mother and the paternal grandparents.
Held: There had been a violation on the facts of the case. ‘Article 8 does not entail a general obligation for a state to respect immigrants’ choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a state’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the person involved and the general interest [the reference is to Gul v Switzerland (1996) 22 EHRR 93, at [38]]. Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the contracting state, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (eg a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion [the reference is to Solomon v The Netherlands, App No 44328/98, 5 September 2000]. Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 [the reference is to Mitchell v United Kingdom, App No 40447/98, 24 November 1998; Ajayi v United Kingdom, App No 27663/95, 22 June 1999].’
Notwithstanding the mother’s ‘cavalier attitude to Dutch immigration rules’: ‘In view of the far reaching consequences which an expulsion would have on the responsibilities which the first applicant has as a mother, as well as on her family life with her young daughter, and taking into account that it is clearly in Rachael’s best interests for the first applicant to stay in the Netherlands, the Court considers that in the particular circumstances of the case the economic well-being of the country does not outweigh the applicants’ rights under article 8, despite the fact that the first applicant was residing illegally in the Netherlands at the time of Rachael’s birth.’

Judges:

J-P Costa P

Citations:

50435/99, [2006] ECHR 86, (2007) 44 EHRR 34, [2006] 1 FCR 229

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
See Also – Rodrigues Da Silva and Hoogkamer v The Netherlands ECHR 3-Jun-2010
. .
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 – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
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: 18 July 2022; Ref: scu.239475

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 partial award – Convention proceedings.

Citations:

[2006] 1 FLR 798, 60665/00, [2005] ECHR 803

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

See Also – Tuquabo-Tekle and others v The Netherlands ECHR 15-Sep-2010
A mother, father and their three sons were of Eritrean ethnicity but lived in the Netherlands and had acquired Dutch citizenship. When leaving Eritrea in 1989, the mother had left behind a daughter, then aged eight. When she was aged 15, an . .
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 . .
Cited – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 18 July 2022; Ref: scu.239556

Giniewski v France: ECHR 31 Jan 2006

The applicant had been convicted of public defamation towards the Christian community on the basis of an article suggesting that Catholicism contained the seeds of the Holocaust.
Held: While the article may have shocked and offended, it was a genuine contribution to an historical debate. It was not ‘gratuitously offensive’. The conviction was a breach of Article 10.

Citations:

64016/00, [2006] ECHR 82, (2007) 45 EHRR 23

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 10

Jurisdiction:

Human Rights

Cited by:

Cited – Core Issues Trust v Transport for London Admn 22-Mar-2013
The claimant sought judicial review of the decision made by TfL not to allow an advertisement on behalf of the Trust to appear on the outside of its buses. It was to read: ‘NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!’. The decision was said to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Updated: 18 July 2022; Ref: scu.239471

Chikwamba v Secretary of State for the Home Department: CA 16 Nov 2005

The claimant was ordered to return to Zimbabwe to make her asylum claim from there. She argued that it would infringe her human rights. She now had a young daughter here. The IAT had dismissed her appeal on the basis that the appellant could and should return to Zimbabwe to apply there for entry clearance to return to the UK. They believed that her separation from her husband (who they accepted faced ‘an insurmountable obstacle to his own return to Zimbabwe’) would be for ‘a relatively short period’.
Held: Her appeal failed. Auld LJ said ‘[T]he fact that someone who has arrived in this country without the required entry clearance may be able to show that he would have been entitled to one does not, in the absence of exceptional circumstances, allow him to remain here without it.’

Judges:

Auld LJ, Jonathan Parker and Lloyd LJJ

Citations:

[2005] EWCA Civ 1779

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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 . .
Appeal from – Chikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
Cited – SB (Bangladesh) v Secretary of State for the Home Department CA 31-Jan-2007
A Bangladeshi woman entered into an arranged polygamous marriage in Bangladesh and many years later dishonestly (led by her husband) obtained entry clearance as a visitor before then unsuccessfully seeking leave to remain as being financially . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Children

Updated: 18 July 2022; Ref: scu.238607

MS v Finland: ECHR 22 Mar 2005

ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings.

Citations:

46601/99, [2005] ECHR 170, [2005] ECHR 170, [2009] ECHR 2218

Links:

Worldlii, Bailii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 18 July 2022; Ref: scu.227483

Selvanayagam v United Kingdom: ECHR 12 Dec 2002

Any presumption of law which had operated against the applicant had been within reasonable limits, had taken account of the importance of what was at stake and had maintained the rights of the defence.

Citations:

Unreported, 12 December 2002, 57981/00, [2002] ECHR 857

Links:

Bailii

Statutes:

European Convention on Human Rights 10

Jurisdiction:

Human Rights

Citing:

See Also – 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 – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Wright v Commissioner of Police for The Metropolis QBD 11-Sep-2013
The claimant sought damages for false imprisonment and infringement of his human rights in the manner of the defendant’s management of a demonstration in which he was involved. The issue was whether ilce action was justified on the basis that the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Crime

Updated: 18 July 2022; Ref: scu.218816

Johansen v Norway: ECHR 14 Oct 1985

(Commission) A pacifist objected to civilian substitute service on the ground that it tended to uphold respect for military service.
Held: The complaint was inadmissible. Referring to article 4(3)(b): ‘The Convention does not prevent a state from taking measures to enforce performance of civilian service, or from imposing sanctions on those who refuse such service.’

Citations:

Unreported, 14 October 1985

Statutes:

European Convention on Human Rights 4(3)(b)

Jurisdiction:

Human Rights

Cited by:

Cited – Khan v Royal Air Force Summary Appeal Court Admn 7-Oct-2004
The defendant claimed that he had gone absent without leave from the RAF as a conscientous objector.
Held: The defendant had not demonstrated by complaint to the RAF that he did object to service in Iraq. In some circumstances where there was . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 18 July 2022; Ref: scu.219439