Category: Human Rights

K, Regina (on the Application Of) v Secretary of State for the Home Department: Admn 24 Sep 2008

Claim by Mr K for judicial review of a decision of the Secretary of State for the Home Department as he had made no fresh claim for asylum and no fresh human rights claim such as would bring paragraph 353 of the Immigration Rules into play and require the consideration of his claims.

Judges:

Inglis J

Citations:

[2008] EWHC 2539 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Human Rights, Immigration

Updated: 09 August 2022; Ref: scu.277287

G, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust: Admn 20 May 2008

The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to support as rational the imposition of the rules. Having a mental illness is not a ‘status’ within human rights law. ‘there could be cases, though on the evidence we would expect them to be rare, in which the protection of mental health requires that facilities to smoke be made available. As the ECHR stated in Bensaid, mental health is associated with moral integrity and respect for mental stability may engage article 8. The Rampton policy document does provide for exceptions, though they appear to be of narrow ambit. A terminally-ill patient may not be able to venture outside. The expression ‘acute psychiatric condition’ is defined, with respect, imprecisely, as may be inevitable, but it does confer a discretion upon the responsible medical staff.’

Judges:

Pill LJ, Silber J

Citations:

[2008] EWHC 1096 (Admin), Times 28-May-2008, [2008] ACD 80, (2008) 11 CCL Rep 620, [2009] PTSR 218, [2008] UKHRR 788, [2008] MHLR 150, [2008] HRLR 42

Links:

Bailii

Statutes:

Smoke-free (Exemption & Vehicles) Regulations 2007 (SI 2007/765), Human Rights Act 1998, European Convention on Human Rights, Health Act 2007

Jurisdiction:

England and Wales

Citing:

Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Niemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
Cited – Lopez Ostra v Spain ECHR 9-Dec-1994
A waste treatment plant was built close to the applicant’s home in an urban location and the plant released fumes and smells which caused health problems to local residents.
Held: A duty exists to take reasonable and appropriate measures to . .
Cited – Ostrovar v Moldova ECHR 13-Sep-2005
The ‘cumulative effects’ of conditions in a prison cell, which included ‘exposure to cigarette smoke’ were held to go beyond the ‘threshold of severity under article 3 of the Convention’. . .
Cited – Raninen v Finland ECHR 16-Dec-1997
The complainant had been handcuffed unjustifiably and in public but not with the intention of debasing or humiliating him and not so as to affect him sufficiently to attain the minimum level of severity.
Held: The application was rejected The . .
Cited – Moreno Gomez v Spain ECHR 16-Nov-2004
The court discussed the significance of article 8: ‘Article 8 of the Convention protects the individual’s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
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 – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Botta v Italy ECHR 24-Feb-1998
The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
Held: ‘Private life . . includes a person’s . .
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 – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Regina (on the Application of Hunter) v Ashworth Hospital Authority Admn 30-Oct-2001
The court described the regime imposed at Ashworth Hospital as ‘inevitably intense for safety and security reasons. All high risk patients and newly-admitted patients are subject to a high degree of observation at all times. Regular checks are made . .
Cited – Stec and Others v United Kingdom ECHR 12-Apr-2006
(Grand Chamber) The claimants said that differences between the sexes in the payment of reduced earning allowances and retirement allowances were sex discrimination.
Held: The differences were not infringing sex discrimination. The differences . .

Cited by:

Cited – Oxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
Cited – McCann v The State Hospitals Board for Scotland SC 11-Apr-2017
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 09 August 2022; Ref: scu.267979

Giacomelli v Italy: ECHR 2 Nov 2006

A home will usually be the place, the physically defined area, where private and family life develops and that the individual has a right to the quiet enjoyment of that area.

Citations:

59909/00, [2006] ECHR 916, (2006) 45 EHRR 871, (2007) 45 EHRR 38

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

Human Rights

Updated: 09 August 2022; Ref: scu.246633

Khan v HM Revenue and Customs: CA 23 Feb 2006

The taxpayer appealed against the dismissal of his appeal from a decision of the commissioners. He said that he had been represented at the appeal by an accountant rather than by a lawyer because he was ignorant of a right to publicly funded assistance.
Held: Since the accountant could properly appear to represent his client, he could not claim to have been prejudiced. Although s60 of the 1994 Act did not create a criminal offence it did not follow that the PACE codes of practice did not apply when a taxpayer was served with a notice of the penalty investigation.

Judges:

Lord Justice Buxton Lord Justice Lloyd Lord Justice Carnwath

Citations:

[2006] EWCA Civ 89, Times 21-Mar-2006

Links:

Bailii

Statutes:

Value Added Tax Act 1994 60

Jurisdiction:

England and Wales

VAT, Legal Professions, Human Rights

Updated: 09 August 2022; Ref: scu.239863

Loiseau v France: ECHR 28 Sep 2004

ECHR Judgment (Merits) – No violation of Art. 6-1.
The court referred to ‘a ‘private right’ which can be said, at least on arguable grounds, to be recognised under domestic law’ and to ‘an individual right of which the applicant may consider himself the holder’.

Citations:

46809/99, [2004] ECHR 449

Links:

Worldlii, Bailii

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 – 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 . .
Cited – Poshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 09 August 2022; Ref: scu.227815

Yau and others v Customs and Excise: CA 3 Jul 2001

The Court considered the applicability of the European Convention of Human Rights to VAT and Excise procedures, namely whether or not the imposition by the Commissioners of Customs and Excise of (ostensibly civil) penalties for alleged dishonest evasion of tax pursuant to S.60(1) of the Value Added Tax Act 1994 and s.8(1) of the Finance Act 1994 gave rise to criminal charges within the meaning of Article 6(1) of the ECHR, as each of the taxpayers contended.
Held: The Commissioners’ appeal succeeded: ‘The VAT penalty system is fair, beneficial to the taxpayer and in the public interest. The rights of the taxpayer are already adequately protected. It would be folly, in the name of an abstraction, to introduce a further unnecessary protection, whose practical consequence would be to impair the efficiency of the system at no advantage to the taxpayer.’

Judges:

Potter, Mance LJJ, Sir Martin Nourse

Citations:

[2001] EWCA Civ 1048, [2001] 4 All ER 687, [2001] HRLR 54, [2001] BVC 415, [2001] STI 1015, 3 ITL Rep 873, [2001] STC 1188, [2001] 1 WLR 2253, [2001] UKHRR 1341

Links:

Bailii

Statutes:

European Convention of Human Rights, Value Added Tax Act 1994 60(1), Finance Act 1994 8(1)

Jurisdiction:

England and Wales

VAT, Human Rights

Updated: 09 August 2022; Ref: scu.201308

Regina v Oates: CACD 25 Apr 2002

The applicant had sought and been refused legal aid to support legal representation at a full oral hearing on her renewed application for leave to appeal against her conviction. She argued that the refusal of legal aid denied her human rights.
Held: The legal aid system assisted her at trial, on advice with regard to an appeal, and on the first written application for leave to appeal. Where that application had been refused, there was nothing in human rights law to require legal aid to be extended further.

Judges:

Lord Justice Rose, Mr Justice McKinnon and Mr Justice Pool

Citations:

Times 20-May-2002, Gazette 30-May-2002

Statutes:

Criminal Appeal Act 1968 31, European Convention on Human Rights 6.3(c)

Jurisdiction:

England and Wales

Legal Aid, Human Rights

Updated: 09 August 2022; Ref: scu.171184

Caroopen and Myrie v The Secretary of State for The Home Department: CA 20 Dec 2016

Appeal from refusal of leave to remain – application for judicial review – further reasons given – status of additional letters.
Held: The two certifications were based upon a legal misdirection.
However: ‘There may in practice be relatively few cases where removal for an interim period pending an appeal would be in breach of Convention rights in the absence of a risk of serious irreversible harm, but it is a possibility which must be focused on as a necessary part of the decision-making process.’ The misdirection in Mr Kiarie’s case had not been material because, even had she applied the overarching criterion, the Home Secretary would still have certified his claim; and that the misdirection in the first certification of Mr Byndloss’ claim had been cured by a correct direction in the second certification of it.

Judges:

Black , Beatson , Underhill LJJ

Citations:

[2016] EWCA Civ 1307, [2016] WLR(D) 690, [2017] 1 WLR 2339, [2017] INLR 283, [2017] Imm AR 930

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 08 August 2022; Ref: scu.572734

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 relationship with an English woman since 2005. However the Home Secretary had applied the provisions for automatic deportation. This appeal now raise two issues relating to the deportation of ‘foreign criminals’ as defined in the 2007 Act. The first was the significance of sections 32 and 33 of that Act in appeals relating to deportation which are based on article 8 of the European Convention on Human Rights. The second concerned the significance, in the same context, of changes to the Immigration Rules which came into effect in July 2012.’
Held: (Lord Kerr dissenting) The appeal failed. The Upper Tribunal should have taken account of the Immigration Rules (though not bound by them) and of the fact that at the time he formed his relationship, the question of the persistence of his stay was already uncertain.
Lord Wilson added that public concern (as shown by the Rules endorsed by Parliament) can assist a court’s objective analysis of where the public interest lies.
Lord Thomas emphasises the importance of clear reasoning at first instance through a structured ‘balance sheet’ approach.
Lord Kerr would have allowed the appeal and the decision of the Upper Tribunal. The Immigration Rules, and their prescription of the weight to be given to the public interest in the deportation of foreign criminals, were not compatible with the balancing exercise that had to be undertaken in considering the relevant factors arising under article 8 in a particular case. It had been sufficient for the Upper Tribunal to take into account those relevant factors. Undue or unique reliance on the Rules, at the expense of a comprehensive survey of the pertinent article 8 factors was not appropriate

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes, Lord Thomas

Citations:

[2016] UKSC 60, [2017] INLR 109, [2017] 3 All ER 20, [2016] WLR(D) 610, [2017] Imm AR 484, [2016] 1 WLR 4799, UKSC 2015/0126

Links:

Bailii, SC, SC Summary, WLRD, Bailii Summary

Statutes:

UK Borders Act 2007, European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Appeal from – HA (Iraq) v Secretary of State for The Home Department CA 22-Jul-2014
HA, an Iraqi national arrived in the United Kingdom some time in 2000. He made an asylum claim in 2002 which was rejected and the appeal was dismissed. However, he remained in the United Kingdom without leave and was fined for possessing Class A and . .
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 – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – British Oxygen Co Ltd v Board of Trade HL 15-Jul-1970
Cylinders containing hydrogen gas were being put on a trailer pulled by a tractor for the purpose of delivery to the premises of the purchaser. One of the issues before the court was whether the function of the hydrogen trailers and the cylinders . .
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 – Odelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
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.
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 – Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
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 – 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 – Maslov v Austria ECHR 23-Jun-2008
(Grand Chamber) The applicant came lawfully to Austria when 6. He committed a large number of offences when he was 14 and 15, and had been sentenced to imprisonment. He complained of a later decision to deport him.
Held: The court said: ‘ The . .
Cited – AA v The United Kingdom ECHR 20-Sep-2011
. .
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 – 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. . .
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 – IAA And Others v The United Kingdom ECHR 13-Jan-2014
. .
Cited – Sagnata Investments Ltd v Norwich Corporation CA 1971
The court hear an appeal to quarter sessions against a licensing decision taken by a local authority. The application was rejected by the local authority against whose decision an appeal lay to the Quarter Sessions. The Recorder allowed the appeal . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
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 – OH (Serbia) v Secretary of State for the Home Department CA 30-Apr-2008
Wilson LJ considered N (Kenya) and said: ‘Primary responsibility for the public interest, whose view of it is likely to be wide and better informed than that of a tribunal, resides in the respondent and accordingly a tribunal hearing an appeal . .
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 – 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 – DS (India) v Secretary of State for the Home Department CA 12-Jun-2009
Rix LJ said that the public interest in deportation of those who commit serious crimes goes well beyond depriving the offender in question of the right to re-offend in this country; it extends to deterring and preventing serious crime generally and . .
Cited – Hope and Glory Public House Ltd, Regina (On the Application of) v City Of Westminster Magistrates’ Court Admn 21-Jul-2009
. .
Cited – Norris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
Cited – Hope and Glory Public House Ltd, Regina (on The Application of) v City of Westminster Magistrates Court and Others CA 26-Jan-2011
The court was asked as to the approach which should be taken by a Magistrates Court hearing an appeal from a decision under the 2003 Act.
Held: Before a Magistrates’ Court can interfere with the Sub-Committee’s decision, it must be satisfied . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – MF (Nigeria) v Secretary of State for The Home Department CA 8-Oct-2013
The court was asked: ‘How is the reference in rule 398 to ‘exceptional circumstances’ to be understood, compatibly with Convention rights?’
Held: The Court of Appeal accepted the submission made on behalf of the Secretary of State that the . .
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 – LC (China) v Secretary of State for The Home Department CA 9-Oct-2014
Appeal against the decision of the Upper Tribunal dated 30th September 2013 allowing the Secretary of State’s appeal against the decision of the First-tier Tribunal, which had itself allowed the appellant’s appeal against the decision of the . .
Cited – The Secretary of State for The Home Department v AJ (Angola) CA 17-Dec-2014
. .
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 – Bouchelkia v France ECHR 29-Jan-1997
. .
Cited – Boujlifa v France ECHR 21-Oct-1997
(French Text) . .
Cited – Maslov v Austria ECHR 23-Jun-2008
(Grand Chamber) The applicant came lawfully to Austria when 6. He committed a large number of offences when he was 14 and 15, and had been sentenced to imprisonment. He complained of a later decision to deport him.
Held: The court said: ‘ The . .
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 – Re B-S (Children) CA 17-Sep-2013
The mother had been refused leave to oppose her child’s adoption. She now appealed.
Held: A court facing such an application faced two questions: Has there been a change in circumstances? If not, that is the end of the matter. If yes, then 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. . .

Cited by:

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 . .
Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 08 August 2022; Ref: scu.571291

Khlaifia And Others v Italy: ECHR 15 Dec 2016

ECHR Judgment Merits and Just Satisfaction : Court Grand Chamber

Citations:

16483/12, [2016] ECHR 1124

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Chamber Judgment – Khlaifia And Others v Italy ECHR 1-Sep-2015
. .
Endorsed – De Souza Ribeiro v France ECHR 13-Dec-2012
(Grand Chamber) A Brazilian man was arrested in French Guiana and ordered to be removed on the basis that his presence there was illegal. On the day following his arrest he filed an application for judicial review of the order but, later on that . .

Cited by:

Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 08 August 2022; Ref: scu.608259

Khlaifia And Others v Italy: ECHR 1 Sep 2015

Citations:

16483/12 – Chamber Judgment, [2015] ECHR 757

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Chamber Judgment – Khlaifia And Others v Italy ECHR 15-Dec-2016
ECHR Judgment Merits and Just Satisfaction : Court Grand Chamber . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 08 August 2022; Ref: scu.552057

Gudanaviciene and Others, Regina (on The Application of) v The Director of Legal Aid Casework and Others: CA 15 Dec 2014

Article 8 requires that an appeal against a deportation order by reference to it should be effective. The court
(a) cited at para 65 the decision of the ECtHR in W v United Kingdom (1988) 10 EHRR 29, para 64, to the effect that article 8 required that parents who had sought contact with a child in care should have been involved in the decision-making process to a degree sufficient to provide the requisite protection of their interests;
(b) held at para 69 that the same requirement applied to article 8 claims by immigrants; and
(c) concluded at para 70 that it amounted to a requirement that their access to the tribunal should be effective.

Judges:

Lord Dyson MR, Richards, Sullivan LJJ

Citations:

[2014] EWCA Civ 1622, [2015] 1 WLR 2247, [2014] WLR(D) 547, [2015] 3 All ER 827

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – Gudanaviciene and Others v Director of Legal Aid Casework and Another Admn 13-Jun-2014
The six claimants challenged the refusal of the Director of Legal Aid Casework to grant legal aid to the claimants. The cases raise common issues concerning the availability of legal aid in immigration cases under Section 10 of the 2012 Act. . .

Cited by:

Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Immigration, Human Rights

Updated: 08 August 2022; Ref: scu.539982

Kartal Makina Sanayi Ve Ticaret Koll. Sti. v Turkey (No. 1): ECHR 7 Oct 2004

ECHR Judgment (Merits and Just Satisfaction) – Violation of P1-1; Pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings.

Citations:

49698/99, [2004] ECHR 494

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 08 August 2022; Ref: scu.227890

Portsmouth NHS Trust v Wyatt and others: FD 7 Oct 2004

Charlotte Wyatt was born prematurely, and depended for day to day her life on medical support. Her doctors asked to be permitted not to resuscitate her again if she needed it. Her parents asked that she be given whatever chance was available for her to live.
Held: ‘On the basis of the unanimous medical evidence in this case, the issue in all probability is not whether this baby should live or die but how and when she should die.’ . . ‘What is the role of the court in all this? Any civilised society must have the means by which intractable disputes, whether between the state and the citizen or between citizens themselves are to be resolved. That is the purpose of the courts and the system of civil and family justice in this country. This kind of dispute is to be resolved by a Judge of the Family Division and whilst the judge will be more aware than anyone of his own limitations in deciding as profound an issue as this, decision there simply has to be. It may well be that an external decision is in the end a better solution than the stark alternatives of medical or parental veto. ‘ and ‘The court starts with the fundamental principles of the sanctity of life, the best interests of Charlotte which govern choice and her inherent right to respect for her dignity. Her parents say that all these point in the direction of renewed aggressive treatment in the event of further deterioration. The medical advice is that she should then be allowed to die peacefully in her parents’ arms if that is the natural course and that she should be supplied with all necessary palliative care. There is this common ground: that as and when she comes to die she should do so peacefully with her parents. . . Given that death is the one experience (other than birth) that all humanity must share, no view of life that does not include a contemplation of the place of death, even in a child, can be complete. As a society we fight shy of pondering on death yet inherent in each of us is a deep desire both for oneself and for those we love for a ‘good’ death. It seems to me therefore that in any consideration of best interests in a person at risk of imminent death is that of securing a ‘good’ death. It would be absurd to try to describe that concept more fully beyond saying that everyone in this case knows what it means – not under anaesthetic, not in the course of painful and futile treatment, but peacefully in the arms of those who love her most.’ and ‘I have given this case my most anxious and closest attention. I am only too aware of my own limitations in making so momentous a decision. Yet in the end I have come to a clear view. Subject to two observations that I wish to make at the end of this judgment, I do not believe that any further aggressive treatment, even if necessary to prolong life, is in her best interests. I know that that may mean that she may die earlier than otherwise she might have done but in my judgment the moment of her death will only be slightly advanced. I have asked myself: what can now be done to benefit Charlotte? I can only offer three answers: first, that she can be given as much comfort and as little pain as possible; secondly, that she can be given as much time as possible to spend physically in the presence of and in contact with her parents; thirdly, that she can meet her end whenever that may be in what Mr Wyatt called the TLC of those who love her most. Although I believe and find that further invasive and aggressive treatment would be intolerable to Charlotte, I prefer to determine her best interests on the basis of finding what is the best that can be done for her.

Judges:

Hedley J

Citations:

[2004] EWHC 2247 (Fam), [2005] 1 FLR 21, [2004] Fam Law 866, (2005) 84 BMLR 206

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In re J (a Minor) (Wardship: Medical treatment) CA 1-Oct-1990
J was born at 27 weeks’, weighing only 1.1kg. He suffered very severe and permanent brain damage at the time of his birth, the brain tissue then lost being irreplaceable. He was epileptic and the medical evidence was that he was likely to develop . .
Cited – Regina (Burke) v General Medical Council Admn 30-Jul-2004
The applicant, suffering a life threatening disease, wanted to ensure his continued treatment and revival in the circumstance of losing his own capacity. He said the respondent’s guidelines for doctors were discriminatory and failed to protect his . .
Cited – In Re S (Adult Patient: Sterilisation) CA 26-May-2000
The court should decide what is in the best interests of a patient where she was unable to give consent herself. The test of whether what was proposed was within the range of what reasonable and competent medical practitioners might propose, got the . .
Cited – Airedale NHS Trust v Bland CA 9-Dec-1992
The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
Held: The doctors sought permission to act in accordance with . .
Followed – Re A (Male Sterilisation) CA 2000
The court considered the duties of a doctor, asking whether a procedure should be undertaken for a patient without the capacity to consent: Dame Elizabeth Butler-Sloss said: ‘The doctor, acting to that required standard, has, in my view, a second . .
Cited – In Re J (A Minor) (Child in Care: Medical Treatment) CA 26-Aug-1992
. .
Cited – In Re A (Mental Patient: Sterilisation) CA 13-Jan-2000
The patient suffered from Down’s Syndrome. As his mother became unable to care for him, she sought his sterilisation to avoid his fathering, whilst in residential care, a child he could not care for.
Held: The application was refused. Where a . .

Cited by:

See Also – Wyatt v Portsmouth NHS Trust and Another FD 21-Apr-2005
Charlotte Wyatt had been born very premature and so severely disabled that her doctors sought and obtained an order that she should not be revived if she died. She had survived several months longer than expected and her parents had noticed . .
Approved – Re L (a child) (Medical Treatment: Benefit) FD 1-Nov-2004
(Date) . .
Cited – Wyatt and Another v Portsmouth Hospital NHS and Another CA 12-Oct-2005
The appellants’ daughter had been born with very severe disabilities. Her doctors obtained an order allowing them a discretion not to ventilate her to keep her alive if necessary. She had improved, but the family now sought leave to appeal an order . .
See Also – In re Wyatt FD 23-Feb-2006
. .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health Professions, Children

Updated: 08 August 2022; Ref: scu.216005

Kartal Makina Sanayi Ve Ticaret Koll. Sti. v Turkey (No. 2): ECHR 7 Oct 2004

ECHR Judgment (Merits and Just Satisfaction) – Violation of P1-1; Pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings.

Citations:

50011/99, [2004] ECHR 495

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 08 August 2022; Ref: scu.227885

Detention Action v Secretary of State for The Home Department: Admn 9 Jul 2014

The claimant challenged the lawfulness of the policy and practice applied by the Secretary of State for the Home Department in the operation of the Detained Fast Track, DFT. This is the policy for the detention of some asylum seekers, while their asylum claims are determined first by the SSHD, and then while they appeal if the claim is refused. They are detained on the basis that their claim and any appeal can be determined quickly. In summary, Detention Action contends that the DFT system as now operated is so unfair as to be unlawful, and it is unlawful at both common law and as a breach of Article 5 (1)(f) ECHR.
Held: The system (as operated) did work unfairly and thus unlawfully but only in a specifically limited way. Despite expressing concerns about the screening process and the way in which the system applied to vulnerable groups such as the victims of torture or trafficking, Ouseley J’s only finding of an unacceptable risk of claims being processed unfairly was that: ‘in too high a proportion of cases and in particular for those which might be sensitive, the conscientious lawyer does not have time to do properly what might need doing.’

Judges:

Ouseley J

Citations:

[2014] EWHC 2245 (Admin), [2014] WLR(D) 310

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Appeal from – Detention Action, Regina (on The Application of) v Secretary of State for The Home Department CA 9-Oct-2014
The court was asked as to the application of the fast track detention system imposed by the respondent. The court now heard an expedited appeal against a decsion that it was unlawful. . .
Appeal from – Detention Action, Regina (on The Application of) v Secretary of State for The Home Department CA 16-Dec-2014
The claimant charity assisting asylum seekers challenged the system of detaining applicants under a fast track system. The charity had succeeded, but only in part and now argued that once the judge had decided that the manner in which the DFT was . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 07 August 2022; Ref: scu.533950

McDonagh, Regina (on The Application of) v Chief Constable of Leicestershire Constabulary: Admn 19 Dec 2013

The claimant alleged that his treatment in the police station had been wrongful. His solicitor, representing two clients, had refused to attend the interview with the claimant until he had seen the second client. There was a scene and the solicitor was excluded. The claimant said that this had unlawfully imposed a condition on his right to consult with his solicitor.
Held: The claim succeeded. The claimant’s human rights had been infringed: ‘ in breach of the claimant’s rights under Article 6(3)(c) of the European Convention on Human Rights, the defendant, through the custody officer of Beaumont Leys Police Station, Leicestershire, unlawfully imposed a condition on the claimant’s right to have his solicitor present when he was interviewed, namely, that the interview should proceed before the claimant’s solicitor had had an opportunity to consult with a detainee who was also the solicitor’s client and who had been arrested with the claimant, with the effect that the claimant was unlawfully denied right of access to a solicitor of his choosing when he was interviewed. ‘

Judges:

Mitting, Keith JJ

Citations:

[2013] EWHC 4690 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights 6(3)(c), Police and Criminal Evidence Act 1984 67(10)

Jurisdiction:

England and Wales

Police, Human Rights

Updated: 07 August 2022; Ref: scu.526586

Treial v Estonia (Dec): ECHR 28 Jan 2014

ECHR Article 35-1 – Exhaustion of domestic remedies
Effective domestic remedy
Claim for compensation before the administrative courts in respect of complaint concerning length of civil proceedings: effective remedy
Facts – In his application to the European Court, the applicant complained of the length of domestic civil proceedings to which he had been a party. The Government raised a preliminary objection that he had not exhausted domestic remedies.
Law – Article 35 – 1: The Court had found in its decision in Mets v. Estonia, which concerned a complaint about the length of criminal proceedings, that the fact that the applicant in that case had been awarded compensation by an administrative court meant that he had lost his victim status in the proceedings before the European Court. While the enactment of legislation clearly establishing grounds for awarding compensation for excessively lengthy proceedings and swift procedures for dealing with such claims would contribute considerably to legal certainty in this field, the applicant in that case had nevertheless had at his disposal an effective remedy developed by the practice of the Estonian courts.
Although the cases that had thus far been decided by the administrative courts concerned the length of criminal proceedings, the Estonian Supreme Court had indicated in a judgment of 22 March 2011 (Osmjorkin no. 3 3 1 85 09) that Articles 14 and 15 of the Constitution provided a right to proceedings within a reasonable time and that compensation could be awarded by virtue of Article 25. Noting that the provisions and principles relied on by the Supreme Court were of a general nature and not specific to criminal proceedings, the European Court found it hard to see how a different conclusion could be reached in respect of a complaint concerning the length of civil proceedings. The applicant was therefore required to have recourse to the administrative courts in order to comply with the requirement of exhaustion of domestic remedies. The Court emphasised, however, that its position might be subject to review in the future depending, in particular, on the domestic courts’ capacity to establish consistent case-law in line with the Convention requirements.
Conclusion: inadmissible (failure to exhaust domestic remedies). (See Mets v. Estonia (dec.), 38967/10, 7 May 2013)

Citations:

32897/12 – Legal Summary, [2014] ECHR 284

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 07 August 2022; Ref: scu.522576

IR and GT v The United Kingdom: ECHR 28 Jan 2014

Judges:

Ineta Ziemele, P

Citations:

63339/12 – Admissibility Decision, [2014] ECHR 340, 14876/12

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Legal Summary – IR and GT v The United Kingdom (Dec) ECHR 28-Jan-2014
ECHR Article 8
Expulsion
Exclusion orders based on undisclosed national security grounds: inadmissible
Facts – The case concerned two foreign nationals whom the Secretary of State for the Home . .

Cited by:

Admissibility – IR and GT v The United Kingdom (Dec) ECHR 28-Jan-2014
ECHR Article 8
Expulsion
Exclusion orders based on undisclosed national security grounds: inadmissible
Facts – The case concerned two foreign nationals whom the Secretary of State for the Home . .
Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 07 August 2022; Ref: scu.523400

Khan v The United Kingdom (Dec): ECHR 28 Jan 2014

Article 1
Jurisdiction of states
Absence of territorial jurisdiction in respect of immigrant applicant who had voluntarily returned to his country of origin
Facts – The applicant, a Pakistani national, came to the United Kingdom in 2006 on a student visa. In 2009 he and four other Pakistani nationals were arrested on suspicion of conspiracy to carry out acts of terrorism. They were released by the police without charge but were served with a notice of intention to deport and taken into immigration detention. The applicant voluntarily left the United Kingdom in August 2009. In December 2009 he was notified by letter of the Secretary of State’s decision to cancel his leave to remain in the United Kingdom on the grounds that his presence would not be conducive to the public good for reasons of national security. The letter also informed him that he was judged to be involved in Islamist extremist activity. His appeal against the decision to cancel his leave was dismissed by the Special Immigration Appeals Commission (SIAC). In his application to the European Court the applicant complained, inter alia, of violations of Articles 2, 3, 5 and 6 of the Convention.
Law – Article 1: Whether Articles 2, 3, 5 and 6 were engaged turned on whether the applicant could be said to be ‘within the jurisdiction’ of the United Kingdom. A State’s jurisdictional competence under Article 1 was primarily territorial, although the Court had recognised two principal exceptions to that principle, namely circumstances of ‘State agent authority and control’ and ‘effective control over an area’*. In the present case, where the applicant had returned voluntarily to Pakistan, neither exception applied, particularly as he had not complained about the acts of British diplomatic and consular agents in Pakistan and remained free to go about his life in the country without any control by agents of the United Kingdom. Moreover, and contrary to the applicant’s submission, there was no principled reason to distinguish between someone who was in the jurisdiction of a Contracting State but had left voluntarily and someone who was never in the jurisdiction of that State. Nor was there any support in the Court’s case-law for the applicant’s argument that the State’s obligations under Article 3 required it to take that provision into account when making adverse decisions against individuals, even when those individuals were not within its jurisdiction. Lastly, jurisdiction could not be established simply on the basis of the proceedings before SIAC. The mere fact that the applicant had availed himself of his right to appeal against the decision to cancel his leave to remain had no direct bearing on whether his complaints relating to the alleged real risk of his ill-treatment, detention and trial in Pakistan fell within the jurisdiction of the United Kingdom: it was the subject matter of the applicants’ complaints alone that was relevant.
Conclusion: inadmissible (incompatible ratione loci).

Citations:

11987/11 – Legal Summary, [2014] ECHR 296

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Immigration

Updated: 07 August 2022; Ref: scu.522573

Llewellyn, Regina (on The Application of) v Cardiff and Vale University Health Board: Admn 19 Dec 2013

The claimant seeks a judicial review of the refusal by the defendant of her application for funding of treatment which she received in Germany

Judges:

Milwyn Jarman QC HHJ

Citations:

[2013] EWHC 4099 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Health Professions, Human Rights

Updated: 07 August 2022; Ref: scu.519990

Griffiths v Secretary of State for Justice: Admn 19 Dec 2013

The claimants challenge what is said to be the continuing failure of the Secretary of State for Justice (‘the Secretary of State’) to make adequate provision for so called approved premises to accommodate women released from prison on licence. The claimants are women prisoners approaching the date on which they will be considered for release on licence. There are now only six women’s approved premises in England, none in London, and none in Wales. Thus the claimants are said to face a significant likelihood of being in approved premises many miles from their homes and families, with detrimental effects on their rehabilitation and reintegration into the community.
Cranston J did declare that the Secretary of State had failed to discharge the public sector equality duty: ‘What is required is that the Secretary of State address possible impacts, assessing whether there is a disadvantage, how significant it is, and what steps might be taken to mitigate it. In the context of advancing equality of opportunity – one aspect of the duty – that means taking the opportunity to see whether more might be done for women, having regard to their particular circumstances. Nothing even approaching this has been done.’

Judges:

Cranston J

Citations:

[2013] EWHC 4077 (Admin), [2014] WLR(D) 136

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Appeal from – Coll v Secretary of State for Justice CA 31-Mar-2015
The appellant was serving a mandatory life sentence for murder. She was being considered for release from custody to ‘Approved Premises’. There were however more such centres for men and the provision for women was unplanned. The results, she said . .
At First Instance – Coll, Regina (on The Application of) v Secretary of State for Justice SC 24-May-2017
The appellant female prisoner asserted that the much smaller number of probation and bail hostels provided for women prisoners when released on licence was discriminatory in leaving greater numbers of women far removed from their families.
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 07 August 2022; Ref: scu.519336

De Souza Ribeiro v France: ECHR 13 Dec 2012

(Grand Chamber) A Brazilian man was arrested in French Guiana and ordered to be removed on the basis that his presence there was illegal. On the day following his arrest he filed an application for judicial review of the order but, later on that very day, he was removed to Brazil.
Held: France had breached his right under article 13 in conjunction with article 8.
He argued that, whenever an order for removal was challenged by reference to article 8, article 13 required an automatic suspension of the removal pending determination of the challenge, just as when the challenge was by reference to articles 2 or 3. The Grand Chamber declined this: ‘By contrast [to challenges under articles 2 or 3], where expulsions are challenged on the basis of alleged interference with private and family life, it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect. Nevertheless, in immigration matters, where there is an arguable claim that expulsion threatens to interfere with the alien’s right to respect for his private and family life, article 13 in conjunction with article 8 of the Convention requires that states must make available to the individual concerned the effective possibility of challenging the deportation or refusal-of-residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality.’

Citations:

22689/07 – HEJUD, [2012] ECHR 2066

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Endorsed – Khlaifia And Others v Italy ECHR 15-Dec-2016
ECHR Judgment Merits and Just Satisfaction : Court Grand Chamber . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 August 2022; Ref: scu.467120

Northern Ireland Human Rights Commission, Re Judicial Review: CANI 27 Jun 2013

Judges:

Morgan LCJ, Girvan LJ and Coghlin LJ

Citations:

[2013] NICA 37

Links:

Bailii

Statutes:

Adoption (Northern Ireland) Order 1987, European Convention on Human Rights 8 14

Jurisdiction:

Northern Ireland

Adoption, Discrimination, Human Rights

Updated: 07 August 2022; Ref: scu.513865

Carson and Others v United Kingdom: ECHR 2 Sep 2009

Press Release

Citations:

[2009] ECHR 1272

Links:

Bailii

Jurisdiction:

Human Rights

Citing:

See Also – Carson and Others v The United Kingdom ECHR 4-Nov-2008
(Grand Chamber) Pensioners who had moved abroad complained that they had been excluded from the index-linked uprating of pensions given to pensioners living in England.
Held: This was not an infringement of their human rights. Differences in . .

Cited by:

See Also – Carson v United Kingdom ECHR 2-Sep-2009
Press Release – Grand Chamber Hearing broadcast . .
See Also – Carson and Others v The United Kingdom ECHR 16-Mar-2010
(Grand Chamber) The court ruled admissible claims against the United Kingdom by 13 persons entitled to British State pensions for violation of article 14 of the Convention in combination with article 1 of the First Protocol. All the claimants had . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 August 2022; Ref: scu.451396

Carson v United Kingdom: ECHR 2 Sep 2009

Press Release – Grand Chamber Hearing broadcast

Citations:

[2009] ECHR 1272

Links:

Bailii

Jurisdiction:

Human Rights

Citing:

See Also – Carson and Others v The United Kingdom ECHR 4-Nov-2008
(Grand Chamber) Pensioners who had moved abroad complained that they had been excluded from the index-linked uprating of pensions given to pensioners living in England.
Held: This was not an infringement of their human rights. Differences in . .
See Also – Carson and Others v United Kingdom ECHR 2-Sep-2009
Press Release . .

Cited by:

See Also – Carson and Others v The United Kingdom ECHR 16-Mar-2010
(Grand Chamber) The court ruled admissible claims against the United Kingdom by 13 persons entitled to British State pensions for violation of article 14 of the Convention in combination with article 1 of the First Protocol. All the claimants had . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 August 2022; Ref: scu.451383

MH v The Secretary of State for The Home Department: SCS 30 Aug 2011

MH sought the reduction of a decision of the Secretary of State for the Home Department to refuse his claim under Article 8 of the Convention for leave to remain in the United Kingdom.

Judges:

Beckett QC J

Citations:

[2011] ScotCS CSOH – 143

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Scotland

Human Rights, Immigration

Updated: 07 August 2022; Ref: scu.443602

Manchester City Council v Pinnock: SC 9 Feb 2011

The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . Convention . . requires a court, which is being asked to make an order for possession under section 143D(2) of the [1996] Act against a person occupying premises under a demoted tenancy, to have the power to consider whether the order would be ‘necessary in a democratic society’ and, if so, whether section 143D(2) is compatible with article 8 of the Convention’
Held: Though in this case, the decision stood, the answers were ‘Yes’, and section 143 of the 1985 Act could be read down to achieve this. ‘if our law is to be compatible with article 8, where a court is asked to make an order for possession of a person’s home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact.’
However: ‘in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way.’
Where it is required in order to give effect to an occupier’s article 8 Convention rights, the court’s powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view . . if the procedure laid down in section 143E or 143F has not been lawfully complied with, either because the express requirements of that section have not been observed or because the rules of natural justice have been infringed, the tenant should be able to raise that as a defence to a possession claim under section 143D(2).
The court set out the principles it had derived from the case law: ‘(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end . .
(b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues . .
(c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with . .
(d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.’
Lord Neuberger summarised the court’s obligations to follow European Court judgments: ‘This court is not bound to follow every decision of the European court. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law: see e g R v Horncastle [2010] 2 AC 373. Of course, we should usually follow a clear and constant line of decisions by the European court: R (Ullah) v Special Adjudicator [2004] 2 AC 323. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham City Council [2009] AC 367, para 126, section 2 of the 1998 Act requires our courts to ‘take into account’ European court decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line.’

Judges:

Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Neuberger, Lord Collins

Citations:

[2011] UKSC 6, [2011] 2 All ER 586, [2011] NPC 16, [2011] 2 WLR 220, UKSC 2009/0180, [2011] 2 AC 104

Links:

Bailii, SC Summary, SC

Statutes:

Housing Act 1985 84 143, Anti-social Behaviour Act 2003, Housing Act 1980, European Convention on Human Rights 8, Housing Act 1996

Jurisdiction:

England and Wales

Citing:

See Also – Manchester City Council v Pinnock SC 3-Nov-2010
The tenant had been secure but had his tenancy had been reduced to an insecure demoted tenancy after he was accused of anti-social behaviour. He had not himself been accused of any misbehaviour, but it was said that he should have controlled his . .
Appeal from – Manchester City Council v Pinnock CA 31-Jul-2009
The court considered the status in law of ‘demoted tenants’, those who had been secure social housing tenants, but who had only limited security after being found to have behaved anti-socially. The tenant had been refused an opportunity by the . .
Cited – Zehentner v Austria ECHR 16-Jul-2009
ECHR The applicant’s apartment was subject to a judicial sale for non-payment of debt. She was ill, and did not participate in the sale. The local law had time limits for challenging a judicial sale, designed to . .
Cited – Connors v The United Kingdom ECHR 27-May-2004
The applicant gypsies had initially been permitted to locate their caravan on a piece of land owned by a local authority, but their right of occupation was brought to an end because the local authority considered that they were committing a . .
Cited – Kay And Others v United Kingdom ECHR 21-Sep-2010
(Fourth Section) After carefully considering the various views expressed in the House of Lords in Kay v Lambeth [2006] 2 AC 465 and Doherty v Birmingham [2009] 1 AC 367, and the relevant decisions of the Court of Appeal, the EurCtHR stated, at paras . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Cosic v Croatia ECHR 15-Jan-2009
The applicant teacher was provided a flat by her school, which it in had leased from the Yugoslavian Army. That lease expired in 1990. She remained, paying rent to the school. Ultimately the Croatian State, which had assumed ownership of Yugoslavian . .
Cited – Doherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .
Cited – Blecic v Croatia ECHR 29-Jul-2004
The applicant had for many years before 1992 had a protected tenancy of a publicly-owned flat in Zadar. Under Croatian law a specially-protected tenancy might be terminated if the tenant ceased to occupy the flat for a continuous period of six . .
Cited – McCann v The United Kingdom ECHR 13-May-2008
The applicant and his wife were secure joint tenants of a house of a local authority under section 82. Their marriage broke down, and the applicant’s wife moved out of the house with the two children of the marriage. She returned after obtaining a . .
Cited – Blecic v Croatia ECHR 8-Mar-2006
The applicant alleged that her rights to respect for her home and to peaceful enjoyment of her possessions had been violated on account of the termination of her specially protected tenancy.
Held: Ratione temporis, the court had had no . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Cumming v Danson CA 1942
The court considered what amounted to reasonable alternative accomodation.
Held: it was the judge’s duty to take into account all relevant circumstances as they exist at the date of the hearing. There is a fundamental difference in the Rent . .
Cited – Di Palma v United Kingdom ECHR 1-Dec-1986
(Commission/admissibility) The applicant’s lease was forfeited on her non-payment of a service charge and possession was ordered. Her primary claim was made (unsuccessfully) under article 1 of the First Protocol to the Convention. But she also . .
Cited – Salford City Council v Mullen CA 30-Mar-2010
The court considered the status of decisions to commence proceedings for possession by local authorities against tenants not protected under any statutory scheme. The tenants, on introductory tenancies and under the homelessness regime, argued that . .
Cited – Horncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .
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 – Wandsworth London Borough Council v Winder HL 1985
Rent demands were made by a local authority landlord on one of its tenants. The local authority, using its powers under the Act, resolved to increase rents generally. The tenant refused to pay the increased element of the rent. He argued that the . .

Cited by:

Cited – The Mayor Commonalty and Citizens of London v Samede (St Paul’s Churchyard Camp Representative) and Others CA 22-Feb-2012
The defendants sought to appeal against an order for them to vacate land outside St Paul’s Cathedral in London which they occupied as a protest.
Held: The application for leave to appeal failed. The only possible ground for appeal was on the . .
Cited – Sims v Dacorum Borough Council SC 12-Nov-2014
Surrender at Common Law Survives Human Rights Law
The tenants held a secure weekly tenancy of the respondent under a joint tenancy. After a relationship breakdown, Mrs Sims had given notice to quit. Mr Sims, left in possession now argued that the common law rules should not be allowed to deprive . .
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
Cited – McDonald v McDonald and Others SC 15-Jun-2016
Her parents had bought a house and granted tenancies to their adult daughter (the appellant), who suffered a personality disorder. They became unable to repay the mortgage. Receivers were appointed but the appellant fell into arrears with the rent. . .
Cited – Watts v Stewart and Others CA 8-Dec-2016
The court considered the status of residents of almshouses, and in particular whether they were licensees or tenants with associated security.
Held: The occupier’s appeal failed: ‘We do not accept the proposition that, if and insofar as Mrs . .
Cited – Poshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .
Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Housing, Human Rights, Constitutional

Updated: 07 August 2022; Ref: scu.428517

Maslov v Austria: ECHR 23 Jun 2008

(Grand Chamber) The applicant came lawfully to Austria when 6. He committed a large number of offences when he was 14 and 15, and had been sentenced to imprisonment. He complained of a later decision to deport him.
Held: The court said: ‘ The Court would stress that while the criteria which emerge from its case-law and are spelled out in the Boultif and Uner judgments are meant to facilitate the application of Article 8 in expulsion cases by domestic courts, the weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case. Moreover, it has to be borne in mind that where, as in the present case, the interference with the applicant’s rights under Article 8 pursues, as a legitimate aim, the ‘prevention of disorder or crime’ . . the above criteria ultimately are designed to help evaluate the extent to which the applicant can be expected to cause disorder or to engage in criminal activities.
In a case like the present one, where the person to be expelled is a young adult who has not yet founded a family of his own, the relevant criteria are:
– the nature and seriousness of the offence committed by the applicant;
– the length of the applicant’s stay in the country from which he or she is to be expelled;
– the time elapsed since the offence was committed and the applicant’s conduct during that period;
– the solidity of social, cultural and family ties with the host country and with the country of destination.
The Court would also clarify that the age of the person concerned can play a role when applying some of the above criteria. For instance, when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult (see, for instance, Moustaquim v. Belgium, judgment of 18 February 1991, Series A no.193, p.19, ss 44, and Radovanovic v. Austria, no. 42703/98, ss 35, 22 April 2004).
In turn, when assessing the length of the applicant’s stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it evidently makes a difference whether the person concerned had already come to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult. This tendency is also reflected in various Council of Europe instruments, in particular in Committee of Minister Recommendations Rec (2001)15 and Rec (2002)4 . .
Although Article 8 provides no absolute protection against expulsion for any category of aliens (see Uner, cited above, ss 55), including those who were born in the host country or moved there in their early childhood, the Court has already found that regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Uner, ss 58 in fine).
In short, the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion.’

Judges:

Jean-Paul Costa, P

Citations:

[2008] ECHR 546, 1638/03, [2009] INLR 47

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Citing:

See Also – Maslov v Austria ECHR 22-Mar-2007
. .

Cited by:

Cited – MJ (Angola) v Secretary of State for The Home Department CA 20-May-2010
The applicant had been ordered to be deported and returned to Angola, but at the same time he was a detained mental patient. He argued that a return would breach his Article 8 rights.
Held: The respondent was entitled to decide to deport the . .
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 . .
Cited – Ogundimu (Article 8 – New Rules) Nigeria UTIAC 8-Feb-2013
UTIAC 1 The expectation is that it will be an exceptional case in which permission to appeal to the Upper Tribunal should be granted where the lodging of the application for permission is more than 28 days out of . .
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 – 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 – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 07 August 2022; Ref: scu.420795

Borotyuk v Ukraine: ECHR 16 Dec 2010

(Fifth Section) The applicant complained, in particular, that his continued pre-trial detention had been unjustified and that he had not been legally represented in the early stages of the criminal proceedings.
Held: The court summarised the general principles that are to be found in Salduz. It stated that, as a rule, access to a lawyer must be provided as from the first questioning of a suspect by the police, unless it can be demonstrated in the light of the particular circumstances that there are compelling reasons to restrict that right.

Judges:

Peer Lorenzen, President

Citations:

33579/04, [2010] ECHR 2037

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Cited – Salduz v Turkey ECHR 27-Nov-2008
(Grand Chamber) The applicant had been taken into custody before he was interrogated during his detention by police officers of the anti-terrorism branch of the Izmir Security Directorate.
Held: There had been a violation of art 6(3)(c) of the . .

Cited by:

Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 07 August 2022; Ref: scu.427249

Zdanoka v Latvia: ECHR 16 Mar 2006

(Grand Chamber) The applicant alleged that her disqualification from standing for election to the Latvian Parliament and to municipal elections infringed her rights as guaranteed by Article 3 of Protocol No. 1 to the Convention, and Articles 10 and 11 of the Convention.

Citations:

[2006] ECHR 231, [2006] ECHR 994, 58278/00

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 10

Citing:

See Also – Zdanoka v Latvia ECHR 17-Jun-2004
. .

Cited by:

Cited – Barclay and Others, Regina (on The Application of) v Secretary of State for Justice and Others SC 1-Dec-2009
The claimants said that restrictions within the constitution of Sark on who could sit in the Chief Pleas were incompatible with their human rights. The claimants variously owned property on Sark but had restricted rights to vote and stand.
Cited – Barclay and Others, Regina (on The Application of) v Secretary of State for Justice and Others SC 1-Dec-2009
The claimants said that restrictions within the constitution of Sark on who could sit in the Chief Pleas were incompatible with their human rights. The claimants variously owned property on Sark but had restricted rights to vote and stand.
Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 August 2022; Ref: scu.381722

Secretary of State for The Home Department, Regina (on The Application of) v BC and Another: Admn 11 Nov 2009

The applicants were subject to control orders. They were ‘light touch’, not involving a deprivation of liberty.

Judges:

Collins J

Citations:

[2009] EWHC 2927 (Admin), [2010] 1 WLR 1542, [2010] UKHRR 344

Links:

Bailii

Statutes:

European Convention on Human Rights 6

Cited by:

Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Crime

Updated: 07 August 2022; Ref: scu.381478

Mamatkulov And Askarov v Turkey: ECHR 4 Feb 2005

Grand Chamber – while there may have been reasons for doubting whether the applicants would receive a fair trial, there was not sufficient information to show that any possible irregularities in the trial were liable to constitute a flagrant denial of justice. In para O-III14 of their joint partly dissenting opinion, to which Judge Rozakis also subscribed, Judges Bratza, Bonello and Hedigan said that in their view the word ‘flagrant’ was intended to convey a breach of the principles of fair trial guaranteed by article 6 which was so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by the article.

Citations:

46951/99, [2005] ECHR 64, 46827/99

Links:

Bailii

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Cited by:

See Also – Mamatkulov and Askarov v Turkey ECHR 4-Feb-2005
(Grand Chamber) The applicants had resisted extradition to Uzbekistan from Turkey to stand trial on very serious charges, saying that if returned they would be tortured. There was material to show that that was not a fanciful fear. On application . .
Cited – Omar Othman (Abu Qatada) v The United Kingdom ECHR 17-Jan-2012
The applicant resisted his proposed deportation to Jordan to face charges of terrorism. He complained was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that . .
Cited – Kapri v The Lord Advocate (Representing The Government of The Republic of Albania) SC 10-Jul-2013
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in . .
Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 August 2022; Ref: scu.277214

Tarariyeva v Russia: ECHR 14 Dec 2006

A complaint was made that the authorities had failed in their duty to protect a prisoner’s life. The authorities had him in custody for two years and knew of his health problems. He was not properly treated in the penal colony. When he had acute pain, he was diagnosed with a perforated ulcer and peritonitis and transferred to a civilian hospital. The surgery performed there was defective. The civilian hospital authorised his discharge to the prison hospital knowing of post-operative complications requiring further surgery, but withheld crucial details from the prison, which treated him as an ordinary post-operative patient rather than an emergency case. The further surgery was performed too late and the patient died.
Held: The complaint succeeded. The Court examined the individual operational failings of the health care given to prisoners, and not simply whether there were proper systems in place.
The court discussed the general principles applicable to the protection of the right to life: ‘The Court reiterates that . . art.2 . . requires the state not only to refrain from the ‘intentional’ taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. In the context of prisoners, the Court has already emphasised in previous cases that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the state to account for any injuries suffered in custody, which obligation is particularly stringent where the individual dies.
Those obligations apply in the public-health sphere too. The positive obligations require states to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, and those responsible made accountable. Furthermore, where a hospital is a public institution, the acts and omissions of its medical staff are capable of engaging the responsibility of the respondent State under the Convention.’

Citations:

4353/03, [2006] ECHR 1096, [2007] Prison LR 270, [2008] Inquest LR 209, (2009) 48 EHRR 26

Links:

Bailii

Statutes:

European Convention on Human Rights

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 – Tyrrell v HM Senior Coroner County Durham and Darlington and Another Admn 26-Jul-2016
The court was aked what article 2 of the European Convention on Human Rights requires of a coroner when a serving prisoner dies of natural causes.
Held: The reuest for judicial review failed. Mr Tyrrell’s death was, from the outset, one which . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Coroners

Updated: 07 August 2022; Ref: scu.248183