Issue 98 - 21st July 2008

Monday 21 July 2008

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LEGISLATION

TERRORISM ACT 2000 (PROSCRIBED ORGANISATIONS) (AMENDMENT )(NO 2) ORDER 2008. SI/2008/1931 wef 18.7.2008 amends the list of proscribed organisations by adding the "military wing of Hizbullah including Jihad council and all units reporting to it"

CASES

EUROPEAN COURT OF HUMAN RIGHTS

NA V UK (Application number 25904/07) 17.7.2008
The Court held that the applicant's expulsion to Sri Lanka would violate Article 3 ECHR. The Court emphasised that in assessing risk to the applicant on return to Sri Lanka, the Court would examine A's claim in accordance with the country guidance case of LP as well as with regard to the deterioration of the security situation in Sri Lanka and corresponding increase in general violence and heightened security. The Court identified that there was a need to take a more cumulative approach to all possible risk factors.

COURT OF APPEAL

Court of Appeal quashes Ministry of Justice Rules on use of restraints on children in Secure Training Centres as in violation of human rights.

In a significant public law ruling, R (C) -v- Secretary of State for Justice CI/2008/0698, handed down on 28 July 2008, the Court of Appeal allowed the claimant's appeal from the decision of the Divisional Court and quashed the Secure Training Centre (Amendment) Rules 2007. The Amendment Rules, introduced in July 2007, as a response to the inquests into the deaths in custody of Gareth Myatt and Adam Rickwood, expanded the circumstances in which the powers to use physical restraints and removal from association are triggered, permitting their use in order to ensure "good order and discipline".

In a Judgment strongly critical of the Government's approach to this anxious area of public policy, the Court of Appeal held that the rule of law and proper administration of race relations law required that the Rules are quashed on the basis that the Government had failed to consult the Children's Commissioner, or to carry out a race equality impact assessment under the Race Relations Act prior to bringing in the Rules. The Court of Appeal also found that the new Rules were in violation of Articles 3 and 8 ECHR. Read the news story

TG (Central African Republic) v SSHD (2008) CA (Civ Div) 15/07/2008.
Where in a claim raising issues under Article 8 ECHR, it was accepted that the Asylum and Immigration Tribunal [AIT] had erred in determining proportionality on a legally flawed basis, the appropriate remedy was to remit to AIT. Chikwambe v SSHD [2008] UKHL was not to be relied upon as an authority for proposition that the Court of Appeal could itself determine the proportionality issue.

RS (ZIMBABWE) V SSHD [2008] EWCA Civ 839
The Court of Appeal found that the Immigration and Asylum Tribunal had erred in confining its analysis of a human rights appeal by a Zimbabwean woman suffering from HIV to the health issues surrounding her return to Zimbabwe, when there was material on the general situation in Zimbabwe which required analysis. In the light of statements by the European Court of Human Rights in N v United Kingdom (26565/05) Times, June 6, 2007 which accepted a broader approach to Article 3 to include "humanitarian considerations". The European Court of Human Rights identified that the humanitarian considerations would have to be very exceptional.

REPORTS

Failed asylum seekers are being abused by private security companies (14.7.2008) Outsourcing abuse report. A report published following an investigation into 300 cases of alleged physical assault and racial abuse by private security companies.

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