Campaigners have warned that a loophole allowing children aged 16 or 17 to get married with their parents’ consent is enabling forced child marriages to take place across England. Current laws against forced marriage to do not specifically protect children, and there are no laws in the UK to prevent religious or customary child marriages. The organisation Girls Not Brides UK, who sent a letter to the Prime Minister warning of the impact of this loophole last week, have suggested that child marriages disproportionately affect girls, and often lead to fewer educational and employment opportunities and a higher risk of domestic violence. The government’s Forced Marriage Unit, which collects data on cases of forced marriage, shows that more than a quarter of cases involve children. The Conservative MP Pauline Latham is currently promoting a bill in Parliament aimed at criminalising child marriage completely.
In other news:
A survey conducted by the trade union GMB has suggested that there is overwhelming public support for ‘fire and rehire’ practices to be made illegal. The practice, which involves companies firing their staff and then offering to rehire them with depleted pay and employment contracts, was used by British Gas last month against hundreds of its employees. The survey showed that 76% of those who responded said the practice should be outlawed, 71% of whom self-identified as Conservative voters. The Prime Minister Boris Johnson has previously labelled the practice ‘unacceptable’, but some ministers have suggested that companies’ flexibility must be preserved when they are in financial difficulty. However, other research suggests that 9 out of 13 companies who employed the tactic this year were not in any financial difficulty. The GMB union is now campaigning for the practice to be explicitly banned in the government’s much delayed employment bill.
A study launched by the legal services provider LexisNexis into the legal practice areas most severely impacted by the Covid-19 pandemic has shown that immigration and civil litigation have been hit the hardest, despite overwhelming media attention on the collapsing criminal justice system. Some areas of civil litigation such as employment claims only took a small dip of 5%, whereas personal injury and property law work has seen a steep downfall. However, the combined effect of the Covid-19 pandemic and Brexit has had a deeper and longer lasting effect on immigration law, with the report suggesting that the amount of work available may be reduced indefinitely.
The Home Office has come under fire in the courts this week in a hearing concerning the legality of the eviction of asylum seekers during the national lockdown, for seeming to plead their case on the basis that they had acted without proper lawful authority. The judge, Garnham J (formerly of 1 Crown Office Row), adjourned the hearing to allow the Home Office to identify a legal basis for its policy, labelling its approach ‘extremely troubling’. The Home Office subsequently issued an apology to the judge. A few days later, new rules proposed by the Home Office which may place a greater number of trafficking victims in detention, were criticised by human rights campaigners and lawyers, who have pointed to the vulnerable state of many victims. The new rules impose a higher standard of proof on victims to demonstrate that they should not be detained – including supplying medical evidence to prove they are likely to be subjected to future harm. Finally, in another blow to the Home Secretary, on Saturday the UN condemned the new sweeping immigration overhaul planned by the department, which proposes that the UK could deport illegal immigrants to other European countries. The Law Society described the proposals as ‘undermining access to justice and making a mockery of British fair play’ and no European countries opted to support the plans. However, a spokesperson for the government stated that the new policies were in line with the country’s legal obligations and commitment to human rights.
In the courts:
Mahabir & Ors v Secretary of State for the Home Department  EWHC 1177 (Admin): The High Court granted the Claimant’s application for judicial review, ruling that the requirement imposed on the Claimant to pay £22,000 in application fees to enable her family to join her in the UK was a ‘colossal interference’ with her Article 8 right to respect for family life, and discriminated against her family, breaching Article 14 of the European Convention on Human Rights. The Claimant was given Indefinite Leave to Remain under the Windrush scheme and travelled to the UK in 2018; however, her family remained in Trinidad and Tobago and were not permitted to enter the UK without payment of the fees. With regard to her Article 8 rights, the judge found that the fee requirement breached both the procedural and proportionality limb of the right to respect for family life. In particular, it rendered the remedy offered by the Windrush scheme effectively inaccessible to the Claimant in that to reunite with her family, she would have to leave the UK (the procedural limb). Furthermore, it was a disproportionate interference because it could not be justified by the approval Parliament had given the Windrush scheme as a whole; the fee requirement was a policy set by the internal department. The policy also breached the Article 14 rights of her family, because the Secretary of State’s failure to offer the family of a Windrush victim preferential treatment amounted to indirect discrimination.
Wisbey v Commissioner of the City of London Police & Anr  EWCA Civ 650: The Court of Appeal dismissed an appeal by a police officer who claimed that the provision of remedies in the Equality Act 2010 in cases of unintentional indirect sex discrimination was incompatible with EU law. The Appellant won a claim of unintentional indirect sex discrimination against the Commissioner of the City of London Police in 2019, after he was removed as an authorised firearms officer and from advanced driving duties due to his defective colour vision, a condition which disproportionately affects men. However, the Employment Tribunal did not award any compensation, because it found there was no injury to feelings on the evidence. The Court of Appeal held that sections 124(4) and (5) of the EA 2010, which the Appellant had suggested were incompatible with Council Directive 2006/54/EC and the Charter of Fundamental Rights, simply set out a procedure whereby a tribunal considers whether to make recommendation or declaration first, before then considering compensation – it does not dissuade or inhibit the tribunal from making an order for compensation at all. Therefore, the procedure did not make it more difficult for the Appellant to vindicate his EU rights to access compensation; rather the facts of the case did not support such compensation because the claim of indirect discrimination was only upheld in reference to his ban from advanced driving duties, and his injured feelings stemmed from his removal as an authorised firearms officer.
On the UKHRB:
Anurag Deb discusses the ongoing legal battles concerning the Irish Troubles.
Law Pod UK has released a new episode discussing the recent laws containing Henry VIII powers, and the possible consequences for parliament scrutiny, featuring Isabel McArdle and Sarabjit Singh QC of 1 Crown Office Row.
Lawyers working on cases dealing with Northern Ireland’s troubled past know that this field of legal work develops slowly. Sometimes, however, developments occur at an unexpected and unwelcome speed. Such has been the case this week. From the collapse of a controversial trial to the reporting of a legislative “amnesty”, the legacy of the Troubles remains an indelible part of both judicial business and daily life.
The fatal shooting of Joe McCann (The Queen v Soldiers A & C)
Joe McCann had been a member of the Army Council of the Official IRA. In 1972, he was the Officer in Command, First Battalion of the Official IRA and in charge of the Markets area of Belfast. He was suspected to have been involved in the murders of two soldiers and the attempted murders of four police officers (among other serious incidents). In the afternoon of 15 April 1972, he was seen by a Royal Ulster Constabulary (RUC) police officer who alerted a nearby patrol of paratroopers which included soldiers A and C. The police officer tried and failed to arrest Joe McCann, who was running away from him and the paratroopers. The police officer shouted at him to halt but he kept running. There was then sudden gunfire from behind the police officer, where the paratroopers were standing. Joe McCann was struck by two or possibly three bullets and died quickly at the scene. No forensic analysis was undertaken to determine who had fired the fatal shot.
Soldiers A and C gave statements to the Royal Military Police (RMP) the following day. However, these statements had not been voluntary. Instead, they had been ordered to make statements, without having been cautioned and without having had the benefit of any independent legal advice. They were not interviewed or cautioned by the RUC because a practice had been established by which the police would not arrest, question or even take witness statements from soldiers in cases involving shootings. This practice, designed to protect soldiers from being prosecuted, was condemned by the Court as “appalling”. In the event, no prosecution was brought against either soldier and no further developments in this case occurred for another 38 years.
In 2010, the recently created Historical Enquiries Team (HET) of the Police Service of Northern Ireland (PSNI) contacted A and C to ascertain any further information about the death of Joe McCann. The HET had been established as part of a “package of measures” (which included the Police Ombudsman for Northern Ireland and the Northern Ireland inquest system) to ensure that investigations of Troubles-related matters were compliant with Article 2 (the right to life) of the European Convention on Human Rights (ECHR). This was intended (see the 2013 report of Her Majesty’s Inspectorate of Constabulary) to be an answer to the plethora of failings identified by the European Court of Human Rights in the McKerr group of cases (McKerr v United Kingdom (2002) 34 EHRR 20, Jordan v United Kingdom (2003) 37 EHRR 2, Kelly v United Kingdom (2000) 30 EHRR CD223, Shanaghan v United Kingdom (2000) 30 EHRR CD370, McShane v United Kingdom (2002) 35 EHRR 23 and Finucane v United Kingdom (2003) 37 EHRR 29). However, there was a considerable degree of ambiguity to the role of the HET and the extent to which its staff were investigators. By the time the HET had contacted A and C, it had adopted a policy of giving cautions when interviewing former soldiers unless there was no prospect of prosecution. Meanwhile, the McCann family, who had been engaging with the HET, wrote a letter to be shown to A and C stating that they sought the truth of what happened to Joe McCann and not retribution. Two HET staff, both former police officers, met with A and C in March 2010 in the presence of their solicitors. While A and C were cautioned, they were not under arrest, and no reference was made to any specific offence, least of all murder or attempted murder.
A and C had prepared written statements which were read into the record along with the 1972 statements. A no longer had any independent memory of the shooting and relied heavily on his 1972 statement, while C had some independent memory. In the event, nothing more followed.
Sitting in the Crown Court, Mr Justice O’Hara determined that the trial of A and C turned entirely on whether the 1972 statements were admissible in evidence. The answer was a clear “no”. This was because of the rules surrounding the making of statements in criminal investigations at the time. O’Hara J summarised the position succinctly: “It is beyond dispute that at common law the statements would have to have been excluded because they were ordered rather than volunteered and because no caution was issued by the person taking them.”
And nor was the 1972 inadmissibility improved by the 2010 interview. This was because the 2010 interview was fatally flawed, not least because of the failure to caution either A or C for any specific offence. Moreover, the HET had not explained to either A’s or C’s solicitors the circumstances in which the 1972 statements had been made (the order to make them, in the absence of legal advice, etc.) which would have enabled the solicitors to advise their respective clients whether to make any statement at all in 2010. As O’Hara J pointed out, “Had the solicitors in this case known in 2010 what the circumstances were and that as a result the 1972 statements were inadmissible it is barely conceivable that they would have advised A and C to answer questions in 2010.”
Finally, the Court was acutely aware of the fair trial rights of A and C under Article 6 of the ECHR. The use of information to incriminate a person when that person supplies the information under coercion flies in the face of the self-incrimination protections guaranteed under Article 6 (see e.g. Saunders v United Kingdom (1997) 23 EHRR 313, ).
In the end, O’Hara J pithily observed
[a prosecution] is not possible in the present circumstances where what is put before the court is the 1972 statement dressed up and freshened up with a new 2010 cover. It is all still the same 1972 statement.
The result was the collapse of the trial and a demonstration of the robust safeguards built into the criminal justice system which led to this result (for a further demonstration, see O’Hara J’s judgment into continued anonymity for soldiers A and C). But for Northern Ireland, a robust criminal justice system does not butter political parsnips.
The past as politics
A little over a week before the collapse of the prosecution against soldiers A and C, Veterans Minister Johnny Mercer MP resigned his post, criticising the UK Government for allowing “endless investigations” into historic killings involving the armed forces in Northern Ireland. Barely a week after the collapse of the prosecution, The Times reported (paywalled) that the UK Government intends to bring legislation to exempt perpetrators (state and non-state actors) from prosecution for criminality during the Troubles, with the exception of prosecutions for war crimes, genocide or torture. The news met with widespread condemnation across Northern Ireland’s political parties. Of course, plans for legislating around legacy prosecutions and investigations were foreshadowed in a statement to the House of Commons by its Leader, Jacob Rees-Mogg MP on 11 February 2021.
However, the present political intervention notwithstanding, it is important to remember that the future of legacy investigations and prosecutions had been agreed very recently: the Stormont House Agreement 2014. Although that Agreement was reached three Northern Ireland Secretaries and two Parliaments ago, it had laid out important points which should give the current UK Government pause for thought. Two points in particular remain as relevant today as they have ever been: the need for independent investigations and prosecution decisions for offences committed during the Troubles and the need for these processes to be compliant with the ECHR. In fact, the 2014 Agreement had committed the Northern Ireland Executive to make the inquest process more compliant with the ECHR (para 31). Draft legislation implementing the 2014 Agreement made explicit reference to general and specific ECHR obligations in multiple clauses, including in clause 6(4) in which a new independent investigatory body was to conduct its investigations “so as to secure that its Article 2 obligations are complied with”. It is therefore important to remember that general, sweeping amnesties are not ECHR compliant (see e.g. Margušv Croatia (App. no. 4455/10; dec. 27 May 2014; GC), ).
Dealing with Northern Ireland’s past is self-evidently a much wider and more complex issue than fulfilling manifesto commitments to Northern Ireland veterans, as the Commons Leader had remarked in February. The near-universal condemnation of The Times’ report by Northern Ireland’s political parties (itself a rare event) is a testament not only to the deep unpopularity of the idea of a general amnesty, but also to a concerningly selective political memory in the corridors of Whitehall and Westminster. This selective memory particularly appears to forget the fact that the procedural duty under Article 2 of the ECHR to conduct an effective, victim-centred, independent, timely and sufficiently transparent investigation into suspicious deaths originated in a State killing directly connected to Northern Ireland.
Ultimately, it is not possible to analyse unpublished proposals. But it is important to appreciate that the precious few steps which have been taken to deal with Northern Ireland’s past have been taken in answer to human rights protections and obligations. These must be strengthened, not rendered meaningless.
Episode 143 features Isabel McArdle and Sarabjit Singh QC of 1 Crown Office Row. Isabel practises in indirect tax, healthcare law, personal injury and public law. Sarabjit (“Sab”) specialises in tax, with a particular emphasis on all forms of indirect tax and the interface between tax and public law. They have both given seminars on the implications of Brexit for tax lawyers. In this episode, Rosalind English discusses with Sab and Isabel a number of laws containing Henry VIII powers, including the Childcare Act 2016, Section 8 of the European Union Withdrawal Act 2018, Section 31 of the EU Future Relationship Act 2020, the Coronavirus Act 2020 and Section 51 of the Taxation (Cross-Border Trade) Act 2018. Emma-Louise Fenelon did of course explore this subject in depth with the Public Law Project and Lord Anderson of Ipswich QC in Episode 129: Brexit and the Flaws of Delegated Legislation ; this episode takes this important subject further.
Henry VIII powers enable a minister to amend primary law by secondary legislation, effectively bypassing parliament. They also touch on the popularity of so-called “skeleton bills”. These bills are favoured by those in power because they have no policy in them so there’s nothing to scrutinise by both Houses of Parliament. And Henry VIII clauses are what feed these bills.
Following Brexit, everything from financial services, immigration from Europe, fisheries, agriculture – can all be achieved under Henry VIII in skeleton bills. The concern, from a constitutional perspective, is that there’s a lack of parliamentary scrutiny. They give huge power to ministers to amend and repeal Acts of Parliament.
We have to apologise for the building works sound effects in the background of this episode. We welcome our listeners to perceive them as an appropriate metaphor for the government hammering home their policies under these Henry VIII powers.
People aged 42 and over are now able to book their Covid-19 vaccines, joining the more than 33.8 million people in the UK who have received their first dose. The news comes as the Joint Committee on Human Rights called for a review of all fixed penalty notices (FPNs) for lockdown breaches and called the system “muddled, discriminatory and unfair”. The committee chair, Harriet Harman MP, said the “lack of legal clarity” meant an unfair system which “disproportionately hits the less well-off and criminalises the poor over the better off”. The report highlighted concerns about FPN validity, an inadequate review and appeals process, the size of penalties and the criminalisation of those unable to pay. A CPS review found that 27% of coronavirus-related prosecutions that reached open court in February were incorrectly charged. The lack of an adequate means to seek review of an FPN, other than through criminal prosecution, significantly increases the risk that human rights breaches will not be remedied, according to the committee. The importance of ECHR Articles 7 and 8 (no punishment without law and right to family and private life, respectively) was highlighted in particular.
Thousands of people throughout England and Wales marched in protest against the Police, Crime, Sentencing and Courts Bill on May Day, under the slogan and hashtag “Kill The Bill”. Twelve people in Newcastle and nine in London were reportedly arrested. Among other provisions, the bill would increase police powers to tackle “unauthorised encampments” and “non violent protests that have a significant disruptive effect on the public or on access to Parliament”. It would also “ensure that authorities can extract information from digital devices”, while protecting victims’ privacy. The bill passed its second reading earlier this month and the Joint Committee on Human Rights this week heard evidence on its potential human rights impacts. Jules Carey, head of Bindmans LLP’s actions against the police and state team, said the bill’s provisions “clearly violate international human rights standards, and they constitute a savage attack on the right to peaceful assembly”.
Human Rights Watch (HRW) has called on the Indian government to ensure equitable health care, uphold freedom of speech and reduce the prison population as it tackles the world’s fastest-growing Covid-19 crisis. The organisation says the Indian government ordered almost 100 social media posts to be removed, most of which criticised the government’s handling of the crisis. Despite calls from multiple hospitals for more oxygen supplies, the Chief Minister of Uttar Pradesh state denied there was any oxygen shortage and has told officials to take action under the National Security Act and Gangsters Act against anyone who spreads “rumours”. Healthcare experts and courts have criticised the government’s lack of investment in India’s health infrastructure during the pandemic and, according to HRW, the government has also not followed the United Nations’ calls for governments to release “every person detained without sufficient legal basis” to prevent growing infection rates. The organisation also called on the United Kingdom, among other countries, to end its opposition to a proposal from India and South Africa at the World Trade Organisation’s TRIPS Council, which would temporarily waive intellectual property rules on Covid-19-related vaccines and other medical products.
In the courts:
A Local Authority v C & Ors  EWCOP 25 – the Court of Protection held that it would be lawful and not in breach of the Sexual Offences Act 2003 (SOA 2003) for carers to arrange for an autistic man (“C”) to engage the services of a sex worker. Doctors and social workers agree that C has the capacity to engage in sexual relations and to decide to have contact with a sex worker. This arrangement could be made through a charity that provides sexual services for people with disabilities. Mr Justice Hayden stated he was “not considering any plan for C to visit a sex worker”; that decision was for C’s carers to make after a comprehensive risk assessment. He instead only considered the interpretation of section 39 SOA 2003, which criminalises care workers who cause or incite sexual activity. Hayden described the aim of the act as “to empower, liberate and promote the autonomy of those with mental disorders”, and the mischief of section 39 as “exploitation of the vulnerable”. To find the proposed acts of the carers in breach of section 39 would require “a distortion of the plain language of the statute and a subversion of the consistently reiterated objectives of the SOA”. The respondent Justice Secretary was granted permission to appeal the finding, which his counsel called a “landmark” judgment.
Zabolotnyi v The Mateszalka District Court, Hungary UKSC 14 – the Supreme Court unanimously dismissed an appeal against an extradition request from the respondent Mateszalka District Court of Hungary. The appellant, Mr Zabolotnyi, submitted that there was a real risk of his being imprisoned in Hungary in conditions amounting to inhuman or degrading treatment contrary to ECHR article 3. The District Judge had been satisfied that there was no need to request assurance from Hungary in respect of its prison conditions, as it was aware of its ECHR obligations. In a different case the following year (Fuzesi v Hungary  EWHC 1885 (Admin)), it was held that prison condition assurances are required to permit extradition to Hungary. Following this case, Mr Zabolotnyi received such assurances from the Hungarian Ministry of Justice. On appeal to the Divisional Court, Mr Zabolotnyi was refused permission to rely on fresh evidence, comprising reports from prisoners of alleged breaches of assurances given to them before extradition to Hungary. The Divisional Court held that evidence concerning such breaches of assurance could only be admitted if it was “manifestly credible, directly relevant to the issue to be decided, and of real importance for the purpose of that decision”. The Supreme Court held there is no such heightened test for evidence admissibility but dismissed the appeal on the basis that the fresh evidence was not decisively in favour of Mr Zabolotnyi and so would not have resulted in a different case outcome. Per section 27 of the Extradition Act 2003, the Divisional Court was therefore bound to uphold the District Judge’s decision.
R (Lawal) v Secretary of State for the Home Department (2021), Upper Tribunal (Immigration and Asylum Chamber), Unreported, JR/626/2020 (V)— read judgment
The death of an immigration detainee, as with all prisoners, is rightly subject to legal scrutiny. This is because detainees are completely under the state’s control. Article 2 ECHR requires that the state carry out an effective investigation into all deaths in detention where there is a reasonable suspicion that the death was unnatural. A coroner is required to hold an inquest into all deaths in custody, and specifically a jury inquest where there is reason to suspect the death is violent or unnatural.
In this case, a two-judge panel of the Upper Tribunal (President of the Upper Tribunal, Mr Justice Lane, and Upper Tribunal Judge Canavan) found that the respondent Home Secretary had breached her Article 2 procedural obligations in respect of deaths in immigration detention. In particular, she had failed to ensure that crucial witness evidence was secured for use at an inquest and had failed to halt the deportation of a relevant witness.
Mr Oscar Lucky Okwurime (‘OO’) was a Nigerian national. On 12 September 2019 he was found dead in his room at Harmondsworth Immigration Removal Centre, aged 36. The applicant in these proceedings, Ahmed Lawal, was also a Nigerian national and a good friend of the deceased. He was detained on the same wing at the time of the death.
Following the death, Mr Lawal was not identified by the staff as Harmondsworth as being a relevant witness. He was not interviewed by the police or the Prison and Probation Ombudsman. He received notice on 16 September 2019 that he was due to be deported on 17 September. However, interim relief was granted on 17 September preventing his removal: his lawyers successfully argued that he had material evidence in relation to OO’s death.
An inquest was opened on 8 October 2019. On 21 October 2020 the Coroner for West London informed the Home Secretary that she considered Mr Lawal to be an important witness of fact and required his attendance to give live evidence at the inquest. She noted he was “the only live witness who can speak to certain parts of the evidence particularly the presentation of the deceased in the days before his unfortunate death” [para 19]. The jury inquest was held between 13 November and 7 December 2020. The record of inquest stated that OO had died of a spontaneous subarachnoid haemorrhage at approximately 2300 hours on 11 September 2019, having last been seen alive at 2100 hours on 11 September. The jury’s conclusion as to the death of OO was:-
We find the death to be considered unnatural. Mr Oscar Lucky Okwurime died of a spontaneous subarachnoid haemorrhage which can rupture due to hypertension. His blood pressure reading on 22 August 2019 demonstrated Grade II hypertension. This reading was not repeated due to multiple failures to adhere to healthcare policy. Given the multiple opportunities to repeat this basic medical test on a vulnerable person, neglect contributed to the death.
Judicial review proceedings
The judicial review application raised two main issues:
(b) Whether the respondent can lawfully remove a potential material witness to a death in custody in circumstances where their evidence has not been secured and a coroner has not made a decision as to whether they are required to give evidence at the final inquest hearing; and
(c) Whether the respondent’s failure to have in place a policy framework, which makes clear provision for a proper investigation into witnesses to a death in custody prior to any enforcement action being taken, is lawful.
The Tribunal referred to a number of European and domestic cases emphasising the importance of a state’s procedural obligations under Article 2, in particular the need to ensure the investigation into a detention death is effective. As such, the authorities must take reasonable steps to secure relevant evidence, including witness evidence [paras 24-35]. It also referred to the jurisdictional limitations on coroners, in that they cannot compel witness attendance if the person is outside England or Wales – difficult in circumstances where a witness has been deported.
The applicant argued that, in immigration detention deaths, a pool of material witnesses should be identified. The coroner should then have a role in determining whether a witness is material or not. Until the coroner had made a decision, none of those witnesses could be deported. The Tribunal disagreed: “To insist that the coroner, in effect, approves of the removal of any individual who may have evidence that might fall to be considered at an inquest goes beyond what is reasonable in order to comply with the Article 2 procedural duty, as articulated by the ECtHR and interpreted by the domestic courts.” [para 73]
The Tribunal did, though, find that “the irreducible minimum obligations of the respondent” were:
(a) to take immediate steps to ascertain whether any detainee has evidence to give regarding the death in detention;
(b) to record, or facilitate the recording of, a statement of such evidence;
(c) to determine whether the individual is willing to give evidence at the inquest;
(d) to record relevant contact details of the individual, including in the country of proposed removal; and
(e) to consider the practicability of the individual giving evidence at the inquest either (i) by returning to the United Kingdom for that purpose or (ii) by giving evidence by means of video-link.
It just so happened that the same issues had arisen in an earlier inquest into the death of a detainee at Morten Hall IRC, Carlington Spencer. His inquest was held in 2019 and two detainees gave crucial evidence at his inquest. The Senior Coroner of the County of Lincolnshire wrote a PFD letter to the SSHD on 27 August 2020 that raised similar concerns to this case about the importance of detainees as material witnesses. No witness statements were taken from the detainees at the time of the death and the detainees were on the brink of deportation “where the Home Office either was not aware, or chose to ignore the fact that these detainees were important witnesses required to give evidence at a forthcoming inquest hearing” [para 62].
In response to the PFD letter dated 25 January 2021, the Home Secretary explained that the policy on deaths in detention (Detention Service Order 08/2014, version 2.0) had been updated: it now required that the detainees be informed of their right to speak to the police and/or PPO, and that staff must make available the names of potential witnesses to the police/PPO.
However, the Tribunal held that the DSO relied upon detainees coming forward of their own accord. As such, the policy was unlawful because “it gives rise to a real risk of an Article 2 procedural breach because it does not direct relevant personnel actively to identify, and to take steps to secure the evidence of, those detainees whom there is reason to believe may have relevant information concerning the death of the person concerned.” [para 84]
The Tribunal therefore made the following declarations at paragraphs 2 to 4 of the Order:
2. The Respondent acted unlawfully in her decision to remove the Applicant on 17 September 2019 in that she had failed to take to take reasonable steps to secure the applicant’s evidence concerning the death of Oscar Okwurime contrary to her Article 2 procedural obligations.
3. The Respondent’s policy, namely DSO 08/2014 Death in immigration detention as issued in August 2020, is unlawful in that it gives rise to a real risk of an Article 2 procedural breach because it does not direct relevant personnel actively to identify, and to take steps to secure the evidence of, those detainees whom there is reason to believe may have relevant information concerning the death of the person concerned.
4. The Respondent’s absence of a policy directed to caseworkers on how to exercise immigration powers in a case concerning a witness to a death in custody is unlawful due to a breach of her Article 2 procedural obligations in respect of deaths in immigration detention.
A few comments of note:
First, the Tribunal does not comment upon whether Mr Lawal’s evidence was actually crucial to the inquest. The judgment refers to his evidence being contradictory [para 20]. However, that is irrelevant: it is the principle that is important. This judgment emphasises that it is critical that the state take reasonable steps to secure relevant evidence as part of its Article 2 investigative duty. This is particularly important where the state exerts complete control over detention centres and detainees.
Second, the Tribunal emphasised that a coroner’s inability to compel witness attendance outside England and Wales does not mean that the investigation is non-Article 2-compliant: “it cannot properly be suggested that guaranteeing the compellability of each and every potential witness regarding a death in detention is a sine qua non of an Article 2-compliant investigation” [para 75]. It is also notable that, since the pandemic, witness evidence by video link has become much more prevalent in coroner’s courts.
Finally, the Tribunal warned about the division of responsibilities: coroners should not be involved in approving removal decisions. That would be an encroachment on the Home Secretary’s authority, as well as going far beyond the coroner’s remit [para 73].
On 8 April 2021, the Weimar District Family Court ruled in Amtsgericht Weimar, Beschluss vom 08.04.2021, Az.: 9 F 148/21) that two Weimar schools were prohibited with immediate effect from requiring pupils to wear mouth-nose coverings of any kind (especially qualified masks such as FFP2 masks), to comply with AHA minimum distances and/or to take part in SARS-CoV-2 rapid tests. At the same time, the court ruled that classroom instruction must be maintained.
This is the first time that expert evidence has now been presented before a German court regarding the scientific reasonableness and necessity of the prescribed anti-Corona measures.The expert witnesses were the hygienist Prof. Dr. med Ines Kappstein, the psychologist Prof. Dr. Christof Kuhbandner and the biologist Prof. Dr. Ulrike Kämmerer were heard. 2020NewsDe has published long summary of the judgment, the salient parts of which are set out in full below (translation by DeepL).
The reason for highlighting this judgment in such detail is because of the consequences reported by the news website to the judge of his decision. According to 2020NewsDe, “the judge at the Weimar District Court, Christiaan Dettmar, had his house searched today [26 April 2021]. His office, private premises and car were searched. The judge’s mobile phone was confiscated by the police. The judge had made a sensational decision on 8 April 2021, which was very inconvenient for the government’s policy on the measures.” In a side note on the fringes of proceedings with other parties, continues 2020NewsDe, “the decision in question has been described as unlawful by the Weimar Administrative Court without comprehensible justification.”
The court case was a child protection case under to § 1666 paragraph 1 and 4 of the German Civil Code (BGB), which a mother had initiated for her two sons, aged 14 and 8 respectively, at the local Family Court. She had argued that her children were being physically, psychologically and pedagogically damaged without any benefit for the children or third parties. At the same time, she claimed this constituted a violation of a range of rights of the children and their parents under the law, the German constitution (Grundgesetz or Basic Law) and international conventions.
Proceedings under section 1666 of the Civil Code can be initiated ex officio both at the suggestion of any person or without such a suggestion if the court considers intervention to be necessary for reasons of the best interests of the child (section 1697a of the Civil Code).
After examining the factual and legal situation and evaluating the expert opinions, the Weimar Family Court concluded that the prohibitive measures represented a present danger to the child’s mental, physical or psychological well-being to such an extent that substantial harm could be foreseen with a high degree of certainty.
The judge stated:
These are the risks. The children are not only endangered in their mental, physical and psychological well-being by the obligation to wear face masks during school hours and to keep their distance from each other and from other persons, but they are also already being harmed. At the same time, this violates numerous rights of the children and their parents under the law, the constitution and international conventions. This applies in particular to the right to free development of the personality and to physical integrity under Article 2 of the Basic Law as well as to the upbringing and care by the parents under Article 6 of the Basic Law ….
With his judgement, the judge confirmed the mother’s assessment:
The children are physically, psychologically and pedagogically damaged and their rights are violated without any benefit for the children themselves or third parties.
According to the court, the school administrators, teachers and others could not invoke the state law regulations on which the measures are based, because they are unconstitutional and thus null and void, since they violated the principle of proportionality rooted in the rule of law (Articles 20, 28 of the Basic Law).
According to this principle, also referred to as the prohibition of excess, the measures intended to achieve a legitimate purpose must be suitable, necessary and proportionate in the narrower sense – that is to say, when weighing up the advantages against their disadvantages. The measures that are not evidence-based, contrary to Section 1(2) IfSG, are already unsuitable to achieve the fundamentally legitimate purpose pursued with them, to avoid overloading the health system or to reduce the incidence of infection with the SARS-CoV- 2 virus. In any case, however, they are disproportionate in the narrower sense, because the considerable disadvantages/collateral damage caused by them are not offset by any recognisable benefit for the children themselves or third parties
The judge clarified that it had to be pointed out that it was not for the parties involved to justify the unconstitutionality of the encroachments on their rights, but conversely for the Free State of Thuringia to prove the necessary scientific evidence that the measures it prescribes are suitable to achieve the intended purposes and that they are proportionate, if necessary. So far, this has not been done to any degree.
The judge heard expert evidence from Prof Kappstein on the lack of benefit of wearing masks and observing distance rules for the children themselves and third parties
Prof. Kappstein, after evaluating all the international data on the subject of masks, stated that the effectiveness of masks for healthy people in public is not supported by scientific evidence.
The ruling states:
Plausibility, mathematical estimates and subjective assessments in opinion pieces cannot replace population-based clinical-epidemiological studies. Experimental studies on the filtering performance of masks and mathematical estimates are not suitable to prove effectiveness in real life. While international health authorities advocate the wearing of masks in public spaces, they also say that there is no evidence for this from scientific studies. On the contrary, all currently available scientific evidence suggests that masks have no effect on the incidence of infection. All publications that are cited as evidence for the effectiveness of masks in public spaces do not allow this conclusion. This also applies to the so-called “Jena Study”- like the vast majority of other studies a purely mathematical estimation or modelling study based on theoretical assumptions without real contact tracing with authors from the field of macroeconomics without epidemiological knowledge …the decisive epidemiological circumstance remains unconsidered that the infection values already decreased significantly before the introduction of the mask obligation in Jena on 6 April 2020 (about three weeks later in the whole of Germany) and that there was no longer any relevant infection occurrence in Jena already at the end of March 2020.
The masks are not only useless, they are also dangerous, the judge concluded.
Every mask, as the expert further states, must be worn correctly in order to be effective in principle. Masks can become a contamination risk if they are touched. However, on the one hand they are not worn properly by the population and on the other hand they are very often touched with the hands. This can also be observed with politicians who are seen on television. The population was not taught how to use masks properly, it was not explained how to wash their hands on the way or how to carry out effective hand disinfection. It was also not explained why hand hygiene is important and that one must be careful not to touch one’s eyes, nose and mouth with one’s hands. The population was virtually left alone with the masks. The risk of infection is not only not reduced by wearing the masks, but increased by the incorrect handling of the mask. [The expert sets this out in detail] as well as the fact that it is “unrealistic” to achieve the appropriate handling of masks by the population.
The judgement goes on to say: “The transmission of SARS-CoV-2 through ‘aerosols’, i.e. through the air, is not medically plausible and scientifically unproven. It is a hypothesis that is mainly based on aerosol physicists who, according to the expert, are understandably unable to assess medical correlations from their field of expertise. The ‘aerosol’ theory is extremely harmful for human coexistence and leads to the fact that people can no longer feel safe in any indoor space, and some even fear infection by ‘aerosols’ outside buildings. Together with ‘unnoticed’ transmission, the ‘aerosol’ theory leads to seeing an infection risk in every fellow human being.
The changes in the policy on masks, first fabric masks in 2020, then since the beginning of 2021 either OP masks or FFP2 masks, lack any clear line. Even though OP masks [the standard blue masks with filter cloth and three layers of purifying dust] and FFP masks are both medical masks, they have different functions and are therefore not interchangeable. Either the politicians who made these decisions themselves did not understand what which type of mask is basically suitable for, or they do not care about that, but only about the symbolic value of the mask. From the expert’s point of view, the policy-makers’ mask decisions are not comprehensible and, to put it mildly, can be described as implausible.
The expert further points out that there are no scientific studies on spacing outside of medical patient care. In summary, in her opinion and to the conviction of the court, only the following rules can be established:
“keeping a distance of about 1.5 m (1 – 2 m) during vis-à-vis contacts when one of the two persons has symptoms of a cold can be described as a sensible measure. However, it is not scientifically proven; it can only be said to be plausible that it is an effective measure to protect against contact with pathogens through droplets of respiratory secretion if the person in contact has signs of a cold. In contrast, an all-round distance is not an effective way to protect oneself if the contact has a cold.
keeping an all-round distance or even just a vis-à-vis distance of about 1.5 m (1 – 2 m) if none of the people present has signs of a cold is not supported by scientific data. However, this greatly impairs people living together and especially carefree contact among children, without any recognisable benefit in terms of protection against infection.
close contacts, i.e. under 1.5 m (1 – 2 m), among pupils or between teachers and pupils or among colleagues at work etc., however, do not pose a risk even if one of the two contacts has signs of a cold, because the duration of such contacts at school or even among adults somewhere in public is far too short for droplet transmission to occur. This is also shown by studies from households where, despite living in close quarters with numerous skin and mucous membrane contacts, few members of the household become ill when one has a respiratory infection.”
The court also followed Prof Kappstein’s assessment regarding the transmission rates of symptomatic, pre-symptomatic and asymptomatic people.
Pre-symptomatic transmissions are possible, but not inevitable. In any case they are significantly lower when real contact scenarios are evaluated than when mathematical modelling is used.
From a systematic review with meta-analysis on Corona transmission in households published in December 2020, she contrasts a higher, but still not excessive, transmission rate of 18% for symptomatic index cases with an extremely low transmission of only 0.7% for asymptomatic cases. The possibility that asymptomatic people, formerly known as healthy people, transmit the virus is therefore meaningless.
In summary, the court stated:
There is no evidence that face masks of various types can reduce the risk of infection by SARS-CoV-2 at all, or even appreciably. This statement applies to people of all ages, including children and adolescents, as well as asymptomatic, pre-symptomatic and symptomatic individuals.
On the contrary, there is the possibility that the even more frequent hand-face contact when wearing masks increases the risk of coming into contact with the pathogen oneself or bringing fellow humans into contact with it. For the normal population, there is no risk of infection in either the public or private sphere that could be reduced by wearing face masks (or other measures). There is no evidence that compliance with distance requirements can reduce the risk of infection. This applies to people of all ages, including children and adolescents.”
The court relied on the extensive findings of another expert, Prof. Dr. Kuhbandner, in its conclusions that there was “no high-quality scientific evidence to date that the risk of infection can be significantly reduced by wearing face masks.”
The judge continued
In addition, the achievable extent of the reduction in the risk of infection through mask-wearing at schools is in itself very low, because infections occur very rarely at schools even without masks. Accordingly, the absolute risk reduction is so small that a pandemic cannot be combated in a relevant way… According to the expert’s explanations, the currently allegedly rising infection figures among children are very likely to be due to the fact that the number of tests among children has increased significantly in the preceding weeks. Since the risk of infection at schools is very low, even a possible increase in the infection rate of the new virus variant B.1.1.7 in the order of magnitude assumed in studies is not expected to significantly increase the spread of the virus at schools. This small benefit is countered by numerous possible side effects with regard to the physical, psychological and social well-being of children, from which numerous children would have to suffer in order to prevent a single infection. The expert presents these in detail, among other things, on the basis of the side-effect register published in the scientific journal Monatsschrift Kinderheilkunde.
The Court also relied on the expert opinion of Prof. Dr. med. Kappstein on the unsuitability of PCR tests and rapid tests for measuring the incidence of infection
Regarding the PCR test, the Court quoted Dr Kappstein to the effect that the PCR test used can only detect genetic material, but not whether the RNA originates from viruses that are capable of infection and thus capable of replication.
The expert Prof. Dr. Kämmerer also confirmed in her expert opinion on molecular biology that a PCR test – even if it is carried out correctly – cannot provide any information on whether a person is infected with an active pathogen or not. This is because the test cannot distinguish between “dead” matter, e.g. a completely harmless genome fragment as a remnant of the body’s own immune system’s fight against a cold or flu (such genome fragments can still be found many months after the immune system has “dealt with” the problem) and “living” matter, i.e. a “fresh” virus capable of reproducing.
There is a great deal more of interest on the PCR test from page 120 of the 176 page judgment. According to Prof. Dr. Kämmerer, in order to determine an active infection with SARS-CoV-2, further, and specifically diagnostic methods such as the isolation of replicable viruses must be used.
According to the expert report, the rapid antigen tests used for mass testing cannot provide any information on infectivity, as they can only detect protein components without any connection to an intact, reproducible virus.
Finally, the expert points out that the low specificity of the tests causes a high rate of false positive results, which leads to unnecessary personnel (quarantine) and social consequences (e.g. schools closed, “outbreak reports”)until they turn out to be false alarms. The error effect, i.e. a high number of false positives, is particularly strong in tests on symptomless people.
The judge then turned to the right to informational self-determination, which forms part of the general right of personality in Article 2(1) of the Basic Law. This is the right of individuals to determine for themselves in principle the disclosure and use of their personal data. Such personal data also includes a test result. Furthermore, such a result is a personal health “data” in the sense of the Data Protection Regulation (DSGVO), which in principle is nobody’s business.
This encroachment on fundamental rights is also unconstitutional. This is because, given the concrete procedures of the testing process in schools, it seems unavoidable that numerous other people (fellow pupils, teachers, other parents) would become aware of a “positive” test result, for example.
The judge observed that any compulsory testing of schoolchildren under Land law was not covered by Germany’s Infection Protection Act – irrespective of the fact that this itself is subject to considerable constitutional concerns.
According to § 28 of the Act, the competent authorities can take the necessary protective measures in the manner specified therein if “sick persons, persons suspected of being sick, persons suspected of being infected or excretors” are detected. According to § 29 IfSG, these persons can be subjected to observation and must then also tolerate the necessary examinations.
In its decision of 02.03.2021, ref.: 20 NE 21.353, the Bavarian Administrative Court of Appeal refused to consider employees in nursing homes as sick, suspected of being sick or excretors from the outset. This should also apply to pupils. However, a classification as suspected of being infected is also out of the question.
According to the case law of the Federal Administrative Court, anyone who has had contact with an infected person with sufficient probability is considered to be suspected of being infected within the meaning of § 2 No. 7 IfSG; mere remote probability is not sufficient. It is necessary that the assumption that the person concerned has ingested pathogens is more probable than the opposite. The decisive factor for a suspicion of infection is exclusively the probability of a past infection process, cf. judgement of 22.03.2012 – 3 C 16/11 – juris marginal no. 31 et seq. The Bavarian Constitutional Court has rejected this for employees in nursing professions. The Weimar judge observed that “Nothing else applies to schoolchildren.”
Regarding the children’s right to education, the judge stated:
Schoolchildren are not only subject to compulsory schooling under Land law, but also have a legal right to education and schooling. This also follows from Articles 28 and 29 of the UN Convention on the Rights of the Child, which is applicable law in Germany.
According to this, all contracting states must not only make attendance at primary school compulsory and free of charge for all, but must also promote the development of various forms of secondary education of a general and vocational nature, make them available and accessible to all children and take appropriate measures such as the introduction of free education and the provision of financial support in cases of need. The educational goals from Article 29 of the UN Convention on the Rights of the Child are to be adhered to.
The judge summarised his decision as follows:
The compulsion imposed on school children to wear masks and to keep their distance from each other and from third persons harms the children physically, psychologically, educationally and in their psychosocial development, without being counterbalanced by more than at best marginal benefit to the children themselves or to third persons. Schools do not play a significant role in the “pandemic”.
The PCR tests and rapid tests used are in principle not suitable on their own to detect an “infection” with the SARS-CoV-2 virus. This is already clear from the Robert Koch Institute’s own calculations, as explained in the expert reports. According to RKI calculations, as expert Prof. Dr. Kuhbandner explains, the probability of actually being infected when receiving a positive result in mass testing with rapid tests, regardless of symptoms, is only two per cent at an incidence of 50 (test specificity 80%, test sensitivity 98%). This would mean that for every two true-positive rapid test results, there would be 98 false-positive rapid test results, all of which would then have to be retested with a PCR test.
A (regular) compulsion to mass-test asymptomatic people, i.e. healthy people, for which there is no medical indication, cannot be imposed because it is disproportionate to the effect that can be achieved. At the same time, the regular compulsion to take the test puts the children under psychological pressure, because in this way their ability to attend school is constantly put to the test.
Finally, the judge notes:
Based on surveys in Austria, where no masks are worn in primary schools, but rapid tests are carried out three times a week throughout the country, the following results according to the explanations of the expert Prof. Dr. Kuhbandner:
100,000 primary school pupils would have to put up with all the side effects of wearing masks for a week in order to prevent just one infection per week.
To call this result merely disproportionate would be a completely inadequate description. Rather, it shows that the state legislature regulating this area has become distant from the facts to an extent that seems historic.
Informed consent to medical treatment is at the heart of the vaccine debate. Consent is also at the centre of most of the cases that come before the Court of Protection. So now we have a very specific problem: what happens, if someone lacks capacity under the Mental Capacity Act, and their family for whatever reason objects to the Covid vaccine?
In the latest episode of Law Pod UK, Rosalind English talks to Amelia Walker of 1 Crown Office Row about three recent cases that came before the COP where the “protected person” (incapacitous under the Mental Capacity Act) was due to be vaccinated, but family members objected. Here are the citations to the cases discussed and the relevant statutes:
E (by her Accredited Legal Representative, Keith Clarke), Applicant v London Borough of Hammersmith and Fulham (Respondent) and W (2nd Respondent)  EWCOP 7
SD (Applicant) v Royal Borough of Kensington and Chelsea (Respondent)  EWCOP 14
NHS Tameside & Glossop CCG v CR (by his litigation friend CW)  EWCOP 19
The Court of Appeal in MR (Pakistan) and Anotherv Secretary of State for the Home Department  EWCA Civ 541 recently dealt with appeals regarding the absence of a process to assess the vulnerability of a person detained under immigration powers at Her Majesty’s Prisons (“HMPs”). This absence remains despite such a process existing for those detained under the same immigration powers in Immigration Removal Centres (“IRCs”) by virtue of Rules 34 and 35 of the Detention Centre Rules. These provisions enable a medical report to be prepared which is then considered by the SSHD when deciding on the management of the individual under relevant policy guidance.
The Court upheld the claim in part, holding that whilst this discrepancy did not give rise to systemic unfairness, in the individual two cases there was an irrational failure to obtain a Rule 35 report or equivalent. Despite this, however, it was held that these failures were not relevant to the decisions to detain the individuals in the particular cases.
The SSHD is under a statutory duty to issue guidance regarding the detention of the ‘particularly vulnerable’, including whether they would be particularly vulnerable to harm if they are detained and whether they should continue to be detained. This duty applies in respect of detention in both HMPs and IRCs.
Risks such as medical conditions and traumatic events (e.g. past torture) that would be likely to render the individual particularly vulnerable to harm if they remain detained can establish an individual as an Adult at Risk under this policy.
In particular, the Guidance on adults at risk in immigration detention provides three levels of evidencing an Adult at Risk. Level 1 is met by the self-reporting of potential risks, such as a history of torture, and is to be afforded limited weight. Level 2 is afforded “greater weight” – it involves professional assessments or official documentary evidence indicating that risk exists. Level 3 evidence is afforded significant weight – it requires professional evidence confirming “the individual is at risk and thata period of detention would be likely to cause harm” [emphasis added]. Detention could cause harm by, for example, increasing the severity of symptoms.
MR and AO were considered to be Level 2 Adults at Risk during their detention periods – MR due to depression and AO due to psychotic illness. The accounts of past torture first appear to have been disclosed by MR and AO four months after and six months before being assessed as Level 2 Adults at Risk respectively.
In both cases, detention reviews took place following their assessments as Level 2 Adults at Risk, with even occasional mention of the absence of a Rule 35 report. It was repeatedly assessed that despite the Level 2 evidence, immigration controls required their detention.
The Detention Centre Rules are applicable to IRCs. These relevantly provide as follows:
Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner …) within 24 hours of his admission to the detention centre.
(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.
(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.
The SSHD policy document Adults at risk in immigration detention states that a Rule 35 report “will normally amount to level 3 evidence” (pg 21) and that Level 3 evidence “should normally be accepted and any detention reviewed in light of the accepted evidence” (pg 13).
HMPs, however, are governed by the Prison Rules. Rule 21(1) provides that:
The medical officer or a medical practitioner such as is mentioned in rule 20(3) shall report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment. The governor shall send the report to the Secretary of State without delay, together with his own recommendations.
Issues at appeal
The appeals were concerned with the different processes at HMPs and IRCs for identifying vulnerabilities. The six issues appealed were whether the judge:
Was wrong in finding that there was not a systemic unfairness in the regime in HMPs for immigration detention because there was no equivalent of Rule 35 of the Detention Centre Rules;
Should have found that it was irrational in the case of MR and AO not to have discovered through an equivalent of Rule 35 of the Detention Centre Rules that they were victims of past torture;
Should have found that AO and MR were entitled to damages for false imprisonment;
Was wrong to reject the claim for an infringement of article 14 of the ECHR;
Was wrong to dismiss the claim for indirect discrimination against AO and MR;
Was wrong to find that there was no breach of the public sector equality duty (PSED).
This article will start with issue 2, on which the Court granted the appeal, before turning to the unsuccessful grounds.
Issue 2 – irrational not to obtain medical concerns about past torture
It was argued that the judge should have found it irrational that the SSHD did not have a Rule 34/35 type mechanism to obtain information on vulnerabilities, given that it adopted a policy requiring the provision of such matters when considering the management of detainees.
Dingemans LJ (with whom the other two judges agreed), in allowing this ground of appeal, emphasised that “Parliament has required the SSHD to issue guidance about the immigration detention of the particularly vulnerable”, and that the SSHD adopted a policy to limit the detention of vulnerable immigrants . He agreed that it was irrational – thus unlawful – not to have made any effort to ensure that information, such as medical concerns of previous torture, could be obtained at the start of an immigration detention period, through a Rule 35 report or similar, where the SSHD was required by their policy to know about such vulnerabilities. Instead, the SSHD relied on detainees to volunteer their torture history without providing space for detainees to report it . This was insufficient.
Issue 1 – systematic unfairness
The Appellants claimed that it was systematically unfair/unreasonable for the SSHD to fail to have a mechanism equivalent to Rules 34/35 in HMPs, which would require healthcare providers to inquire whether a detainee was a torture victim and to provide the SSHD with details of that person’s vulnerability.
The Court accepted that if there had been a Rule 34/35 style examination of MR and AO at the start of their detention, it would have exposed concerns of torture. There would also have been provisions requiring the reporting of those concerns to the SSHD in a structured way. While the Court acknowledged it was a systemic weakness that HMP immigration detainees are not asked specifically about mental health or torture issues, it was not systematically unfair. The Court relied on the existence of a system whereby Home Office criminal casework teams could obtain relevant information about persons detained. It was through that system that the Appellants were assessed as Level 2 Adults at Risk. Further, in both cases, detention was maintained, despite Level 2 evidence. The Court considered that a Rule 35 report would not have elevated the Appellants into a Level 3 Adult at Risk, and that the decision to maintain immigration detention would have been made nevertheless, as the SSHD had decided to continue to detain them once the allegations of past torture became known. Consequently, there was no individual, let alone systematic, unfairness for either detainee .
The Court clarified that the issue 2 irrationality finding did not result in a finding of systemic unfairness. It also reiterated that when medical concerns about past torture were obtained, it did not lead to the Appellants’ release, suggesting “there was no systemic unfairness affecting immigration detention, regardless of whether the operation of the system in their individual cases was rational” .
Issue 3 – unlawful detention
It was further contended that the Appellants’ detention was unlawful due to a policy breach by the SSHD in failing to obtain information relating to the Appellants being Adults at Risk.
The Respondents posited that there was no breach: Rule 34/35 did not apply to the Appellants. Regardless, sufficient information was obtained, or alternatively, any failure was not relevant to the detention decision, given the Appellants were treated as Level 2 Adults at Risk but the considerations of immigration control factors outweighed these vulnerabilities.
The Court accepted the Respondent’s submission. While the absence of a Rule 35 report or equivalent was relevant, given its mention in the detention reviews, it did not bear upon the detention decision. The Appellants were known Level 2 Adults at Risk before medical concerns about past torture became known; a Rule 35 Report would not have elevated their level of risk assessment, and significant immigration control factors outweighed the presumption that persons at risk should not be detained .
The Appellants submitted that the judge should have found unlawful discrimination under article 14 ECHR in conjunction with articles 3 and 5. It was common ground that being detained was another “status” for the purposes of article 14 and that the detention came within the ambits of Articles 3 and 5. But the Respondent’s contention was that the Appellants and those in IRCs were not in similar positions, so there was no unlawful discrimination.
The Court agreed with the Respondent. It was held that although immigration detainees in HMPs and IRCs were detained under the same statutory powers, there was no unlawful discrimination. It was considered that those detained in IRCs very frequently arrived without any relevant background or history, whereas those detained in HMPs will have been inducted into a prison with a functioning medical system, with the possibility to consent to the disclosure of their medical records, thus providing a way for vulnerabilities to be assessed – an opportunity that those arriving at IRCs, often with blank records, do not have. Therefore, the positions in the two situations differed. It was also reiterated that the Appellants were treated as Level 2 Adults at Risk, so the irrational failure to obtain medical concerns did not result in differential treatment in the circumstances .
Issues 5 and 6 – indirect discrimination and breach of PSED
The Appellants argued that the judge was wrong to find that there had not been any indirect discrimination or a breach of the PSED. Dingemans LJ was blunt in criticising the Appellant’s submissions. He stated that they had not identified why the judge below was wrong on indirect discrimination, and reiterated that the SSHD’s failings did not cause the Appellants any particular disadvantage (given the previous findings that a Rule 35 report would not have changed their detention) . As to the PSED, it was determined that the Appellants had failed to identify what function the SSHD was exercising when she allegedly failed to have regard to the relevant equality matters .
The judgment on issue 2 is welcomed, though it is concerning to find the rest of the judgment filled with the recurring theme that Level 3 evidence, such as a Rule 35 report, would have made no difference to the detention of the Appellants, who were already assessed as Level 2 Adults at Risk (for reasons other than relating to their history of torture).
If the risk indicator is a Level 1, the immigration controls will carry great weight in counterbalancing the vulnerability risks. However, as the strength of evidence of risk increases, the likelihood that the same immigration control purposes will prevail necessarily decreases. To suggest otherwise would undermine the purpose of categorising risk levels. It would also undermine the qualitative difference of Level 3 evidence (which requires a judgement that detention is more likely than not to cause harm), from the lower level that merely asserts a risk of vulnerability to harm. The change from possibility of harm to likelihood of harm is significant – dismissing the potential difference in the outcome of the detention review overlooks that. It is acknowledged that not every case with Level 3 evidence will be able to outweigh serious immigration control factors. But the categorical denial that a Rule 35 report would have changed the outcome to the Appellants assessed as Level 2 risk for depression and psychotic illness alone may suggest that the SSHD is not undertaking the balancing exercise that their policy calls for.
The SSHD confirmed that steps are being taken currently to devise a system to provide immigration detainees in HMPs the benefits of the Rule 35 process found in IRCs. It is eagerly awaited.
Alice Kuzmenko is a barrister at 1 Crown Office Row.She tweets at @AliceKuzInLaw
The Upper Tribunal (Immigration and Asylum Chamber) has found that Priti Patel breached her procedural obligations under Article 2 of the ECHR in respect of deaths in immigration detention.
The application for judicial review arose following the death of Oscar Lucky Okwurime on 12 September 2019 in his cell at IRC Harmondsworth. Mr Okwurime had tried but failed to secure healthcare at the centre. He was not provided with his obligatory ‘Rule 34’ GP appointment within 24 hours of his arrival.
Priti Patel was subject to a legal requirement to assist the coronial inquest by identifying and securing evidence from potential witnesses. Instead, she elected to continue with her plans to remove a number of potential witnesses, including the Applicant, Mr Lawal, a close friend of Mr Okwurime.
Later, the Area Coroner for West London required Mr Lawal to attend the inquest on the basis that he was “an important witness of fact.” The jury later found that “multiple failures to adhere to healthcare policy” and “neglect” contributed to Mr Okwurime’s death from coronary heart disease.
The court found that Patel acted unlawfully in deciding to remove the Applicant in that she failed to take to take reasonable steps to secure the applicant’s evidence concerning the death of Oscar Okwurime. Aditionally, the absence of a policy directing caseworkers on how to exercise immigration powers in a case concerning a witness to a death in custody was unlawful. This was contrary to her Article 2 procedural obligations.
A Home Office spokesperson has said that, in light of the judgment, its processes were being refreshed and a checklist was being introduced to ensure all potential witnesses are identified.
The decision comes as Patel faces criticism for “serious mistakes” and “fundamental failures of leadership and planning” by the Home Office in managing former military sites as makeshift accommodation for asylum seekers. The Home Office is also being sued by a female asylum seeker who claims that staff at her asylum accommodation refused to call an ambulance for three hours after she told them she was pregnant, in pain and bleeding. When she was eventually taken to a nearby hospital, she learned that her baby had died.
In Other News:
Helena Kennedy QC, a leading human rights barrister and author of Eve Was Framed, has been included on the list of those sanctioned by the Chinese government for criticism of the human rights abuses against Uighur Muslims in Xinjiang province. Together with David Alton, a crossbencher, she helmed an ultimately unsuccessful attempt to persuade the UK government to create a procedure that would have enabled the English high court to make a determination on whether the evidence reached the threshold for genocide. China has imposed sanctions on 10 other UK organisations and individuals, including the former leader of the Conservative party Iain Duncan Smith, over what it called the spreading of “lies and disinformation” about human rights abuses in Xinjiang.
The investigatory powers tribunal (IPT), which examines allegations that the state has misused its surveillance powers, has heard from an environmental activist who was deceived into a long-term sexual relationship by an undercover Metropolitan police officer that his managers knew about the deception and allowed it to continue. A judge-led public inquiry into the activities of undercover officers is ongoing; Phillipa Kaufmann QC, who represents women deceived into sexual relationships, has called the practice “endemic”.
In the Courts:
Hamilton & Ors v Post Office Ltd  EWCA Crim 577: the Court of Appeal quashed the convictions of thirty nine men and women employed by the Post Office as sub-postmasters, sub-postmistresses, managers or counter assistants; three other former employees’ appeals failed and were dismissed. All the appellants were prosecuted by their employer and convicted of crimes of dishonesty. The reliability of the computerised accounting system, “Horizon”, in use in branch post offices during the relevant period, was essential to the prosecutions. Despite repeated assertions by the Post Office that the system was robust and reliable, it has become clear that it was critically undermined by bugs and glitches which cause it to incorrectly record shortfalls. The court called the convictions “an affront to the public conscience.” A public inquiry chaired by Sir Wyn Williams, President of Welsh Tribunals, is currently trying to establish an account of the implementations and failings of the system.
Howard, R (On the Application Of) v Secretary of State for the Home Department  EWHC 1023 (Admin): the High Court ruled that the Home Office’s handling of a Windrush citizenship application was irrational and unlawful. Hubert Howard was repeatedly denied British citizenship over the course of a decade, despite having lived in the UK since he arrived from Jamaica at the age of three in 1960, on the grounds that a number of minor convictions prevented him from meeting a “good character” requirement, which is an eligibility criteria for citizenship.
Elkundi & Ors, R (On the Application Of) v Birmingham City Council  EWHC 1024 (Admin): the High Court has ruled that Birmingham City Council has been operating an unlawful system for the performance of its main housing duty under the Housing Act 1996. The Council had been operating on the basis that an applicant owed the main housing duty may be left in unsuitable accommodation while the Council takes a reasonable time to secure permanent suitable accommodation. Steyn J held that this was unlawful; the main housing duty is an “immediate, unqualified and non-deferrable” duty to secure suitable accommodation. Putting applicants on a waiting list was not a lawful means of performing that duty.
On the UKHRB:
Caroline Cross covers a recent case in which the boundaries of causation in mesothelioma deaths were tested and clarified.
Martin Forde QC summarises the High Court’s decision (set out briefly above) that the Home Office’s handling of a Windrush citizenship application was unlawful
R (On the Application of Hubert Howard (deceased, substituted by Maresha Howard Rose pursuant to CPR 19.2(4) and PD 19A)) vSecretary of State for the Home Department EWHC 1023 (Admin)— read judgment
Hubert Howard was born in 1956 and came to the United Kingdom in 1960, aged almost 4 from Jamaica. He was part of the Windrush Generation. No doubt like all West Indians of that time, including my parents, he thought he was a British Citizen.
In fact, he was a Citizen of the United Kingdom and Colonies on arrival, and, by sleight of hand, in the author’s view, he lost that status upon Jamaica gaining independence in 1962 and he became a Commonwealth citizen.
The same reduction in status happened to my father in 1966, when Barbados gained independence. Having arrived in 1953, believing he was fully British and having been conscripted for two years National Service, he had nobody write telling him that his status had changed and that he effectively became Barbadian, thirteen years after his arrival here.
Hubert should have applied to be registered to be a British citizen before 1 January 1988, when that right lapsed, but like many Commonwealth citizens, particularly from the Caribbean, he did not.
Hubert did apply for a British passport in 2007 and 2010 but on each occasion, he was told that his application failed because he was not a British citizen. In February 2012 he was told by the Home Office that he would first need to apply for indefinite leave to remain, 52 years after he had been resident, and could then, if granted ILTR, obtain a passport after the required period of lawful residence.
In 2012 Hubert lost his job with the Peabody Trust, a job that he had held since 2003, and whose Director of Human Resources was to describe him, in 2018, as “reliable, hardworking and diligent in carrying out his duties”. But due to “an inspection from Immigration Services in 2012 … [he] was unable to produce a passport and we had to let him go”.
In June 2014, Hubert’s solicitors made an application for a No Time Limit status granted to those who have ILTR so that they can be granted a biometric card, which at the time cost £1,300.
The Home Office then required, as was the case with many Windrush applicants, one piece of evidence demonstrating residence from 1960 within 14 days. His application fee was retained when he did not furnish the information.
In April 2018, the then Home Secretary, Amber Rudd made a Windrush Statement, which included the phrase
They are British in all but legal status, and this should never have been allowed to happen.
That sentence was to prove vital to the outcome of the case.
Following that statement made in the House of Commons, Hubert was granted ILTR by a letter dated 10 May 2018, with the Home Office accepting that he had acquired that status, through operation of law, on 1 January 1973, the date the 1971 Immigration Act came into force.
Understandably, Hubert then applied for his British naturalisation. He was refused on 5 November 2018 and again on 3 December 2018 on review and once again on May 2019.
Hubert was refused upon good character grounds because of criminal convictions mainly of some antiquity but, it has to be acknowledged, in respect of the final occasion some 59 years after he had entered this country.
Hubert had been convicted between 1974 and 1977 of burglary and theft, resulting in a Probation Order, for possession of a class B drug between 1984 and 1988 resulting in fines, for using threatening and abusive language in May 2000, resulting in a Probation Order and, most importantly, of common assault in June 2018, which resulted in a sentence of 12 months imprisonment suspended for 12 months.
As, at the time of his application Hubert had received a non-custodial sentence within 3 years of his application for naturalisation and the Home Office, on review, refused his application upon the basis of his criminality. Hubert had argued that he considered himself to be British at the time of his offending but that argument was rejected.
On 16 October 2019, the Home Office granted Hubert’s application for naturalisation on compassionate grounds, as by then he was seriously ill with leukaemia – he died tragically on 12 November 2019 and his daughter was substituted as Claimant.
The first ground of claim was that the failure to disapply the good character requirement when deciding the application for naturalisation amounted to unlawful discrimination contrary to Article 14 with Article 8 on the basis of a relevant “other status” – i.e., that Mr Howard was one of the Windrush generation, or alternative the relevant status of race. This issue is considered at paras 19-25. The claim was dismissed on this ground.
However, the second ground of claim was that the decision that existing good character guidance should continue to apply without modification to Windrush generation applications fell outside the range of options available to the SSHD acting reasonably. This issue is considered at paras 26-39. The claim was upheld on this ground. The court stated that:
… In the context of what had been said in the Windrush statement this reliance on minor offences committed some 40 years, 30 years and 18 years, respectively before Mr Howard’s application for naturalisation as a British citizen was irrational. An approach based on the premise that such matters are relevant is in flat contradiction of any notion that long-residence and integration into British society demanded a different approach to applications coming from the Windrush generation, the notion which had been the central feature of the Windrush statement … (para 36)
The fact that ancient criminality and even more recent criminality, should not be a basis for denying full citizenship to those that have lived her for many years, and whose status was changed via complex legislation, is very welcome.
During my time as adviser to the Home Office upon the Windrush Compensation Scheme, although, strictly speaking, outside my remit, I raised concerns about this policy.
Its existence impacted upon the willingness of the affected cohort to apply for naturalisation and compensation, so fearful were they of deportation – and this remains the case.
Interestingly, when designing the Scheme, I advised against criminality being a basis for refusing or reducing compensation, as is the case with the CICA. I advised that effectively tortious compensation in respect of damage caused by government policy, could not rationally be reduced by reason of criminality. My advice was ignored by the then Home Secretary, Sajid Javid, and we agreed that a condition of my continuing in post would be that I could put his rejection of my advice into the public domain.
I therefore feel vindicated by this judgment. I hope the Home Office do not appeal, as to do so would undermine the relations they are trying to foster with the affected communities. Somebody who arrives in this country at the age of almost 4 and commits criminal acts in adulthood is a British criminal and citizen.
The judgment has the potential to allow many others to gain naturalisation and then access the compensation scheme if, for instance, they were dismissed from their employment like Hubert Howard.
Martin Forde QC is a barrister at 1 Crown Office Row. He was the Independent Advisor to the Windrush Compensation Schemefrom May 2018 until April 2021.