Human Rights

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The European Court of Human Rights has given judgement in a case brought against France (Albert Bertin v France (2006)), which could have implications for the Special Immigration Appeals Commission (SIAC).

SIAC was created in 1997 to hear immigration and asylum appeals involving national security. When appeals are heard by SIAC, a security vetted lawyer known as a special advocate is appointed by the Attorney-General to represent the interests of the appellant. However there is evidence known as closed material, which is disclosed only to the special advocate and the court, but not the appellant or his representatives. Once the special advocate has seen the closed material, he or she is not permitted to have private contact with the appellant again, except with the express permission of the court. When the closed evidence is presented to the court, the appellant and his representatives are not permitted to be present. The special advocate represents the interests of the appellant. In addition, the Commission can receive evidence that would not be permissible in a court of law.

Mr Justice Munby, sitting at the High Court, has found that the Home Office acted unlawfully when detaining a Croatian couple in R (on the application of (1) Predrag Karas (2) Stanislava Miladinovic) v The Secretary of State for the Home Department [2006] EWHC 747 (Admin).

Mathew v. The Netherlands (Application no. 24919/03)

29 September 2005

The applicant is a kickboxing instructor who was arrested on a charge of inflicting grievous bodily harm. He was detained on remand at the Aruba Correctional Institute. Aruba is a Carribean island and is a country (land) of the Kingdom of the Netherlands.

The decision of the Court of Appeal in J v SSHD [2005] EWCA Civ 629 established the test in suicide cases was not whether there is a real risk of an increased risk of suicide, but simply whether there is a real risk that removal will cause an asylum seeker to take his or her life.

In brief, the following factors are relevant when determining whether a real risk is established;

1. The ill treatment must be serious enough to constitute an affront to humanitarian principles.
2. A causal link must be shown between the removal and the consequent ill-treatment
3. The Article 3 threshold is particularly high in a foreign case (i.e. when the asylum seeker has left the UK and arrived in the receiving state), and is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities, but flows from some naturally occurring illness, whether mental or physical.

As of 1st January 2005 decision-makers considering asylum or human rights claims will be required to take into account certain behaviour as damaging a claimant's credibility. A claimant's credibility will be damaged if they:

- fail to produce a passport
- produce a document which is not a valid passport
- destroy a passport or a ticket
- fail to answer a question asked by a deciding authority.

Decision makers will also be required to take into account the fact that a claimant had the opportunity to claim asylum in a safe country but did not.