Scott Blair, Advocate

Asylum, AIDS and Article 3- a hard case ?

2005-05-15T12:16:00.000-07:00

Sadly, we are all too aware of the plight of many in Africa who suffer from the AIDS virus with little real hope of adequate medical help in their homeland.

What are the obligations of the United Kingdom to such AIDS victims who claim asylum here under the Refugee Convention but whose claim under that Convention is refused ? Would the United Kingdom be in breach of Article 3 of the European Convention on Human Rights if it returned such a failed asylum seeker to their home and where the prospect of treatment was remote ? Would such a return be inhuman or degrading treatment such as to breach Article 3 ?

In N v. The Secretary of State for the Home Department [2005] UKHL 31, decided on 5 May 2005, the House of Lords appear to have answered this question in the negative when they refused the appeal of an AIDS sufferer who claimed a right to remain in the United Kingdom on the basis of such an alleged breach of Article 3. The full judgment can be found on the House of Lords Judgments website which can be found in my links section.

Miss N came from Uganda in 1998. Her claim for asylum was refused. Almost on arrival she was diagnosed as being HIV positive. As a result of modern drugs and skilled help her life expectancy if she remains in the UK is good. She could expect to live for many years in good health. In Uganda where treatment is only available to a few at a very large cost her life expectancy is a matter of a couple of years at most. Moreover hospital treatment for those in the final stages of AIDS would be either non-existent or very poor compared with the UK. She would be likely to suffer a slow and painful death in Uganda.

Notwithstanding these stark facts the House of Lords , having reviewed similiar cases which had been considered by the European Court of Human Rights, held that Article 3 would not be breached by her return. It is evident all of the judges had nothing but real sympathy for her plight. However all of them held that Article 3 would only be violated in the most exceptional of cases. Sadly, this type of case was all too common.

An exceptional case would appear to be one where the claimant is already in the final stages of AIDS and will die soon even if they remained in the UK, and where there is no realistic prospect of treatment or support in the home country, and as a result, that it would be very likely that the victim would die in the most distressing circumstances shortly after return.

Licensing law and sectarianism

2005-04-24T07:42:00.000-07:00

Sectarianism is a hot political topic right now in Scotland. Much of the debate centres on the problems associated with the actual or perceived links to Irish politics of those who support the "Old Firm" football teams of Rangers FC or Celtic FC.

The sectarianism debate is beginning to spill over into the world of licensing law. The press has reported in the last few months action taken by a number of Scottish police forces in relation to licensed premises alleged to be the source of sectarian tension.

Such action became the focus for legal debate in the recent case of Thomas Smith v. North Lanarkshire Licensing Board , 3 March 2005. The case can be found in the "Court Opinions" section of the Scottish Courts website. The link appears above.

In that case the Inner House of the Court of Session decided to overturn the decision of the Licensing Board made under section 31 of the Licensing (Scotland) Act 1976 to suspend for one month the public house licence held by Mr Smith. The premises in question had operated as a "Celtic" venue for a number of years without incident. Items associated with Irish republican politics which had been on display for a number of years were removed by the police after Mr Smith failed to remove them himself. The items in question could have fallen foul of a licensing board authority bye-law but this bye-law had never in fact been applied to the premises. The Board held that the items were sectarian in nature and as consequence Mr Smith was no longer a fit and proper person to hold the licence.

In the circumstances of this case, and given the particular history of the premises, the Court found that the reasons given by the Board for suspending the licence were inadequate and that decision to suspend was unreasonable. The Court ordered that the suspension be set aside.

The Court left open the wider question of when action by a Board might be justified in future cases. The stong impression is however formed that it may not be enough to rely on the allegedly sectarian nature of the material in question without there also being some evidence or actual disorder or a real threat of disorder.

Article 10 of the European Convention on Human Rights might also be relevant in this regard should further cases come before the courts. Article 10 secures the right to both freedom of political and/or commercial expression. In a future case might a publican be entitled to argue that the display of certain material is protected by Article 10 ? For example could Article 10 be used to challenge the legality of a bye-law which restricts the freedom of expression of a licenceholder ?

Asylum and Immigration (Treatment of Claimants, etc.) Act 2004

2005-04-22T08:58:00.000-07:00

April 4 2005 saw the introduction of the new one tier Asylum and Immigration Tribunal ( "the AIT") under the provisions of this new Act. This replaces the old two tier system of the adjudicator and Immigration Appeal Tribunal. Anyone working in this increasingly complex field will have to come to grips with the new Act. For those wanting to challenge a decision of the AIT made on or after 4 April to refuse an asylum, human rights or many immigration appeals, the first step will be to ask the AIT to reconsider the decision in question by way of an application for internal review under Rule 26 of the new procedure rules, the Immigration and Asylum (Procedure) Rules 2005 (SI 2005/ No. 230 (L.1). If the reconsideration is refused, then in those cases where the AIT sat in Scotland to hear the appeal, a petition for statutory review can be presented to the Court of Session in Edinburgh. The Court Rules are in the Act of Sederunt (Rules of the Court of Session Amendment No. 6) (Asylum and Immigration ( Treatment of Claimants, etc.) Act 2004) 2005 (SSI 2005 / No. 198). There are complex transitional provisions for cases pending but not determined before 4 April-see the Asylum and Immigration ( Treatment of Claimants, etc. ) Act 2004 ( Commencement No. 5 and Transitional Provisions) Order 2005 (SI 2005 /No.565 (c.25). All of these provisions can be found on the HMSO site http://www.hmso.gov.uk . As always in this field the time limits for action are very tight.