Guest Post: Your Immigration Status, Please!

Guest post by Matthew White

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On 21 September 2017, the Guardian published an article warning that from January 2018, UK banks and building societies are to carry out immigration checks on 70 million current accounts. 70 million?

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The article continues that this measure is expected to identify 6000 visa overstayers, failed asylum seekers and foreign national offenders facing deportation. Accounts that are identified will be closed down or frozen, to make it difficult to maintain a settled life in the UK. This is said to act as a powerful incentive for an agreement on voluntary departure so money can be secured once they’ve left the country. Hang on, if accounts can be closed or frozen, how are home returners supposed to pay for leaving the UK if they can only access their money after they have left?

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Of course, the Home Office may contribute up to £2000 for an assisted return (in 6% of cases) but this does not apply to immigration offenders, European Economic Area (EEA) citizens etc (I’m watching you post-Brexit Britain). Speaking to the Guardian, Satbir Singh, the chief executive of the Joint Council for the Welfare of Immigrants, pointed out that

“The government’s own record shows it cannot be trusted even to implement this system properly. Immigration status is very complex, and the Home Office consistently gives out incorrect information and guidance…Migrants and ethnic minorities with every right to be here will be affected by the imposition of these new checks.”

This is hard to disagree with given that the Home Office ‘accidently’ sent out 100 letters to European Union (EU) citizens warning them to leave or face removal, defied UK courts, has a high error rate which all contributes to the hostile environment the Guardian refers to.

What is the Hostile Environment?

This began with the then Home Secretary (now Prime Minister) Theresa May in an interview with the Telegraph where said:

“The aim is to create here in Britain a really hostile environment for illegal migration… What we don’t want is a situation where people think that they can come here and overstay because they’re able to access everything they need.”

Colin Yeo describes it as a:

“[P]ackage of measures designed to make life so difficult for individuals without permission to remain that they will not seek to enter the UK to begin with or if already present will leave voluntarily.”

This includes ‘measures to limit access to work, housing, health care, bank accounts and to reduce and restrict rights of appeal against Home Office decisions’ (ibid). The defining feature is the reliance on indirect means to encourage compliance with and punish breaches of immigration control (ibid) effectively turning the UK into a nation of border cops.

So, what is the legal basis for latest in the Hostile Environment Saga?

As Yeo highlights, the legal basis for this new measure appears to come from Schedule 7 of the Immigration Act 2014 (IA 2014) which inserts s.40A into the IA 2014. Section 40(A)(1) requires banks and building societies to carry out immigration checks (specified by regulations) into each current account which is not an excluded account. Excluded accounts consists of accounts used for purposes of trade, business or profession, which can be found in Regulation 2 of the IA 2014 (Current Accounts) (Excluded Accounts and Notification Requirements) Regulations 2017. Section 40B concerns the bank or building societies duty to notify the existence of current accounts for disqualified persons. A disqualified person is spelt out in s.40(A)(3) of the IA 2014, is a person who is in the UK, does not have leave to remain and for the Secretary of State to consider the account to be frozen (see s.40D and E of the IA 2014 respectively).

The Regulation responsible for the immigration checks made under s.40(A)(1) of the IA 2014 can be found in the Immigration Act 2014 (Current Accounts) (Compliance &c) Regulations 2016. Regulation 2 notes that immigration checks must be carried out during each successive quarter of each year. Four times a year, every year! So, these ridiculous powers appear to have a sound legal basis, I guess that is the end of that chapter, right? Yeah, I didn’t think so.

Give me a E, give me a C, give me a H, give me a R:

That pesky human rights document that the UK helped draft all them years ago just won’t stop being a pain in its ass. Yes, I am referring to the European Convention on Human Rights (ECHR). Why is this relevant? Because as Yeo correctly notes the hostile environment measures have great potential of intruding into people’s private lives. And what does Article 8 of the ECHR protect? Private life. For those who are unfamiliar with probably the most elusive (Luke Clements, Nuala Mole, and Alan Simmons, EUROPEAN HUMAN RIGHTS: TAKING A CASE UNDER THE CONVENTION p. 176 (2d ed. 1999)) Convention Right, it states that:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In a nutshell, this Article says that the State should leave us the hell alone in the enjoyment of these rights (negative obligations). This is not absolute, and there are certain circumstances in which the State can intervene (as detailed in Article 8(2)), there may even be instances where the State has failed to intervene and thus failed to protect Article 8 rights based on positive obligations (X and Y v Netherlands, (para 23)).

For this blog, only the aspect of private life will be considered. For Article 8 to be applicable, it first has to be engaged/triggered/interfered with, and because private life is not susceptible to exhaustive definition (Bărbulescu v Romania, (para 70)), this is easy-peasy to establish. Immigration checks requires the processing of personal data which is detailed in many data protection instruments, and as such involves an interference with private life (Amann v Switzerland, (paras 65-7)). The mere fact that personal data is even stored interferes with Article 8 whatever the subsequent use of said data (S and Marper, (para 67)). This is due to the protection of personal data being of fundamental importance to the enjoyment of private life (ibid, (para 103)).  There are various other ways in which Article 8 could be engaged, whether it is based on removal (which would also interfere with ‘family life’ (Al-Nashif v Bulgaria, (para 102-103)) and ‘home’ (Slivenko and others v Latvia, (para 96)), or disrupting professional activities (Niemietz v Germany, (para 29) etc. Once interference has been established, this must be ‘in accordance with the law’ and ‘necessary in a democratic society.’

In Accordance with the Law:

Here comes some legal Kung Fu. The first legal test of whether a measure complies with human rights is to determine whether the law is ‘in accordance with the law.’ Essentially whether the law itself is lawful. The European Court of Human Rights (ECtHR) have ruled extensively on the matter and has set out some clear requirements. The law has to have some basis in domestic law (M.M. v UK, (para 193)), and has to have quality e.g. be accessible and foreseeable (S and Marper, (para 95).

This first requirement of having some basis in domestic law is satisfied due to the power to compel banks and building societies comes from an Act of Parliament which enables Regulations to be created to that effect. The law will probably also satisfy accessibility because its published online (Leander v Sweden, paras 52-3). Now, foreseeability is a little trickier, a law is foreseeable if it is formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate their conduct (Amann v Switzerland, (para 56). This ensures there are adequate indication of the conditions and circumstances in which the authorities are empowered to resort to any such measures (Uzun v Germany, (para 61). After all:

[I]t would be contrary to the rule of law for the discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference…(Szabo and Vissy v Hungary, (paras 230-1).

Forgive the dense legal jargon, but correct me if I’m wrong, the power to compel banks and building societies to conduct immigration checks applies to all current accounts, yeah? In addition to this, these checks occur four times a year every year. So, first of all, where is the adequate indication that the state will resort to these measures if they affect every current account? Yeah, there isn’t any because they affect every current account. What are the circumstances for when an immigration check may occur (like for example, when there is reason to suspect (Roman Zakharov, (para 260) this current account belongs to someone who has outstayed their visa)? That’s right, the law says nothing on this. So, if this affects 70 million accounts and the Home Office is looking to catch 6000 (where did this figure even come from btw?) people, then 69994000 (assuming there are no multiple current accounts by overstayers) current accounts have just been screened for no reason at all. This is a textbook example of arbitrary interference due to the unfettered power this law provides. So, in a nutshell, this law is not foreseeable because it does not indicate when and in what circumstances a current account may be screened, it affects all current accounts, arbitrarily interferes with Article 8 rights, and grants unfettered powers. Therefore, (you guessed it) the power to compel immigration checks on current accounts is not in accordance with the law, and thus violates Article 8. Did I miss anything? Oh yes, the next human rights test.

Necessary in a Democratic Society:

Finding that s.40(A)(1) of the IA 2014 is not in accordance with the law usually means it is no longer necessary to consider whether such measures are ‘necessary in a democratic society’ (M.M., (para 207); Amann, (para 63)). I could have finished this blog post in the previous paragraph, but where is the fun in that (Kurić and others v Slovenia, (para 350))?

For a measure to be ‘necessary in a democratic society’ interfering with said rights must correspond to ‘pressing social need,’ whether it was ‘proportionate to the legitimate aim pursued,’ and ‘whether the reasons given by the national authorities to justify it are relevant and sufficient’ (S and Marper, (para 101)).

Pressing social need:

Are these blanket checks necessary? After all, ‘necessary’ is not synonymous with ‘indispensable’ but that doesn’t mean it’s as flexible as ‘desirable,’ ‘reasonable’ or ‘useful’ either (Handyside v United Kingdom, (para 48)). Therefore, relying on its utility (proven or unproven) is not enough and the state requires a greater justification (Pullen & Ors -v- Dublin City Council, (para 12(c)). The Joint Committee on Human Rights (JCHR) have pointed out that ‘[t]here must be a sufficient factual basis for believing that there was a real danger to the interest which the State claims there was a pressing social need to protect’ (Joint Committee on Human Rights, First Report (HL 42/HC 296, 23 April 2001), Annex 2).

So, are these measures necessary? Let’s consider the justifications for them from the impact assessment. The Government argue that they want to catch irregular migrants who created current accounts before it was lawful to run immigration checks when they were first set up or those who created current accounts lawfully but subsequently became irregular (so you know, all migrants are kinda suspects now). The next sentence is very suspect, the Government said they want banks and building societies to check the accounts of known irregular migrants which is a tad different from requiring them to check every current account, four times a year, just in case. The impact assessment later acknowledges the process of immigration checks is to check every current account for matches (ibid, para 20), so essentially a panoptic sort (Oscar H. Gandy Jr, The Panoptic Sort: A Political Economy Of Personal Information (Critical Studies in Communication and in the Cultural Industries) 1993 Westview Press). The impact assessment does not consider the impact on human rights, particularly Article 8 for example (SO HOW DO THEY KNOW IT IS COMPLIANT? OH WAIT…), the fact that bank details are processed for another purpose unconnected to its original purpose of processing (purpose limitation). The impact assessment does not entertain the possibility of only checking current accounts where there are reasonable and objective grounds to believe it belongs to an irregular migrant. Furthermore, the impact assessment acknowledges that after the first year, only about 900 matches will be made (ibid, para 20) even though 70 million current accounts will be checked four times a year. In essence the immigration checks are done ‘haphazardly, irregularly or without due and proper consideration’ (Roman Zakharov, (para 257)). There might be a pressing social need to remove over stayers by checking current accounts that are linked to them, but there can be no pressing social need that subjects every current account to the whims of a Government hell bent cementing its hostile environment. And on a deeper level, what has the right to live in the UK have to do with having a current account? This link is never established and so weakens the justifications for this measure further. Not establishing a pressing social need for such wide-reaching powers would too violate the ECHR (Faber v Hungary, (para 59)).

Relevant and sufficient:

This mainly concerns the effectiveness of the measure which relies upon factual, statistical, or empirical information as to the effectiveness of a certain measure (Janneke Gerards, ‘How to improve the necessity test of the European Court of Human Rights’ (2013) I•CON 11:2 466, p473). The effectiveness of the impact assessment is based purely on guesstimation as the impact assessment admits (impact assessment, para 24). The Home Office and HM Treasury would conduct an informal review 12 months after implementation to ensure effectiveness (impact assessment, para 24). Not only is there no evidence to back up any assertions i.e. pilot studies etc, the Governmental department for controlling immigration will assess its own effectiveness (that’s some independence right there), which is not even guaranteed because this is not mandated by the IA 2014, but there is no explanation of what ‘informal review’ means. Sounds a bit cloak and dagger substituting intrigue with concern. A measure is not sufficient just because its subject-matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms (Sunday Times v UK, (para 65)). Not only is there no evidence to justify this measure, the screening subjects all current accounts to a rule formulated in general terms i.e. by virtue of having a current account, your immigration status will be checked. Even if the justifications were relevant, this does not mean they are sufficient, and a lack sufficient reasons too would violate the ECHR (ibid, (paras 63 and 67)).

Proportionality:

This test comes in many flavours (Thomas Hickman, ‘Proportionality: Comparative Law Lessons’ (2007) 12 Jud. Rev. 31.) but two aspects from the ECHR perspective will be considered for this blog post. The two aspects are whether the measure was the least restrictive to obtain the objective, and whether a fair balance has been struck.

The least restrictive measure (LRM) is exactly what it is, don’t use a sledgehammer to crack a nut, we have nutcrackers for that (Eva Brems and Laurens Lavrysen ‘‘Don’t Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights’ (2015) HRLR 15 139-168, p140). By virtue of checking all current accounts (which leads to net loss, p11) instead of checking accounts where there is reason to believe it is linked with an irregular migrant, a sledgehammer has indeed been used.

With regards to striking the fair balance, the ECtHR has never been a fan of indiscriminate powers (S and Marper, (para 125); Kennedy v UK, (para 160)) because it fails to strike a fair balance. So, checking all current accounts is an indiscriminate power, and too would violate the ECHR (S and Marper, (para 126)). The disproportionality intensifies because the interference caused by immigration checks are indefinite in that it occurs four times a year every year until, well, the Government feels like it and the fact that the number likely to be caught are miniscule in comparison to the amount of current accounts checked.

Oh, but we’re checking immigration status regardless of nationality:

This is what a Barclays spokesperson said to the Guardian regarding the new law. I am not suggesting nationality should be the basis for the exercise of power, but as I’ve pointed out above, indiscriminate powers such as these are not compatible with the ECHR. There is another reason why this is not compatible with the ECHR, and that is because of Article 14, which is the anti-discrimination right. Its only applicable when a Convention Right is engaged, in this case, Article 8, and this is where Barclays’s stance (through no fault of their own of course as they are complying with the law) becomes problematic. Indiscriminate powers triggers what is known as Thlimmenos discrimination in that:

[T]he right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (Thlimmenos v Greece, (para 44)).

And so, the position is this, ‘If there is no reason to suspect I am an irregular migrant, why are you running an immigration check on me?’ ‘Where is your objective reasonable justification for singling me out?’ ‘You want to catch 6000 people in your first year, and 900 every year there in after, if I’m not on your list why again are you running an immigration check and furthermore, once I’ve been ruled out, why are you still checking my immigration status four times a year every year?’ ‘You know why you can’t answer these questions? Because you don’t have an answer.’ ‘Do you know what this means? You’ve violated Article 8 in conjunction with Article 14’ (ibid, (para 55)).

Conclusions:

Natalie Bloomer and Samir Jeraj point out that Prime Minister May’s obsession with immigration has turned Britain into a surveillance state. Sadly, we have been a surveillance state for some time before the hostile environment even took form. We are going through a phase where hard won fundamental rights are slowly being nibbled away, each and every measure may seem mundane at the time it was enacted, but this has only emboldened the state to ever-more take the next logical step in cementing hold as a surveillance state whether it be through the hostile environment or electronic mass surveillance. Liberty dies by inches (Verena Zöller, ‘Liberty Dies by Inches: German Counter-Terrorism Measures and Human Rights’ (2004) German Law Journal 5:5 469) and becomes under severe threats from populist movements. This post didn’t really consider the data protection implications of this measure, but the Information Commissioner has linked Article 8 to unlawful processing, so there’s that. What this post has sought to do, is highlight at every legal hurdle, the powers that mandate immigration checks on current accounts, fails.

 

Guest post: The Wrong Prison! Sending trans women to male prisons is a breach of the ECHR

 

Guest post  by Super Cyan:

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Image by csifer.

A few days ago, Pink News reported that another transgender woman had been sent to a men’s prison. December last year, Caroline Dinenage, the Parliamentary Under-Secretary of State for Justice, Minister for Women, Equalities and Family Justice announced there would be a review that will ‘develop recommendations for revised guidelines which cover the future shape of prison and probation services for transgender prisoners and offenders in the community.’ The review was supposed to be released early this year, but as of yet, no review has been released.

Pink News highlighted that it is common for incarcerated trans individuals to be sent to the prison that reflects their legal gender, requiring a successful application for a Gender Recognition Certificate (GRC) under s.1 of the Gender Recognition Act 2004 (GRA 2004). This, as Pink News state, due to the complexity of the process, trans women facing prison are less likely to have secured said certificate.

What does the European Convention on Human Rights have to say?

The European Convention on Human Rights (ECHR) is a collection of rights there to protect individuals from state action and inaction. However, Natasha Holcroft-Emmess, writing for @rights_info highlighted that the European Court of Human Rights (ECtHR) were slow to find violations of Article 8 (the right to respect private and family life) despite obvious discriminatory treatment by the UK. That was, up until the case of Christine Goodwin v UK – 28957/95 [2002] ECHR 588, a post-operative trans woman (para 12) who had been the victim of mistreatment in the work place (para 15-16). The applicant’s complaint was that she was not eligible for a State pension at the age of 60 (the age for women at the time), the failure of the UK to take heed of previous warnings of the ECtHR for legal reform on the issue of gender identity, the failure to provide protection against discrimination, the failure to obtain a promotion due to her employer discovering her status through her National Insurance number and a failure to recognise the rapid changes in social attitudes on the subject matter (paras 60-63).

The ECtHR highlighted that previous case law did not recognise such issues interfering with Article 8 (para 73) but decided to depart from this as ‘Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any evolving convergence as to the standards to be achieved’ (para 74) continuing that:

‘It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement…In the present context the Court has, on several occasions since 1986, signalled its consciousness of the serious problems facing transsexuals and stressed the importance of keeping the need for appropriate legal measures in this area under review.’ (para 74).

Crucially, the ECtHR recognised the serious interference domestic law had on the important aspect of personal identity. The ECtHR also pointed towards the stress and alienation arising from a discordance between the position in society assumed by post-operative trans individuals and the status imposed by law. The ECtHR believed this was no minor inconvenience as it places trans individuals in an anomalous position creating feelings of vulnerability, humiliation and anxiety (para 77). The ECtHR felt it ‘illogical’ that the UK allowed gender reassignment surgery but none the less did not recognise this in the legal sense (para 78).

The ECtHR reminded the UK that the very essence of the ECHR is the respect for human dignity and freedom, where the notion of personal autonomy being an important principle underlying the interpretation of its guarantees (para 90). Most importantly before finding a violation of Article 8 (para 93) the ECtHR highlighted that:

‘In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved.’ (para 90).

Physical and moral security will be an important factor to be considered a little later, but the ECtHR’s judgment led to the GRA 2004 in which s.9 requires that once a GRC has been issued, that persons gender ‘becomes for all purposes the acquired gender.’

Transgender women in men’s prisons:

The case of AB, R (on the application of) v Secretary of State for Justice & Anor [2009] EWHC 2220 (Admin) concerned a 27 year old pre operative transgender woman who sought to challenge the Secretary of State for not transferring her to a female prison despite having a GRC (para 1). Despite living in her acquired gender for two years (as required by the GRA 2004) the Gender Identity Clinic treating her would not approve her gender reassignment surgery until she has spent a period living “in role” as a woman within a female prison (para 7). The High Court highlighted that the Secretary of State had the power to place women in a male prison but the circumstances for the present case were not met (para 10).

The questions before the High Court was whether such refusal violated Article 8 in light of s.9 of the GRA, whether Article 14 (securing Convention Rights without discrimination) in conjunction with Article 8 was violated and whether the decision by the Secretary of State was Wednesbury unreasonable (para 28). Section 9 of the GRA requires as stated that for ‘all purposes’ an individual must be treated as their acquired gender, yet Deputy Judge Elvin QC felt that that the restrictions imposed on the applicant (such as movement, clothing, and ability to participate in ordinary prison life (para 5)) wouldn’t likely apply in the rare case of a biological woman held in a male prison (para 31).

With regards to Article 8, after careful consideration of its case law in this area, with an emphasis on personal autonomy (para 38-53) it was concluded that Article 8 was engaged and therefore the Secretary of State had to justify that measures satisfied Article 8(2) (the limitations of the right to privacy etc). Deputy Judge Elvin QC had already concluded that the decision to keep the claimant in a male prison had violated Article 8 (para 57) but went on to explain why. Deputy Judge Elvin QC placed emphasis on risk and resources and that although the state has a generous margin of appreciation (discretion), when such decisions places significant restriction on a prisoners personal autonomy then the Court should scrutinise carefully the basis upon which resources are said to justify such a significant infringement of personal freedom (para 58). Deputy Judge Elvin QC highlighted that severe frustration would be caused by the continuation of male imprisonment and the consequential denial of surgery (para 60), something which Mr Spurr (Chief Operating Officer of NOMS (the National Offender Management Service) in the Ministry of Justice (para 21)) omitted to consider (para 60-61). The Secretary of State was criticised for not taking into account the consequences of the frustration of the Claimant’s progress, and its possible effects on risk and the costs of keeping her within a male prison (para 64) whilst only considering the cost of segregation on the basis that it was likely to be required only if the Claimant were transferred into a female prison and only if it were required for a significant period of time (para 73). Moreover, the Secretary of State did not consider the possibility that the period might not be particularly long, but also wholly failed to consider, let alone balance, the costs which would be likely to arise if the denial of a transfer and the loss of hope at progressing to qualify for reassignment surgery were to increase the difficulties of the Claimant living in a male prison and themselves lead to segregation (para 73). Deputy Judge Elvin QC felt this was clear not only from the circumstances of the Claimant’s offending, but from Dr Travers’ reports (who maintained that keeping the Claimant in limbo would increase frustration, indicate a shift in her risk profile, risk of self harm and harm to others and deceitful behaviour increase (para 62)) which was not disputed (para 62-71) by the other experts (para 73). There were further criticisms of the Secretary of State ranging from adopting an ‘extreme position’ on the length of segregation (para 74) and ultimately concluded that ‘Secretary of State’s decision to continue to detain the Claimant in a male in prison is in breach of Article 8’ (para 78).

Deputy Judge Elvin QC did not consider it necessary to consider Article 14 based on the finding of Article 8 (para 79) but did find the Secretary of State’s decision to continue male detention as Wednesbury unreasonable (para 85). This is a ground which requires much higher threshold to be considered unlawful than human rights grounds, which serves to highlight just how flawed the Secretary of State’s decision to continue was.

This case demonstrated that post-operative reassignment surgery (as was in Goodwin) was not necessary to secure the Convention Rights of a transgendered individual provided that a GRC had been issued.

What about not having a GRC?:

The case of M v Revenue & Customs [2010] UKFTT 356 (TC) concerned a post operative transgender woman who would have to continue paying National Insurance Contributions (NICs) until she was issued with a GRC (para 1). It was argued that Article 8 as interpreted in Goodwin required recognition of the acquired gender of a post-operative transsexual person, something which the GRA 2004 did not, but instead imposed a disproportionate two-year waiting requirement (para 18). However, Judge Nicolas Paines maintained that s.9 of the GRA 2004 made it clear that prior to the issue of a GRC, a person’s sex for legal purposes is their biological sex (para 22).

Judge Nicolas Paines did refer to A v West Yorkshire Police [2004] UKHL 21, which is an important to summarise. The case concerned the decision of the Chief Constable rejecting the application of a post-operative transgender woman (Ms A) to join his force as a constable on the grounds that she could not search suspects (para 2-6). Ms A relied on a European Court of Justice (ECJ) case prior to the Chief Constable’s decision in P v S and Cornwall County Council (Case C-13/94) [1996] ICR 795 which as Lord Bingham noted that it was held in very clear and simple terms that the then Equal Treatment Directive prohibited unfavourable treatment on grounds of gender reassignment (para 10) and ultimately the House of Lords ruled in Ms A’s favour. However, Judge Nicolas Paines felt that this did not assist the human rights argument (para 26) and felt that he was constrained to hold that the appellant a man at all times prior to the issuing of a GRC even if it was considered contrary to the ECHR (para 28).

What this case highlights just as Pink News did, is of the complexities faced with obtaining a GRC and the consequences of not obtaining one when if one is sentenced to prison. This would likely mean that prior to having a GRC, any post and pre-operative transgendered individual would be sent to the prison of their birth gender i.e. the wrong prison.

But there is still hope:

In the case of Identoba and Others v. Georgia – 73235/12 – Chamber Judgment [2015] ECHR 474 the ECtHR held that Georgia’s failure to prevent, and effectively investigate, attacks against an anti-trans/homophobia march violated Articles 3 (freedom from torture, inhumane and degrading treatment) and 11 (freedom of assembly) of the ECHR in conjunction with Article 14.

One of the important criticisms that the ECtHR made against Georgia was that ‘domestic authorities knew or ought to have known of the risks associated with any public event concerning that vulnerable community, and were consequently under an obligation to provide heightened State protection’ (para 72). The risks and dangers associated with sending trans women to male prisons is well documented and even in the case of AB, R (on the application of) v Secretary of State for Justice & Anor the individual in question was segregated to a large extent from her male inmates, highlighting that the UK is indeed aware of this issue. The ECtHR held that:

‘[T]hat violence, which consisted mostly of hate speech and serious threats, but also some sporadic physical abuse in illustration of the reality of the threats, rendered the fear, anxiety and insecurity experienced by all thirteen applicants severe enough to reach the relevant threshold under Article 3 read in conjunction with Article 14 of the Convention.’ (para 79).

And subsequently held that Georgia had failed in its positive obligations under Article 3 in conjunction with Article 14 (para 81).

Arguably the most important aspect of this was when the ECtHR held that ‘the prohibition of discrimination under Article 14 of the Convention duly covers questions related to sexual orientation and gender identity’ (para 96). Such clarification was welcomed by Transgender Europe and with Peter Dunne (Enhancing sexual orientation and gender-identity protections in Strasbourg, The Cambridge Law Journal 75(01):4-8 · March 2016) correctly highlighting that:

‘Adopting the more inclusive terminology of “gender identity”, which focuses on internal and individual experiences of gender rather than physical appearance, the Fourth Section has confirmed that all transgender persons, irrespective of whether they seek medical intervention, have equal enjoyment of Convention rights.’

Conclusions:

What does this mean for sending transgender females to male prisons (and vice versa)? Based on Identoba and Others v. Georgia an Article 8 (and possibly Article 3) argument in conjunction with Article 14 would better protect transgender individuals who neither had a GRC issued at the relevant time or did not undergo reassignment surgery. It would mean that decisions to send trans individuals to the wrong prison are open to challenge irrespective of whether a GRC is issued or are in the post-operative stage. Based on AB, R (on the application of) v Secretary of State for Justice & Anor and taking into account what was previously maintained, that being ‘in the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved.’ It is very likely that the rights in question would be breached and thus would be in line with the Convention being practical and effective, not theoretical and illusory in the fight to protect the rights of all transgender people.

Rumpole in defence of the criminal bar…

Shelfie

I posted a ‘shelfie’ for the ‘books for prisoners’ campaign last week – and was just looking at it and noticed that one of the books on the shelf was ‘The Best of Rumpole’. Rumpole was (and is) one of my heroes – so I took down the book, and started reading the introduction.

RumpoleJohn Mortimer, who created and wrote the Rumpole stories, and who was himself a barrister, said some things in the introduction that reminded me why I find myself instinctively in tune with the criminal bar – though I am not a real lawyer at all. He wrote this introduction in 1992, but the words ring even more true today than they did back then. I’ll just repeat them as Mortimer wrote them:

“On the whole, lawyers are as unpopular as income tax collectors and traffic wardens. People think they tell lies and make a great deal of money. In fact, old criminal defenders like Rumpole don’t make much money and they stand up for our great legal principles – free speech, the idea that people are innocent until someone proves them guilty to the satisfaction of ten ordinary members of a jury, and the proposition that the police should not invent more of the evidence than is absolutely necessary. They protect the rights for which we have fought and struggled over the centuries, and do so at a time when jury trials and the rights of an accused person to silence are under constant attack from the government.”

That was back in 1992 – in 2014 the attacks from the government are far more intense, far more far-reaching, and sadly seem far more likely to succeed. We should be doing everything we can to defend the criminal bar from them, if we believe in any of these things. I don’t know about the rest of you, but I do.

Guest post: Go home, Superman!!

[Guest post by @Super__Cyan]

Superman 1

Would the Home Office dare do this to the Man of Steel? After all, he is an illegal alien. Maybe the Home Office would be more inclined if he looked like this?

Superman 2

(For those who do not know, this is Superman from Earth-Tangent)

This is just to point out the growing concern that officials of the Home Office are conducting ‘racist and intimidatory profiling’ see also this storify by @anyapalmer. This is not to discuss stop and search powers, more on general stop and search powers by yours truly can be seen here. Two things are worth some attention, first this image from the @ukhomeoffice twitter account:

Superman Home Office

And this page on the Home Office’s site which has the interesting headline of ‘Immigration offenders arrested in Home Office operations.’

Are there any human rights issues with these? Possibly, the image of the person being taken away could raise issues of privacy, and as we know that same old Article 8 of the European Convention of Human Rights might be engaged where it stipulates that:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Private life, the European Court of Human Rights (ECtHR) in Von Hannover v Germany 59320/00 [2004] ECHR 294 has pointed out that this includes a person’s picture (para 50). Let’s just assume for the sake of this post that the Home Office officials have lawful authority for taking those pictures, because if they didn’t that would be illegal. So if the officials have lawful authority, what then? Is the Article 8 issue now exhausted?

Not quite, because the subsequent use of those pictures can still leave the Article 8 issue live. This can be seen in Peck v United Kingdom 44647/98 [2003] ECHR 44 here the applicant was filmed by a CCTV attempting to commit suicide by cameras operated by Brentwood Borough Council in a public street. A few months later, the Council issued two photographs taken from the CCTV footage for publication in an article about the preventative benefits of CCTV. The applicant’s face was not specifically masked. Extracts from the CCTV footage were also shown on regional television in which the applicant’s face had been masked at the Council’s request.

The ECtHR pointed out that the Independent Television Commission considered the masking of the applicant was not adequate because the applicant’s distinctive features (para 16). Many of the applicants friends and family who saw the ‘Crime Beat’ programme recognised the applicant (para 21) including people who knew him, like colleagues (para 54). So the important questions would be, from that image, could the individual be identified? Is the obfuscation adequate? Because on the on the @ukhomeoffice ‘Photos and videos’ page there is an image of an official whose obfuscation is telling.

The ECtHR reaffirmed the position that interaction even within the public context falls within the ambit of Article 8 (para 57). Also reiterating that using photographic equipment that records in a permanent nature gives rise to considerations regarding interference with Article 8 (para 59). But here the applicant was not arguing against the use of CCTV footage but the that it was the disclosure of that record of his movements to the public in a manner in which he could never have foreseen which gave rise to such an interference (para 60). The ECtHR concluded that the Council’s disclosure constituted a serious interference with the applicant’s Article 8 rights (para 61). This could be the case also for the present image.

After determining whether this was in accordance with the law and pursued a legitimate aim (which was satisfied para 64-67) the ECtHR also pointed out that ‘the applicant was not charged with, much less convicted of, an offence. The present case does not therefore concern disclosure of footage of the commission of a crime’ (para 79). Drawing analogies with Peck and the image tweeted by the Home Office is that the person is arrested on ‘suspicion’ so there are some similarities. The ECtHR criticised the Council for not taking the utmost care in ensuring the media masked those images and stated:

In sum, the Court does not find that, in the circumstances of this case, there were relevant or sufficient reasons which would justify the direct disclosure by the Council to the public of stills from the footage in its own CCTV News article without the Council obtaining the applicant’s consent or masking his identity, or which would justify its disclosures to the media without the Council taking steps to ensure so far as possible that such masking would be effected by the media. The crime-prevention objective and context of the disclosures demanded particular scrutiny and care in these respects in the present case (para 85).

For reasons such as these the ECtHR found the United Kingdom in violation of Article 8. This is not intended to suggest that this would be the likely outcome regarding the present images the Home Office has tweeted, but none the less great caution should be taken when releasing images of individuals to the public.

There is another issue that may be applicable here, and again it’s something to do with Europe, and something to do with human rights, a recipe for disaster! This time Article 6(2) of the ECHR may be relevant which states that:

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

This disallows premature declarations of guilt by public officials. In Allenet de Ribemont v. France 15175/89 [2007] ECHR 112 emphasised that not being charged but being arrested falls within the ambit of being “charged with a criminal offence” (para 37). Kouzmin v. Russia (link in French) points out that public official does not need to be an already elected representative or employee of the public authorities at the material time. It may include persons of recognised public standing, from having held a public position of importance in the past or from running for elected office (para 59-69). It seems pretty sure the Home Office’s twitter account would satisfy this as it is a public authority (para 49).

The ECtHR in Ismoilov and Others v Russia 2947/06 [2008] ECHR 348 stressed that:

A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question. The Court emphasises the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of a particular criminal offence.(para 166)

So essentially the Strasbourg Court is saying that poor choice of words could violate Article 6(2). The hashtag used in the tweet with the images states ‘suspected #immigrationOFFENDER.’ Offenders are those that have been convicted of an offence, a sex offender is someone who has been found guilty of a sexual offence, see generally F & Anor, R (on the application of) v Secretary of State for the Home Department [2010] UKSC 17. Obviously the word suspected demonstrates the suspicion the individual is under, but adding ‘offender’ in the hashtag is certainly poor choice of words, it may have been more appropriate to tweet ‘suspected of #immigrationOFFENCES.’ As pointed out the headline on the website does not, however help the case for the Home Office as it clearly states of ‘Immigration offenders arrested in Home Office operations.’ Only if one reads the body of the text will they discern that those arrested are suspected of an offence, this is sadly only after the website states ‘immigration offenders’ twice before even mentioning ‘suspected.’

Calling someone a ‘bribe-taker’ was enough to violate Article 6(2) in the case of Butkevičius v Lithuania so it is not that farfetched to suggest ‘immigration offender’ may as the ECtHR said ‘encourage the public to believe him guilty and prejudged the assessment of the facts by the competent judicial authority’ (para 53). Similar sentiments by Richard A. Edwards and Associate Professor @NoelleQuenivet regarding the presumption of innocence can be found here and an excellent post from the aspect of data protection here by @bainesy1969. I suppose this may all hinge on whether the individual is identifiable, but the ECtHR in Butkevičius v Lithuania noted that:

‘[Article 6(2)] will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law’ (para 49)

This implies a violation is possible irrespective identification. Regardless, the Home Office could not have trolled harder, as at the bottom of its site it asks:

Superman home office question

Perhaps the better question would be ‘Is there anything right with this page?’