Case Note: The Queen (on the application of Citizens UK) and Secretary of State for the Home Department [2018] EWCA Civ 1812

This guest blog by Jessica Brennan (UCC School of Law PhD researcher) analyses the recent UK decision on the treatment of children in the so-called ‘Jungle’ camp in Calais.

Court Misled Over Treatment of Children in Calais

This matter came before the Court by way of an appeal against the order of Soole J. The claim related to the lawfulness of what is known as the ‘expedited process’ which was established by the Secretary of State for the Home Department, the Respondent, together with the French authorities in October 2016 in response to the impending demolition of the makeshift tented encampment in Calais which was commonly known as ‘the Jungle’. Using the expedited process, the Respondent sought to assess the eligibility of unaccompanied asylum-seeking children to be transferred to the United Kingdom.

The legal argument revolved around whether the expedited process was unfair and therefore unlawful on any or all of the grounds advanced by Citizens UK; under EU law, under the common law or under the Human Rights Act of 1998. The Court of Appeal had the advantage of seeing further evidence which was not before the High Court or the Upper Tribunal of the Immigration and Asylum Chamber. Citizens UK argued at appeal stage that even if the position were otherwise at first instance, the additional evidence demonstrates that there was fundamental unfairness in the expedited process. Complaint was also made that the Secretary of State breached their duty of candour and co-operation with the Courts.

Factual Background

The demolition of the Calais camp was announced on 7th October 2016. This led to discussions between the Secretary of State and the French authorities, with a view to expanding and modifying a pilot process for an ‘accelerated’ Dublin III procedure. The expedited process, which became known as ‘Operation Purnia’, ultimately consisted of two phases. The first phase was an interview, decision-making and transfer phase, which took place at the camp itself in the last two weeks of October 2016. Approximately 200 children were transferred to the UK in the first phase. On 28 October 2016 the French authorities asked the Secretary of State to cease interviewing at the camp. In early November children began to be dispersed to CAOMIs (Centres d’accueil et d’orientation pour mineurs isloes) across France. That dispersal gave rise to Phase 2 of the expedited process. The second phase of the process related to 1,872 unaccompanied children who had not been fully processed in Phase 1. In the second phase, 90 UK officials interviewed the children in 20-minute slots over a period of three weeks. Interviews with family members in the UK were conducted by telephone by UK based officials. Decisions were made by comparing the paper records of those two interviews.

Following both phases a total of approximately 550 children were identified as being eligible for transfer under Dublin III and transferred to the UK between October and December 2016. However, over 500 children claiming to have family members in the UK were not transferred at that time. Refusal decisions were communicated not directly to the children but to the French authorities by means of a spreadsheet with only a one-word explanation related to the refusal. Most of the children were then told of the decision by the French authorities. Neither family members in the UK nor the children were contacted by the Secretary of State. They were never told of the reasons for refusal nor given any opportunity to correct errors whether actual or perceived in the decisions. Although there was an opportunity to ask for a reconsideration, in the vast majority of cases there was no new information and on reconsideration, the initial decision was merely confirmed.

Issues

The following issues were considered on appeal:

First, under EU law:

  1. Was Soole J correct to conclude that applications for international protection within the meaning of Article 2(b) of Dublin III had not been made by unaccompanied minor in the expedited process?
  2. Was Soole J correct to conclude that the process fell outside Dublin III and was not governed by its criteria and procedural protections?
  3. Was it lawful for the Secretary of State to devise such a scheme under EU lthe ECHR?

Secondly, was the decision-making process fair as a matter of common law?

Thirdly, was it fair in accordance with the procedural requirements of Article 8 of the ECHR?

Decision

EU Issues

Lord Justice Singh gave the judgment in the matter with Lady Justice Asplin and Lord Justice Hickinbottom concurring. The Judge began by firstly considering the place where a person makes an international protection application and found that international protection is not the same thing as an intention to make such an application after a person has been transferred to another Member State. Furthermore, an application must usually be made in accordance with the procedures laid down in Dublin III. In the present context, that would mean that an unaccompanied minor would have to make an application in France. If it then transpired that the mandatory criteria for a transfer to the UK set out in Article 8 were satisfied, that process would be followed. However, that does not lead to the conclusion that the expedited process adopted bilaterally by France and the UK in the present context amounted to a procedure under Dublin III. The Court found that as a matter of law, the expedited process was not a process under Dublin III.

The next issue considered was whether it was legally permissible for France and the UK to adopt the expedited process. Lord Justice Singh rejected that argument. The Judge found nothing to prevent a Member State from adopting a procedure in its own domestic law which requires an application for asylum to be made on its own territory and not from outside that state. Similarly, there is nothing to prevent two Member States of the EU from bilaterally agreeing that they will adopt a process which sits alongside that in Dublin III. It would be otherwise if they agreed to derogate from the procedural safeguards in Dublin III. However, that is not what the expedited process was. At all material times it was open to an unaccompanied minor in France to make an application for international protection, which would then have to be dealt with in accordance with the requirements of Dublin III. Even the fact that they were not selected for expedited transfer in anticipation of a formal consideration under Dublin III did not preclude them at any material time from making such an application in the future. Lord Justice Singh reached the conclusion that Soole J was correct in his interpretation of the Dublin III Regulation and accordingly rejected the appeal by Citizens UK insofar as it was based upon EU law.

Common law fairness

The Court considered whether the particular circumstances in which the Secretary of State was operating, sufficiently modified the duty to act fairly so as to relieve her from the usual requirements of procedural fairness. Lord Justice Singh agreed with Soole J that the most important concern was the “sparseness” of the reasons which were given for an adverse decision. The argument that it was possible for a person to proceed under Dublin III at all material times which attracted the full panoply of procedural safeguards was flawed for two reasons according to the Judge.

Firstly, it assumes that fairness is not required at an earlier decision-making stage because fairness is required at a later decision-making stage. Secondly, the pure Dublin III process could not in practice be insulated from what had gone before. Lord Justice Singh recognised that the manner in which the expedited procedure operated in practice had implications for the child applicant. For example, some children gave up and never made a formal application under Dublin III because of an adverse decision in the expedited process. The Judge suggested that if brief reasons were conveyed to the children affected at the relevant time, it might have been possible for someone to make a meaningful response, for example correcting some inaccuracy in the information. Conversely, if the reasoning was wholly accurate, it would have stopped them making a futile application for reconsideration or still less a futile application for formal consideration under the full Dublin III process. Lord Justice Singh concluded, the process which was adopted by the Secretary of State in the present context failed to comply with the requirements of procedural fairness as a matter of common law.

Article 8 of the echr

Lord Justice Singh found it unnecessary to lengthen the judgment further by addressing the procedural requirements that might arise under Article 8 of the ECHR but suggested that they could not give greater rights than the common law would in such a context.

the duty of candour and cooperation

The Judge ruled that the duty of candour and co-operation with the court is a “self-policing duty”. A particular obligation falls upon both solicitors and barristers acting for public authorities to assist the court. The duty of candour and co-operation is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide. The Judge warned that witness statements filed on behalf of public authorities in a case such as this must not either deliberately or unintentionally obscure areas of central relevance; and those drafting them should look carefully at the wording used to ensure that it does not contain any ambiguity or is economical with the truth. The duty not to mislead the court can occur by omission, for example by the non-disclosure of a material document or fact or by failing to identify the significance of a document or fact.

Lord Justice Singh reviewed the additional evidence available only at appeal stage and in particular the email correspondence between officials working on behalf of the Secretary of State. It came to the attention of the Court through this additional documentation that the French authorities requested more detailed reasons of refusal to be given to the minors. Such a request was refused by the British authorities on the ground that this would give rise to the risk of legal challenge. Further, it was found that the filter process had not been adequately explained in evidence, particularly the possibility of reconsideration. Lord Justice Singh concluded there was a serious breach of the duty of candour and co-operation in the present proceedings. The effect, even if it was unintentional, was that significant evidence was not brought to the attention of the High Court.

The Judge added that it was purely by chance that the Court came to learn of such important matters, including what was said in contemporaneous emails in December 2016 and January 2017. The most serious omission was the failure by those presenting evidence on behalf of the Secretary of State to explain the true reason why they refused to provide an adequate explanation to the unaccompanied minors as to why their claim had been refused. The Court found that such a decision was not based on urgency or because the French authorities demanded a greater explanation but because the British authorities did not wish to do so because of a perceived risk of legal challenge.

The Judge found that:

  1. there was a serious breach of the duty of candour and co-operation by the Secretary of State; and
  2. the evidence before the Court supported the submission made by Citizens UK that the process adopted was unfair and unlawful as a matter of common law.

Conclusion

A declaration was granted that there was a breach of the duty of fairness under the common law. As this was a generic challenge by a non-governmental organisation and given that the expedited process is now long in the past, no other remedy was deemed necessary or appropriate. This case highlights the responsibility placed on persons such as the Secretary of State to carry out their duties in a fair and lawful manner at all times and further reiterates the fact that children are entitled to the same fair procedures and processes as adults.

An Analysis of Common Justifications for Prisoner Disenfranchisement

This guest blog by Samantha Morgan-Williams (UCC School of Law PhD researcher) examines recent developments in the UK regarding prisoner disenfranchisement.

The ongoing saga of prisoner disenfranchisement in the UK has recently come to a head with the Committee of Ministers of the Council of Europe closing the supervision of the prisoners’ voting rights cases against the United Kingdom (UK) in December 2018. In adopting final resolution CM/ResDH(2018)467 the Committee has effectively accepted that the limited ‘administrative amendments’ are sufficient to satisfy the ECtHR. In the wake of the New Zealand Supreme Court’s confirmation that disenfranchising prisoners is inconsistent with the Bill of Rights, and amidst the enfranchisement of 1.5million convicted felons in Florida, this post seeks to revisit the political basis for disenfranchising prisoners, appraising determining the core arguments presented for justifying blanket bans on prisoner disenfranchisement.

Justification for Prisoner Disenfranchisement

Proponents of a ban on prisoner voting often justify disenfranchisement under one of the following reasons: the civic death or civic virtue ground; the social contract; or that disenfranchising prisoners achieves sentencing aims.

The Civic Death/ Civic Virtue Argument

The civic virtue and civic death arguments, although predominantly intertwined and spawned from the same ideology, differ on the actual reason or main aim of their use. The civic virtue argument stems from the act of committing of a crime as a member of a democratic process. This strand of this argument asserts that when one violates the laws one participated in creating, that one defaults on the agreement to respect the law and hence forfeits any right to assist further in creating it, in short, one loses their civic virtue. However, in order to say that prisoners lack civic virtue, certain generalisations must be inferred about their character and although it is true that people who break the law seemingly do not respect the law, the justification on this premise for taking away their vote based on a lack of civic virtue appears to create or infer a second punishment. Traditionally in most jurisdictions, sentences for crimes appear in the form of incarceration, thereby invoking the issue that if there has already been a punishment given, then what is the second crime then that prisoners are being punished for by forfeiting their vote? It follows that disenfranchisement is fundamentally an additional punishment and as such requires an additional justification, yet none has ever been supplied as far as this author can gauge. Consequentially this idea of civic death or a second punishment appears jurisprudentially to be morally unjustifiable. Thomas Hammarberg, former Commissioner for Human Rights at the Council of Europe, has articulated his opinion on this matter stating that:

 Prisoners though deprived of physical liberty, have human rights … Measures should be taken to ensure that imprisonment does not undermine rights, which are unconnected to the intention of the punishment.

Thomas Hammarberg

The civic death argument, much like the civic virtue argument, centres on a removal of civic rights or the right to be involved in the shaping of society by virtue of committing a crime. In losing civic virtue, one befalls civic death, a term which conjures forth draconian ideas of having damaged the democratic process and as a result losing all rights. In other words, if you refuse to follow the law, you clearly do not respect it and should lose the ability to partake in its development.

Although this is the most common justification used to justify the continuation of a blanket ban on voting for those imprisoned, it is undoubtedly the weakest, stemming from the fact that those who utilise the argument have yet to explain its rationale. Further, a brief overview of the history of this particular justification serves to undermine its very practice. The claim of civic death suggests that through the act of their crimes, prisoners lose their civic virtue, are no longer worthy of being afforded civic duties and as a result befall ‘civic death.’ It is apparent therefore that the relationship between the individual and the state changes radically when one is found guilty of an offence and incarcerated.

It is clear therefore the connected civic death and civic virtue argument is decidedly weak and standing as it does on feeble and unpersuasive evidence. The term ‘civic virtue’ is used as haphazardly as ‘civic death’ in support of prisoner disenfranchisement, with little evidence that its proponents can even define the essential term of the premise nor explain how it justifies the ban.

The Social Contract

The Social Contract theory has been used to justify the current stance taken in Australasia by the Australian and New Zealand Legislators respectively. In Australia, prisoners serving sentences of more than three years are denied the right to vote, and the Australian Human Rights Commission recognised that this is in breach of the State’s obligations under Article 25 ICCPR. In New Zealand, the position was much more severe, mirroring the UK’s stance with the effect that no person incarcerated after the amendment could register on the electoral roll. The High Court of New Zealand, highlighted the weakness of such arguments in the Arthur William Taylor case:

[T]hose ‘who infringe the laws of society to the extent that they are put into penal institutions should not be entitled to exercise a vote in a general election.’ A principled view to the contrary of Justice, is that a sentence of imprisonment should not deprive a person of civil rights, beyond those inherent in the sentence, namely freedom of movement and association. (Taylor v Attorney General [2015] NZHC 1706 at 25).

Taylor v Attorney General [2015] NZHC 1706 at 25

The use of the Social Contract argument places a great deal of trust and onus onto the effectiveness of a criminal justice system, as in order for the Social Contract theory to stick as a justification, we would need to ensure that all criminals are incarcerated or there would need to be an insured and complete consistency in sentencing process and a clear delineation of such. Pursuant to this, the Social Contract theory gives no guidance as to how we should do this or how we should create this degree of seriousness and minimal threshold. Furthermore, this argument neglects the comparative and complementary question of whether society has upheld its duties to the criminal, as they are also a person given obligations under the Social Contract. In short, we must not forget that the contract is bilateral.

The second strand of the Social Contract argument can perhaps be offered as an indicator of why the punishment manifests itself in such a way. The Social Contract theory asserts that when one violates the laws one participated in creating, the criminal defaults on the agreement to respect the law and hence abdicates any right to assist further in creating it. In short, while the first argument is based on the fact of the law breaking, the latter part of the argument claims that society can deny the vote to citizens based on an inference about their attitude to the law, given their law-breaking. In summary, both the civic death and Social Contract argument appear to follow the rather arbitrary approach that if you refuse to follow the law you clearly do not respect it and should lose the ability to partake in its development.

Achieving Sentencing Aims

A further justification often presented in favour of a continuing ban on prisoner enfranchisement is the premise that the blanket ban serves certain sentencing aims. Such a position is arguably the most untenable, particularly when one considers the vast research evidencing that engaging prisoners in civic duties mitigates ‘othering’ and has a direct consequence lowered rates of recidivism. This position however, found great favour in the UK in their attempts to justify the blanket ban created under the s.3 of the Representation of the People Act, 1983.

During a statement providing evidence before the Joint Committee on the Draft Voting Eligibility (Prisoner) Bill, the Right Honourable Jack Straw MP (former Home Secretary and Justice Secretary) and David Davies MP (former Shadow Home Secretary and Minister for Europe) both advocated this approach:

By committing offences which by themselves or taken with any aggravating circumstances including the offender’s character and previous criminal record require a custodial sentence, such prisoners have forfeited the right to have a say in the way the country is governed for that period.

Joint Committee on the Draft Voting Eligibility (Prisoner) Bill

Consequently, despite the over-generalisation of politicians contrary to this, research proves that maintaining a life as close to normality as possible during incarceration will make re-integration an easier process, aide rehabilitation and diminish recidivism rates upon the prisoner’s release. This point was recognised by Judge Caflisch in Hirst (No. 2) at para. 5 of his concurring judgment where he stated that:

The UK Government further contended that disenfranchisement in the present case was in harmony with the objectives of preventing crime and punishing offenders thereby enhancing civic responsibility (judgment, §50). I doubt that very much. I believe, on the contrary, that participation in the democratic process may serve as a first step toward re-socialisation.

Judge Caflisch in Hirst (No. 2) at para. 5

The supporting claim here is that the loss of the vote sends a clear message to the wrongdoer about the evil of their conduct: are we telling them that because they are a bad person they will not only be incarcerated but also further excluded as they committed a crime and their opinion is no longer valued? The second aim offered under the title of sentencing aims is deterrence. However, there is little evidence to support this stance and therefore this justification fails for two reasons. Firstly, policy makers are assuming that people know about disenfranchisement laws. Evidence suggests however the majority of those incarcerated are more concerned with maintaining their personal and familial relationships and losing their freedom than with their suffrage. Thus, the deterrence value of the deprivation of a right to vote is slim to none. Acknowledging that there are exceptions to each rule, it appears that if a person has chosen to forsake their civil liberties then deprivation of their electoral rights may not provide effective deterrence. On the contrary, greater civic involvement actually contributes to an easier transition into life post-incarceration.

Conclusion

In summary, recent events resulting in the enfranchisement of prisoners have been both welcomed and scorned in equal measure. When considering the interdivisibility of human rights and the apparent ‘worthy’ rights holder which disenfranchising prisoners creates, it is clear that prisoner disenfranchisement is an extremely polarising issue and arguably at odds with a number of legal norms. However, when the justifications for restricting prisoners from exercising their voting rights are examined, it is clear that such justifications – civic death, civic virtue, the social contract and the ambiguous achieving of sentencing aims – cannot withstand scrutiny.