Al-Skeini and others v UK [7 July 2011] (application no. 55721/07): This judgement from the European Court of Human Rights (ECtHR) found that the UK had an obligation to respect the human rights of Iraqi citizens in South East Iraq from May 2003 to June 2004 because the UK had assumed the responsibility of a sovereign state and carried out public authority duties.
When the UK failed to investigate the deaths of four Iraqi citizens shot by British soldiers, a 15 year old Iraqi boy beaten and forced into a river by British soldiers, where he drowned, and an Iraqi individual who died at a British military base with 93 injuries on his body, the UK could be held responsible for its violations of the European Convention of Human Rights (ECHR) in South East Iraq. The UK had jurisdiction over the individuals who died, and thus it could be held responsible for failing to investigate its breaches of the right to life (Article 2 ECHR) and the prohibition on inhuman and degrading treatment (Article 3).
Ostensibly, as a matter of treaty law, in signing the European Convention on Human Rights the UK agreed only to respect, protect and promote the human rights and fundamental freedoms of those citizens under its jurisdiction (i.e. individuals in Britain). In order for the UK to have violated its obligations under Article 1 of the ECHR (to respect human rights), therefore, it had to be shown that the UK had a responsibility to respect the human rights of the Iraqi citizens whose human rights were violated.
The UK argued that this would be a form of ‘human rights imperialism’: imposing a treaty (the ECHR) on Iraq when Iraq was not a party to the treaty. The Court rejected this, indicating the role for human rights law in armed conflict. ‘Those who export war ought to see to the parallel export of guarantees against the atrocities of war’ (Judge Bonello at paragraph 38).
This approach followed an ‘effective control’ or personal jurisdiction approach, rather than a territorial jurisdiction approach. The ECHR was deemed by the Court to have extraterritorial application in this case because of the kinds of control the UK was exercising over citizens, as if it were the sovereign state. This is important because it represents a more flexible conceptual approach to human rights than Bancovic and others v Belgium [2001] Application no. 52207/99. Bancovic was the leading case on extraterritorial application of the ECHR until now. In Bancovic the ECtHR said that a NATO bombing of a TV station in the former Yugoslavia which killed 16 people and injured a further 16 fell outside the jurisdiction of the states which carried it out: although they were parties to the ECHR, the bombing took place outside their territories.
In light of Al-Skeini, the ECHR now has ‘extraterritorial effect’ depending on the circumstances of a given situation. It will apply in zones of armed conflict where a state party to the ECHR takes on the role of public authority and is in effective control of citizens.
On the facts of the instant case, the UK had launched a full inquiry into the death of sixth applicant so there was no breach of Article 2. However, in the cases of all the other applicants the Court was unanimous in its finding that there had been a breach of Article 2 ECHR (right to life).
Zoë Sutherland
European Law principle of Equivalence
FA (Iraq) v Secretary of State for the Home Department [2011] UKSC 22 (25 May 2011)
This Supreme Court case was on appeal from the Court of Appeal and was heard on 23rd and 24th February 2011. Judgement was given on 25th May 2011.
Background to the case
The appellant, FA is an Iraqi national. He arrived in the UK on 21st August 2007 aged 15 and unaccompanied. He applied for asylum which was refused by the Secretary of State (herein after referred to as the SSHD). FA was not accepted to be a credible witness however, he was granted discretionary leave to remain as he was an unaccompanied minor. Leave was granted until 17 ½ years of age. FA appealed against the decision to the Asylum and Immigration Tribunal (AIT) on the basis that his rights under articles 2, 3 and 5 of the European Convention on Human Rights would be breached if returned to Iraq. His appeal was dismissed on asylum and humanitarian protection grounds. FA applied for reconsideration which was granted in order to consider whether there was a risk of serious harm under the Qualification Directive and para 339 of the Immigration Rules.
At reconsideration, the immigration judge felt that the original appeal should have been confined to asylum and that no appeal was available to FA on in relation to human rights or humanitarian protection grounds under section 83 of the Nationality, Immigration and Asylum Act 2002.
Legal Issue
Humanitarian Protection which derives from international, domestic and European law, is a subsidiary protection under the Qualification Directive, which is a European Legislative instrument. The issue was whether because a right of appeal exists against an asylum decision, whether European Law also requires a right of appeal against the refusal of an application for humanitarian protection.
Court of Appeal
FA relied on the European Law principle of equivalence which provides that, although Member States of the European Union can prescribe their own procedural conditions for the protection of European Law rights, national rules regarding those conditions must not be less favourable than those governing domestic actions. The appellant argued that he should be entitled to a right of appeal against the decision not to grant him humanitarian protection in the UK (based on European Law) and that denying him that right meant that, he was being subjected to rules less favourable than those applied to asylum (based on national law). The Court of Appeal accepted this argument and allowed the appellant’s Appeal. The SSHD subsequently appealed to the Supreme Court.
Supreme Court Considerations
The Court stated that the critical question was whether ‘the equivalence principle requires, as the Court of Appeal decided that it did, that a right of appeal must be available against the decision to dismiss FA’s application for humanitarian protection. This, in turn, depends on whether FA can demonstrate that there is a comparable domestic right which is subject to more favourable rules than is his humanitarian protection right’.
The court considered whether an asylum claim was a ‘legitimate comparator’ with a claim for humanitarian protection. The specific question asked was ‘Must the comparator with the Community law claim be a purely domestic measure?’
The court resolved that a preliminary ruling by the Court of Justice of the European Union under article 267 of the Treaty on the Functioning of the European Union was required. All parties were directed to make written submissions on the questions to be referred to the Court of Justice.
May 2011
European Court of Human Rights (ECHR)- rule 39 interim measures
Under Rule 39 of the Rules of Court, the Court may impose interim measures on any State party to the Convention (The European Convention on Human Rights). Any contracting State or individual claiming to be in violation of the Convention may apply to the Court for redress. For instance, failed asylum seekers who have exhausted all their appeal rights may be able to apply to the Court particularly those facing removal/deportation. Anyone can apply to the Court and need not be legally qualified.
Interim measures are essentially urgent measures which need to be taken to prevent irreparable damage. The applicant must be at imminent risk in accordance with the decisions in the cases of Mamatkulov and Askarov v Turkey and Paladi v. Moldova.
Interim measures are only applied in limited cases for instances where there is a threat to the applicants life in breach of Article 2 or where the applicant is at risk of being tortured in breach of Article 3. In some cases, applications based on a violation of Article 8 can also be made. Requests under Rule 39 that fall outside the Court’s scope will not be admitted and will be immediately rejected.
Requests under Rule 39 should be made in good time and usually immediately after exhausting domestic rights. Requests should be made by email, facsimile or courier. All requests should be accompanied by the relevant supporting documentation.
Once the application has been declared admissible, it will be considered either by the Committee or Chamber. Where the application concerns a deportation or extradition matter, the Court can ask the State to suspend removal until consideration of the application. The initial stage is generally written although the Chamber may decide to hold a public hearing.
Since 22 October 2010, the Court has applied Rule 39 against member States including the UK, the Netherlands and Sweden. The Court agreed that the security situation in Central Iraq had deteriorated to such an extent that Rule 39 should apply to all applicants being faced with removal to Iraq. This decision was subject to a review after one month. The Court has now reviewed the current situation with the aid of member Governments and the UNCHR. The Court has now announced that they will consider Rule39 applications based on the individual merits of each application. Cases where Rule 39 had already been applied will be reassessed.
November 2010
Germany _ Iraqi Christians
Following the recent attacks in Iraq upon the Christian’s, Berlin’s state interior minister, Mr Ehrhart Koerting, has encouraged the German government to grant asylum to up to 2, 500 Iraqi Christians. On Wednesday he commented that the German government should take in Iraqi Christians instantly and autonomously of European Union decisions.
He stated that humanitarian help must be provided to the Iraqi Christians as their country has failed to protect them.
This follows the attack on Monday where two Christians were subject to death in their homes by gunmen. Furthermore, it has been reported that last month militants ambushed a Catholic church in the capital, Baghdad, during a Sunday Mass and as a result 68 people were killed.
Statistics show that Germany has taken in 2, 500 Iraqi refugees last year and it is said that almost half of them were Christians.
Member states have been asked to respect the decision made by the ECHR concerning the removal of Iraqi citizens.
The Council of Europe Secretary General (Mr Thorbjørn Jagland) has made a vigorous response towards Member States who may be starting preparation in returning Iraqi citizens and describing it as a potential breach of a European Court of Human Rights decision.
The ECHR has requested countries such as Sweden, the Netherlands and the UK not to undertake forced returns to Iraq as a result of the decline in the current security safety situation in Iraq. Although all members states have been asked to respect this decision of the Court, the latest figures of the ECHR show that over four hundred applications have been made against Sweden from Iraqi’s requesting not to be deported.
Bomb blast in Baghdad kills over 130
A suicide bomb attack outside the Iraqi Ministry of Justice and Provincial Council has left over 130 civilians dead and over 500 injured. The building of the Ministry of Justice was severely damaged when vehicles that had passed through security checks detonated outside it. The attack is said to be worse then the recent bomb blasts of August this year which targeted the Foreign and Finance Ministries. Prime Minister Al-Maliki has blamed insurgent group Al Qaeda and supporters of Saddam Hussein’s former regime for the coordinated attacks and concerns were raised as to the security situation generally, particularly as American Troops prepare to withdraw over the next year. With Parliamentary elections approaching in January of next year, authorities fear an increase in attacks.
25/10/09
UNHCR concerned about forcible returns to Iraq
The United Nations High Commissioner for Refugees has expressed a concern over some European countries decisions to remove Iraqi nationals back to Baghdad. Iraqi persons originating from the region of central Iraq have been targeted for removal contrary to the UNHCR’s concerns about serous human rights violations in the central Governorates. The UNHCR maintain their position that involuntary return to central Iraq should not be administered until the security situation improves. However, despite this advice, certain European countries have already agreed upon readmission for voluntary and forced return with the Iraqi authorities. The UK government also attempted to forcibly remove 44 Iraqi failed asylum seekers earlier this month. However, only 10 of the 44 men were accepted with the remainder returned to the UK where they remain in detention.
24/10/09
Charter flight to Iraq returned to UK with all passengers
According to International Federation of Iraqi Refugees
NCADC state :
"According to reports from people on the plane, the authorities in Baghdad refused to let them get off after landing and the plane had to come back. They are now in Brook House detention centre."
NCADC
A Government-chartered flight carrying 44 Iraqi asylum-seekers touched down in Baghdad yesterday amid claims that deportations to the Middle East trouble spot were a flagrant breach of international law...Protests as asylum-seekers are returned to Iraq
Independent
The first deportation flight to Baghdad since the war began will leave Britain this week....The Independent
New High Court case in relation to family life in the UK ( Article 8), weather it is disproportionate to require an Iraqi to return to Iraq in order to make an entry clearance application on the grounds of the physical process that has to be gone through..
Minority Rights Group International Issued a new report on Iraq (Uncertainty and injustice for minority refugees from Iraq)
Source: Minority Rights Group International
Date: 24 September 2009
The UK Border Agency has issued updated Country of Origin Information Report (COI) on Iraq on 10th July 2009.
The UK Border Agency has issued a new Operational Guidance Note on Iraq on 5th June 2009.
In April 2009 the UNHCR issued a paper on Iraqi asylum seekers (UNHCR (April 2009) UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers).
The UNHCR considers that Iraqi asylum-seekers from the five Central Governorates ( Bagdhad, Diyala, Kirkuk, Ninewa and Salah Din ), are in need of international protection and qualify for protection under Article 15(c) of the Qualification Directive if they do not qualify as refuges or qualify for protection under Article 15(a) or (b). The new eligibility criteria effective from April 24 2009.
Furthermoe the UNHCR advised that internal relocation for individuals in Central and Southern Iraq is on the whole not available.