Migration & Refugee Rights

Article 2 issues may arise when staff do not follow proper procedures to protect people’s right to life when they’re in immigration detention.

Carlington Spencer died of a stroke while in immigration detention. His friends noticed symptoms, such as slurring, dribbling and collapsing on the floor, and told staff they were worried. However, staff were dismissive and did not check for a stroke because they assumed that he had taken a drug known as “spice” (although they had not found any evidence to suggest this). They recorded the symptoms in an “illicit substances” log but did not review Carlington’s wellbeing before closing it. The next day Carlington was worse and his friends set off emergency alarms. Staff called a “non-emergency” ambulance which did not arrive for another hour. Carlington died three days after and courts found that staff failure contributed to his death.

Article 3 issues may arise when decision-makers deport people to countries that put them at risk of severe harm or torture.

In 2008, two Iraqi men were being detained by British forces in Iraq, accused of killing two British soldiers. The Iraqi High Tribunal (IHT) wanted the British forces to transfer the men to their custody to be tried – but there was a possibility the men would be sentenced to death if tried in the IHT. The men applied to UK courts to stop them being transferred to the IHT on the basis that the “real risk of…being condemned to death by hanging” was a breach of their Article 3 rights. However, the UK courts said that because the British forces were working in Iraqi territory, they didn’t have the power to refuse to transfer them. The men appealed to the European Court of Human Rights (ECtHR) who told the UK not to transfer the men until further notice (known as “interim measures”) but the UK ignored this. The ECtHR found that in doing so the UK had caused the men mental suffering that breached Article 3. The Iraqi court later decided that there was insufficient evidence to try the men of the killings and so they were released. The UK’s Iraq Historic Allegations Team also later investigated allegations of mistreatment of the men by British soldiers while they were being detained.

Article 4 issues may arise when police fail to properly investigate trafficking claims.

Three young Nigerian women were trafficked to the UK. Once in the country, they were abused and forced to work as unpaid servants in people's homes. They said that the police had failed to investigate their allegations over two and a half years. They took a human rights case against the police to the UK courts. The police argued that it had not been possible to commence an investigation because the three women had not cooperated, but the court rejected this, and said that the police did "nothing to commence an effective investigation". The court decided that the police were liable for failing to investigate these credible reports of slavery, servitude or forced labour.

Article 5 issues may arise when people are held in immigration detention without proper procedures being followed.

JN is an Irani national who sought asylum in the UK but his application was refused. He was then arrested for indecent assault. The Home Office decided to deport him and he was told he would be detained. He then told the Iranian authorities he wanted to return to Iran but they could not issue travel documents without his birth certificate, which he did not have. They then said they would issue the documents if JN signed a “disclaimer” but he refused. He was temporarily released from detention but was required to report regularly to immigration authorities. He was detained during one reporting visit and kept in detention for over a year, during which time he was diagnosed with “reactive depression”. He then said he would sign the disclosure and return to Iran if he was compensated for the period of detention but the Home Office refused. He applied for bail on multiple occasions but was refused. The court found that because the Home Office did not act with “reasonable diligence and expedition” to deport JN, his detention became unlawful as it couldn’t be said that it was for the purposes of deporting him.

Article 8 issues may arise when there are not adequate provisions in place to support a person’s private or family life.

IJ was a Potential Victim of Trafficking who sought asylum in the UK. Potential Victims of Trafficking who are granted leave to remain in the UK for a short period are able to work, whereas people seeking asylum are, by default, only allowed to work jobs specified on the Shortage Occupation List. However, they can apply for an exception to be made. IJ applied to be allowed to work as a cleaner but was denied. She said that the Home Office wasn’t considering the circumstances that separated her from other people seeking asylum (ie her trafficking claim) and this was discriminatorily interfering with her Article 8 right to private and family life. Although the court found that her personal circumstances had been considered, they also found that the guidance issued by the Home Office was insufficient and did breach Articles 8 and 14.

Article 14 issues may arise when laws or guidance disproportionately impact people as a result of their immigration status.

SK came to the UK with a three-year-old son and was allowed to stay as a refugee. She then got pregnant and applied for the Sure Start Maternity Grant (a £500 payment to help with the costs of a new baby). She was refused because the grant was only available to people having their first child, on the assumption that people having their second child would already have baby items. There are a few exceptions to this rule, but SK did not fit into any of them. However, SK argued that refugees who had a child before they came to the UK are unlikely to have brought baby items with them. They are in a different situation to most pregnant women, so not making an exception for them was a discriminatory interference with their Article 8 right to family life. The court agreed and women in SK’s situation can now claim the grant.

Article 1, Protocol 1 issues may arise when staff confiscate people’s property without good reason.

HM, MA and KH arrived in the UK by small boat and claimed asylum. The Home Office immediately seized their mobile phones because they had a blanket (and unpublished) policy of taking the phones of everyone who arrived this way. HM, MA and KH said they were “bullied” by staff into giving them their passcodes so staff could look at the emails, photos and videos and save them to an intelligence database. The court said this blanket policy was a disproportionate interference with their right to peaceful enjoyment of possessions as well as their right to private life. Blanket policies typically are not human rights compliant because they don’t take into account individual circumstances. The Home Office accepted that its policy was unlawful, and they got rid of the policy.