This week’s Digest considers three judgments. In the first, the Court of Justice of the European Union ruled that the uncertainty ensuing from Brexit does not require EU member states to refuse to execute a European Arrest Warrant to the UK. In the second, the Court of Appeal (Civil Division) considered what standard of proof is applicable to the determination of whether an individual qualifies for the status of a stateless person. In the third, the Divisional Court addressed whether an appellant would be subjected to treatment contrary to article 3 of the ECHR if he were extradited to Lithuania to face trial for alleged criminal conduct.
Case C-327/18 PPU Minister for Justice and Equality v RO
The judgment of the First Chamber, dated 19 September 2018, is available here.
On this preliminary reference, the CJEU was asked to consider whether member states requested by the UK to surrender subjects of EAWs should in fact surrender them, given the fact that the uncertainty ensuing from the UK’s exit from the EU might mean that rights enjoyed by EU citizens might not be enforceable thereafter. The CJEU’s answer was clear: the triggering of Article 50 TFEU did not require executing member states to refuse to accede to a request to extradite pending clarification of the law that will be applicable in the issuing member state following withdrawal from the EU.
This was a reference for a preliminary ruling under Article 267 TFEU from the High Court of Ireland. The request concerned the interpretation of Article 50 TFEU and of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘the Framework Decision’). RO is the subject of two EAWs issued by the courts of the United Kingdom and contended that, in light of the uncertainty regarding the UK’s exit from the European Union, it cannot be guaranteed that the rights which he enjoys under EU law will, in practice, be capable of enforcement thereafter. Therefore, he ought not be surrendered. He identified the following areas of EU law that might be engaged:
- the right to a deduction of a period spent in custody in the executing Member State, provided for in Article 26 of the Framework Decision;
- the so-called ‘specialty’ rule, the subject of Article 27 of the Framework Decision;
- the right limiting further surrender or extradition, the subject of Article 28 of the Framework Decision; and
- respect for the fundamental rights of the person surrendered under the Charter of Fundamental Rights of the European Union (“the Charter”).
Accordingly, the High Court made a reference to the CJEU for a preliminary ruling concerning the circumstances in which and the extent to which a requested member state is required by EU law to decline to surrender the person who is the subject of an EAW to the UK ([26]).
The Court answered the question as follows:
“Article 50 TEU must be interpreted as meaning that mere notification by a Member State of its intention to withdraw from the European Union in accordance with that article does not have the consequence that, in the event that that Member State issues a European arrest warrant with respect to an individual, the executing Member State must refuse to execute that European arrest warrant or postpone its execution pending clarification of the law that will be applicable in the issuing Member State after its withdrawal from the European Union. In the absence of substantial grounds to believe that the person who is the subject of that European arrest warrant is at risk of being deprived of rights recognised by the Charter of Fundamental Rights of the European Union and Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, following the withdrawal from the European Union of the issuing Member State, the executing Member State cannot refuse to execute that European arrest warrant while the issuing Member State remains a member of the European Union.”
AS (Guinea) v Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening) [2018] EWCA Civ 2234
The judgment, available here, was handed down by Lord Kitchin on 12 October 2018.
The Court of Appeal considered what standard of proof is applicable in determining whether a person qualifies as a stateless person, as defined by the 1954 Convention relating to the Status of Stateless Persons. The court was also asked to consider whether being stateless is relevant to the assessment of ‘exceptional circumstances’ necessary to outweigh the public interest in maintaining a deportation order under paragraph 390A of the UK’s Immigration Rules. The court held that the correct standard in assessing statelessness was the balance of probabilities; the appellant had failed to meet this threshold. It was therefore not necessary to deal with the second ground of appeal.
Factual background
The appellant was born in Guinea and entered the UK clandestinely on a fake passport. On 3 December 2004 he claimed asylum. Following his entry into the UK he became addicted to drugs and was convicted of multiple offences of robbery and theft. An order for his deportation was made in 2011 but in 2013 the appellant made a fresh claim for asylum on the basis that he was stateless. He argued before the First-tier Tribunal that he wished to return to Guinea and had done everything he could to establish his nationality, but had faced insuperable obstacles on both fronts. The judge did not accept this evidence. The appellant had made no effort to contact any of his friends or family in Guinea, nor the college at which he studied, nor any agency such as the Refugee Council or Red Cross. On the contrary, the judge found that the appellant had been remarkably inactive in establishing his nationality and so could not be considered to be stateless. The appellant appealed to the Upper Tribunal on the basis that the judge had applied the incorrect standard of proof, unsuccessfully, and then to the Court of Appeal.
To what standard must an asylum seeker establish that he is stateless?
The appellant, supported by the UN High Commissioner for Refugees, argued that the standard to be applied to stateless persons should be the same as applied in refugee cases, such that statelessness must be established ‘to a reasonable degree’. Lord Kitchin noted that although the 1954 Convention defines the term stateless person in Article 1(1) it says nothing about how states are to determine whether a person is stateless. This may be contrasted with the Refugee Convention. The court agreed that the UNHCR Handbook is persuasive authority, and could find no fault with the approach taken by the Upper Tribunal in consulting it.
Further distinctions between refugee and statelessness applications arise out of the practical hurdles faced by both classes of individuals. It is very hard for refugees to establish anything more than a reasonable degree of likelihood that they will be persecuted if returned to the country of their nationality, and the consequences of an error may be very severe. In contrast, there are a number of steps stateless persons can take to prove their status without risk of harm, such as gathering evidence as to their identity and residence and making applications to their embassy. The appellant and the UNHCR submitted that the 1954 Convention must be interpreted in light of its human rights and humanitarian objectives, not least because of the serious impact of statelessness. Lord Kitchen agreed, but held that these did not absolve the appellant from attempting to prove his status given the ease with which such steps might be taken.
After finding support for this reasoning in the authorities, Lord Kitchin ruled that a person claiming to be stateless must take all reasonably practicable steps to gather together all documents and other material which evidence his or her identity and residence. The applicant ought also to apply for nationality of the state with which he or she has the closest connection. If the applicant comes up against a brick wall, then the adjudicator will decide whether the applicant has established statelessness on the balance of probabilities. If it is a case where it would not be reasonable to expect the applicant to take this course the Secretary of State will assist the applicant by making enquiries on their behalf, but there is still no reason why the issues cannot be decided on the balance of probabilities.
Conclusion
The appeal was dismissed; it was not necessary to consider the second ground of appeal.
Jane v Prosecutor General’s Office, Lithuania [2018] EWHC 2691 (Admin)
The judgment, available here, was handed down by Dingemans J on 16 October 2018.
The same Divisional Court had previously found that there was a real risk that the appellant would be subjected to treatment contrary to article 3 ECHR if he were extradited to Lithuania, due to the conditions in Lukiskes remand prison. The appeal was stayed to give Lithuania an opportunity to provide suitable assurances. Seven such assurances were forthcoming. The appellant now argued that these assurances did not dispel the relevant risk. The court held that the assurances did dispel any risks and that the appellant’s article 3 rights would not be likely to be violated. The appeal was dismissed.
In November 2017 a District Judge had ordered the appellant to be extradited to Lithuania. The Divisional Court had stayed this order in May 2018 due to the conditions in Lukiskes remand prison in Lithuania. The Lithuanian Prosecutor General’s Office had since given assurances that the appellant would (i) be guaranteed a minimum space allocation of no less than 3 metres per person, (ii) spend a maximum of 10 days on remand, and (iii) be held in the refurbished parts of the prison.
The appellant made three submissions. First, it was apparent that Lithuania considered the entirety of Lukiskes compliant with the ECHR, when the court had determined the opposite; secondly, the appellant might be held in Siauliai prison where there was less evidence about cell renovations; and thirdly, the assurances were vague and unspecific.
The court held that it was not appropriate to view friendly foreign governments through the lens of a technical analysis of the words used and with suspicion that they will do everything possible to wriggle out of their commitments. Lithuania, as a fellow Member State of the European Union, is such a friendly foreign government. This principle of mutual trust between Member States was recently reaffirmed by the Court of Justice of the European Union. Where an assurance is given, the executing judicial authority must rely on that assurance, at least in absence of any specific evidence that the prison would infringe the relevant article 3 protections.
Further, there was no evidence before the court to undermine the conclusion that the appellant would likely be held in Lukiskes prison. While the possibility could not be excluded that he might be held elsewhere, such as in Siauliai, this was not likely. Finally, the assurance was not overly general as it specifically referred to the renovated cells in Lukiskes prison. The latest report on prison conditions in Lithuania had raised no concerns about these cells. While identification of the actual cells, with relevant descriptions and even photographs, was to be preferred, it was not necessary. The appeal was dismissed.
NEWS
Homicide rates in England and Wales are the highest since 2008
It is the fourth year in a row that there has been a rise in homicide rates, while at the same time, fewer perpetrators are being caught. Charge rates have almost halved since 2015, from close to 100% to nearly 50%.
The full piece can be found here, with a statistical breakdown here.
Anjem Choudary released on licence
Radical preacher Anjem Choudary, jailed for inviting support for the Islamic State group, has been released after serving half of his sentence. Up to 25 measures to control him have been prepared including a ban on preaching at or attending certain mosques, associating with people not approved by the authorities, non-supervised internet use, travelling outside the M25, and leaving the UK.
More details can be found here.
Parliamentary report into bullying and sexual harrassment published
Senior House of Commons staff need to make radical changes, a report into bullying and sexual harassment in Parliament has said. Dame Laura Cox’s report details alleged sexual harassment by MPs: “Disturbing” cases have “long been tolerated and concealed”.
More details can be found here.
New York celebrated the first weekend since 1993 in which no one was murdered or shot
From Friday 12 October to Sunday 14 October there were no shooting reported throughout any of the city’s five boroughs. The milestone was marked as the overall murder rate continues to fall since a high of 2,245 was recorded in 1990. Last year saw the lowest murder rate recorded in the city since 1951, at just 292, although 2018’s total looks set to be higher.
The full story can be found here.
