Case Law

(i)Said [2016] EWCA Civ 442 is not to be read to exclude the possibility that Article 3 ECHR could be engaged by conditions of extreme material deprivation. Factors to be considered include the location where the harm arises, and whether it results from deliberate action or omission. (ii) In cases where the material deprivation is not intentionally caused the threshold is the modified N test set out in AM (Zimbabwe) [2020] UKSC 17. The question will be whether conditions are such that there is a real risk that the individual concerned will be exposed to intense suffering or a significant reduction in life expectancy. (iii) The Qualification Directive continues to have direct effect following the UK withdrawal from the EU.

22 July 2021 | Judicial Body: United Kingdom: Upper Tribunal (Immigration and Asylum Chamber) | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): EU Qualification Directive - Freedom from torture, inhuman and degrading treatment - Livelihoods | Countries: Somalia - United Kingdom of Great Britain and Northern Ireland

The Court held that once the authorities had become aware of a credible suspicion that an individual had been trafficked, he or she should be assessed by a qualified person. Any decision to prosecute should follow such an assessment, and while the decision would not necessarily be binding on a prosecutor, the prosecutor would need to have clear reasons for reaching a different conclusion. In the case of both V.C.L. and A.N., the Court found that despite the existence of credible suspicion that they had been trafficked, neither the police nor the prosecution service had referred them to a competent authority for assessment; although both cases were subsequently reviewed by the prosecution service, it disagreed with the conclusion of the competent authority without giving clear reasons capable of undermining the competent authority’s conclusions; and the Court of Appeal limited itself to addressing whether the decision to prosecute had been an abuse of process. The Court therefore found that there had been a violation of Article 4 in both applicants’ cases. The Court found that, although the authorities had made some accommodations to the applicants after their guilty verdicts, the lack of any assessment of whether the applicants had been victims of trafficking may have prevented them from securing important evidence capable of helping their defence. As such the proceedings had not been fair, leading to a violation of Article 6 § 1.

16 February 2021 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Survivors of trafficking / Persons at risk of trafficking - Trafficking in persons | Countries: United Kingdom of Great Britain and Northern Ireland - Viet Nam

Although the applicant, who had entered Greece illegally, had benefited from satisfactory conditions of detention, the review of the lawfulness of his detention had been inadequate

15 January 2021 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Freedom from torture, inhuman and degrading treatment | Countries: Greece - Turkey

14 January 2021 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Decision on admissibility | Countries: Russian Federation - Ukraine

In an overall assessment of the exceptional circumstances in A's case and with special regard to her very strong connection to Sweden, the Court considers that her best interests outweigh the opposing interests of the State. An expulsion of A to Lebanon can therefore not be consid-ered proportionate and would thus be in violation of the CRC. A is therefore granted a residence permit in Sweden. B and C are granted residence permits as it would be in violation of Article 8 of the ECHR to separate the family.

22 December 2020 | Judicial Body: Sweden: Migration Court of Appeal (Migrationsöverdomstolen) | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Children's rights - Right to family life | Countries: Lebanon - Sweden

The Court considered that criminalisation of homosexual acts was not sufficient to render return contrary to the Convention. The Court found, however, that the Swiss authorities had failed to adequately assess the risk of ill-treatment for the first applicant as a homosexual person in the Gambia and the availability of State protection against ill-treatment from non-State actors. Several independent authorities noted that the Gambian authorities were unwilling to provide protection for LGBTI people.

17 November 2020 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Expulsion - Freedom from torture, inhuman and degrading treatment - Lesbian, gay, bisexual, transgender and intersex (LGBTI) | Countries: Gambia - Switzerland

The case concerned the applicant’s removal to Sudan by the Belgian authorities in spite of a court decision ordering the suspension of the measure. The Court found in particular that on account of procedural defects attributable to the Belgian authorities prior to the applicant’s removal to Sudan, he had been prevented from pursuing the asylum application that he had lodged in Belgium and the Belgian authorities had not sufficiently assessed the real risks that he faced in Sudan. In addition, by deporting the applicant in spite of the court order to suspend the measure, the authorities had rendered ineffective the applicant’s successful appeal.

27 October 2020 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Deportation / Forcible return - Effective remedy - Refugee status determination (RSD) / Asylum procedures - Suspensive effect | Countries: Belgium - Sudan

22 September 2020 | Judicial Body: Finland: Supreme Administrative Court | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Family reunification - Unaccompanied / Separated children | Countries: Finland - Iraq

The case mainly concerns the applicants’ complaints, under Article 5 of the Convention, that their arrest and detention as migrants in an irregular situation were unlawful, and that they were not informed of the reasons for their arrest and had no effective access to the procedure to challenge the lawfulness of their arrest and detention. It also concerns the eighth applicant’s complaint under Article 3 that she, a minor at the time, was not provided with adequate care in detention in connection with her pregnancy and the miscarriage she suffered.

16 July 2020 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Access to procedures - Arbitrary arrest and detention - Right to liberty and security | Countries: Eritrea - Guinea - Somalia - Ukraine

The case concerned a transgender man from Iran who had obtained asylum in Hungary but could not legally change his gender and name in that country. The Court noted that the domestic system for gender recognition had excluded the applicant simply because he did not have a birth certificate from Hungary, a change in the birth register being the way name and gender changes were legally recognised. The Court concluded that a fair balance had not been struck between the public interest and the applicant’s right to respect for his private life owing to the refusal to give him access to the legal gender recognition procedure.

16 July 2020 | Judicial Body: Council of Europe: European Court of Human Rights | Legal Instrument: 1950 European Convention on Human Rights (ECHR) | Topic(s): Birth Certificates - Lesbian, gay, bisexual, transgender and intersex (LGBTI) - Persecution on the basis of sexual orientation or gender identity - Right to family life | Countries: Hungary - Iran, Islamic Republic of