Watch that Charter

AB, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin) – read judgment

Here unfolds a story of sophisticated abuse of the asylum system in this country by an individual skilfully shamming persecution. Nor did the security agents who escorted the claimant on his departure come up smelling of roses: it emerged during the course of these proceedings that they had falsified a room clearance certificate to boost the defence case.

The judgment also points up the potentially far-reaching effect of the Charter of Fundamental Rights of the European Union and how this might render all the handwringing about the European Convention on Human Rights  irrelevant, and a home grown Bill of Rights otiose.

Factual background

The claimant, whom Mostyn J describes as “a highly intelligent, manipulative, unscrupulous and deceitful person”, arrived  in this country in 2005, was refused asylum and was deported in 2010. He sought judicial review of the Home Secretary’s decision to refuse his claim and return him to his state of embarkation, “Country A” (so designated because there was a reporting restriction order made in the original proceedings anonymising both the claimant, his country of origin, and the political organisation of which he claimed to be a member. Mostyn J “reluctantly” went along with that order in this proceedings, since neither of the parties applied to have it reviewed.)

  AB alleged that the Secretary of State by her servants or agents caused confidential documents to be placed in his baggage prior to his removal. These confidential documents he said related to his failed asylum claim and to his participation in the activities of “Organisation 1″ and came to the attention of government agents of Country A on his arrival at the airport. He was apparently detained, taken to a distant place, and brutally tortured. The following day,  by virtue of a bribe paid by his aunt to a colonel in the army, he was released, since when he has been in hiding in Country A (although, remarked the judge drily,  ”he has not been forced so deep underground that he has not been able to arrange through the British Embassy attendance at the United Nations building in order to participate in these proceedings by video link”).

The claimant  complained that the Secretary of State had

1.  acted in breach of her public law duty not to place him at real risk of being tortured;
2. acted in breach of article 3 of the European Convention On Human Rights by placing him at real risk of being tortured;
3. acted in breach of her duty of confidentiality to the claimant by causing or permitting the disclosure of confidential information to the authorities in Country A;
4. unlawfully interfered with the his rights under article 8 of the European Convention On Human Rights and article 7 of the Charter of Fundamental Rights of the European Union by causing private information to be disclosed to the authorities in Country A; and
5.  failed to protect the his personal data in breach of article 8 of the Charter of Fundamental Rights of the European Union.

All claims were dismissed.
Reasoning behind the judgment
Mostyn J observed that the fact that the claimant could procure the manufacture of such plausible fake documents as those purportedly emanating from the Ministry of Interior and the National Police in Country A spoke “volumes” about his “deceitful skills”. The documents emanating from the organisation of which the claimant purported to be a member were also fake.

The judge concluded that

i) There was no dangerous or compromising material emanating from or referring to the organisation placed in the claimant’s luggage; and

ii) The claimant did not once ask the escort team to remove such material from his luggage.

AB had therefore not discharged the burden of proof in respect of anything that he said happened to him after his arrival. He failed to satisfy the court that he had been detained or tortured.  He had not been exposed to any risk, let alone a real risk, of torture or inhuman or degrading treatment in the circumstances in which he was returned with his personal possessions. In such circumstances, continued Mostyn J, it was “hardly necessary” for him to go further and to express his opinion on the claim to a violation of the right of privacy, or the right to protection of personal data under the European Charter.

But express it he did. He was particularly “surprised” in relation to complaint no.5 in the claimant’s skeleton argument, since he was sure that the British government (along with the Polish government) had secured at the negotiations of the Lisbon Treaty an opt-out protocol from the incorporation of the Charter into EU law and thereby via operation of the European Communities Act 1972 directly into our domestic law. Here are the protocol provisions in full:

Article 1
1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.
Article 2
To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom. (see my post on the Protocol).

In the judge’s words

it is absolutely clear that the contracting parties agreed that the Charter did not create one single further justiciable right in our domestic courts. [my italics] The assertion in the sixth recital of the protocol that no new rights are created seems to me to be a misleading product of political compromise because on any view the Charter enunciates a host of new rights which are not expressly found in the European Convention on Human Rights signed in Rome in 1950. (para 12)

Needless to say, not everyone agrees with Mostyn J that the effect of the seventh protocol is to prevent any new justiciable rights from being created, least of all the Court of Justice of the European Union in Luxembourg. In  NS v SSHD [2011] EUECJ C-411 the CJEU declared that:

Article 1(1) of [the seventh] protocol explains article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligations to comply with the provisions of the Charter or to prevent a court of one of those member states from ensuring compliance with those provisions. (para 120 – see my post on this case)

Make of this what you will, but if the Protocol is of no effect, that means that the Charter introduces into domestic law all those parts of the ECHR that were deliberately missed out by Parliament when passing the Human Rights Act 1988, plus “a great deal more”, consisting mainly of social and economic rights with unpredictable budgetary consequences and problems in enforceability. As the judge says,

The constitutional significance of this decision [in NS ] can hardly be overstated. …Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.

Quod erat demonstrandum, by the claim in this very case. The claimant asserted, not only that he had been denied respect for his right to privacy under article 8 of the ECHR, but that his right to privacy under article 7 of the Charter of Fundamental Rights of the European Union had been violated. This provides that ”everyone has the right to respect for his or her private and family life, home and communications”. As Mostyn J observes, apart from expanding the concept of correspondence into communications it can be seen that this is exactly the same.

So it can be seen that even if the Human Rights Act were to be repealed, with the result that article 8 of the European Convention on Human Rights was no longer directly incorporated into domestic law, an identical right would continue to exist under the Charter of Fundamental Rights of the European Union, and this right is, according to the Court in Luxembourg, enforceable domestically.

Stop and think about this for a minute. If Mostyn J is correct – and there is no reason to believe that he isn’t – all talk of revoking the ECHR and producing a domestic bill of rights is rendered nugatory. The Convention will continue to rule from the grave, via the Charter and Section 72 of the European Communities Act. And that is the least of it – because – and this case demonstrates the potency of the Charter, albeit with unmeritorious facts – the Charter contains so much more by way of governmental obligations than the ECHR. In additional to the normal privacy rights under Art 8 of the Convention and Art 7 of the Charter, the claimant also ran an argument under Article 8 of the Charter, which entitles everyone to the right to the protection of personal data pertaining to them. Perhaps there were good reasons that this right was never formulated in the ECHR, and therefore has not been incorporated into our domestic law by the Human Rights Act. Nevertheless, by virtue of the decision in ME, and  notwithstanding the terms of the opt-out, the claimant was entitled, “surprising though it may seem”, to assert a violation of it in these domestic proceedings.

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