Search results

The object of this research is the reconstruction of the existing legal response by European Union states to the phenomenon of immigration. It seeks to analyse the process of conferral of protection.

One main dimension is selected and discussed: the case law of the national courts. The study focuses on the legal status of immigrants resulting from the intervention of these national courts.

The research shows that although the courts have conferred an increasing protection on immigrants, this has not challenged the fundamental principle of the sovereignty of the states to decide, according to their discretionary prerogatives, which immigrants are allowed to enter and stay in their territories. Notwithstanding the differences in the general constitutional and legal structures, the research also shows that the courts of the three countries considered – France, Germany and Spain – have progressively moved towards converging solutions in protecting immigrants.

The research contributes to a better understanding of the different legal orders analysed.

This paper aims to review recent cases in the Court of Protection on the issue of article 8 ECHR right to respect for family life and whether it requires a starting point that it is in an incapacitated adult's best interests to be cared from at home. In this context, it examines the role of article 19 UN Convention on the Rights of Persons with Disabilities (UNCRPD) in the article 8 and best interests analysis carried out by the court under s.4 Mental Capacity Act 2005.

The article examines the recent cases of K v. A Local Authority, FM and GM v. A Health Board and recent cases on the status of the UNCRPD in English Law to explore whether the UK's obligations under that convention require there to be a starting point that incapacitated adults should be cared for at home.

The Court of Protection has made it clear that talking in terms of presumptions is unhelpful when it comes to the s.4 MCA 2005 checklist. The broad terms of s.4 require that all relevant circumstances are taken into account which would include any potential infringement of article 8 ECHR.

The article identifies an argument that could be used by campaigners and practitioners who advocate for the right for disabled persons to be cared for at home, through an analysis of recent cases. It notes the argument's limitations with respect to incapacitated adults and the application of s.4 Mental Capacity Act 2005.

The purpose of this paper is to assess the implementation of the minimum level of protection against the loss of the home that arises from Article 8 of the European Convention on Human Rights in The Netherlands. The paper focuses on anti-social behaviour-related cases in which the landlord requests the court to issue an eviction order.

The paper is based on a statistical analysis of nearly 250 judgements concerning housing-related anti-social behaviour.

A significant difference is found in the court’s attitude against drug-related anti-social behaviour and other types of nuisance. Moreover, it is found that in two-thirds of the cases, the tenant advanced a proportionality defence. Although the European Court stresses the need of a proportionality check, the Dutch courts ignore the tenant’s proportionality defence in 10 per cent of the cases and issue an eviction order in the majority of all cases. Advancing a proportionality defence does not result in any difference for the court decision.

The paper presents original data on the legal protection against eviction in cases concerning anti-social behaviour. This is the first study that analyses the approach towards housing-related anti-social behaviour in the context of the European minimum level of protection. Whilst centred on legislation and procedures in The Netherlands, its findings and discussion are relevant in other jurisdictions facing similar issues.

This paper aims to examine the primary fundamental rights concerns related to biometrics and their use in automated border controls (ABCs), as well as how these issues converge in the European Commission’s Smart Borders proposal.

This paper draws on extensive background research and qualitative in-depth interviews conducted in 2013 for the European Union (EU) FP-7 project “FastPass – A harmonized, modular reference system for all European automatic border crossing points”.

The Smart Borders proposal not only compounds the individual concerns related to the use of biometrics in border controls and automatisation thereof, but also has serious issues of its own, premier among which is the imposition of a two-tier border control system.

The paper is a catalyst for open debate on the fundamental questions of how we got to this point and where do we want to go. It questions the process by which the increased use of IT in border controls has become the norm and policy trend in Europe, and discusses where the limits could be drawn from a fundamental rights perspective. In particular, it warns against the institutionalisation of a two-tier border control system among third-country nationals.

Little attention is given to the fundamental rights concerns raised for EU and non-EU citizens as related to biometrics and their use in ABCs, and how these issues are reproduced in the Smart Borders proposal. The paper fills this gap by taking a bottom-up approach: examining the implications of individual elements of the proposal to see their impact on the broader policy.

The Greek insider trading and market manipulation (market abuse) regime is in the process of transformation by the new Code on Capital Market, which internalises the provisions of the 2003 Market Abuse Directive. The new market abuse prohibition follows an effect‐oriented approach, which, in conjunction with the application of strict administrative law sanctions, is likely to expand the scope of liability. Though, however, the new market abuse regime will facilitate the prosecution of insiders and manipulators, a number of issues are left open to discussion. Consequently, supervisory authorities and courts are required to display particular care in the interpretation and application of the new regime in order to ensure effective enforcement.

Recognising that financially related, personal information is the raw material of successful asset recovery investigations, the paper aims to examine the mechanisms which investigators may use to gather such information and the legal barriers to information gathering.

The paper draws on the author's own practical experience of involvement in criminal asset recovery proceedings in the UK.

It is the State's obligation to deliver criminal asset recovery in the most efficient and cost‐effective way, consistent with privacy rights and obligations, providing value for money in what is delivered by law enforcement. Doing so will require making better use of financial information held by public sector agencies. There must be no form of financial information which is beyond the reach of an investigator in an appropriate case. If there is, criminals will utilize that weakness to place criminal assets where information in respect of those assets cannot be obtained. If asset recovery is to be successful, it is essential that – to use the metaphor of financial information as “dots” – investigators are able to collect the dots, connect the dots and share the dots.

The paper identifies: the need to keep the legal tools used to obtain information under regular review; eight core information skills which investigators must develop for effective asset recovery; and the importance of a multi‐disciplinary approach in analysing financial information.

The paper explores UK criminal asset recovery from an informational perspective.

The Immigration Act (2014) at Part 3 established a new regime with private landlords incurring penalties (and potentially criminal liability from 1 November 2016) if they allow a person disqualified, by reason of migration status, to reside in a property as their only or main home. Known colloquially as the “right to rent”, the provisions restrict access to accommodation and impose onerous duties on landlords to check tenants’ migration status. The purpose of this paper is to consider how a change in the emphasis of regulation introduced by the provisions, resulted in the coalescence of opposition by landlords and renters in a way that historically would have been unthinkable.

Using the lens of Foucault’s governmentality, it is possible to see how Government sought to shift the locus of control from itself to the landlord, which through its legislative and policy stance resulted in such fierce opposition as evidenced by the first instance challenge to the provisions in R (Joint Council for the Welfare of Immigrants) v SS for the Home Department [2019] EWHC 452 (Admin).

The focus of regulation introduced by the provisions resulted in the coalescence of opposition by landlords and renters in a way that historically would have been unthinkable. Landlords and renters are usually thought of as being in opposition, but not so here. This may offer hope for more productive regulatory outcomes where both parties work together. It may also suggest that encroaching on the notion of private rights and interests in law could result in counterproductive consequences.

Unlike Foucault’s notion of surveillance and control, governmentality shifts the emphasis from a hierarchical conception of government to practices including self (imposed) governance – with here, the landlord being required to act as a proxy for border agents. This suggests that there may exist boundaries beyond which, in a given context, it might be unwise for Government to step without adverse consequences. Foucault’s ideas provide a starting point, but do not give us all of the answers.

The coalescence of opposing actors can be a significant force to challenge government given the extent of their knowledge of the given context. It may also suggest a route to a more collaborative form of regulation.

A novel theoretical take on an issue of concern raised by practitioners and interest groups alike.

This article identifies children’s rights as a neglected area in citizenship literature, both in socio-legal scholarship and in British nationality case law. It analyzes reasons for this neglect and posits that there exists a dichotomy in approaches to the wellbeing of children in the UK. The characterization of children’s interests and subsequent obligations owed by states to children are different in nationality law from other areas of law, notably, family law. Through our case study of the registration of children as British citizens, we argue that in the UK formal legal membership may appear achievable “in the books” but remains elusive in “law in action.” Children’s interests should be just as central to citizenship studies and nationality case law as to family law cases. A new approach to acquisition of British citizenship by children, with the best interests of the child as a critical evaluative principle at the heart of decision making, will usher in a new era. In the absence of such reconceptualization, children remain passive subjects of nationality law and their voices are unheard in processes of acquisition of citizenship.

This paper aims to review the recent Court of Protection case law on deprivation of liberty and consider whether it will help to achieve the right balance between minimising state interference with individuals and families, and protection of the most vulnerable, or risk undermining the core purpose of the system.

The paper reviews the underlying rationale of the Deprivation of Liberty Safeguards (DOLS), the implications of the recent key Court of Appeal judgment in P v. Cheshire West and Chester.

There are significant potential adverse effects from the judgment in Cheshire, and the way in which it has been interpreted to date, including a risk of undermining the very purpose of DOLS, and a risk of discriminatory effect.

The paper provides a detailed analysis of Cheshire from the perspective of a Court of Protection practitioner, and advice on a practical approach to dealing with the concerns it raises.