TODAY 22 March 2021: The European Court of Human Rights published this morning the Statement of Facts and Questions posed to the UK in H v United Kingdom. 33 Bedford Row’s Deborah Seitler (Head of Family) and Haydee Dijkstal are being led by Dr S Chelvan (Head of Immigration and Public Law) in this case, advancing a case for the four-year-old child’s Article 8 ECHR (private and family life) rights to her identity, and have her (consenting) biological father named on her birth certificate.
‘H’ was born to a surrogate mother, who is married. Under the current domestic law (sections 35 and 38 of the Human Embryology and Fertilisation Act 2008), the surrogate mother’s husband who has no biological link to ‘H’ is named as her father on the birth certificate. This is an application addressing the definition of ‘father’, and not ‘parent’. The current UK law automatically records the spouse of the surrogate mother as the father on the birth certificate, a status all parties know is factually untrue.
The UK has until 25 June 2021 to provide their response, with an opportunity thereafter for ‘H’ to respond, prior to admissibility and merits judgment by the Strasbourg Court. The hearing before the domestic Courts was heard before Lieven J in July 2019 ( EWHC 2095 (Admin)). The Strasbourg Court’s Statement of Facts and Questions can be read by clicking this link. Article 14 ECHR was only pleaded before the UK High Court, and not as part of the application to the Strasbourg Court.
Colin Rogerson, Partner at Dawson Cornwell is the solicitor instructed in what will provide guidance from Europe’s top human rights Court on the interplay between H’s Article 8 ECHR right to have her biological father recognised in law as her father, and the UK’s current outdated surrogacy laws.
In a second application communicated by the Strasbourg Court to the UK (HA v United Kingdom), the UK is being asked to respond by 25 May 2021 with respect to an application by an UNWRA recognised refugee from Lebanon who fears a real risk of article 3 ECHR harm on return to the camp, and where it has been accepted by UNWRA in evidence before the UK domestic Tribunals (First-tier Tribunal and Upper Tribunal (IAC)) that UNWRA is unable to afford him effective protection.
The case raises exceptionally important issues with respect to the UK’s approach to UNRWA cases, through the prism of Article 1D of the 1951 Geneva Convention on the Status of Refugees and 1967 Protocol (analysis of reasons the applicant left the camp), rather than firstly applying the Article 1A (2) future risk definition of a refugee, consistent with article 3 of the ECHR. Secondly, in any event the 2018 email from UNRWA confirming lack of effective protection to this appellant, avails him international protection.
33 Bedford Row’s Haydee Dijstal from the International Human Rights team is being led by Dr S Chelvan (Head of Immigration and Public Law), in these second set of proceedings.
Vanessa Delgado is the instructing solicitor (Duncan Lewis Solicitors (Swansea)). Both Dr Chelvan and Vanessa Delgado were instructed following the negative determination of the Upper Tribunal in 2019.
The link to the Strasbourg Court’s Statement of Facts and Questions in HA v the United Kingdom can be accessed by clicking the link.