Exceptional legal aid funding should not be limited to extreme cases – Court of Appeal

legal-aidR (on the application of) Gudanaviciene and others v The Director of Legal Aid Casework and others [2014] EWCA Civ 1622 – read judgment

The Court of Appeal has ruled that the Lord Chancellor’s Guidance on exceptional funding in civil legal aid is incompatible with the right of access to justice under Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. The Court has further decided that this Guidance was not compatible with Article 8 of the ECHR in immigration cases; in other words, that legal aid should not be refused when applicants for entry to the UK seek to argue that refusal of entry would interfere with their right to respect for private and family life.

This was an appeal against a ruling by Collins J in the court below that the appellant Director’s refusal to grant the respondents exceptional case funding under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in their immigration cases was unlawful. Continue reading

Cracking intercepts: the war on terror and difficulties with Human Rights

TheImitationGame-BCLiberty v Government Communications Headquarters ( IPT/13/77/H); Privacy International v FCO and others (IPT/13/92/CH); American Civil Liberties Union v Government Communications Headquarters (IPT/13/168-173/H); Amnesty International Ltd v The Security Service and others (IPT/13/194/CH); Bytes for All v FCO (IPT/13/204/CH), The Investigatory Powers Tribunal [2014] UKIPTrib 13_77-,  5 December 2014 – read judgment

Robert Seabrook QC is on the panel of the IPT and  David Manknell of 1 Crown Office acted as Counsel to the Tribunal  in this case. They have nothing to do with the writing of this post.

This is a fascinating case, not just on the facts or merits but because it is generated by two of the major catalysts of public law litigation: the government’s duty to look after the security of its citizens, and the rapid outpacing of surveillance law by communications technology. Anyone who has seen The Imitation Game, a film loosely based on the biography of Alan Turing, will appreciate the conflicting currents at the core of this case: the rights of an individual to know, and foresee, what the limits of his freedom are, and the necessity to conceal from the enemy how much we know about their methods. Except the Turing film takes place in official wartime, whereas now the state of being at “war” has taken on a wholly different character. Continue reading

Removal of subsidy for spare room not unlawful

Bedroom taxCotton and others, (R on the application of) v Minister for Work and Pensions and others, 15 October 2014  [2014] EWHC 3437 (Admin) – read judgment

Whether you call it the “spare room subsidy” or the “bedroom tax”, the removal of this type of housing benefit has been nothing short of controversial. There have been several previous legal challenges to the Regulations, as well as to the benefit cap introduced as part of the same package of welfare changes. The outcome of these cases was not promising for these claimants, in particular the decision of the Court of Appeal in R (MA) v Secretary of State for Work & Pensions [2014] EWCA Civ 13. Another important case is R (SG (previously JS)) v Secretary of State for Work & Pensions [2014] EWCA Civ 156.

Now the High Court has settled one aspect of the matter by ruling that these amendments did not breach the  rights of singe parents under Article 8 ECHR  who looked after their children under shared care arrangements where they received discretionary housing payments to make up the shortfall. Continue reading

Council’s decision to close elderly care home not unlawful

ammaoldagehomeKaria, R (on the application of) v Leicester City Council (Sir Stephen Silber, acting as High Court Judge)  [2014] EWHC 3105 (Admin) (30 September 2014)- read judgment

In a robust judgment Sir Stephen Silber has asserted that neither the ordinary laws of judicial review, nor the Equality Act nor the Human Rights Act require the courts to micro-manage the decisions of public authorities. Indeed the latter two statutory powers are not designed as a back door into a merits review of a decision that is restricted to the court’s review of the legality of a public sector decision.

Background facts and law

The claimant, a 101 year old woman of Gujarati descent, challenged the decision to close the care home which she has occupied since 1999. Her grounds of challenge were threefold:

1. that the Council had failed to take account of material issues of fact relating to the present and future levels of demand for residential care one provision

2. that it had reached its decision without due regard to the need under the Equality Act 2010 to avoid unlawful discrimination in the provision of services

3. and it had failed to take into account the impact of the closure on the claimant’s Article 8 rights

She also complained that she had a legitimate expectation of a home for life at Herrick Lodge and that the Council had not considered whether her needs could be met in alternative placements.

Although the judge was at pains to stress that as this was a judicial review application, it was not for him to assess the merits of the Council’s decision, merely its legality. Having done so, he concluded that the Council had not acted irrationally, nor had it  paid due regard to the need to advance equality of opportunity.

It is not for the Court to determine whether proper weight has been given to a factor where as here there has been proper appreciation of the potential impact of the decision on equality issues.

Continue reading

Foreign criminal cannot be deported because of his right not to be discriminated against on grounds of illegitimacy

aeroplane in sunsetJohnson, R (on the application of) the Secretary of State for the Home Department [2014] EWHC 2386 (Admin) 17 July 2014 – read judgment

The proposed deportation to Jamaica of a man convicted of drug smuggling and manslaughter would breach his rights under Article 8 and Article 14 because he had not obtained British citizenship on grounds of illegitimacy, the High Court has ruled.

The claimant challenged his proposed deportation to Jamaica, following his conviction and imprisonment for a very serious criminal offence. He submitted that deportation would violate his right to private and family life under Article 8 combined with the prohibition on discrimination under Article 14. The discrimination was said to arise because the claimant did not become a British citizen when he was born in Jamaica as the illegitimate child of a British citizen, whereas he would have been a British citizen if he had been a legitimate child, and a British citizen cannot be deported.

Following his conviction for manslaughter the claimant was sentenced to 9 years’ imprisonment. The length of his sentence meant that he was subject to automatic deportation as a foreign criminal pursuant to Section 32 of the UK Borders Act 2007. On his appeal against the respondent’s notice, the issue of discrimination arose because of the fact that the claimant would not have been a foreign national had his British father been married to his Jamaican mother when he was born (in Jamaica). Continue reading

Minimum income rules for immigrants do not breach human rights – Appeal Court

money_1945490cMM(Lebanon) and Others, R (on the application of ) v Secretary of State for the Home Department & Anor [2014] EWCA Civ 985 (11 July 2014) – read judgment

Neil Sheldon of 1 Crown Office Row acted for the appellant Secretary of State in this case. He has not had anything to do with the writing of this post.

Provisions in the Immigration Rules which impose income requirements on individuals living in the United Kingdom, who wish to bring their non-European Economic Area citizen spouses to live with them, are not a disproportionate interference with their right to family life under Article 8 of the European Convention on Human Rights. The Court of Appeal has also underlined the important (but often misunderstood) point that there is no legal requirement that the Immigration Rules should provide that the best interests of the child should be determinative. Section 55 of the Borders, Citizenship and Immigration Act 2009 is not a “trump card” to be played whenever the interests of a child arise.  Continue reading

Supreme Court rejects right to die appeals

Tony NicklinsonR (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent); R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant) [2014] UKSC 38 – read judgment

On appeal from [2013] EWCA Civ 961

The Supreme Court has declined to uphold a right to die a dignified death.  However, a glimmer is is to be found in this judgment in that two out of the seven justices who concluded that it was for the United Kingdom to decide whether the current law on assisted suicide was incompatible with the right to privacy and dignity under Article 8, would have granted such a declaration in these proceedings., particularly where the means of death was one that could have been autonomously operated by the disabled appellant, leaving no doubt as to the voluntary and rational nature of his decision.

But the majority concluded that this was a matter for Parliament, not for the Courts.

The following summary is from the Supreme Court’s Press Summary

Bacground 

These appeals arise from tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights (“the Convention”), and whether the code published by the Director of Public Prosecutions (“the DPP”) relating to prosecutions of those who are alleged to have assisted suicide is lawful. Continue reading