Students without indefinite leave to remain are ineligible for student loans

loanimage0 R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 1216 (31 July 2014) - read judgment

The United Kingdom was not in breach of the human rights of those individuals ineligible for student loans because they did not have indefinite leave to remain in the country. The relevant legislation limits eligibility for student loans to those who are “settled” in the United Kingdom (within the meaning of the Immigration Act 1971 ) and who have been ordinarily resident in the UK for three years. According to the Court of Appeal, requiring the Secretary of State to link criteria for educational  eligibility to changes in immigration rules would “enmesh” him into immigration policy:

His picking and choosing candidates for settlement as eligible for student loans, while not … unconstitutional, would be a fragile and arbitrary basis for policy in an area where clarity and certainty are required.

This appeal turned on  issues in relation to the right to education under Article 2 of the first protocol (A2P1) and the prohibition of discriminatory treatment under Article 14 of the European Convention on Human Rights.

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Prisoner’s rights not breached by segregation

man_in_prisonShahid v The Scottish Ministers [2014] ScotCS CSIH – 18 – read judgment

Solitary confinement of a dangerous prisoner in accordance with the prison rules was neither unlawful nor in breach of his Convention rights, the Scottish Court of Session has ruled.

The petitioner (as we shall call him to avoid confusion, rather than the more accurate “reclaimer”) was serving a life sentence for what the court described as a “brutal and sadistic” racially motivated murder of a 15 year old white boy in 2006.  Apart from a short period during his trial he remained continuously segregated until 13 August 2010, when he was allowed once again to associate with other prisoners (“mainstream”). He claimed that his segregation was contrary to the Prisons and Young Offenders Institutions (Scotland) Rules 2006 and, separately, contrary to Article 3 of the European Convention on Human Rights, which provides protection against torture and cruel and unusual punishments, and Article 8, which protects the right to private life. He sought declarations to that effect and £6,000 by way of damages. Continue reading

Disabled challenge to bedroom tax fails

first-home-buyersMA and others (on the application of) v Secretary of State for Work and Pensions & Ors [2013] EWHC 2213 (QB) (30 July 2013) – read judgment

The High Court has unanimously dismissed an application for a declaration that the so-called “bedroom tax” discriminates unlawfully against disabled claimants.

The arguments

This was a challenge by way of judicial review to regulations that came into force last year, reducing the amount of housing benefits by reference to the number of bedrooms permitted by the relevant statute (the Social Security Contributions and Benefits Act 1992 ).  These new rules, which have applied to claimants of housing benefit since April 2013, restrict housing benefit to allow for one bedroom for each person or couple living as part of the household. Discretionary housing payments are available for certain qualifying individuals to mitigate the effect of the new rules, in particular the effects on disabled people and those with foster caring responsibilities. Continue reading

An ABC on proportionality – with Bank Mellat as our primer

seo-marketing-320x200Bank Mellat v HM Treasury [2013] UKSC 39 (see judgment)

My post of earlier this week explained why the majority of the Supreme Court struck down a direction telling all financial institutions not to deal with this Iranian Bank. The legal ground (involving, as Lord Sumption described it, “an exacting analysis of the factual evidence in defence of the measure” [20]) was that the direction was “disproportionate”. The judgments (particularly the dissenting one of Lord Reed) tell us a lot about the scope of proportionality. And there is a good deal more to it than there might at first sight appear.

So it may be worth doing a bit of a bluffers guide, hand in hand with Lord Reed.

The concept arises in human rights law and in EU law. Its ECHR and EU incarnations derive from German administrative law, but its development in English law shows strong common-law influences. It applies in many different contexts, and the intensity of the review required critically depends on that context as well as the right being interfered with. So it is no simple thing to explain, but Lord Reed at [68] – [76] distils the main elements.

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Supreme Court considers conditions for removing child for adoption

mother-and-child_1681173cIn the matter of B (a child) (FC) [2013] UKSC 33 – read judgment

This appeal concerned whether a child of two years of age should be permanently removed from her parents and placed for adoption; and, in that regard, whether the child was likely to suffer “significant harm: within the meaning of s.31(2)(a) of the Children Act 1989; and a consideration of whether her permanent removal might interfere with the exercise of the right to respect for family life under Article 8 of the ECHR, and, if so, whether the order  should be proportionate to its legitimate aim of protecting the child.

The following summary is based on the Supreme Court press report. References in square brackets are to paragraphs of the judgment.

Background facts

The child concerned had been removed from her parents at birth under an interim care order. The mother was for many years in an abusive relationship with her step-father. She also had criminal convictions for dishonesty and a history of making false allegations. She had been diagnosed with somatisation disorder, a condition which involves making multiple complaints to medical professionals of symptoms for which no adequate physical explanation can be found. Continue reading

The felling of a tree might breach occupier’s right to respect for a home

italocalvinoLane v Kensington & Chelsea Royal London Borough Council (19 April 2013) – extempore judgement by Sir Raymond Jack QBD 

In Italo Calvino’s charming short story “The Baron in the Trees” the twelve year old son of an aristocratic family escapes the stultifications of home decorum by climbing up a tree, never to come down again. He literally makes his home in the treetops of his vast family estate.

So perhaps we shouldn’t quarrel with the inclusion of a tree as part of the concept of home life for the purposes of Article 8. The further twist is that the felling of this particular tree took place on a property where the appellant lived without a tenancy. Nevertheless, this event still amounted to a potential interference with his right to a home under Article 8. Continue reading

Satirical insult of head of state should not be a criminal offence, rules Strasbourg

PRS AUTOCEon v France, no. 26118/10   14 March 2013- read judgment (in French only)

The applicant, Hervé Eon, is a French national, a socialist and anti-GM activist living Laval (France). The case concerned his conviction for insulting President Sarkozy.

During a visit by the President to the département of Mayenne on 28 August 2008, Mr Eon had waved a placard reading “Casse toi pov’con” (“Get lost, you sad prick”), a phrase uttered by the President himself several months previously when a farmer had refused to shake his hand at the International Agricultural Show. The utterance was widely disseminated in the media and on the internet, attaining the status of a slogan. Continue reading