Court of Appeal refuses permission to appeal in Article 3 case — Vanessa Long

20 November 2018 by Guest Contributor

In the recent judgement of MM (Malawi) & MK (Sri Lanka) v SSHD [2018] EWCA Civ 2482 the Court of Appeal declined to grant permission to appeal to the Supreme Court for consideration of whether the test under Article 3 for removal of foreign nationals in medical cases, as set out in Paposhvili v Belgium [2017] Imm AR 867 , was correctly interpreted by the Court of Appeal in AM (Zimbabwe) v SSHD [2018] EWCA Civ 64.

Background

The issue in this case was whether the removal of a foreign national from the UK would breach their rights under Article 3 not to be subject to inhumane or degrading treatment where they are in receipt of medical treatment in the UK which is not available in their home country.

In 1997 the European Court of Human Rights (ECtHR) determined in D v UK  (Application no. 30240/96) that, as the applicant was in the advanced stages of AIDS to the extent that he was reliant upon palliative care in the UK and would receive no comfort or moral support in his home country, his removal would constitute a breach of Article 3. This was noted to be a ‘very exceptional’ case.

The current leading domestic authority is N v Secretary of State for the Home Department [2005] UKHL 31. N was also diagnosed with AIDS but owing to the availability of treatment in the UK she was expected to live for decades; however, if returned to Uganda, where such treatment was not available, she would die within one to two years. Lord Hope set out the test for ‘very exceptional’ as follows:

For the circumstances to be […] ‘very exceptional’ it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying …” [my emphasis]

Therefore, although N would die much faster in Uganda, as she would not be subject to ‘acute suffering’ whilst dying there was no breach of Article 3. This was held to be the case even though it was accepted that N’s life would be significantly shortened [see Lord Nicholls at para 15]. The issue was declared to be not whether her death would follow removal but whether “there is care available […] to enable [her] to meet that fate with dignity” [Baroness Hale, para. 69]. In N’s case it was considered that such care was available. The Grand Chamber of the ECtHR approved this reasoning in N v UK (Application no. 26565/05).

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The Round Up: Use of personal data, the re-detention of foreign criminals, and betting on the National Lottery

20 November 2018 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

Max Hill QC. Credit: The Guardian

In the News:

Max Hill QC, the new Director of Public Prosecutions (‘DPP’), has said that rape victims’ mobile phones will no longer be seized “as a matter of course”.

His comments come in the wake of allegations that prosecutors are increasingly making demands to access victims’ personal data. The Association of Police and Crime Commissioners suggested that the CPS been pushing investigators to make more invasive searches, even if officers are satisfied that they have pursued all reasonable lines of inquiry. This may be part of an effort to improve conviction rates.

Big Brother Watch wrote to the Information Commissioner’s Office (ICO) last week arguing against this trend. The campaigning group said it was becoming ‘routine’ to download the contents of sexual offence victims’ phones, and that the information could legally be stored for 100 years. In response, the ICO is considering widening its investigation into the use of victims’ information. It also spoke out against accessing rape victims’ mobile phone data and personal records.

Max Hill QC says that he aims to boost public confidence in the CPS and would improve the disclosure of evidence in criminal trials. The organisation has been struggling under 25% budget cuts and revelations of recent disclosure failings.
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‘Subsistence’ and modern slavery — David Burrows

19 November 2018 by Guest Contributor

In a week when Professor Philip Alston has so firmly – and publicly – emphasised the failures of the British government to appreciate the depth of poverty in the United Kingdom, it is instructive to have a view from the High Court as to a meaning of ‘subsistence’ in another, important, context, namely modern slavery.

In K & AM, R v Secretary of State for the Home Department [2018] EWHC 2951 Mostyn J was concerned with subsistence payments for victims of modern slavery. The case concerned whether the Home Office’s cut to payments made under this country’s internationally agreed obligations to provide support to victims of trafficking constituted a breach of the rights of the victims. The court gave judgment for the claimants, finding that the cut was unlawful.

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Supreme Court rules that immigrants without indefinite leave have “precarious” status in UK

16 November 2018 by Jonathan Metzer

On 14th November 2018 the Supreme Court gave judgment in the case of Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58. The effect of this decision is that:

(a) A claimant at the Immigration Tribunal who relies on their private (not family) life under Article 8 will be entitled to have only “little weight” placed on that private life if they have been in the UK without indefinite leave to remain, unless there are “particularly strong features of the private life in question”; and

(b) A claimant who is financially dependent on other people but not on the state should not have that fact held against them when assessing the public interest in their removal.

Whilst the result was a victory for the individual claimant in this case, the wider consequences of this decision will be to clarify and tighten the law in a way that will make it even harder than it already was for claimants to succeed on the basis of their private life in the UK.

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EU draft Withdrawal Agreement: what does it say?

15 November 2018 by David Hart QC

The draft Agreement – here – is a mere 585 pages. No harm in trying to read it, or the bits of it which are of particular interest, because in that respect you may be well ahead of some of the rather noisier politicians.

It may seem a bit premature to say too much about it, not least because of the political turmoils, but it promises that

(1) the EU and UK will “use their best endeavours” to have a future trade agreement concluded six months before the end of the transition period in December 2020; this is extensible on agreement thereafter;

(2) but that if this is not the case the EU and the UK could “jointly extend the transition period” for an unspecified period.

Anyway, first thoughts on some of the detail.

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When can a dishonest professional receive a lesser sanction of suspension?

15 November 2018 by Leanne Woods

Solicitors Regulation Authority v James, MacGregor and Naylor [2018] EWHC 3058 (Admin) — read judgment here.

In three appeals, the Divisional Court considered the circumstances in which a solicitor might avoid being struck off the Roll after findings of dishonesty in disciplinary proceedings. In short, if you are a dishonest solicitor, striking off will be hard to avoid. The impact on other regulated professions is up for grabs.

Facts

In three separate cases the Solicitors Regulation Authority (the ‘SRA’) appealed against the sanction decision of the Solicitors Disciplinary Tribunal (the ‘SDT’). In each case the SDT made findings of dishonesty against a solicitor but then found exceptional circumstances that justified a lesser sanction of suspension rather than striking off. In fact, in all three cases the suspension imposed was itself suspended. The SRA argued that there were no exceptional circumstances and the sanctions were unduly lenient.

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Tax tribunal rules that Arron Banks suffered political discrimination

14 November 2018 by Thomas Beamont

Banks v Revenue and Customs Commissioners [2018] UKFTT 617 (TC) – read judgment

Donations made by Arron Banks to the United Kingdom Independence Party (‘UKIP’) are subject to a tax regime which discriminates against the donor on grounds of his political opinion, the First-Tier Tribunal (Tax Chamber) has found.

Facts

Mr Banks and companies controlled by him donated £976,781.38 to UKIP between 7^th October 2014 and 31^st March 2015.

As the donations constituted ‘transfers of value’ within s.3 of the Inheritance Tax Act 1984 (‘IHTA’), they attract a payment of inheritance tax unless a relevant exemption applies.

Section 24 of the IHTA provides for an exemption for gifts to political parties where at the last general election preceding the transfer of value in the following circumstances:

(2) …

(a) Two members of that party were elected to the House of Commons, or

(b) One members of that party was elected to the House of Commons and not less than 150,000 votes were given to candidates who were members of that party.

The fact that UKIP failed to have any MPs elected from its ranks on 6^th May 2010 meant that, on the face of s.24, Mr Banks’s donations could not fall within the exemption.

Article 14

Mr Banks contended that this was discriminatory.

The Judge accepted as a starting point the well-known five-stage approach as set out by Lord Steyn in R (S) v Chief Constable of South Yorkshire Police [2004] UKHL 39 at [42]:

(1) Do the facts fall within the ambit of one or more of the Convention rights?

(2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison?

(3) If so, was the difference in treatment on one or more of the proscribed grounds under article 14?

(4) Were those others in an analogous situation?

(5) Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?

As to (1) and (2), it was agreed that the provision fell within the ambit of Article 1 of the First Protocol (the right to protection of property), and that there was differential treatment.

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The Weekly Round-up: Rehana Popal, discrimination and deportation

12 November 2018 by Guest Contributor

As the international media has become full of whispers as to just where Asia Bibi might be offered asylum, discrimination has once again been to the forefront of legal bulletins at home. Most notably, the story of Rehana Popal’s treatment at the hands of solicitors who requested that she return her papers after their client demanded a ‘white, male barrister’, has made waves in the news. Whilst this runs entirely against the solicitors’ code of conduct and, indeed, the Equality Act 2010, Ms Popal, the English Bar’s only Afghan-born female barrister, has stated that this has not been the first occasion upon which she has been subjected to such discriminatory treatment.
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Blasphemy in Pakistan, Arron Banks investigated by the NCA and immigration cases dominate…

4 November 2018 by Thomas Hayes

After the flurry of excitement we were treated to earlier in October, last week afforded observers of the Supreme Court and legal news an opportunity to relax and catch their breath. However, the Court of Appeal proved to be a bountiful source of judgements, and reliable as always, Brexit continued to occupy the minds of journalists, politicians and lawyers alike.

However, perhaps the biggest story of the week originated in Pakistan. The case of Asia Bibi raises not only profound questions regarding the protection of human rights in the country, but also more substantial concerns about the rule of law, constitutional balance and ability of the government and courts to impose their will in a nuclear armed state at the forefront of some of the world’s most acute geo-political challenges.

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Philip Green and non-disclosure agreements: do we have a right to know?

30 October 2018 by Charlotte Gilmartin

The circumstances in which a court should prevent the press from reporting information about famous people has long provoked debate. The decision of the Court of Appeal in ABC & Ors v Telegraph Media Group Ltd [2018] EWCA Civ 2329 is no exception, attracting extensive press coverage and comment from the #MeToo movement.

In a unanimous judgment, the Court of Appeal overturned the decision of Mr Justice Haddon-Cave in the High Court and granted an interim injunction to the Appellants/Claimants.

The decision had the effect of temporarily restraining publication of certain information which was alleged by the Claimants to be confidential and disclosed in breach of non-disclosure agreements – namely allegations of sexual and racial harassment made against a well-known (and at the time unidentified) leading businessman – pending a full trial.

However, Lord Hain then went on to disclose under Parliamentary privilege that the accused businessman was Sir Philip Green. He said that given the “serious and repeated” nature of the allegations he felt under a “duty” to name him, and publication of this information was “clearly in the public interest”.
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Supreme Court rules that parental misconduct irrelevant to whether child should leave UK — an extended look

29 October 2018 by Jonathan Metzer

On 24th October 2018 the Supreme Court gave its judgment in the conjoined cases of KO (Nigeria); IT (Jamaica); NS (Sri Lanka) and others; Pereira v Secretary of State for the Home Department [2018] UKSC 53 — read judgment.

This is a major decision which clarifies the approach that the Immigration Tribunal should take to the question of whether a child and/or their parents should be removed from the UK in circumstances where it is claimed that this would constitute a disproportionate interference in their rights to private and family life.

In summary, the Court held that misconduct by the parents — be it criminal offending or immigration-related misdemeanours such as overstaying a visa — should not form part of the assessment of whether a child should be removed from the UK. As a result, it should also not form part of the assessment of whether Article 8 requires that the parent remain in the UK with the child.

However, the judgment is complicated and leaves some questions without clear answers. In this extended article, we will explore the reasoning of the Court and have a look at what has been clarified but also at what might now be plunged into confusion.

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The Round Up: Saudi Arabia, durable relationships, and the Telegraph judgment

29 October 2018 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

Credit: The Guardian

In the News:

Saudi Arabia has admitted that the Washington Post journalist Jamal Khashoggi is dead. The man was last seen entering the Saudi Arabian consulate in Istanbul.

At first Saudi Arabia refused to admit the journalist was dead, then claimed he was killed in a fist fight, before suggesting he was killed by a rogue operation. A man posing as Khashoggi left the consulate the same day and walked around the nearby area.

The country’s public prosecutor has launched an investigation. King Salman announced a restructuring of the kingdom’s intelligence services. He has also dismissed deputy intelligence chief Ahmed al Assiri and Crown Prince Mohammed bin Salman’s nearest adviser, Saud al-Qahtani. 18 other suspects have been arrested and remain under investigation. The location of the journalist’s remains is unclear.

Donald Trump called the Saudi’s response ‘credible’, and senior US officials met with the Crown Prince last week. Trump has promised a robust response, but has said he does not want to damage American jobs by cutting arms sales.

Much of the information was initially leaked by Turkey, which sees Saudi Arabia as a rival in the region. President Erdogan has claimed the murder was planned days in advance.
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Morrisons supermarkets liable for employee’s criminal publication of personal data

26 October 2018 by Rosalind English

WM Morrison Supermarkets Plc v Various Claimants [2018] EWCA 2339 (22 October 2018) – read judgment

The Court of Appeal has ruled that the supermarket chain was vicariously liable for one of its employees’ unlawful disclosure of personal data belonging to other employees even though this act took place away from the workplace and the was part of a sequence of planned events leading to the commission of this wrongdoing.

The central issue before the Court was whether an employer is liable in damages to those of its current or former employees whose personal and confidential information has been misused by being disclosed on the web by the criminal act of another employee, who had a grudge against the employer, in breach of the Data Protection Act 1998, and in breach of that employee’s obligation of confidence.  The Court held that it did; the common law remedy of vicarious liability of an employer for its employee’s misuse of private information and breach of confidence was not expressly or impliedly excluded by the Data Protection Act 1998, notwithstanding that the Act itself excluded an employer’s liability for wrongful processing of personal data by an employee. 
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Criminal fine for discussion of Mohamed’s wives did not interfere with freedom of expression – Strasbourg

26 October 2018 by Rosalind English

E.S. v Austria (Application no. 38450/12) 25 October 2018 – read judgment

In a judgment which has received instant and worldwide publicity, the Strasbourg Court has ruled that the Austrian government did not violate an individual’s freedom of expression when she was fined for saying at a 2009 seminar she gave on Islam that Mohammed had married one of his wives, Aisha, at the age of six and had intercourse with her from the age of nine. Although this would be classified as paedophilia today, the Austrian criminal court found that the insinuation that Mohamed had paedophilic tendencies amounted to an unlawful disparagement of religious doctrines.   Because ,in modern society, paedophilia was behaviour which was ostracised by society and outlawed, it was evident that the applicant’s statements were capable of causing indignation. Defaming the prophet in this way went “beyond the permissible limits of an objective debate” and “could stir up prejudice and put at risk religious peace”. Thus her words had exceeded the permissible limits of freedom of expression.
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The right of appeal against refusal of a residence card: the latest developments

24 October 2018 by Jonathan Metzer

As discussed previously on the Blog, the rights of the family members of EEA nationals to reside in the UK is currently in a state of flux. One important issue concerns the appeal rights of an “extended family member” of an EEA national.

At the moment, if a “family member” of an EEA national resident in the UK, that is, a spouse, direct descendant (including a stepchild) who is dependent or under 21, or a dependent in the direct ascending line, applies for a residence card under the Immigration (European Economic Area) Regulations 2016 and is refused by the Home Office, they have a right of appeal to the First-tier Tribunal in the normal way.

However, if an “extended family member”, that is, a non-married partner or other dependent relative (e.g. grown-up child) of the EEA national applies for a residence card, but is refused, regulation 2 of the Immigration (European Economic Area) Regulations 2016 operates to preclude a right of appeal to the First-tier Tribunal. Therefore, only judicial review is available to challenge such a decision.

In my last article, we saw that one such “extended family member”, Ms Rozanne Banger (I am reliably informed that her surname is pronounced “Banjer” with a soft “g”), fought a case at the Upper Tribunal in part concerning the issue of whether the denial of a right of appeal to a person in her position was compatible with EU law, specifically Article 3(2) of Directive 2004/38 (known as the “Citizens Directive”). The Upper Tribunal decided that it needed to ask the Court of Justice of the European Union to clarify the matter.

But on 12th July 2018, the Court of Justice gave its decision.

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