Monthly News Archives: March 2012

Compelling reasons but no need for truly drastic circumstances: second stage immigration appeals revisited

23 March 2012 by

JD (Congo)  and others v Secretary of State for the Home Department, Public Law Project [2012] EWCA Civ 327

The Court of Appeal has considered the test for granting permission at the second stage of appeal in immigration cases, when someone wishes to appeal from the Upper Tribunal to the Court of Appeal. The test requires showing that:

(a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the [Court of Appeal] to hear the appeal.
But these test cases were of special interest, because they involved situations where the appellant has succeeded before the First-Tier tribunal but failed in the UT after the Secretary of State’s appeal succeeded, or where the appellant was unsuccessful at both levels, but the FTT had made a material error of law and the UT made the decision afresh. Previous authority showed no clear approach in these circumstances. The Court stressed that the test for permission at the second stage of appeal is higher than the first stage test.
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Reasons and evidence in Europe

22 March 2012 by

Cases T-439/10 and T-440/10, Fulmen & Mahmoudian v. Council of the European Union, read judgment

Fulmen, as many of you will know, means thunderbolt in Latin. So it must have seemed when this Iranian company had its assets frozen. This case is a good example of how general principles of European law were applied to annul measures taken against these Iranian applicants. The measures were part of EU policy to apply pressure on Iran to end nuclear proliferation. Fulmen was said to have supplied electrical equipment on the Qom/Fordoo nuclear site and Mr Mahmoudian is a director of Fulmen. Hence they were both listed in Council Decision 2010/413/CFSP. The upshot was that all of their assets were frozen by the EU.

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Flood v Times Newspapers, Supreme Court allows “Reynolds” appeal – Hugh Tomlinson QC

22 March 2012 by

In a unanimous decision ([2012] UKSC 11) the Supreme Court allowed the appeal of  Times Newspapers Limited against a decision of the Court of Appeal ([2010] EWCA Civ 804) which had held that it could not rely on Reynolds qualified privilege.  The Supreme Court restored the decision of Mr Justice Tugendhat ([2009] EWHC 2375 (QB)) who had ruled, on the hearing of a preliminary issue, that the Times was entitled to rely on the defence of Reynolds qualified privilege in relation to the printed publication of the article about the claimant.


The claimant was a Detective Sergeant in the Metropolitan Police.  An anonymous source claimed that Russian oligarchs had paid a police officer for information about extradition requests. The source stated that the police officer “could be” the claimant and that he had reported this to the police.  In April 2006 the journalists concluded that the police might not be properly conducting an investigation into the claimant. They approached the claimant and other persons concerned with the allegations which caused an investigation to commence. On 2 June 2006 The Times published an article headed “Detective accused of taking bribes from Russian exiles”. It was published in its print edition and on its website, where it continued to be published after the date of the print publication. The claimant sued for libel over both print and website publications.

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Appeasement it may be, but exclusion of Iranian dissident not a matter for the courts

21 March 2012 by

Lord Carlile and others v Secretary of State for the Home Department – read judgment

The High Court has upheld an order by the Home Secretary preventing Maryam Rajavi, a prominent Iranian dissident, from speaking in Parliament. The exclusion order was imposed because of concerns about the deterioration of bilateral relationships between this country and the Iranian government, and fears that if the exclusion order was lifted there could be reprisals that put British nationals at risk and make further consular cooperation even more problematic. For further details of the Home Secretary’s decision see Henry Oliver’s excellent discussion of the case “Free Speech and Iranian Dissent in Parliament”. 

The claimants contended that the Secretary of State’s exclusion of Mrs Rajavi was unlawful, as an unjustified and perverse infringement of their common law and Convention right of free expression, rights that are all the more important and precious where those involved are members of the legislature. The court dismissed these arguments, albeit with considerable reluctance.
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The right to receive information; journalists and inquiries

21 March 2012 by

Kennedy v. Charity Commission et al, Court of Appeal, 20 March 2012, read judgment

Tangled web, this one, but an important one. Many will remember George Galloway’s Mariam Appeal launched in response to sanctions imposed on Iraq in 1998, and the famous picture of GG with Saddam Hussein. Well, the Appeal was then inquired into by the Charity Commission, and this case concerns an attempt by a journalist, unsuccessful so far, to get hold of the documents which the Inquiry saw. But the Commission took the 5th amendment – or rather, in UK terms, a provision in the Freedom of Information Act  (s.32(2))which exempted from disclosure any document placed in the custody of or created by an inquiry. Cue Article 10 ECHR, and in particular the bits which include the freedom to receive information.

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The evolved mind: rising to the environmental challenge

20 March 2012 by

This is a shortened version of an article published by Rosalind English in the Journal of Environmental Law and Management November 2011: Cooperation and Public Goods: an evolutionary perspective on environmental law  23 ELM 278-283 

In my 2011 post Why be nice? Human rights under pressure I explored the extent to which our limited tendencies to altruism, insofar as they have survived natural selection, could be institutionalised and enforced. In this article I apply the scientific learning on our cooperative instincts to the question of environmental regulation. I argue that whilst we seem to be hard-wired to cooperate, environmental responsibility will only be instilled under certain conditions that resonate with our evolved psychology, and that most modern environmental law fails to acknowledge these conditions.
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The game changed back: Barr v. Biffa reversed

19 March 2012 by

Barr v. Biffa, CA, 19 March 2012, read judgment

For the last year or so, the law of nuisance has been in a state of flux pending this appeal. In this case about an odorous landfill,  Coulson J had ruled that compliance with the waste permit amounted to a defence to a claim in nuisance, and that a claimant had to prove negligence in the operation of the landfill before he could claim in nuisance. The Court of Appeal has today reversed this decision.

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Rights and wrongs – The Human Rights Roundup

18 March 2012 by

In and out

Welcome back to the UK Human Rights Roundup, your weekly summary of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

In the news

Human rights continue to be big news this week, with Andrew Neil’s Rights Gone Wrong? programme exploring the rather divisive issues that Human Rights bring up for the British public. The proposed reforms to the European Court of Human Rights and the Bill of Rights made news again also, along with such controversies as the right to die, open justice and kettling.

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Child’s welfare is paramount in contact dispute

16 March 2012 by

A v Band C [2012] EWCA Civ 285    – read judgment 

In a case concerning a lesbian couple and a known biological father, Court of Appeal reconfirms approach when dealing with cases under the Children Act 1989 – the child’s welfare is paramount.


This case concerned an application by a biological father for contact with his son who was living with his mother and his mother’s long-term lesbian partner. The three adults in the case had been friends for many years and indeed the father had married the mother before the child was born in an attempt to placate the mother’s family who were deeply religious. It was accepted that this was a marriage of convenience and as a result the father acquired parental responsibility for the child.
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GP’s rights not violated by suspension from performers list

15 March 2012 by

Malik v United Kingdom 23780/08 [2012] ECHR 438 (13 March 2012) – Read judgment

The European Court of Human Rights held that the suspension of a GP from the Primary Care Trust (PCT) Performers List did not violate his right to peaceful enjoyment of possessions under Article 1 Protocol 1 (A1P1) of the European Convention on Human Rights. The Court declined to decide whether there was a possession that could be interfered with in this case, but held that suspension did not affect Dr Malik.

Dr Malik ran a general practice from premises he owned in London. He was under a general medical services contract with his PCT so that he had to ensure patients on his list were provided with GP services (whether by himself or a salaried doctor); his premises was rented (for a notional amount) so that it could be used for NHS services. Dr Malik was also on the PCT’s performers list so that he personally could provide GP services.

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Wind and peat: another step along the reasons trail

15 March 2012 by

Welsh Ministers v. RWE Npower Renewables Ltd [2012] EWCA Civ 311 read judgment, reversing RWE Npower Renewables v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment

In my previous post on this case, I summarised the judge’s findings as to why this Planning Inspector had gone wrong at the wind farm inquiry. The Inspector turned down the appeal because the positioning of individual turbines might lead to damage to deep deposits of peat found on this site.  The judge, Beatson J, thought the inspector had not explained his reasons for his conclusions in sufficiently clear a form. Nor did the Inspector give the wind farm developer an opportunity  to deal with his concerns.

So said the judge. But the Court of Appeal disagreed – showing how it is not easy to “call” the merits of these reasons challenges.

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A whiff of brimstone: Andrew Neil critiques human rights on prime time TV

15 March 2012 by

The road to hell as we know is paved with good intentions and here they are, laid bare by the Daily Politics broadcaster in his exposition of everything that has gone wrong with the Convention since it was forged in the crucible of two world wars. 

Post war prosperity ensured that genocide and dictatorships did not arise again. But the Convention has become a “political poison” that goes to the very core of how the country is governed.

In “Rights and Wrongs” Neil declares that he is trying  “to cut throughout the hype and confusion” surrounding the subject, and his approach is undeniably forthright and populist. No doubt he will be castigated severely for poor reporting. But to be fair, he points out that the media had exaggerated some judgments – you can’t avoid deportation merely by owning a cat, but you can if you have a settled family who happens to own one.  He also cites a number of decisions from Strasbourg that most people in this country would support, or at least think nothing of these days – gays in the military, the abolition of corporal punishment in schools, freedom of the press (particularly the ruling that saved Andrew Neil from jail during the Spycatcher affair in the 1980s).

But – inevitably – the documentary focussed on the cases of Abu Qatada and Aso Mohammed Ibrahim,  the asylum seeker whose car hit and killed 12-year-old Amy Houston, and who successfully resisted deportation because of his right to a family life.
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Should gay marriage be legalised?

15 March 2012 by

The Government has begun its consultation on whether the ban on marriage between people of the same sex should be removed. As suggested by the consultation’s title – Equal civil marriage consultation – the Government is only proposing to remove the ban on civil gay marriage.

The consultation document makes clear that it is “limited to consideration of civil marriage and makes no proposals to change the way that religious marriages are solemnised“. In other words, religious institutions will not be forced to allow same-sex marriages on their premises. And moreover, perhaps in order to dodge some of the controversy which has erupted in recent weeks, there are no plans to allow same-sex marriage to take place on religious premises at all. So even religious denominations which support same-sex marriage in principle will not be allowed to conduct the ceremonies on religious premises.

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No “near miss” principle in immigration cases, despite Article 8

14 March 2012 by

The Court of Appeal has ruled that there is no “near miss” principle in the application of the Immigration Rules. People who miss the five years’ continuous residence requirement – even if by two weeks – will not have met the rules. There is no exception.

Mr Miah’s application for further leave to remain as a Tier 2 (General) migrant was refused by the Home Secretary. As was his application under Article 8 (right to private and family life) of the European Convention on Human Rights, and the application of his wife and child to be his dependents. His appeal to the First Tier Tribunal was unsuccessful, as was his appeal to the Upper Tribunal.

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Strasbourg rules on anti-gay speech for the first time

13 March 2012 by

Vejdeland and Others v Sweden (Application no. 1813/07) – Read judgment

 “Will both teacher and pupils simply become the next victims of the tyranny of tolerance, heretics, whose dissent from state-imposed orthodoxy must be crushed at all costs?”, asked Cardinal O’Brien in his controversial Telegraph article on gay-marriage. He was suggesting that changing the law to allow gay marriage would affect education as it would preclude a teacher from telling pupils that marriage can only mean a heterosexual union. He later insinuated that the change might lead to students being given material such as an “explicit manual of homosexual advocacy entitled The Little Black Book: Queer in the 21st Century.”

A few weeks before that article was published, the European Court of Human Rights handed down its first ever ruling on anti-gay speech, in a Swedish case where a group of young men, seemingly motivated by a similar abhorrence to that expressed by Cardinal O’Brien for the “tyranny of tolerance” in education, put a hundred or so leaflets in or on the students’ lockers at a secondary school. The leaflets read:

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