The Round Up: Immigration Appeals, Vaginal Mesh, and Farage and Defamation

24 April 2017 by Sarah Ewart

IN THE NEWS THIS WEEK

With election fever well and truly afflicting the exhausted electorate again, Gina Miller, of Article 50 fame, has launched a tactical voting initiative to back candidates who will “commit to keeping the options open for the British people.” The crowd-funding campaign, rousingly named “Do what’s best for Britain!”, reached and surpassed its £135k goal in just 24 hours. It’s not the first initiative of its kind: moreunited.co.uk contributed to the Lib Dem success in the Richmond Park by-election, and has doubled its crowd-funding target after raising more than £50k in the 48 hours since the announcement of the general election. Neither initiative is allied to a particular party: instead, they aim to support individual candidates sympathetic to their values.

Speaking of the Liberal Democrats, foreign affairs spokesman Tom Brake called this week for the revocation of Asma al-Assad’s British citizenship. In a letter asking Amber Rudd to use her powers as Home Secretary, the first lady of Syria is accused of using social media to support her husband’s regime. The Home Office has the power to deprive British citizens of their citizenship if it is conducive to the ‘public good’: for a full rundown of the legal pathway, head over to Free Movement. See one of our previous Round Ups for the lowdown on Assad and the international law on chemical weapons.

For more on the general election, see Legal Cheek’s snap poll of law students and young lawyers to find the Lib Dems come out on top; the Law Society Gazette speculates on the possibility of a fourth Lord Chancellor in just five years. Joshua Rozenberg, it seems, agrees. More on Liz Truss below…

NEW RULES FOR ASYLUM APPEALS

Asylum appeals are in the courts and the news this week, as Liz Truss and the Ministry of Justice have proposed a new fast-track system for immigration and asylum appeals for those who are in detention.

The previous ‘detained fast track’ system was declared unlawful by the Court of Appeal in 2015, branded ‘systematically unfair and unjust’ because of the tight time limits allowed to appellants to prepare their cases (a maximum of just twelve days). Failed asylum seekers would be detained if it was thought that a quick decision could be reached on their case, but the new system will only apply to failed asylum seekers and foreign criminals who are already in detention and appealing against their removal. It places a cap on the time between a first decision and an appeal to between 25 and 28 working days.

The Guardian notes that refugee campaigners have criticised the fast track system for failing to screen out victims of sexual violence or torture, and the Law Society warns against putting speed before justice.

At the same time, the Prisons and Courts Bill has been scrapped in the run up to the election.

IN THE COURTS

Ne-A (Nigeria) v SS Home Department [2017] EWCA Civ 239

The Facts:

Ne-A, a Nigerian national, has been resident in the UK since 2006. He was convicted of aggravated burglary and sentenced to six years imprisonment. Evidence was given in the First Tier Tribunal that he suffers from a schizoaffective disorder, and would relapse if deprived of his current medication. He also relies heavily on the support of his twin brother.

The Statute:

This case concerns the proper construction of s.117C(6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). This section provides that where a foreign criminal has been sentenced to a period of imprisonment of at least four years, deportation is always in the public interest save for the existence of ‘very compelling circumstances’. The statute stipulates that these circumstances must exceed the ordinary: having lived in the UK all one’s life or having a genuine and subsisting relationship with a partner residing here will not be enough. This section must be considered where a court or tribunal is considering whether the decision to deport will be contrary to s.6 of the Human Rights Act, and assessing the effect on article 8 rights.

The Case Law:

Sales LJ said obiter in Rhuppiah v SS Home Department [2016] EWCA Civ 803 that in this provision Parliament has codified a specific approach to the deportation of foreign criminals, and it is not within the discretion of the court or tribunal to find that deportation is not in the public interest. This is subject to the “safety valve” of the ‘very compelling circumstances’ test, “with an appropriately high threshold of application, for those exceptional cases involving foreign criminals in which the private and family life considerations are so strong that it would be disproportionate and in violation of Article 8 to remove them” [para 50].

It was submitted for the appellant in the present case that this obiter analysis was wrong, and that in fact the stipulation here is a relevant consideration rather than a binding procedure. This submission was based largely on the Supreme Court judgment in Hesham Ali [2016] UKSC 60, a case that was heard just before the enactment of the Immigration Act 2014, and so dealt specifically with the Immigration Rules rather than the statute. Although that appeal was dismissed in favour of the Home Department, it left obiter passages by Lord Reed that were open to more favourable interpretation. The present case tried to argue, as per Sir Stephen Richards, “that the approach set out in Hesham Ali is equally applicable to Part 5A of the 2002 Act, so that section 117C(6) is a relevant and important consideration in the Article 8 analysis but it does not displace the proportionality assessment to be made by the tribunal on the facts of the case as a whole” [para 13]. This would have allowed courts and tribunals to draw a distinction between having regard to a clear statement of policy by Parliament on the one hand, and requiring the strict adherence to a statutory formula on the other.

The Judgment:

This argument has now been rejected by the Court of Appeal, which upholds the analysis of section 117C(6) in Rhuppiah. Sir Stephen Richards finds that Lord Reed’s judgment in Hesham Ali relied heavily on the fact that the Immigration Rules are not law: they do not govern appellate decision-making, though they are of course a relevant consideration. In light of the 2014 Act, therefore, s.117C is more than a statement of policy: it provides a codified approach to a foreign criminal’s Article 8 rights. The Court of Appeal do not find that the decision of the Upper Tribunal was affected by any material legal error, and correctly interpreted the approach to the appellant’s Article 8 rights. The appeal was dismissed.

As argued in the Free Movement blog, this ruling may have clarified matters in theory but less so in practice: realistically the only discretion for judges lies in the proper construction of ‘very compelling circumstances’.

FARAGE IN A DEFAMATION CASE

On Friday the 21st, the campaign group Hope Not Hate were heard in the High Court seeking an injunction and damages against Nigel Farage in a libel case.

What’s he said?

He’s accused the charity of masquerading as ‘peaceful and lovely while in fact pursuing ‘violent and undemocratic means.’ The remarks in December 2016 (which the courts will undoubtedly find to be in poor taste regardless of whether or not they are defamatory) were in relation to Brandon Cox, Jo Cox’s husband. After the attacks on the Berlin Christmas market, Mr Farage tweeted that such attacks would be ‘Merkel’s legacy’, and Mr Cox responded that it was a ‘slippery slope’ to blame politicians for terrorist attacks. Asked for a response on an LBC radio show, Mr Farage said that Mr Cox would “know more about extremists than me” because he “backs organisations like Hope Not Hate.”

The comments were repeated across various channels and the charity claim to have suffered significant reputational damage as a result, receiving a barrage of hate mail after Mr Farage’s words. They are looking for damages of up to £100k, though the group says this action is not about the money, but rather about standing up to Mr Farage’s tendency towards ‘fake news’ in the run up to the election.

VAGINAL MESH

More than 800 women are involved in suits over the product liability of vaginal mesh, a surgical implant used to treat prolapse and incontinence. The campaign group Sling the Mesh says that the procedure takes an average of twenty minutes, and is unusual in that it is performed ‘blind’, without the use of key hole cameras. Women have been left in life-changing agony, the Guardian reports, unable to have sex, with one woman reportedly considering suicide. The problem has been that in some such cases surgeons have been unable to operate to remove the tape, owing to its proximity to the nerve. Campaigners say that this is an unacceptable risk.

The scandal intensified this week when minutes were released from a meeting between the Medicines and Healthcare Products Regulatory Agency and NHS England in October 2016, showing that efforts were being made to ‘avoid media attention’ on the vaginal mesh.

Lawsuits over the implant have amassed billions of dollars in the US. The product was retracted from use in Scotland in 2014 but has been recently reinstated, and India has just started using it in procedures. Leigh Day is investigating a potential suit here.

By Sarah Jane Ewart