The Round Up: Election Coverage, Domestic Violence and Free Movement

4 June 2017 by Sarah Ewart

IN THE NEWS

The news this week, though inevitably dominated by election coverage, has a lot going on for lawyers. We’ve sifted through it so you don’t have to, followed by our summary of the Advocate General Bot’s Opinion on free movement for dual citizens.

Domestic Violence

This week Theresa May continues in her efforts to be seen by the public as a voice for domestic violence victims. She has announced (again) that a Tory government would create a new Domestic Violence and Abuse Bill to introduce a statutory definition of domestic violence, establish a special commissioner to stand up for victims, review cuts on frontline services and create an aggravated offence (meaning longer sentences) for abuse directed towards a child.

But contrary to Theresa May’s insistence that the Tories have made ‘huge strides’ over the past seven years, practitioners in the sector say that those cuts have decimated the landscape for legal aid and for frontline services. As we posted about at the time, the last budget promised an extra £20 million for domestic violence shelters (as well as the funds raised from the tampon tax), which would be welcome, though arguably not enough. We also talked about the judicial review challenge to LASPO 2012 brought by Rights of Women on a recent podcast, challenging an evidence requirement which made it extremely difficult for domestic violence victims to access legal aid.

Importantly, there is also a good deal in the Labour Manifesto ‘Justice’ section about domestic violence. Like the Tories, Labour would appoint a commissioner to set new standards for tackling domestic and sexual violence. They would also establish a National Refuge Fund and have committed to ensuring “stability” for rape crisis centres. Unlike the Tory manifesto, however, Labour intends to tackle root causes of sexual violence by making sex and relationship education a compulsory part of the curriculum, as well as banning the use of community resolution orders as a response to domestic violence. The concreteness of these provisions are welcome, though perhaps undermined by the slightly woolly vow to “continue to enforce effective measures to prevent all forms of abuse, including female genital mutilation”.

You can read more on the manifestos commitments to human rights in last week’s round up, or at Rights Info. For even more, Adam Wagner writes in the Huffington Post on Brexit as the end of the ‘phoney war’ on human rights.

Equalities

There has been a lot of legal news about equalities this week, starting with Mr Justice Hayden announcing that he is ‘simply not prepared’ to hear another case in which an alleged domestic abuser is permitted to cross-examine the complainant in court. Calling the procedure a ‘stain on the family justice system’, Mr Justice Hayden suggests that allowing cross-examination is inherently abusive.

As for equalities at the Bar itself, a new cadre of Deputy High Court judges has been announced, of which a third (of 21) are female, and the Law Gazette reports that a new Bar Standards Board policy will require chambers to allow self-employed barristers a year of parental leave.

IN THE COURTS

Six men have dropped a civil sexual abuse claim against the late peer Lord Janner. The family, who announced that they would subject the victims to rigorous cross-examination if they continued with the claim, have suggested that it was motivated purely by desire for compensation. Richard Scorer for the claimants (of Slater & Gordon) hit back at these claims, noting that the allegations were made decades ago, without an attempt to claim compensation. Over in the criminal courts, the Rolf Harris trial has been dismissed after the jury reached no verdict. The CPS have said that they do not intend to pursue a retrial.

The parents of Charlie Gard, who have been seeking the right to take their severely ill son to the US for experimental treatment, have been given leave to appeal to the Supreme Court over the decision to cease Charlie’s life support. The emergency hearing will take place on the 8^th June, and the Guardian has more here.

Elsewhere in the family courts, Mr Justice Peter Jackson is expected to give judgment on whether switching off the life support is in the best interests of the child following an application from her mother, who has been allowed to be a litigation friend.

EU Ruling on Dual Citizenship Rights

Advocate General Bot has released his Opinion on a test case regarding the freedom of movement rights of dual citizens resident in the UK under EU law, after a reference for a preliminary ruling from the High Court in Lounes v SS of the Home Department [2016] EWCH 436 (Admin).

The Facts:

Ms Ormazábal, a Spanish citizen, moved to the UK in 1996 and became a naturalised British citizen in 2009. Her husband Mr Lounes (the Claimant) is an Algerian national who entered the UK on a 6-month visitor’s visa in 2010, and overstayed. They married in 2013. Mr Lounes applied for a residence card as the spouse of an EEA national, and was promptly served with a refusal, as well as a notice of the decision to remove him from the UK, on the grounds that he had overstayed illegally.

The question is whether an EU national who has become a naturalised British citizen can still rely on her freedom of movement rights for the benefit of her spouse, a third-country national.

Freedom of Movement Framework:

Under EU law, specifically Article 21(1) Treaty on the Functioning of the European Union (‘TFEU’), every EU citizen shall have the right to move and reside freely within the territory of the Member States.

Directive 2004/38 lays down Union citizens’ right to permanent residence in the territory of Member States, and this applies also to their spouses under 2(2) of that Directive. Under 3(1), it applies ‘to Union citizens who move or reside in Member States other than that of which they are a national’.

This Directive was transposed into UK law under the Immigration (European Economic Area) Regulations 2006. These Regulations use the term ‘EEA national’ instead of ‘Union citizen’, defined in regulation 2(1), and a statutory instrument amended this definition in 2012 so that it now means ‘a national of an EEA state who is not also a UK national.’ 

This is problematic for dual citizens, who could no longer rely on their rights under these Regulations. British citizens could not rely on them either, because the UK is excluded from the definition of an EEA state. The High Court felt that this provision was not acte clair and was dubious about whether the amendment to the Regulation unlawfully restricted freedom of movement rights, and so asked the CJEU for a preliminary ruling.

In AG Bot’s Opinion…

Firstly, AG Bot is clear that, despite the UK government’s submissions, the issue is not purely domestic merely because Ms Ormazábal is now a British national. She, and dual citizens like her, who stand to lose their EU rights by becoming naturalised British citizens, fall within the ambit of EU law. It is also settled case law that there is no autonomous right for the third party national, in this case Mr Lounes: the right exists to ensure that there is no restriction on a Union citizen’s ability to exercise their right to settle in a Member State.

As for Directive 2006/38, in AG Bot’s Opinion Article 3(1) is absolutely clear that the beneficiaries of the Directive are meant to preclude nationals of the Member State in question, and therefore Ms Ormazábal should not have been able to rely on the Directive from the moment she acquired British nationality.

AG Bot acknowledges that this is paradoxical: acquisition of nationality is part of a further integration into the Member State, which is the aim of the Directive, but at the same time alters the citizen’s legal status to preclude them from benefiting from the Directive [at 61]. But any alternative interpretation would be a stretch, given the clarity of the literal meaning of the provision.

That said, AG Bot is of the opinion that although third party nationals like Mr Lounes aren’t entitled to residence on the sole grounds of Directive 2004/38, they should still be able to obtain a derived right of residence under the case law of 21(1) TFEU. This is given a dynamic interpretation, and the provisions of the Directive would be applied by analogy [see 72]. The Court prohibits, it is stressed, any prohibition on the rights to free movement.

The Grand Chamber judgment will follow later in June, delivered by 15 judges, so look out for that. It will be an important test case for EU citizens who are deciding the best way to settle in Britain after Brexit, and whether obtaining British citizenship will be the best way to do that. See more in the Guardian.

Also this week, the Court of Appeal has dismissed a challenge to rules on adult dependent relatives, which you can read more about here.

Hear all about it…

Elsewhere on the UK Human Rights Blog, David Hart QC has written on junior doctors’ liability in FB v. Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334. Read his post here.

And if you haven’t already noticed, UK Human Rights Blog has just started doing snazzy audio versions of our posts! So click here to listen to David’s discussion of his post, and stay tuned for an audio version of this round up!

And finally…

On Monday 26 June, Zeid Ra’ad Al Hussein (the United Nations High Commissioner for Human Rights) will deliver this year’s Annual Grotius Lecture at the Law Society. The title of the lecture will be ‘Is International Human Rights Law Under Threat?’. This lecture will be followed by the Annual Grotius Dinner, and you can find more information here.

By Sarah Jane Ewart