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.

Employment tribunals may reintroduce hearing fees. Litigants and lawyers alike believed that this issue had been dealt with in July 2017, when the Supreme Court ruled that the fees were unlawful and inhibited access to justice for cash-poor employees. However, the Ministry of Justice has, this week, floated ideas that some sort of fee structure will be reinstated.

This week in the courts, immigration cases featured among noteworthy judgments:

• The Court of Appeal has clarified the government’s duty in granting subsistence payments to asylum seekers suspected of having been victims of human trafficking – K & Anor, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 2951 (Admin) (08 November 2018). Two asylum seekers who were suspected of having been trafficked brought a challenge against a government attempt to change the level of subsistence payments they that were due. Pursuant to the Modern Slavery Act 2015, which seeks to implement various international human rights obligations, both asylum seekers and individuals suspected to have been trafficked were able to seek subsistence payments. Individuals suspected of being trafficked were entitled to a higher amount. From March 2018, the Home Office guidance changed such that those who were both asylum seekers and the victims of trafficking could only receive payments at the lower level, where they were previously eligible for the higher amount. The Court highlighted the ‘irrational and perverse’ nature of this decision, creating an impossible disparity between victims of trafficking and those who were and were not seeking asylum, thereby discriminating against them on the basis of a qualifying status under Article 14. Consequently, the Court held that the change in the guidance from March 2018 failed to comply with s.149(1) of the Equality Act 2010 by failing to consider the discrimination that the Home Office was implementing with this decision. As such, this alteration was quashed, reinstating access to higher levels of subsistence payments to asylum seekers suspected of having been trafficked.

• In another immigration case, the Court of Appeal was asked to rule on the issue of whether a foreign national’s removal from the UK to a jurisdiction that does not have the capacity to meet his health needs constitutes a violation of his Article 3 rights – MM (Malawi) & Anor v the Secretary of State for the Home Department [2018] EWCA Civ 2482 (09 November 2018). Whilst this has been visited by the Supreme Court before, with the precedent in N v Secretary of State for the Home Department [2005]establishing such removal would not contravene Article 3 rights, this is the first time that the issue has come before the Court since the ECtHR ruling in Paposhvili v Belgium last year.  The Court of Appeal in MM reaffirmed the threshold in N (a precedent that only the Supreme Court has the power to overturn). The judges stated that the threshold for access to Article 3 had been shifted by Paposhvili from being defined by imminence of death in the receiving state to being defined by the imminence of intense suffering or death.  As such, the threshold remains very high. Pursuant to this, the applications of MM and the other Appellants were refused, as was permission to appeal to the Supreme Court. In making this judgement, the Court has have maintained the narrow application of Article 3 in removal cases involving health claims.

• In a case before Farbey J a Mr Lysongo argued that the incorporation of British Southern Cameroon into the Republic of Cameroon in the post-colonial era was unlawful – Lysongo v The Foreign And Commonwealth Office & Anor [2018] EWHC 2955 (QB) (05 November 2018). He sought a declaration against the Foreign Office and the Cameroon that the union of the territories was illegitimate, illegal and invalid. This was a novel, and perhaps unsurprisingly, an unsuccessful argument.  The basis of Mr Lysongo’s argument was that the ceding of British Southern Cameroon to the Republic of Cameroon without any formal governing treaty ran contrary to the human rights of the citizens of BSC. In addition, he argued that the failure to secure these rights constituted a “breach of trust” that later contributed to the marginalisation of the local people from Cameroon’s politics on the federal level.  These arguments were rejected by the Court, who found itself to have no jurisdiction over the matter. The judge also concluded that the doctrine of state immunity applied to the Republic of Cameroon.

This roundup was written by Emma Colebatch