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

12 November 2018 by

31A3xHwmN9L._SY291_BO1,204,203,200_QL40_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

 

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: