The Weekly Round-up: Dominic Cummings, Hong Kong, and Immigration Law Challenges

25 May 2020 by Rosalind English

In the news

It emerged this week that Dominic Cummings drove 250 miles from London to Durham with his wife and child to be with his parents, while his wife was experiencing symptoms of COVID-19. In so doing, Mr Cummings appears to have flouted the government guidance of which he was one of the architects. Leading Tory MPs have called for the Prime Minister to sack Mr Cummings, but he has refused to do so, saying that Mr Cummings “followed the instincts of every father and parent”, and “has acted legally, responsibly, and with integrity”.

Apparently in response to the incident, a rogue Civil Service employee tweeted from the official Civil Service Twitter account “Arrogant and offensive. Can you imagine having to work with these truth twisters?” The Tweet was swiftly deleted, and a Cabinet Office investigation is under way into how it was released.  

The situation in Hong Kong has escalated again this week, as Beijing gears up to enact Article 23 of the Basic Law, Hong Kong’s ‘mini-constitution’ of 1997, and impose national security laws to prohibit “treason, secession, sedition [and] subversion”. Protesters have been out in force in defiance of coronavirus restrictions, and police have repeatedly made use of tear gas, pepper spray, and water cannons. Notably, protesters have started to call for full independence for Hong Kong, which has not previously been one of the pro-democracy movement’s official objectives.

The authorities have indicated that the proposed national security laws would include offences such as defacing the national flag, and it is likely that they would be weaponised against political dissidents as they have been in mainland China. Passing these measures would also allow Beijing to install its own national security agencies in Hong Kong. Carrie Lam, the Chief Executive of Hong Kong, supports Beijing’s decision to bypass the Hong Kong government in imposing these measures.  

The move has been condemned in a statement signed by senior foreign policy officials and politicians from 23 countries. According to signatories, “it is the genuine grievances of ordinary Hong Kongers that are driving protests. Draconian laws will only escalate the situation further, jeopardising Hong Kong’s future as an open Chinese international city.” Likewise, US Secretary of State Mike Pompeo says this is a ‘death knell’ for Hong Kong’s autonomy – and therefore for the special economic status which it enjoys with the USA.

In Hungary, the national Parliament has voted to put an end to legal recognition of trangender people. A law has been passed which defines gender as based on chromosomes at birth, so it will no longer be possible for trans people to alter gender and name on official docs. This comes as part of a wider anti-LGBT agenda on the part of Viktor Orban’s far-right government, and will exacerbate the discrimination and prejudice faced by transgender people in Hungarian society.

In the courts

There were two noteworthy cases in the Family Court this week:

• Re X: Mr and Mrs Y arranged to have a child, X, using Mrs Z as a surrogate, but Mr Y tragically died while Mrs Z was 5 months pregnant. Mrs Y sought a declaration under s.54 Human Fertilisation and Embryology Act 1954 that she and Mr Y were X’s parents. A declaration of incompatibility and subsequent remedial order passed in 2018 indicated that the will of Parliament now was to ensure that the law does not discriminate against different categories of applicants for parental orders. The court therefore granted the declaration, holding that ‘reading down’ the relevant provisions was not incompatible with the underlying thrust of the legislation.  
• H (A Child Parental Responsibility : Vaccination): a care order had been made for a baby, and the local council sought to give that baby routine vaccinations. The parents objected, and the local authority therefore applied to court. Hayden J had held that the local authority was entitled under s.33(3) Children Act 1989 to make arrangements for the vaccination of the baby. The Court of Appeal (King LJ) upheld this finding, further explaining that the administration of routine vaccinations is clearly in the best medical interests of children, unless there is some specific contra-indication, and that it is neither necessary nor appropriate for the local authority to apply to the High Court simply because parents oppose such routine vaccination.

There were two significant immigration law challenges, one successful and one not:

• R (W, A Child By His Litigation Friend J) v The Secretary of State for the Home Department & Anor: the Claimant was born in 2011 as a British citizen; his mother, a Ghanaian national, was granted leave to remain in 2013, but subject to a ‘no recourse to public funds’ condition (NRPF). On his behalf, she brought a challenge to both the specific application of NRPF to their case, and the NRPF scheme as a whole, comprising s.3 Immigration Act 1971, relevant parts of the Immigration Rules, and a guidance document for caseworkers. The court held that the scheme was indeed unlawful: the NRPF regime did not adequately reflect the SSHD’s obligation under Article 3 ECHR not to impose, or to lift, NRPF conditions in cases where the applicant is not yet, but will imminently suffer inhuman or degrading treatment, in particular destitution. The guidance was apt to mislead caseworkers on this point, apparently indicating that NRPF conditions could only be lifted where an applicant was already destitute. The court therefore granted a mandatory order for the SSHD to publish new guidance to caseworkers on this, and to pay the claimant’s costs.
• Badmus & Ors, R (On the Application Of) v The Secretary of State for the Home Department: in 2008, the Secretary of State set a flat rate salary for work done by immigrants in detention centres, fixed at £1 per hour, or £1.25 for special projects. Four claimants challenged this decision, on the basis that (i) it undermined the legislative purpose expressed in the 2001 Detention Centre Rules, namely “to encourage and assist detained persons to make the most productive use of their time, whilst respecting in particular their dignity and the right to individual expression”, and (ii) it violated Article 14 read with Articles 4 and 8 ECHR and Article 1 of the First Protocol, on the basis that prisoners, unlike immigration detainees, had the benefit of flexible pay rates and bonuses encouraging innovation. The court found for the SSHD, holding that (i) the measure was objectively justified for operational reasons, and did not undermine the legislative purpose, and (ii) this matter was outside the ambit of Article 4 and A1P1, and prisoners were not a valid comparator group for the purposes of  Article 8.

There was also a decision on the award of costs for intervening in the Court of Appeal:

• Hunt v The Director of Public Prosecutions & Anor: Emily Hunt sued the DPP for a decision not to prosecute a man, XY, for voyeurism under s.67 of the Sexual Offences Act 2003. This decision not to prosecute had been based on the belief that the CPS would be unlikely to succeed in proving C was in a place reasonably expected to be private, when the act of recording was preceded by consensual sex. This question, as to the meaning of ‘private act’ under s.67, was being heard in an unrelated case in the Court of Appeal days before Ms Hunt’s judicial review was due to be heard – the conclusion of which would determine the outcome of Ms Hunt’s case. The Court of Appeal therefore exceptionally granted her permission to intervene – which she did successfully. She sought the costs of that intervention – the DPP argued that she was not entitled to that, because such costs were not “of or incidental to” the JR proceedings under s.51(1) Senior Courts Act 1981. The court held that Ms Hunt was entitled to her costs – although this was an exceptional case turning on its own facts. The judge invited the Court of Appeal to draw up rules for Interveners, as exist for interventions in the Supreme Court.

On the UKHRB

• Law Pod UK discusses AI and the Law with new Strasbourg court president Robert Spano
• Jonathan Metzer analyses a case on Article 6 in the context of defendants suspected of connections to Al-Qaeda
• Rosalind English looks in detail at the Court of Appeal’s dismissal of a challenge to the Ivory Act 2018