The Weekly Round-Up: government under pressure over child marriage loophole and fire and rehire schemes

10 May 2021 by Calla Randall

In the news:

Campaigners have warned that a loophole allowing children aged 16 or 17 to get married with their parents’ consent is enabling forced child marriages to take place across England. Current laws against forced marriage to do not specifically protect children, and there are no laws in the UK to prevent religious or customary child marriages. The organisation Girls Not Brides UK, who sent a letter to the Prime Minister warning of the impact of this loophole last week, have suggested that child marriages disproportionately affect girls, and often lead to fewer educational and employment opportunities and a higher risk of domestic violence. The government’s Forced Marriage Unit, which collects data on cases of forced marriage, shows that more than a quarter of cases involve children. The Conservative MP Pauline Latham is currently promoting a bill in Parliament aimed at criminalising child marriage completely.

In other news:

• A survey conducted by the trade union GMB has suggested that there is overwhelming public support for ‘fire and rehire’ practices to be made illegal. The practice, which involves companies firing their staff and then offering to rehire them with depleted pay and employment contracts, was used by British Gas last month against hundreds of its employees. The survey showed that 76% of those who responded said the practice should be outlawed, 71% of whom self-identified as Conservative voters. The Prime Minister Boris Johnson has previously labelled the practice ‘unacceptable’, but some ministers have suggested that companies’ flexibility must be preserved when they are in financial difficulty. However, other research suggests that 9 out of 13 companies who employed the tactic this year were not in any financial difficulty. The GMB union is now campaigning for the practice to be explicitly banned in the government’s much delayed employment bill.
• A study launched by the legal services provider LexisNexis into the legal practice areas most severely impacted by the Covid-19 pandemic has shown that immigration and civil litigation have been hit the hardest, despite overwhelming media attention on the collapsing criminal justice system. Some areas of civil litigation such as employment claims only took a small dip of 5%, whereas personal injury and property law work has seen a steep downfall. However, the combined effect of the Covid-19 pandemic and Brexit has had a deeper and longer lasting effect on immigration law, with the report suggesting that the amount of work available may be reduced indefinitely.
• The Home Office has come under fire in the courts this week in a hearing concerning the legality of the eviction of asylum seekers during the national lockdown, for seeming to plead their case on the basis that they had acted without proper lawful authority. The judge, Garnham J, adjourned the hearing to allow the Home Office to identify a legal basis for its policy, labelling its approach ‘extremely troubling’. The Home Office subsequently issued an apology to the judge. A few days later, new rules proposed by the Home Office which may place a greater number of trafficking victims in detention, were criticised by human rights campaigners and lawyers, who have pointed to the vulnerable state of many victims. The new rules impose a higher standard of proof on victims to demonstrate that they should not be detained – including supplying medical evidence to prove they are likely to be subjected to future harm. Finally, in another blow to the Home Secretary, on Saturday the UN condemned the new sweeping immigration overhaul planned by the department, which proposes that the UK could deport illegal immigrants to other European countries. The Law Society described the proposals as ‘undermining access to justice and making a mockery of British fair play’ and no European countries opted to support the plans. However, a spokesperson for the government stated that the new policies were in line with the country’s legal obligations and commitment to human rights.

In the courts:

Mahabir & Ors v Secretary of State for the Home Department [2021] EWHC 1177 (Admin): The High Court granted the Claimant’s application for judicial review, ruling that the requirement imposed on the Claimant to pay £22,000 in application fees to enable her family to join her in the UK was a ‘colossal interference’ with her Article 8 right to respect for family life, and discriminated against her family, breaching Article 14 of the European Convention on Human Rights. The Claimant was given Indefinite Leave to Remain under the Windrush scheme and travelled to the UK in 2018; however, her family remained in Trinidad and Tobago and were not permitted to enter the UK without payment of the fees. With regard to her Article 8 rights, the judge found that the fee requirement breached both the procedural and proportionality limb of the right to respect for family life. In particular, it rendered the remedy offered by the Windrush scheme effectively inaccessible to the Claimant in that to reunite with her family, she would have to leave the UK (the procedural limb). Furthermore, it was a disproportionate interference because it could not be justified by the approval Parliament had given the Windrush scheme as a whole; the fee requirement was a policy set by the internal department. The policy also breached the Article 14 rights of her family, because the Secretary of State’s failure to offer the family of a Windrush victim preferential treatment amounted to indirect discrimination.

Wisbey v Commissioner of the City of London Police & Anr [2021] EWCA Civ 650: The Court of Appeal dismissed an appeal by a police officer who claimed that the provision of remedies in the Equality Act 2010 in cases of unintentional indirect sex discrimination was incompatible with EU law. The Appellant won a claim of unintentional indirect sex discrimination against the Commissioner of the City of London Police in 2019, after he was removed as an authorised firearms officer and from advanced driving duties due to his defective colour vision, a condition which disproportionately affects men. However, the Employment Tribunal did not award any compensation, because it found there was no injury to feelings on the evidence. The Court of Appeal held that sections 124(4) and (5) of the EA 2010, which the Appellant had suggested were incompatible with Council Directive 2006/54/EC and the Charter of Fundamental Rights, simply set out a procedure whereby a tribunal considers whether to make recommendation or declaration first, before then considering compensation – it does not dissuade or inhibit the tribunal from making an order for compensation at all. Therefore, the procedure did not make it more difficult for the Appellant to vindicate his EU rights to access compensation; rather the facts of the case did not support such compensation because the claim of indirect discrimination was only upheld in reference to his ban from advanced driving duties, and his injured feelings stemmed from his removal as an authorised firearms officer.

On the UKHRB:

• Anurag Deb discusses the ongoing legal battles concerning the Irish Troubles.
• Law Pod UK has released a new episode discussing the recent laws containing Henry VIII powers, and the possible consequences for parliament scrutiny, featuring  Isabel McArdle and Sarabjit Singh QC of 1 Crown Office Row.