The Weekly Round-up: The Rwanda ruling, NHS strikes, asylum seeker cost-of-living claim, and victim-blaming

22 December 2022 by Lucy Stock

In the news:

• The Divisional Court has dismissed the claim for judicial review challenging decisions made by the Home Secretary that asylum claims made in the United Kingdom should not be determined here and that instead the persons who have made those claims should be removed to Rwanda to have their asylum claims determined there. Removal from the United Kingdom in these circumstances involves two decisions: first, a decision that the asylum claim is inadmissible – i.e., that the asylum claim should not be decided on its merits in the United Kingdom; and second a decision to remove the asylum claimant to a safe third country which in these cases is Rwanda. Lewis LJ and Swift J found that the Home Secretary was entitled to rely on assurances provided by the Rwandan government in a specific and detailed memorandum of understanding that Rwanda was a safe third country. They also rejected the argument that the policy was in breach of retained EU law, specifically, Directive 2005/85 art.27(2). Regardless of whether art.27(2) had been breached, there was no breach of retained EU law, by reason of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Sch.1 Pt 3 para.6, the Directive was not retained EU law. The judgment is also interesting on the question of standing. The claimants included individual asylum seekers, charities and a home office officials’ trade union. The Court concluded that neither the trade union nor the charities had standing. The union’s members were not directly affected by the policy in any sense relevant for the purposes of seeking judicial review, and it could not be said that any person working for a public authority had sufficient interest to challenge any decision taken by that authority. The charities claimed that they had surrogate standing in that they represented the interests of those who were not well-placed to bring an action themselves. However, that submission was undermined by the presence of the asylum-seeker claimants, who were better placed to bring the claim.

• A&E wards dealt with 2.2. million patients last month, while ambulance services attended 81,655 of the most serious incidents: the highest demand on record for November. Strikes are set for December 15 and 21, as Royal College of Nursing members at hospitals across England will strike over below-inflation pay increases. Paramedics and other ambulance staff in most parts of the country will strike a day later on December 21. Labour have indicated they are “willing to talk” about higher pay rises for NHS staff, and would revisit the pay deal handed to NHS staff.

• A Manchester High Court order was made on Friday 16 December by Fordham J, ruling that the Home Secretary acted unlawfully in failing to ensure an adequate rate of support for more than 50,000 asylum seekers. The case, brought by an asylum seeker “CB”, challenged the amount of financial support given to asylum seekers during the cost-of-living crisis. An estimated 58,148 asylum seekers in self-catering accommodation receive cash support for basic needs such as food and travel. The level of support is calculated to be the minimum required for day-to-day survival.  

In other news:

• The CPS has announced that children affected by domestic abuse will automatically be treated as victims regardless of whether they were present during violent incidents. As a result, young people will be able to gain automatic access to support like mental health and safeguarding services. The updated legal guidance also specifically requests prosecutors consider the impact domestic abuse has on young people when making a charging decision.

• The independent report into the first year of Operation Soteria Bluestone– launched following the concerning fall in rape prosecutions- was damning and exposed persistent failings in the criminal justice system when dealing with cases of rape. Oversights included failures to track repeated suspects, ‘explicit victim-blaming’, and botched investigations. The report – whose findings have been accepted by the Home Office – analyses 80,000 rape reports across five forces, giving unprecedented access into such a range of police records.

In the courts:

• On 13 December, the Scottish Court of Session handed down judgement in Petition of for Women Scotland Ltd for Judicial Review [2022] ScotCS CSOH_90. This petitioners sought judicial review of the revised statutory guidance produced by the Scottish Ministers under section 7 of the Gender Representation on Public Boards (Scotland) Act 2018. This followed an appeal to the Second Division of the Inner House, which held that the proposed definition in the 2018 Act, and the associated statutory guidance, of “woman” as including “transgender women”, purported to expand the definition of protected characteristics within the Equality Act 2010 (For Women Scotland Ltd v The Lord Advocate[2022] CSIH 4,2022 SC 150 “FWS1”). There were two central issues in the petition: (i) whether the revised guidance was lawful under reference to the decision in Fair Play for Women v The Registrar General for Scotland both at first instance and on appeal, ([2022] CSOH 20, [2022] CSIH 7), where it had been accepted that birth or biological sex and the acquired sex as stated on a GRC were, in effect, synonymous; and (ii) whether the Equality Act 2010 was consistent with the terms of section 9 of the Gender Recognition 2004 Act. The Court held that the 2010 Act was drafted in full awareness of the 2004 Act and its ambit, and does not expressly or impliedly repeal, dis-apply, or amend section 9(1) of the 2004 Act. The Court concluded, in light of its reading of the decision in FWS1, that for the purposes of the 2010 Act, “sex” is not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex. The Court held that the revised statutory guidance issued by the Scottish Ministers on 19 April 2022 was lawful, thus dismissing the petition.

• The Court of Appeal allowed an appeal on 15 December in the case of A, Re (A Child : Findings of Fact) [2022] EWCA Civ 1652. The proceedings concerned an appeal against the findings of fact in the decision of the High Court which took place on 23-25 February 2022.  The appeal concerned S, his mother (a Pakistani national from Pakistan-administered Kashmir), and his father (a Pakistani and British national who grew up in England). The mother alleged that from the time of her arrival in the UK the father abused her physically, sexually, emotionally and financially. The father claims the mother fabricated this account. The trial judge found the stranding allegations to be the only allegations to have been proved. She rejected the evidence of the father on that issue and the evidence of the mother on all other issues. The court held that the trial judge’s assessment of the mother’s evidence was inadequate in a number of significant respects, including the fact that the trial judge clearly considered that the mother’s evidence could only be accepted if it was corroborated. The court held that the assessments of the parents by the trial judge were not sustainable and did not supply the reasoning necessary to justify what was in other respects a surprising conclusion. The appeal was therefore allowed and the case must be fully reheard.

• In the case of Director of Public Prosecutions v Highbury Corner Magistrates’ Court [2022] EWHC 3207 (Admin), the High Court granted the Director of Public Prosecutions (“DPP”)’s claim for judicial review of the District Judge’s decision to uphold the submission that there was no case to answer, and the refusal to state a case. The Interested Parties were charged with offences of aggravated trespass arising out of their protest against construction of the HS2 railway. The charges alleged that they had disrupted or obstructed “HS2 construction”. District Judge Williams held that the construction contractor was not on site, and that the charge of disrupting or obstructing “HS2 construction” did not encompass the eviction of the protestors. The DPP appealed on three grounds: (i) the decision of the District Judge was irrational, because in the context of the case “HS2 construction” encompassed the clearance of the site, including the eviction of the Interested Parties; (ii) the decision of the District Judge was procedurally flawed because the defect she identified could have been cured by an amendment to the charge; and (iii)  the judge was not entitled to refuse to state a case, as it raised a contestable legal issue underling the decision to uphold the submission of no case to answer. The Court was persuaded on all three grounds. The case was directed to Highbury Corner Magistrates’ Court for a retrial before a different judge.