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The Supreme Court has ruled in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 that the Investigatory Powers Tribunal’s decisions are nevertheless amenable to judicial review, despite the existence of a powerfully-drawn ‘ouster clause’preventing its decisions from being questioned by a court.
In this article we will navigate our way through the decision and have a look at the principles that lie behind this case and what its wider significance might be.
Background
The Investigatory Powers Tribunal (IPT) is the body which has jurisdiction to examine the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (GCHQ). Effectively, the IPT is the court where a person can challenge the lawfulness of a decision to put them under surveillance.
The question in this case was whether the decisions of the IPT itself could be challenged in court. In particular, did the High Court have jurisdiction to entertain an application for judicial review brought by Privacy International against a decision by the IPT that computer hacking by GCHQ fell lawfully within its general warrant to undertake such activity?
But what happened in the courts? Oh what an adventure it has been, dear reader. Strap on your seat belts and join me as we take a whistle-stop tour through 10 of the biggest legal battles of the last year.
(a) A claimant at the Immigration Tribunal who relies on their private (not family) life under Article 8 will be entitled to have only “little weight” placed on that private life if they have been in the UK without indefinite leave to remain, unless there are “particularly strong features of the private life in question”; and
(b) A claimant who is financially dependent on other people but not on the state should not have that fact held against them when assessing the public interest in their removal.
Whilst the result was a victory for the individual claimant in this case, the wider consequences of this decision will be to clarify and tighten the law in a way that will make it even harder than it already was for claimants to succeed on the basis of their private life in the UK.
On 24th October 2018 the Supreme Court gave its judgment in the conjoined cases of KO (Nigeria); IT (Jamaica); NS (Sri Lanka) and others; Pereira v Secretary of State for the Home Department [2018] UKSC 53 — read judgment.
This is a major decision which clarifies the approach that the Immigration Tribunal should take to the question of whether a child and/or their parents should be removed from the UK in circumstances where it is claimed that this would constitute a disproportionate interference in their rights to private and family life.
In summary, the Court held that misconduct by the parents — be it criminal offending or immigration-related misdemeanours such as overstaying a visa — should not form part of the assessment of whether a child should be removed from the UK. As a result, it should also not form part of the assessment of whether Article 8 requires that the parent remain in the UK with the child.
However, the judgment is complicated and leaves some questions without clear answers. In this extended article, we will explore the reasoning of the Court and have a look at what has been clarified but also at what might now be plunged into confusion.
As discussed previously on the Blog, the rights of the family members of EEA nationals to reside in the UK is currently in a state of flux. One important issue concerns the appeal rights of an “extended family member” of an EEA national.
At the moment, if a “family member” of an EEA national resident in the UK, that is, a spouse, direct descendant (including a stepchild) who is dependent or under 21, or a dependent in the direct ascending line, applies for a residence card under the Immigration (European Economic Area) Regulations 2016 and is refused by the Home Office, they have a right of appeal to the First-tier Tribunal in the normal way.
However, if an “extended family member”, that is, a non-married partner or other dependent relative (e.g. grown-up child) of the EEA national applies for a residence card, but is refused, regulation 2 of the Immigration (European Economic Area) Regulations 2016 operates to preclude a right of appeal to the First-tier Tribunal. Therefore, only judicial review is available to challenge such a decision.
In my last article, we saw that one such “extended family member”, Ms Rozanne Banger (I am reliably informed that her surname is pronounced “Banjer” with a soft “g”), fought a case at the Upper Tribunal in part concerning the issue of whether the denial of a right of appeal to a person in her position was compatible with EU law, specifically Article 3(2) of Directive 2004/38 (known as the “Citizens Directive”). The Upper Tribunal decided that it needed to ask the Court of Justice of the European Union to clarify the matter.
After 12 years as Head of Chambers at One Crown Office Row, during which Chambers grew steadily and the number of silks almost doubled, Philip Havers QC this month handed over the reins to his successor, Richard Booth QC.
Philip’s career so far has ranged over a great breadth of work, encompassing public and human rights law, clinical negligence, public inquiries and high profile inquests.
Outside court he is a music lover, with a particular devotion to Tom Petty and the Traveling Wilburys. He is also a tennis fan, a wine connoisseur, and a keen gardener.
He sat down to answer a few of our questions about his career at the Bar and what he has learned.
It is notable that applicants who are refused will have no right of appeal against this decision. The chair of the Home Affairs Select Committee, Yvette Cooper MP, has tweeted to express her concern about this.
This author suggests that it is arguable that the denial of a right of appeal is open to legal challenge.
How the scheme works
Citizens of Commonwealth countries who were living in the UK before 1 January 1973, plus their children and certain non-Commonwealth citizens will be assessed and issued with proof of British citizenship if they already are British in law, or will be considered for naturalisation if they are not. Those who do not qualify for British citizenship will be assessed to see if they have the right of abode and those who do not qualify for that will be considered for a permit confirming their right to be in the UK under the no time limit biometric residence permit scheme.
But what about if the Home Office is not satisfied that an applicant meets the scheme?
The guidance states on p. 13 as follows:
Where a person is determined not to be issued with a document under the Windrush Scheme in accordance with this guidance, the decision will not attract a right of appeal or an administrative review.
So a person who is refused will not be able to appeal to the First-tier Tribunal. They will only be able to challenge the decision by way of judicial review.
The difference between an appeal and a judicial review
In judicial review, on the other hand, the judge does not step into the shoes of the decision-maker and is tasked instead with evaluating whether the decision was lawful and rational. There is always the possibility that the judge will conclude that whilst the decision is tough, it is still legally watertight. In addition, an applicant must apply for permission before they can get a substantive hearing and an unsuccessful applicant usually pays the Secretary of State’s costs.
So, there is a fair amount riding on the issue of whether a claimant gets an appeal or not.
One way for an immigrant to gain the right to be in the UK is by making an application under the Immigration Rules. But these applications are relatively expensive and the requirements have become increasingly stringent (e.g. in a case of a partner, the normal minimum income requirement of £18,600 p/a, which was upheld by the Supreme Court).
For as long as the UK remains in the EU, there is also an alternative option – an application under the Immigration (European Economic Area) Regulations. This offers a route for the family of an EU citizen to apply for a UK residence card.
But the law in this area concerning the right of appeal has been on the move. This article will aim to give an update of where we are up to and what is still yet to be decided.
UPDATED following the Advocate General’s opinion in Banger – see end of this post.
We are delighted to announce the return of the weekly news Round-Up!
Each Monday, Sarah-Jane Ewart, Conor Monighan and Eleanor Leydon will be giving you a bite-sized round-up of legal developments over the last week. These will include summaries of the latest decisions in the courts and discussion of wider issues. We hope these updates will assist in keeping on top of the fast-moving currents in the law in 2018. Don’t go away — these will start next week!
2017 has been a dramatic year in global politics and no less in the world of human rights law.
It has been a fascinating time to be editor of the UK Human Rights Blog. As just a taster, decisions have ranged across issues of the best interests of a seriously ill child, the conduct of British soldiers in Iraq and whether a transgender father should be allowed access to his children in an ultra-religious community. But there is much, much more.
So pour yourself a large measure of whatever you fancy, unwrap that mince pie waiting for you in the larder, and let me take you by the hand as we embark on a whirlwind tour of 10 of the biggest human rights cases of the year:
On 5th December 2017, the Divisional Court gave judgment in Power v HM Senior Coroner for Inner London [2017] EWHC 3117 (Admin), directing that an inquest held in 1998 into a road traffic accident following a police chase had been insufficient and a fresh inquest needed to be held.
On 29th November 2017, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague delivered its judgment on six appeals by Croatian officials and military officers against their convictions for their actions during the Bosnian War of 1992-95.
These crimes, which included grave breaches of the Geneva Conventions and crimes against humanity, arose out of a joint criminal enterprise aimed at creating a Croatian entity in the territory of Bosnia and Herzegovina, known as the ‘Croatian Republic of Herzeg-Bosnia’. This was backed by the government of Franjo Tuđman, President of Croatia at the time.
Following the decision, Slobodan Praljak, one of the appellants, shouted out that he rejected the verdict and drank a vial of poison, dying later that day.
The Government’s flagship scheme to deport foreign criminals first and hear their appeals later was ruled by the Supreme Court to be incompatible with the appellants’ right to respect for their private and family life (reversing the decision below).
Armes v Nottinghamshire County Council[2016] EWHC 2864 (QB) – read judgment
In a nutshell
The right of a claimant to name the people who abused her prevailed over the rights of the perpetrators and others to private and family life.
The claimant, Natasha Armes, applied to set aside an anonymity order granted at the start of a previous trial to protect the identities of witnesses accused of physically and sexually abusing her in foster care.
Mr Justice Males undertook the balancing exercise between the rights to private and family life under Article 8 of the European Convention on Human Rights and the right to freedom of expression under Article 10.
Freedom of expression won the day. Males J lifted the anonymity order, accepting that since most of the allegations had now been proven anonymity was no longer justified.
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On 14th November 2018 the Supreme Court gave judgment in the case of 
On 24th October 2018 the Supreme Court gave its judgment in the conjoined cases of KO (Nigeria); IT (Jamaica); NS (Sri Lanka) and others; Pereira v Secretary of State for the Home Department [2018] UKSC 53 — 
As 
After 12 years as Head of Chambers at One Crown Office Row, during which Chambers grew steadily and the number of silks almost doubled, 
On 24th May 2018 a new scheme to process citizenship applications for the Windrush generation was announced, 
One way for an immigrant to gain the right to be in the UK is by making an application under the Immigration Rules. But these applications are relatively expensive and the requirements have become increasingly stringent (e.g. in a case of a partner, the normal minimum income requirement of £18,600 p/a, which was 
We are delighted to announce the return of the weekly news Round-Up!
2017 has been a dramatic year in global politics and no less in the world of human rights law.
On 5th December 2017, the Divisional Court gave judgment in 
Armes v Nottinghamshire County Council [2016] EWHC 2864 (QB) – 
This blog is run by
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