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In this first Judgment, the Court analysed powers granted by the Immigration Acts 1971 and 2016 and rejected the Defendant’s erroneous interpretation of the relevant statutory provisions. It then made consequential orders (also reported) including steps to publicise its ruling, given that over 400 phones, still held, could not be linked to any individual migrant.
A second Judgment (delivered on 14 October 2022) was recently published ([2022] EWHC 2729 (Admin)). This Judgment addresses the question “how did this happen?” How did the Defendant come to operate an unlawful policy and why was its existence initially denied, leading the Defendant to breach her duty of candour within the proceedings?
The storm raging around small boats arriving on the south coast has been brewing for some time. In early summer the focus was a policy to send arrivals to Rwanda. Intervention by the European Court of Human Rights effectively suspended flights while a domestic ruling on the policy’s legality is awaited. Meanwhile, in Dover a migrant processing centre has been firebombed, another is dangerously overcrowded, and the new Home Secretary raises tensions by speaking of an “invasion”.
Amidst this swirl is an eye-catching Divisional Court Decision about a secret and unlawful Home Office policy to seize and download data from the mobile phones of all those arriving in small boats. The substantive Judgment in R (HM, MA and KH) v Secretary of State for the Home Department [2022] EWHC 695 (Admin) was delivered on 25 March 2022, followed by an Order distilling the Court’s conclusions on 18 October 2022.
The appeal by Tavistock and Portman NHS Trust was allowed. Image: The Guardian
In Bell and A v Tavistock and Portman NHS Trust and others[2021] EWCA Civ 1363 the Court of Appeal advised judges to avoid formulating policy in an area of social and moral complexity.
Ever since the Divisional Court restricted the medical treatment of children experiencing gender dysphoria at the end of last year (see R (on the application of Bell and A) v Tavistock and Portman NHS Trust and others), discussed on this blog here), the decision has provoked heated debate. Some lamented the distress of young sufferers deprived of treatment. Others applauded limits they said would prevent irreparable harm. On 17 September 2021 the Court of Appeal reversed the decision, but the dispute will continue to rage both in and outside the Courts.
The first Claimant, Keira Bell, is a former patient of the Tavistock who was prescribed puberty blockers at 16 to delay the onset of female sexual characteristics. She transitioned to a male using cross-sex hormones, had a double mastectomy, and then changed her mind, regretting the “brash decision” she said would negatively affect the rest of her life. Her case – accepted by the Divisional Court — was that the “innovative” and “experimental” nature of the treatment, specifically the use of puberty blockers, made it unlikely a child could validly consent to it.
During the pandemic, the public’s gratitude to the medical profession has been palpable. But rightly, practitioners continue to be regulated, supervised by the Courts. Here we report a clutch of decisions highlighting some common themes: the importance of transparency and maintaining public confidence in the profession; managing conflicts of interest; making and handling findings of dishonesty.
In R (on the application of Young) v General Medical Council [2021] EWHC 534 (Admin), the Administrative Court upheld the decision of a GMC Assistant Registrar (AR) to proceed with charges against the Claimant notwithstanding a previous Assistant Registrar had taken a contrary view.
The events giving rise to the case were tragic. In October 1996 Claire Roberts, age 9, died at the Royal Belfast Hospital for Sick Children two days after admission. Her death wasn’t referred to the Coroner and the certificate failed to record the diagnosis – hyponatraemia, a condition where sodium in the blood falls dangerously low, leading to cerebral oedema.
In late 2004, a public inquiry was convened following a documentary about the deaths of three other children from hyponatraemia, which prompted Claire’s parents to contact the hospital. The Claimant – Professor of Medicine at Queen’s University, Belfast – was asked to review Claire’s clinical notes and met with Mr and Mrs Roberts in December 2004. A letter to them followed in January 2005 to which he contributed. In May 2006 he gave evidence at the inquest convened to investigate Claire’s death.
Many of the newly vaccinated booked their appointments with gusto and left with a sense of elation. For others the process wasn’t so simple. We see a snapshot of this in a handful of reported cases from the Court of Protection:
In these cases, examined below, the relatives of three care home residents lacking medical capacity, objected to their receiving the vaccine against Covid-19. The CoP applied the requirements of the Mental Capacity Act 2005 and ruled, in each case, that the resident patient’s best interests favoured vaccination.
Mrs E was 80, suffered from dementia and schizophrenia. Her GP approached the subject of the vaccine, but found her unable to understand the nature of the virus, the risks it posed, or the factors weighing for and against vaccination. He considered she lacked capacity but that vaccination was in her best interests. Her accredited legal representative agreed, but her son did not, so the Court was called on to rule.
Thank you all for joining the expert speakers for our webinar considering the question of whether India is still a Liberal Democracy on 11th March 2021 at 4.30 – 5.45pm. A link to the recording is below.
Special Immigration Appeals Commissionand Secretary of State for the Home Department v R (Begum) [2021] UKSC 7
Since 2019 when Shamima Begum was found in a camp in north Syria, her hopes of returning to the UK have ebbed and flowed (see here and here). Stripped of her British citizenship, she brought three sets of legal proceedings. Last week, after a ruling by the Supreme Court, her hopes receded once more. The Home Secretary was entitled to refuse her entry to the UK to pursue her appeal against the loss of citizenship, the Court ruled. So, Ms Begum’s appeal has been stayed, pending some change in her circumstances which will enable her to participate in a hearing – albeit from outside the UK.
The importance of the Judgment goes well beyond Ms Begum’s own circumstances.
It underlines an important constitutional principle about the separation of powers, at a time when the Government is carefully scrutinising such matters: the executive, not the judiciary, is the primary decision-maker when assessing risks to national security.
In failing to acknowledge this, said the Supreme Court, the Court of Appeal erred when it ruled last summer that fairness required Ms Begum be permitted into the UK to pursue her citizenship appeal, notwithstanding the national security concerns.
A case about medical treatment for children experiencing gender dysphoria is bound to evoke strong feelings. So, in early October, when the parties in R (on the application of Quincy Bell and A v Tavistock and Portman NHS Trust and others arrived for the hearing at the Royal Courts of Justice, they found a buzz of press photographers and a throng of campaigners with placards.
Now the Divisional Court has delivered its judgment in this controversial and difficult case. On 1 December 2020, it substantially upheld the Claimants’ challenge to the practice of prescribing puberty-blocking drugs to children, some as young as 10, with gender dysphoria.
The first Claimant, Quincy Bell, was born female. At about 15 she was prescribed puberty blocking drugs (PBs) to halt the development of female sexual characteristics. Subsequently she transitioned to a male using “cross-sex hormones” and then underwent a double mastectomy. She told the court her doubts began before the surgery and she now wished to identify as a woman, reverting to the sex on her original birth certificate. “I made a brash decision as a teenager” she said, “… trying to find confidence and happiness except now the rest of my life will be negatively affected…transition was a very temporary, superficial fix for a very complex identity issue.”
The second Claimant was the mother of 15 year old with autismexperiencing gender dysphoria whom she feared would be prescribed puberty-blockers.
The Claimants contended that prescribing these drugs to under 18s was unlawful because they lacked competence to give valid consent to the treatment, and were given misleading information.
Begum v Special Immigration Appeals Commission and the Secretary of State for the Home Department[2020] EWCA Civ 918
Early last year, after ISIL was dislodged from Raqqah, Shamima Begum was discovered in a refugee camp in Syria. When she expressed a wish to return home to London’s Bethnal Green, Her Majesty’s Government wasn’t welcoming. She had left to join ISIL and HMG did not want her back. It considered her a serious risk to national security and removed her British citizenship. It then refused her leave to enter the UK to appeal that decision. But the Court of Appeal, in the latest legal ruling on the case, has held that fairness requires she be permitted to return to participate in her appeal.
The Court’s decision overturns some, but not all, of the Judgment of the Special Immigration Appeals Commission (SIAC) delivered in February (and reported here).
When she was fifteen Shamina Begum slipped unimpeded out of the country to join ISIL. Only her image, walking with two school friends, was captured as she made her way through Gatwick Airport onto the aircraft. Her return to the UK, five years on is proving more difficult.
After the collapse of ISIL’s stronghold in Raqqa, Ms Begum appeared, heavily pregnant, in a camp in northern Syria, held by the Syrian Democratic Forces. In an interview she said she wanted to return but did not regret having gone to Syria.
On 19 February 2019, the Secretary of State, Mr Javid, informed Ms Begum’s family he considered she posed a threat to national security and issued an order depriving her of her nationality.
As was her right, Ms Begum issued an appeal against the deprivation order to the Special Immigration Appeals Commission (SIAC). Permission to enter the UK to pursue the appeal was refused by the Secretary of State.
R (Salman Butt) v Secretary of State for the Home Department [2017] EWHC 1930 – read judgment
In the wake of the London and Manchester attacks, the government’s counter-terrorism strategy is increasingly in the news and under scrutiny. Radicalisationis a difficult concept to map on to a system like ours, which separates the definition of criminal behaviour and punishment from civil sanctions. In this week’s podcast, Marina Wheeler discusses some of the ways the law is trying to cope (Law Pod UK Episode 8, available free on iTunes). She and others from 1 Crown Office Row will be discussing this and related issues at a seminar on Monday 11 September.
At the end of July 2017, Mr Justice Ouseley upheld one element of the government’s counter-terrorism strategy – the Prevent Duty Guidance to universities (and other further and higher education bodies) which aims at “stopping extremists from radicalising students on campuses”. He also rejected a complaint that the work of the Home Office’s Extremism Analysis Unit (EAU), breached the Article 8 privacy rights of the claimant, Dr Salman Butt.
We posted a summary of this ruling last week. 1 Crown Office Row’s Oliver Sanders and Amelia Walker represented the Secretary of State. Paul Bowen QC and Zahra Al-Rikabi represented Dr Butt.
In 2011 the Strategy was revised to cover the journey from extremism towards terrorist-related activity (including by the far-right). This attracted criticism, examples of which were collated and presented to support the claimant’s challenge to the lawfulness of the measures. But Ouseley J dismissed all heads of claim, observing that he was
not concerned with whether some oppose the CTSA, or regard the Prevent Duty as counter-productive or have made it so, deliberately or through misunderstanding it.
What was decisive in this case was the absence of evidence that the Prevent Duty Guidance had had a chilling effect on free speech or academic freedom, as claimed. The Prevent Duty Guidance, under section 26 of the CTSA, only came into force in 2015. As those who apply it gain experience and confidence, they will make better judgments. But there will always be some mistakes. One way to avoid these is to have constructive discussion about the process, informed by evidence, not drowned out by “clamorous” criticism. Continue reading →
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