By: Rosalind English
4 February 2013 by Rosalind English
Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) – read judgment
The Upper Tribunal has concluded that new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8 of the ECHR.
This is the second determination of the “fit” between the immigration rules, introduced last year, and the UK’s obligations under Article 8 of the Convention. I covered the Upper Tribunal’s assessment of the rules in MF (Article 8–new rules) Nigeria [2012] UKUT 00393 (IAC) in a previous post and it will be remembered that the Tribunal held there that the new rules fall short of all Article 8 requirements.
Background
The claimant was a Nigerian national who had raised a claim to private and family life under Article 8 of the European Convention on Human Rights as part of a claim for asylum. She had travelled to the UK previously, with periods of overstaying and having obtained employment by using false identity papers. Whist in the UK she met her husband, a dual British/Nigerian citizen and argued that her removal would interfere with her right to family life under Article 8.
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1 February 2013 by Rosalind English
Denise McDonagh v Ryanair Ltd [2013] EUECJ C-12/11 (31 January 2013) – read judgment
“Congratulations! You have arrived on yet another ontime Ryanair flight. Ryanair – for the lowest fares and the best ontime record. Outstanding”
… or maybe not so outstanding.
On 11 February 2010, Ms McDonagh booked a flight with Ryanair from Faro (Portugal) to Dublin (Ireland) scheduled for 17 April 2010. On 20 March 2010, the Eyjafjallajökull volcano in Iceland began to erupt. On 14 April 2010, it entered an explosive phase, casting a cloud of volcanic ash into the skies over Europe. On 15 April 2010, the competent air traffic authorities closed the airspace over a number of Member States because of the risks to aircraft. Ms McDonagh’s flight was cancelled following the closure of Irish airspace. Ryanair flights between continental Europe and Ireland resumed on 22 April 2010 and Ms McDonagh was not able to return to Dublin until 24 April 2010. In the intervening week, no efforts were made by the airline to provide Ms McDonagh with the care to which she was entitled under the relevant EU Regulation No 261/2004, providing rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.
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30 January 2013 by Rosalind English
Graiseley Properties Ltd and others (Claimants) v Barclays Bank Plc (Defendant); Various employees and ex-employees of Barclays Bank plc and Telegraph Group and others (interveners) [2013] EWHC 67 (Comm) 21 January 2013 – read judgment
The Commercial Court has resisted an application to anonymise those individuals at Barclays involved in the LIBOR scandal.
In his firm dismissal of the arguments Flaux J has confirmed the principle that anonymity orders will only be made in cases where the applicant for the order has established that it is strictly necessary for the proper administration of justice. The employees’ claim they should remain anonymous until trial failed at the first hurdle, “because they had simply not established by clear and cogent evidence, or at all, that the order they seek or any aspect of it is strictly necessary for the proper administration of justice.”
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30 January 2013 by Rosalind English
T, R on the application of) v Chief Constable of Greater Manchester, Secretary of State for the Home Department and Secretary of State for Justice; AW, R (on the application of) v Secretary of State for Justice and JB, R (on the application of) v Secretary of State for Justice [2013] EWCA Civ 25 – read judgment
The Court of Appeal has ruled that the statutory requirement that criminal convictions and cautions must be disclosed in an enhanced criminal record check (“ECRC”) in the context of particular types of employment interfered with the appellants’ right to respect for private life under Article 8.
Neither of the disclosure provisions, under the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, were proportionate since they went beyond the legitimate aims of protecting employers and vulnerable individuals.
See Panopticon’s post on the ruling and their previous post (republished on our blog) on the dismissal of T’s application for judicial review in the Administrative Court. We add a few words of our own.
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25 January 2013 by Rosalind English
Michael Sims v Dacorum Borough Council [2013] EWCA Civ 12 – read judgment
This was a property dispute which broke out on the marriage breakdown of two joint tenants of council property. The wife who sought termination of the periodic secure joint tenancy by unilateral notice. The husband, as the other joint tenant still living in the property, maintained that he was entitled remain there as a sole tenant.
In fact, the point had already been settled in the case of Hammersmith and Fulham LBC v. Monk [1992] AC 478 which established that at common law, a periodic joint residential tenancy is terminated automatically, if one joint tenant, without the concurrence of the other joint tenant, or tenants serves a notice to quit on the landlord.
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24 January 2013 by Rosalind English
Prudential plc and another , R (on the application of) v Special Commissioner for Income Tax and another [2013] UKSC 1 23 January 2013 – read judgment
The Supreme Court has ruled that legal advice privilege should only apply to advice given by a member of the legal profession; that this is what the common law has always meant, and that any wider interpretation would lead to uncertainty. Two strong dissents do not find any principled underpinning for the restriction of the privilege to advice from solicitors or barristers.
The following summary is based on the Supreme Court’s press release (numbers in square brackets denote paragraphs in the judgment).
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19 January 2013 by Rosalind English
An NHS Trust v SR [2012] EWHC 3842 (Fam) – read judgment
The highly publicised case about a seven year old boy whose estranged parents could not agree about the necessary treatment following surgery for his brain tumour was resolved by a firm ruling in favour of orthodox medicine by Bodey J, four days before Christmas.
The facts of the case are well known, but it may be instructive to lay out some of the details of the procedure that follows in a situation like this, and to point up the approach of the courts to a matter where orthodox science lies flat against the claims of complementary medicine. Where the life of a child is at stake, there is no polite equivocation between the two.
Background
Briefly, the mother would not agree to the recommended post-operative course of chemo- and radiotherapy (carrying an 80% chance of success), believing instead that her son would fare better with alternative forms of treatment and would avoid or reduce the undoubtedly detrimental long-term side effects of the treatment package being proposed. In a serious matter such as this, where the parents cannot agree, an application has to be made to the court for a declaration that the procedure in question is lawful. That involves a decision as to the child’s best interests, being the court’s paramount consideration. Hence it was incumbent on the NHS Trust concerned to apply to the High Court to determine the issue of N’s treatment following on from his brain surgery two months previously.
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18 January 2013 by Rosalind English
Knowles and another, R (on the application of) v Secretary of State for Work and Pensions [2013] EWHC 19 (Admin) – read judgment
The High Court has rejected a claim that Gypsies occupying caravans on private land were discriminated against by legislation which resulted in them not being able to claim full Housing Benefit to cover their rent.
Occupiers of caravans on a site owned by a local housing authority receive a Housing Benefit rent rebate of the whole of the rent charged. But if the caravan is on a private site, then the rent on which HB can be claimed is subject to determination by a rent officer, and that is normally substantially less than the full contractual rent charged. The claimants maintained that this scheme fails to meet the essential housing needs of Gypsies on private sites, who have particular site infrastructure and management needs – which result in additional costs, and hence a legitimately higher rent, not reflected in the HB awarded. They contended that the scheme was therefore discriminatory, and in breach of article 14 of the European Convention on Human Rights, when read with article 1 of the First Protocol 1 (the right to property) and article 8 of the substantive Convention (the right to respect for family and private life).
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15 January 2013 by Rosalind English
Eweida and Others v. the United Kingdom – read judgment
The Strasbourg Court has today come up with something of a mixed message in relation to religion at work. They have voted that there is a right to manifest individual faith by wearing religious adornments but not by objecting to practices that are protected by anti-discrimination legislation.
All four applicants are practising Christians. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor complained about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality. Further details of all these cases can be found in our posts here, here, and here (as well as in the “related posts” section below).
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13 January 2013 by Rosalind English
Bristol City Council v C and others [2012] EWHC 3748 (Fam) – read judgment
This was an application for a reporting restriction order arising out of care proceedings conducted before the Bristol Family Proceedings Court. The proceedings themselves were relatively straightforward but, in the course of the hearing, information came to light which gave rise to concerns of an “unusual nature”, which alerted the interest of the press.
Background
After family court proceedings decided that child A was at risk of violence from her father, an interim care order was implemented and A was moved to foster carers. However some time afterwards the local authority received information from the police suggesting that someone living at the address of A’s foster carers had had access to child pornography. A also told social workers that another member of the foster household (also respondent to this action) had grabbed her around the throat. As a consequence police and social services visited the foster carers, informed them of the concerns about pornography, removed all computers from the house and moved A to another foster home. On the following day the male foster carer was found dead, having apparently committed suicide.
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9 January 2013 by Rosalind English
Schwartz and another v Insogna and another, United States Court of Appeals for the Second Circuit – read judgment
Never doubt the authority of the law, particularly in the US, where a six year battle triggered by a middle finger gesture continues to rage in the New York courts.
In May 2006, Mr. Swartz was a passenger in a car in a rural part of upstate New York when he spotted a police car that was using a radar speed-tracking device. The driver, a Vietnam veteran and retired airline pilot, acted on instinct to show his displeasure: he extended his right arm outside the passenger’s side window, and then further extended his middle finger over the car’s roof. As the New York Times reports
The reaction was swift. The officer followed the car; words were exchanged; backups were called; and Mr. Swartz was arrested on a charge of disorderly conduct.
Mr Schwartz maintained that his gesture was provoked by his anger that the local police were spending their time running a speed trap instead of patrolling and solving crimes.
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20 December 2012 by Rosalind English
R on the application of Louisa Hodkin v Registrar General of Births, Deaths and Marriages [2012] EWHC 3635 (Admin) – read judgment
Ouseley J has dismissed a challenge by the applicant against the Registrar General’s decision not to register a chapel of the Church of Scientology as ‘a place of meeting for religious worship’ which in turn means it is not a registered building for the solemnisation of marriages.
The following report is drawn from the Court’s press summary
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15 December 2012 by Rosalind English
(1)The British Humanist Association (2) Jeremy Rodell (a member of the Richmond Inclusive Schools Campaign) v London Borough of Richmond upon Thames (2)The Roman Catholic Diocese of Westminster (3) The Secretary of State for Education [2012] EWHC 3622 (Admin) – read judgment
This was an application for judicial review of decisions of the defendant Council to approve proposals put forward by the Roman Catholic Diocese of Westminster to establish a voluntary aided secondary school designated by the Secretary of State as a school having a religious character as a school for Roman Catholics and a similarly designated primary school.
The British Humanist Association took the claim on behalf of non-religious people. The second claimant was an association of local residents which campaigns to seek to ensure that any new state schools which open in the Council’s area operate open admissions policies. The claimants’ concern was that the Council’s decisions to allow the opening of the new Catholic primary and secondary schools would mean that new schools funded by the state will operate admissions policies focused predominantly on children who are Catholic, rather than being more widely available to children in the Council’s area.
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14 December 2012 by Rosalind English
X(Appellant) v Mid Sussex Citizens Advice Bureau and another (Respondent) [2012] UKSC 59 – read judgment
The Supreme Court has confirmed the Court of Appeal’s view that voluntary occupation does not attract the protections of the Equality Act or the Framework Directive.
Background
The appellant had worked as a volunteer adviser for the Citizens’ Advice Bureau since 2006. In 2007 she claimed that she was asked to cease work in circumstances amounting to discrimination on grounds of disability. She sought to bring proceedings against the respondent but the Court of Appeal held that the Employment Tribunal had no jurisdiction to hear the case as she was a volunteer rather than an employee, and therefore fell outside the scope of protections against discrimination under the Disability Discrimination Act 1995 (now covered by the Equality Act 2010) and Directive 2000/78/EEC (“the Framework Directive”). See Isabel McArdle’s post on that decision here.
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12 December 2012 by Rosalind English
This week David Cameron announced plans to introduce whole genome mapping for cancer patients and those with rare diseases within the NHS.
Single gene testing is already available across the NHS ranging from diagnosing cancers to assessing patients’ risk of suffering side effects from treatment, but this initiative will mean that the UK will be the first country in the world to introduce the technology within a mainstream health system, with up to 100,000 patients over three to five years having their whole genome – their personal DNA code –sequenced. According to Chief Medical Officer Professor Dame Sally Davies
The genome profile will give doctors a new, advanced understanding of a patient’s genetic make-up, condition and treatment needs, ensuring they have access to the right drugs and personalised care far quicker than ever before.
What will this mean for medical confidentiality? The official announcement ends with the following declaration:
1. Genome sequencing is entirely voluntary. Patients will be able to opt out of having their genome sequenced without affecting their NHS care.
2. Whole genome sequence data will be completely anonymised apart from when it is used for an individuals own care.
3. A number of ways to store this data will be investigated. The privacy and confidentiality of NHS patients will be paramount in this decision.
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Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) – read judgment
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