Mirza & Ors: The Rules are neither simple nor flexible so don’t leave it too late

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Mirza and others v Secretary of State for the Home Department [2016] UKSC 63 – read judgment and press summary here.

The background to each of these appeals, although unfortunate, is not in any way extraordinary. Indeed, it is perhaps quite common for those applying for leave to remain to fall foul of procedural requirements or to be caught out by one of the many frequent changes in the legislative scheme governing immigration.

Whereas in most cases the solution may be simply to correct the procedural defect and make a further application, matters become much more complicated for those who apply too close to the date on which their leave to remain expires.

The Supreme Court’s recent decision makes clear that s.3C of the Immigration Act 1971 does not automatically extend a person’s leave to remain. Where leave expires in between the defective application and the fresh one an applicant will simply have run out of time for correction. This was the situation in which all three appellants found themselves.

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Professor Robert Wintemute: Same-sex survivor pensions in the CJEU (Parris) and the UKSC (Walker)

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In the recent case of David Parris v. Trinity College Dublin, the CJEU found that the ineligibility for a survivor’s pension of an employee’s same-sex partner, in circumstances where the 2011 recognition of their civil partnership by Irish law had come after that employee’s 60th birthday and therefore too late to trigger the pension entitlement, gave rise to neither direct nor indirect sexual orientation discrimination.

The UK Government had made written submissions in Parris, hoping for reasoning that would support its defence of an exception in the Equality Act 2010 permitting unequal survivor’s pensions for same-sex civil partners and spouses.  The compatibility of the UK’s exception with EU law and the ECHR will be tested in John Walker v. Innospec Ltd, an appeal to heard by the UK Supreme Court (UKSC) on 8-9 March 2017.  For a detailed analysis of the Court of Appeal’s judgment, see R. Wintemute, March 2016, 45(1) Industrial Law Journal 90-100.

Although it is suggested that the CJEU erred in finding no sexual orientation discrimination in Parris, it focussed on a rule of the Irish pension scheme that does not exist in Walker, namely that the employee’s marriage or civil partnership must take place before their 60th birthday.  It is therefore suggested that Parris will not help the UK Government in Walker.

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Sanctity of life v personal autonomy: Court of Protection

brainmapBriggs v Briggs & Ors [2016] EWCOP 53 (20 December 2016) – read judgment

Apologies for starting the new year on such a sombre note, but there is a shaft of light in that this Court of Protection judgement is a clear indication that judges – or some of them – are prepared to favour an individual’s autonomy over the traditional emphasis on the sanctity of life above all else.

As Charles J points out, this case raises issues of life and death and so vitally important principles and strongly held views. The decision he had to make was whether a part of the current treatment of Mr Paul Briggs, namely clinically assisted nutrition and hydration (CANH), should be continued. Mr Briggs was in a minimally conscious state (MCS) as the result of serious and permanent brain damage he suffered as the victim of a traffic accident eighteen months ago. He was not in a permanent vegetative state (PVS) and so the approach taken by the House of Lords in the Tony Bland case did not apply to him (Airedale NHS Trust v Bland [1993] AC 789). In that case, it will be remembered, their Lordships concluded that the continuation of life in such a state was futile. Problems arose with subsequent advancements in neurological diagnosis, where a less catastrophic condition known as MCS was established. In 2012 a court ruled that a patient in MCS could not be deemed to have made an advance directive regarding medical treatment even though during her lifetime she had made her position very clear that she would not want to continue living in such a reduced state (Re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) [2012] 1 WLR 1653). Her views did not, in their view, encapsulate the state of MCS. See my post on that decision here. Baker J’s refusal of the family’s application to allow treatment to be withdrawn came in for severe criticism in the British Medical Journal (see Richard Mumford’s post on that article). The author took Baker J to task for not according significant weight to the informally expressed views of M on life-sustaining treatment, expressed before she came ill. Charles J took a very different approach in this case. Continue reading

Why EU law will not make the trains run on time

pay-southern-rail-train-strikeGovia GTR Railway Ltd v. ASLEF [2016] EWCA Civ 1309, 20 December 2016 – read judgment 

As all domestic readers know, there is a long running industrial dispute between Southern Rail and ASLEF, the train drivers’ union. The issue : DOOP  – Driver Only Operated Passenger – Trains. The company says they are perfectly safe, have been used extensively, and there will be no job losses. It claims over 600,000 journeys are being affected per day. The union strongly disputes that the new system of door closing is as safe as the old for passengers, and says that the new system is very stressful for drivers. 

Under domestic law, there appears to be no doubt that the strike action is lawful. In the time-honoured phrase, it is in furtherance and contemplation of a trade dispute, and the company accepted that a proper and lawful strike ballot was held – with a 75% turnout of members of whom 90% favoured the strike.

But the company argued that strike action was in breach of EU law, and hence it was entitled to an interlocutory injunction preventing the strike pending trial.

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Who sees you when you’re sleeping? Who knows when you’re awake?

hacking-1685092_960_720Angela Patrick of Doughty Street Chambers provides an initial reaction on the implications of the decisions in Tele Sverige/Watson for domestic surveillance and the Investigatory Powers Act 2016.

In an early holiday delivery, the Court of Justice of the European Union (“CJEU”) handed down its judgment in the joined cases of Tele Sverige/Watson & Ors (C-203/15/C-698/15), this morning.

Hotly anticipated by surveillance and privacy lawyers, these cases consider the legality of data retention laws in Europe, following the decision in Digital Rights Ireland that the Data Retention Directive was unlawful. Broadly, the CJEU confirms that EU law precludes national legislation that prescribes the general and indiscriminate retention of data.  The Court concludes that the emergency data retention legislation passed in a few days in 2014 – the Data Retention and Investigatory Powers Act 2014 – is unlawful.  That legislation is, of course, due to lapse at the end of December 2016 in any event.

This morning’s decision comes just too late to have influenced the passage into law of the Investigatory Powers Act 2016 (“IPA”) – the new domestic bible on bulk surveillance, interception, communications data retention and acquisition and equipment interference – which received Royal Assent in early December. However, what the CJEU has to say about surveillance and privacy may determine whether the IPA – also known by some as the Snoopers Charter – has a long or a short shelf-life.

The powers in IPA are built on the same model as its predecessor and provides for broad powers of data retention with limited provision for safeguards of the kind that the Court considered crucial.  Significant parts of that newly minted legislation lay open to challenge. Continue reading

Aggrieved student wins right to challenge degree grade in full trial

mortarboard-svgSiddiqui v University of Oxford [2016] EWHC 3150 (5 December 2016) – read judgment

This case raises the interesting question of whether a disappointed graduate may call upon the courts to redress a grievance concerning the grade he was given for his degree; not just what his ground of claim should be, but whether this is the kind of grievance which should be navigated through the courts at all. There are some matters which are arguably non-justiciable matters of academic judgment.

The facts of the case may be summarised briefly. The claimant is a former history student at Brasenose College, Oxford. The defendants are, or the defendant is, collectively, the Chancellor, Masters and Scholars of the University of Oxford. The defendant is referred to throughout as the University.

The claimant sat his final examinations in June 2000 and obtained an Upper Second Class Bachelor of Arts Honours degree in history. His claim against the University was for damages for negligent teaching leading, he alleges, to him failing to get a higher 2:1 or a first class degree which, he said, he would otherwise have achieved.

The University applied to strike out the claim and/or for summary judgment on the ground that it was hopelessly bad on the merits and also plainly time barred. Continue reading

The Round Up – ‘Snooper’s Charter’ set to become law

The Investigatory Powers Act 2016

The Investigatory Powers Act 2016 is set to become law in the United Kingdom following its passing of the third stage of legislative scrutiny earlier this month. The Act seeks to consolidate and amend the legislative framework which governs the use of investigatory powers, including the Regulation of Investigatory Powers Act 2000 (RIPA). It is expected to receive royal assent by the end of 2016.

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