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The Court of Appeal in MR (Pakistan) and Anotherv Secretary of State for the Home Department [2021] EWCA Civ 541 recently dealt with appeals regarding the absence of a process to assess the vulnerability of a person detained under immigration powers at Her Majesty’s Prisons (“HMPs”). This absence remains despite such a process existing for those detained under the same immigration powers in Immigration Removal Centres (“IRCs”) by virtue of Rules 34 and 35 of the Detention Centre Rules. These provisions enable a medical report to be prepared which is then considered by the SSHD when deciding on the management of the individual under relevant policy guidance.
The Court upheld the claim in part, holding that whilst this discrepancy did not give rise to systemic unfairness, in the individual two cases there was an irrational failure to obtain a Rule 35 report or equivalent. Despite this, however, it was held that these failures were not relevant to the decisions to detain the individuals in the particular cases.
The Empire Windrush arrives at the Port of Tilbury on the River Thames on 22 June 1948. Image: The Guardian
R (On the Application of Hubert Howard (deceased, substituted by Maresha Howard Rose pursuant to CPR 19.2(4) and PD 19A)) vSecretary of State for the Home Department[2021] EWHC 1023 (Admin)— read judgment
Hubert Howard was born in 1956 and came to the United Kingdom in 1960, aged almost 4 from Jamaica. He was part of the Windrush Generation. No doubt like all West Indians of that time, including my parents, he thought he was a British Citizen.
In fact, he was a Citizen of the United Kingdom and Colonies on arrival, and, by sleight of hand, in the author’s view, he lost that status upon Jamaica gaining independence in 1962 and he became a Commonwealth citizen.
The same reduction in status happened to my father in 1966, when Barbados gained independence. Having arrived in 1953, believing he was fully British and having been conscripted for two years’ National Service, he had nobody write telling him that his status had changed and that he effectively became Barbadian, thirteen years after his arrival here.
Hubert should have applied to be registered to be a British citizen before 1 January 1988, when that right lapsed, but like many Commonwealth citizens, particularly from the Caribbean, he did not.
Hubert did apply for a British passport in 2007 and 2010 but on each occasion, he was told that his application failed because he was not a British citizen. In February 2012 he was told by the Home Office that he would first need to apply for indefinite leave to remain, 52 years after he had been resident, and could then, if granted ILTR, obtain a passport after the required period of lawful residence.
In 2012 Hubert lost his job with the Peabody Trust, a job that he had held since 2003, and whose Director of Human Resources was to describe him, in 2018, as “reliable, hardworking and diligent in carrying out his duties”. But due to “an inspection from Immigration Services in 2012 … [he] was unable to produce a passport and we had to let him go”.
In June 2014, Hubert’s solicitors made an application for a No Time Limit status granted to those who have ILTR so that they can be granted a biometric card, which at the time cost £1,300.
The Home Office then required, as was the case with many Windrush applicants, one piece of evidence demonstrating residence from 1960 within 14 days. His application fee was retained when he did not furnish the information.
In April 2018, the then Home Secretary, Amber Rudd made a Windrush Statement, which included the phrase
They are British in all but legal status, and this should never have been allowed to happen.
That sentence was to prove vital to the outcome of the case.
Wandsworth BC v HMC for Inner West London [2021] EWHC 801 (Admin) — read judgment
Mesothelioma deaths arising from asbestos regularly come before coroners. This case, though, is of particular interest because it tests the boundaries of causation in relation to mesothelioma deaths – what evidence is needed to show that asbestos exposure led to that specific death?
The issue before the court was whether the coroner was entitled to conclude that it was probable, as opposed to merely possible, that the deceased had developed the mesothelioma that caused and led to her death as a result of exposure to asbestos while living in the council’s property.
It was concluded that in the circumstances, the evidence had been insufficient and the relevant findings in the Record of Inquest were altered.
Facts
Mrs Johns and her daughter moved into the council’s flat at 8 Eliot Court in July 1996. Twelve years previously, in 1984, asbestos had been detected in the flat. In October 2003 the council instructed contractors to remove the asbestos. While the work was being done, Mrs Johns and her daughter moved out. However, during the works a vacuum cleaner used by the contractors ‘exploded’, soaking a number of pieces of furniture, the carpet and personal possessions with a polymeric substance. On their return to the flat, they discovered the scene, as described by her daughter: “It looked as if something had happened whereby what [the vacuum] was meant to do was to vacuum dust up but what it had in fact done is blown it out…”. She could not recall whether her mother cleaned up the mess, but assumed she had. The contractors and council settled her claim for the damage to her possessions.
Mrs Johns lived at 8 Eliot Court until June 2017 before moving to a new address. In June 2018 she attended her GP, complaining of backache. Her condition deteriorated rapidly, and in July 2018 she was diagnosed with metastatic adenocarcinoma. She died on 27 August 2018 aged 51. The consultant pathologist concluded that she had died of bronchopneumonia, which had resulted from malignant mesothelioma, a form of cancer that affects the lining of the lungs.
The rights of immigrants and asylum seekers have been at the forefront of the news this week, with the Home Secretary coming under fire both in the courts and in the political arena. On Wednesday, a landmark court ruling held Ms Patel accountable for failures properly to investigate deaths among asylum seekers at detention centres. The case concerned two Nigerian nationals, one of whom was found dead in Harmondsworth immigration centre in 2019. His friend, Mr Lawal, was a key witness in the investigation of the death, but the Home Office sought to deport him before he could give evidence. The court held that the Home Secretary’s initial policy, which sought to remove Mr Lawal, its replacement, applied from August 2020, and the current policy, were unlawful and breached human rights because they failed to ensure that those who had relevant information would be able to give evidence before removal proceedings were commenced, thus frustrating inquiries into immigration centre deaths. Days later it was reported that this may be a widespread problem, with suggestions that scores of people had been prevented from giving key evidence to police investigations as a result of early deportation. While Ms Patel was warned that this practice must be curbed by a coroner in August, it is suggested that her response did little to address the problem.
In her latest episode of 2903cb, Professor Catherine Barnard looks back on the past 100+ days since the UK withdrew from the EU. The dire forecasts of chaos at our borders have not been realised, and the doomsayers of Brexit have probably got it wrong. The Covid effect has obviously been dramatic. The economy is likely to bounce back post Covid, but we don’t know how the effects of Brexit will play out for the fishing industry, and other major areas of the UK economy. On the other hand the “vaccine wars” with the EU, and the relatively slow rollout of vaccinations in the bloc compared with Britain’s swift action in getting its population protected against Covid-19, have not reflected well on the EU.
Or, as Andrew Neil put it on the Spectator TV News Channel this week, “A Dripping Roast For Lawyers”. To be fair, Neil was referring to the patchwork of mandatory vaccines across the United States. But with the publication yesterday of the Government’s consultation paper on vaccine requirements for all staff deployed in a care home supporting at least one older adult over the age of 65, the debate raging about “vaccine passports” has a real target in its sights. Not only because the government has found some primary legislation that gives it the power to introduce mandatory vaccinations, but also because the proposals are not limited to employees.
According to the consultation paper (which will take five weeks to circulate, enough for more age groups to move into vaccine eligibility bands), the vaccine requirement will extend to visiting professionals, in particular
all staff employed directly by the care home provider, those employed by an agency, and volunteers deployed in the care home. It also includes those providing direct care and those undertaking ancillary roles such as cleaners and kitchen staff.
…[and could extend to] those who provide close personal care, such as health and care workers. It could also include hairdressers or visiting faith leaders. We are also carefully considering the situation of ‘essential care givers’ – those friends or family who have agreed with the care home that they will visit regularly and provide personal care
The policy proposals provide clear exemptions, but only on medical grounds. Vaccine refusal based on cultural or religious objections is not exempt. Pregnancy is at the moment included in the medical exemption but is under review.
Following International Women’s Day and Women’s History Month, Emma-Louise Fenelon spoke to Harriet Wistrich, founder of the Centre for Women’s Justice about the many ways in which the UK criminal justice system is failing women.
On Wednesday, Amnesty International released its 2020/21 report on the state of the world’s human rights. Amnesty’s UK director, Kate Allen, also called for an inquiry into the government’s handling of the pandemic and said “the government is now shamefully trying to strip away our right to lawfully challenge its decisions, no matter how poor they are.” The report highlighted human rights concerns related to the government’s response to COVID-19, including health, immigration, domestic abuse and housing. There were also concerns around police conduct around racial discrimination and excessive use of force against protesters; during the first national lockdown in May, 10,000 of 43,644 recorded stop and searches conducted against young black men. Several legal developments were criticised for falling short of human rights standards, including the Immigration Act, the Gender Recognition Act, the Domestic Abuse Bill, the Counter-Terrorism and Sentencing Bill, the Overseas Operations (Service Personnel and Veterans) Bill, which would create a “presumption against prosecution” for members of the British Army accused of overseas crimes, including torture, committed more than five years earlier.
In Episode 139 of Law Pod UK Alasdair Henderson of 1 Crown Office Row joins Rosalind English to discuss the recent ruling by the UK Supreme Court that drivers whose work is arranged through Uber’s smartphone app work for Uber under workers’ contracts and so qualify for the protections afforded by employment law, such as minimum wage and paid holiday leave. We also touch upon the challenges brought by the other ride hailing app Ola in the Dutch Courts with respect to automated profiling of drivers. See my post on one of those rulings; this was the first time that a court had found that workers were subject to decision making by AI systems.
The Supreme Court, it will be recalled, concluded that the Employment Tribunal had been entitled to find that the claimant drivers were “workers” who worked for Uber under “workers contracts” within the meaning of the statutory definition. The Court was unanimous in its decision that this was the only conclusion which the Tribunal could reasonably have reached.
As we all know, the acquisition of puppies during lockdown has gone through the roof with the inevitable sad consequences of remorse followed by neglect and even abandonment. Dog theft has spiralled as the market responds by escalating the price of pedigree puppies.
But this case involved a different issue that could have arisen at any time (and indeed the relevant transaction took place over a year before the pandemic hit). The facts can be summarised quite briefly.
On 21 June 2018 the claimant bought an Old English Sheepdog puppy for £1000 from a professional breeder, Ms Pendragon. Ms Coom subsequently discovered that her puppy suffered from two conditions, latent at birth but which manifested themselves within months: hip dysplasia and diabetes.
Applying for a fresh inquest is not straightforward. First, the bereaved have to get permission from the Attorney General. Only once that authority has been granted will they be allowed to apply to the High Court to reopen the inquest (section 13 of the Coroners Act 1988). Often cases are reopened because new evidence has come to light or there has been insufficiency of inquiry, for example where a person is found guilty of the murder of the deceased or new scientific data is provided.[1] Further, it has to be necessary or desirable in the interests of justice that an investigation be (re)opened.
This case does not provide any new legal principles, but it is a strong statement about the importance of testing the evidence before granting the fiat: inquests should not be reopened just to allay the concerns of family members.
(1) Facts and Judgment
This case has a tragic backstory brought about by a complete breakdown of relations between a mother and her daughter-in-law.
Ray Farrell died on 24 October 2016 aged 53 as a result of malignant mesothelioma, which he developed following asbestos exposure working as a mate’s fitter. He had settled a civil claim with his former employer prior to his death. The documentary-only inquest recorded the cause of death as mesothelioma. There was no post mortem or toxicology, as the histology of mesothelioma was considered sufficient.
Concerns were first raised by his daughter, Kelly, who had not been informed of her father’s illness and therefore was shocked to discover his illness and death. Her suspicions were raised by two matters: two carrier bags full of medicines awaiting disposal following his death and a response from the Senior Coroner to her email that there were no toxicology or blood samples because Mr Farrell’s wife, and her stepmother, was very anxious to avoid a post mortem. In fact, it was Mr Farrell who did not want a post mortem.
Her concerns were then taken up by Ray’s mother, Mrs Farrell. She applied for a fresh inquest on the basis that Mr Farrell’s wife, Amanda Burden, hastened his death by deliberately giving him inappropriate medication. Ms Burden and Mr Farrell had been married in February 2016, although they had been in a relationship for eight years. She was, Mrs Farrell alleged, motivated by financial gain. Mrs Farrell applied with the fiat of the Attorney General under s.13 of the Coroners Act 1988 for the quashing of the original inquest due to a lack of appropriate investigation. The Senior Coroner supported the fiat, although doubted whether the outcome would be any different.
On Friday, former Home Secretary Lord Blunkett raised his issues with the Police, Crime, Sentencing and Courts Bill, an enormous piece of legislation that reforms much existing legislation and common law offences. Lord Blunkett pointed to the difficulties the police could face in interpreting the new law, and the sensitive nature of the relationship between the police and protestors. The Bill is currently at the Committee Stage of Parliamentary procedure. Particular attention has been drawn to s.59 of the Bill, which purportedly codifies the common law offence of public nuisance, following the recommendations of the Law Commission’s 2015 report, Simplification of Criminal Law: Public Nuisance and Outraging Public Decency. This section would create an offence of ‘intentionally or recklessly causing public nuisance’, defined as where a person’s act or omission causes serious harm to the public or a section of the public. Subsection (2) states that this offence can be constituted where ‘a person’ suffers ‘serious distress, serious annoyance, serious inconvenience or serious loss of amenity’. On indictment, a defendant is liable to imprisonment for a term up to ten years. While the Law Commission’s recommendation that the fault element should be intention or recklessness as opposed to ‘knew or should have known’ was adopted, the significant maximum term is a new addition.
This case has a history: the long running trade mark dispute between Swatch and Apple about the marks ‘I-WATCH’ and ‘I-SWATCH’. I will go back to that in a moment. The dispute in question concerned trade mark applications designating the following signs, covering a wide range of goods including watches and consumer electronic products:
SWATCH ONE MORE THING ONE MORE THING
[Full disclosure: the author of this post was an undergraduate contemporary in the eighties with Iain Purvis QC, the presiding judge in this matter. I have chosen not mischievously to publish this report on 1 April.]
“One more thing” became something of a meme since The well-known Chairman and founder of Apple, Steve Jobs, would reach what would seem to be the end of his keynote address at an industry event chosen for an important announcement, turn as if to leave the stage, and then turn back with the words ‘but there’s one more thing’. In 1998 the first ‘one more thing’ was the return of Apple to profitability. In later years, the ‘one more thing’ would often be a new Apple product. The tradition appears to have lapsed on Steve Jobs’ death in 2011 but was revived by his successor Tim Cook in 2015 for the launch of the Apple Watch.
On 26 March, the Government of the People’s Republic of China announced sanctions against a number of British individuals and entities. Most publicity has been attracted by the inclusion of well-known politicians on the list. But the most sinister inclusion may be “Essex Court Chambers”. Whereas the sanctioning of a politician, who is unlikely to own property in China, is a largely symbolic gesture, the announcement in respect of the set of barrister’s chambers strikes at the heart of the English legal system and the services offered by English lawyers. It also has serious ramifications for all commercial transactions relating to China.
The decision against Essex Court Chambers is understood to be related to the fact that four individual members of those Chambers had together written an opinion concerning the treatment of the Uighur population in the Xinjiang Uighur Autonomous Region. It appears that that legal opinion was written pursuant to instructions received from the Global Legal Action Network. Each of the four barristers was thus providing independent legal advice for a client pursuant to their professional obligations and qualifications as members of the Bar of England and Wales subject to the regulatory supervision of the Bar Standards Board. According to the chambers’ website, my source for this material, none of those four barristers published that legal opinion.
Home Secretary Priti Patel pledged a ‘fair but firm’ overhaul of the UK’s asylum system in the Commons on Thursday. The proposed measures aim to crack down on the criminal smuggling operations which helped 8,000 people cross the Channel by boat last year.
Under the Home Secretary’s proposals, asylum seekers would have their claims determined according to how they arrived in the UK. Those using ‘safe and legal resettlement routes’ directly from the countries they are fleeing, such as Syria and Iran, would obtain automatic permission to remain in the UK indefinitely. But anyone arriving with the aid of services offered by criminal smuggling gangs would only ever receive temporary permission to remain and would be regularly assessed for removal from the UK.
The Home Secretary declared that such a regime would deter prospective asylum seekers from using the EU countries in which they first arrive as springboards for reaching the UK, and encourage them to make claims there instead.
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