Category: BLOG POSTS
29 May 2018 by Jonathan Metzer
On 24th May 2018 a new scheme to process citizenship applications for the Windrush generation was announced, after the Government’s apologies last month. The Windrush Scheme guidance explains how this will work in detail.
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.
This is all explained in detail in this article on Free Movement.
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
Why does this matter? The basic answer is that it is much harder for a claimant to succeed in a judicial review than in an appeal. In an appeal, the judge will make the decision afresh following oral and written evidence. Statistics in March showed that about half of all immigration appeals are successful.
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.
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27 May 2018 by Eleanor Leydon
Image Credit: The Guardian
In a landmark moment for women’s rights, the Irish electorate has voted in favour of abolishing the 8th Amendment by a stunning two-thirds majority of 1,429,981 votes to 723,632.
Whilst abortion has long been illegal in Ireland under the Offences Against the Person Act 1861, the notorious 8th Amendment, which gives the foetus’ right to life absolute parity with that of the woman carrying it, was enacted after a 1983 referendum lobbied for by pro-life activists. By virtue of the amendment:
“The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
Lawyers for Yes emphasised that the amendment created ‘absolute legal paralysis in dealing with crisis pregnancies’ and had to be repealed if women in Ireland were to receive ‘appropriate’ and ‘compassionate’ healthcare. Also on the UKHRB, Rosalind English shares a powerful analysis of the extraordinary nature of the legal obligations imposed on women’s bodies by this provision.
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25 May 2018 by David Hart KC
Rashid v. Munir et al, Turner J, High Court, Leeds, 22 May 2018 – read judgment here
I promise you that this post will be entirely GDPR-free, despite its date.
Judges go about saying people are lying in different ways, from the tip-toeing around the idea of deceit to the full-blooded blast. This judgment, and that from which it is an appeal, are towards the latter end of the spectrum.
I welcome this frankness; if you, a judge, think that someone is telling you a tissue of lies, then you should say so in terms.
Neither judge held back, as we shall see. Enjoy.
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23 May 2018 by Rosalind English
This week Irish voters will decide whether there should be a continuing constitutional protection for the ‘unborn’. Novelist Sally Rooney’s article this week’s edition of the London Review of Books is short, but very well worth the read.
Pregnancy, entered into willingly, is an act of generosity, a commitment to share the resources of life with another incipient being. Such generosity is in no other circumstances required by law.
No legal system will force another person to donate living tissue, no matter how needy the recipient. An organ donor is not bound to the world’s needy recipients. Unless, Rooney points out, the law is concerning itself with a foetus.
If the foetus is a person, it is a person with a vastly expanded set of legal rights, rights available to no other class of citizen: the foetus may make free, non-consensual use of another living person’s uterus and blood supply, and cause permanent, unwanted changes to another person’s body. In the relationship between foetus and woman, the woman is granted fewer rights than a corpse.
The referendum this week concerns the Eighth Amendment to the Constitution, introduced in the early eighties, which protects ‘the unborn’.
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22 May 2018 by Suzanne Lambert
The wedding of Prince Harry to Meghan Markle and the start of the first phase of hearings in the Grenfell Inquiry occurred within hours of each other but could not have been more different in terms of how they were received by the British public.
By welcoming into its ranks a biracial, divorced, professional American actress, the Royal Family appears to have gained some much needed legitimacy, and the very modern Royal wedding, undeniably a celebration of diversity, is perhaps a sign that this bit of the British Establishment is moving with the times.
The start of the Grenfell Inquiry — almost a year after the fire on 14 June 2017 which claimed 71 lives — has not been met with such optimism nor enjoyed such accolades. Instead, from the moment the question of who would chair it arose, the Inquiry has been dogged by accusations of “whitewashing”, a persistent failure to listen to the victims and bereaved, and a failure to give them a proper voice.
Is there any hope that the Grenfell Inquiry will finally gain legitimacy? As with the successful McPherson Inquiry following the Stephen Lawrence murder, recognition of diversity and inclusivity are essential.
Pressure for a Diverse Panel
When retired Court of Appeal judge, Sir Martin Moore-Bick, was named as Chairman of the Inquiry, the announcement was met with much criticism, with lawyers, campaign groups, and MPs calling for Sir Martin to quit. Opposition Leader, Jeremy Corbyn, argued that a diverse Panel would “help to both build trust and deliver justice” and Labour MP, David Lammy, went so far as to suggest that a “white, upper-middle class man” who had possibly never visited a tower block might not be able to “walk with these people on this journey”.
In announcing the Terms of Reference, the Prime Minister indicated that, at that stage, she had not appointed any other members to the Inquiry Panel but she noted that the Inquiries Act 2005 did allow for such appointments to be made with the consent of Sir Martin, during the course of the Inquiry, so that the composition of the Inquiry Panel could be “kept under review”.
R (ota Mr Samuel Daniels) v The Rt Hon Theresa May, the Prime Minister & Sir Martin Moore-Bick [2018] EWHC (1090) Admin — read judgment
On various dates commencing in September 2017, solicitors representing Mr Daniels, the son of an elderly disabled man who died in the Grenfell fire wrote to Sir Martin, the Solicitor to the Inquiry, and the Prime Minister, asking whether the Prime Minister would exercise her powers under s7 of the Inquiries Act to appoint a panel to sit alongside Sir Martin.
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21 May 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law.
Credit: The Guardian
In the News:
An independent report into building regulations, commissioned by the government in the wake of the Grenfell disaster, has called for the current regulatory system to be overhauled.
However, the report surprised some because it did not recommend a ban on flammable cladding. It also declined to recommend stopping so-called ‘desktop studies’, where materials are tested without setting them on fire. The chairman of Grenfell United expressed disappointment at this conclusion. The Royal Institute of British Architects expressed support for banning inflammable cladding and the government has said it will consult on the issue. The Prime Minister has also pledged £400 million to remove flammable cladding from tower blocks.
The author of the report, Dame Judith Hackitt, said that banning the cladding was insufficient. Instead, she stated that a ‘whole system change’ is needed. Dame Hackitt warned that cost was being prioritised over safety and that ‘banning activities and particular materials […] will create a false sense of security’.
The report recommended fundamental changes to building regulations, saying that the process which drives compliance with the regulations are ‘weak and complex’. Dame Hackitt found that there was a ‘race to the bottom’ in the building industry that was putting people at risk. She also wrote that product testing must be made more transparent, and that residents’ voices were not being listened to.
The Grenfell Inquiry will open this week. For the first two weeks, the lives of those who died will be remembered in a series of commemorations.
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18 May 2018 by Shaheen Rahman
The Chief Coroner has issued guidance following the judgment of the Divisional Court in R (Adath Yisroel Burial Society) v Senior Coroner for Inner North London [2018] EWHC 969 (Admin) (“the AYBS Case”). The new Guidance No.28 can be found here.
The successful judicial review of the Coroner for Inner North London’s controversial ‘cab rank’ policy which led to this new guidance is discussed by this author on the Blog here.
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16 May 2018 by Rosalind English
“When we leave the EU, we will be able to build on the successes achieved through our membership, and address the failures, to become a world-leading protector of the natural world. We have also published the 25 Year Environment Plan, which sets out this Government’s ambition for this to be the first generation that leaves the environment in a better state than that in which we inherited it. These good intentions must be underpinned by a strengthened governance framework that supports our environmental protection measures and creates new mechanisms to incentivise environmental improvement.”
Michael Gove has announced his plan for a UK Commission on the environment, for which the consultation paper is out now. The paper sets out the principles laid behind the Environmental Principles and Governance Bill which will be published in November this year. This proposed law is said to mark the creation of a “new, world-leading, statutory and independent environmental watchdog to hold government to account on our environmental ambitions and obligations once we have left the EU.”
The proposed Bill may not see the light of day, if today’s events are anything to go by. This afternoon the House of Lords voted (294:244) to include the principles of environmental protection in the European Union (Withdrawal) Bill, rather than introducing a separate piece of primary legislation as set out in this consultation document: the successful amendment is first up here.
However things turn out in the Commons, it is worth attending to the plans for maintaining and enhancing environmental protection in a post-Brexit UK.
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16 May 2018 by David Hart KC
R (o.t.a. Gallaher et al) v. Competition and Markets Authority [2018] UKSC 25, 16 May 2018, read judgment
UK public law is very curious. You could probably write much of its substantive law on a couple of postcards, and yet it continues to raise problems of analysis and application which tax the system’s finest legal brains.
This much is clear from today’s Supreme Court’s decision that notions of public law unfairness and equal treatment are no more than aspects of irrationality.
The CMA (then the OFT) were investigating tobacco price-fixing. Gallaher et al reached an early settlement with the OFT, at a discount of their fines. Another price-fixer, TMR, did likewise, but extracted an assurance from the OFT that, if there were a successful appeal by others against the OFT decision, the OFT would apply the outcome of any appeal to TMR, and accordingly withdraw or vary its decision against TMR.
6 other parties then appealed successfully. TMR asked and got its money back from the OFT relying on the assurance.
Gallaher et al tried to appeal out of time, and were not allowed to. They then turned round to the OFT and said, by reference to TMR: why can’t we have our money back?
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16 May 2018 by Rosalind English
PW v Chelsea and Westminster Hospital Trust and others (28 April 2018) [2018] EWCA Civ 1067 – read judgment
The Court of Appeal has refused to interfere with the Court of Protection’s decision that it was not in the best interests of a 77-year-old man with end stage dementia to be discharged home with a nasogastric tube inserted for feeding purposes. The COP judge said that she was not bound to continue life. The sanctity of life is not absolute.” Palliative care “would make [the patient] as comfortable as possible and ensure his dignity and comfort. He will pass away with palliation in a dignified way.”
The applicant applied for permission to appeal against a Court of Protection’s determination of his father’s best interests pursuant to Section 4 of the Mental Capacity Act 2005 and against a transparency order preventing the publication of any material identifying his father or the family.
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16 May 2018 by Rosalind English
Dominic Ruck-Keene posted earlier on the order from the High Court that Google “delist” links in its search results to articles about the spent conviction of a businessman. You can hear him discussing the so-called “right to be forgotten” with Rosalind English in the latest episode of Law Pod UK.
Law Pod UK is available for free download on iTunes, Audioboom and Overcast.
13 May 2018 by Martin Downs
Following on from the UK Supreme Court’s special session in Belfast hearing the “Gay Cake” case, the Court now gathers in London to hear oral arguments in the Equal Love litigation whose factual origins are somewhat closer to Parliament Square in more ways than one.
Rebecca Steinfeld and Charles Keidan contend they were unlawfully refused an opportunity to register a Civil Partnership at Chelsea Town Hall on the grounds that the Civil Partnership Act 2004 reserves that status strictly for same sex couples. This exclusion started to appear somewhat anomalous when the government opened marriage up to same sex couples by way of the Marriage (Same Sex Couples) Act 2013. The effect of this is that same sex couples in England and Wales (and Scotland – but not Northern Ireland) had a choice of marriage and civil partnership but different sex couples only had the former option.
What then is to be the future of the status of Civil Partnership created in 2004 (and covering the whole of the UK)? Most countries, upon enacting, same sex marriage abolished civil partnership schemes or barred new entrants to their schemes (like the Republic of Ireland). A few countries like the Netherlands, where civil partnership regimes are open to different sex couples as well, left couples with a choice of arrangements. Uniquely England, Wales and Scotland have (at present) left in place a situation in which same sex couples can choose between Civil Partnership and marriage but different sex couples only have the latter available to them.
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11 May 2018 by Rosalind English
Unlockd Ltd and others v Google Ireland Limited and others (unreported, Roth J, Chancery Division 9 May 2018) – transcribed judgment awaited
Unlockd, an app developer, sought an interim injunction to prevent Google withdrawing its services. Roth J found that the balance of convenience was in the applicants’ favour. Their claim raised a serious issue to be tried and any action by Google to withdraw their platform would severely damage the applicants’ business. An interim injunction was granted.
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8 May 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
In the matter of the person previously known as Jon Venables, Application by Ralph Stephen Bulger and James Patrick Bulger: Sir James Munby, sitting in the High Court, rejected a legal challenge to release the new identity of one of James Bulger’s killers.
Dame Elizabeth Butler-Sloss issued an injunction in 2001 conferring lifelong anonymity on Bulger’s killers. A number of Bulger’s relatives subsequently issued an application seeking to vary the injunction, though Bulger’s mother was not a party to it.
The application was considered by Edis J earlier this year, who made an order that it be considered by the President of the Family Division at the first available opportunity. The application requested that the court “consider that over 17 years on and with serious offending the experiment of ‘anonymising’ Jon Venables has not worked”. The application was made in light of child sex offences committed by Venables since 2001.
However, the bundle prepared for the hearing by the applicants did not comply with the relevant Practice Direction’s mandatory requirements. In particular, the applicants did not outline how the injunction should be varied or discharged. Compliance, the court held, was important to achieve the aims of bringing down waiting times and delays in hearing cases. Sir James Munby expressed regret that the Practice Direction was still not being adhered to 18 years after it was first issued. Secondly, a witness statement did not comply with Family Procedure Rule 25.4(2). If the applicants wished to reply on expert evidence, they should have made an application to do so. The court recognised that the application had been prepared in haste but noted that deficiencies remained three months later.
In light of this, counsel for Mr Venables and the Attorney General were severely disadvantaged in their understanding of the case. An order was therefore made to remedy the deficiencies in the relatives’ application.
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8 May 2018 by Charlotte Gilmartin
R (The National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department & Anor [2018] EWHC 975 (Admin) (27 April 2018)
In the first phase of Liberty’s landmark challenge to the Investigatory Powers Act 2016 (“IPA”), Singh LJ and Holgate J sitting as a Divisional Court have granted a declaration that in the area of criminal justice, Part 4 of the Investigatory Powers Act 2016 is, in part, incompatible with EU law. Other parts of Liberty’s challenge to the IPA will be considered at a later date.
Part 4 was declared incompatible in so far as it (a) authorises the issue of retention notices for the purpose of investigating crime that is not “serious crime”, and (b) provides for access to retained data that is not subject to prior review by a court or an independent administrative body.
By way of remedy, the court has allowed the Government and Parliament a “reasonable amount of time” to correct the defects which exist and which are incompatible with EU law. This period will expire on 1 November 2018. However, the court decided not to disapply the legislation.
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