SS (Congo) v Entry Clearance Officer, Nairobi,  UKSC 10 – read judgment.
The Supreme Court has ruled that, in principle, the need for spouses or civil partners in the UK to have an annual minimum income of £18,600 in order to obtain entry clearance for their non-EEA spouse/civil partner to be compliant with the European Convention on Human Rights (“ECHR”). However, the Supreme Court stated that the relevant Immigration Rules relating to such Minimum Income Requirements (“MIR”) failed to adequately take account of the need to safeguard and promote the welfare of children when making an entry decision. Finally, the prohibition on taking into account prospective earnings of the foreign spouse or civil partner when applying the MIR was inconsistent with the evaluative exercise required under Article 8, ECHR. Continue reading
A study raising concerns about journalists’ ability to protect sources and whistleblowers was launched in the House of Lords last Wednesday.
The Institute of Advanced Legal Studies (IALS), in collaboration with the Guardian, has published the results of a research initiative into protecting journalists’ sources and whistleblowers in the current technological and legal environment. Investigative journalists, media lawyers, NGO representatives and researchers were invited to discuss issues faced in safeguarding anonymous sources. The report: ‘Protecting Sources and Whistleblowers in a Digital Age’ is available online here.
The participants discussed technological advances which facilitate the interception and monitoring of communications, along with legislative and policy changes which, IALS believes, have substantially weakened protections for sources. Continue reading
Immigration law featured heavily in courts in the past week, with judgments in two cases handed down by the justices.
The first, MM and others, concerned the Minimum Income Rule, which requires a minimum income of £18,600 to sponsor a foreign spouse’s visa to live in the UK.
The second, R (on the application of Agyarko), saw the Supreme Court uphold the treatment of those unlawfully in the UK who have formed relationships with British citizens.
R (o.t.a. Oakley) v. South Cambridgeshire District Council  EWCA Civ 71, 15 February 2017, read judgment
There is, I am glad to say, an insistence these days in the Court of Appeal that the giving of proper reasons is a necessary part of what can be expected of a planning authority when it grants permission: see my post here for a case last year.
And the current case is another good example. The CA, reversing Jay J, decided that the planning authority had acted unlawfully in not giving reasons in this case.
Mucaj, Re Judicial Review,  CSOH 17 – read judgment.
Asylum seeker’s claim that he cannot be returned to Belgium under the Dublin III Regulations due to non-compliance with time limits by authorities fails.
The petitioner in this case, Bahri Mucaj, was an Albanian that arrived in Belgium in November 2011. After unsuccessfully claiming asylum in Belgium, the petitioner entered the UK and sought asylum here in late December 2014. The petitioner then sent a “take back” request to Belgium under The Dublin III Regulations (“Dublin III” – available here) in order for the Belgian authorities to reconsider his original application. This request was accepted on 7 January 2015 by the Belgian authorities. Consequently, the Secretary of State refused to consider the petitioner’s asylum application due to the fact that there was the possibility to send the individual back to a “safe” country – Belgium. The petitioner then wrote to the Secretary of State alleging that sending him back to Belgium would result in violations of both Article 3 and 8 of the European Convention on Human Rights. This claim was based on the living conditions that they had endured whilst originally in Belgium and the likelihood that they would be subject to similar conditions on return. This claim was refused and removal directions were issued to return the petitioner and his family to Belgium. The petitioner subsequently challenged this removal decision.
As was her policy at the time, the Secretary of State cancelled her removal directions pending the court’s decision. At this point, in mid-2015, there were a number of similar Judicial Review requests concerning the return of asylum seekers to European countries under Dublin III and the potential violation of Article 3. Following the leading decision in AL v Advocate General for Scotland,  CSOH 95, which found in favour of the respondents, the petitioner in the current proceedings made amendments to their arguments. Instead of pursuing substantive challenges to the removal decision based on human rights grounds, the petitioner argued that the authorities had not complied with the time limits for return in Dublin III.
In November 2016, the Government responded in rather disappointing terms (here) to a consultation about amending its costs rules in civil cases to reflect the requirements of the Aarhus Convention.
Article 9 of this Convention says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive“. Aarhus starters may want to have a look at my bluffers guide to Aarhus – here.
First, the limited bit of good news in the governmental response.
Trump’s inauguration seems not a bad moment to be having a look at the Free Trade Agreements (FTAs, actual or potential) which are swirling around at the moment, and their likely reception in the changed world which we face.
First on the list, our own tried, tested, and found electorally wanting, EU Treaties. They are FTAs, but with lots of knobs on – free movement of people, of establishment, level playing fields about employment rights, the environment and consumer protection, to name but a few.
The first thing to say is that FTAs, wherever they are, don’t come all that unencumbered these days. Continue reading