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The government has confirmed the dateson which various significant changes to the Immigration Rules will come into effect:
On 14 March, the Immigration Rules will increase the minimum income for Family visas from £18,600 to £29,000. This will come into force from 11 April. The threshold will be increased in stages to £34,500 and finally to £38,700 by early 2025.
On 19 February, the Immigration Rules will be changed to remove the right for care workers and senior care workers to bring dependants (partners and children). This change will come into force on 11 March 2024.
On 14 March, the Immigration Rules will be changed to increase the earnings thresholds for those arriving on the Skilled Worker route, with the minimum threshold raising from £26,200 to £38,700. This change will come into force on 4 April 2024.
On 14 March, the Immigration Rules will be changed to remove the 20% going rate discount for occupations on the Shortage Occupation List, and temporarily add further occupations to the new Immigration Salary List, which will replace the current Shortage Occupation List.
The Home Affairs Select Committee has sent a letter regarding the living conditions aboard the Bibby Stockholm to Michael Tomlinson KC MP, the Minister for Countering Illegal Migration. The Bibby Stockholm is a barge used to accommodate asylum seekers awaiting decisions regarding their asylum claims.
The letter comes after the Committee members’ visit to the barge. It mentions, among other issues, that the inhabitants share cabins designed for one person with up to six people. The inhabitants reported limited access to GPs, mental health services, religious services for Muslims, and the local communities in Portland and the surrounding areas.
In international news:
The Secretary-General of the UN, António Guterres has appealed to countries which have suspended funding the UN agency assisting Palestinian refugees (UNRWA) to reconsider their decisions. Countries including the USA, UK, Germany, Italy, the Netherlands and others suspended funding after allegations emerged that 12 employees of the agency participated in the 07 October attack on Israeli civilians. The news agency Reuters carried a news report on allegations of involvement in 07/10 attack.
For decades, close family members have been able to claim for psychiatric illness caused by witnessing the death or serious injury of their loved ones, whether it be on the scene of the accident, hospital or mortuary. The jury has been out on the recoverability of these claims when the “qualifying accident” has been the result of admitted clinical negligence. The Supreme Court has just ruled this out as a basis for compensation. In Episode 193 of Law Pod UK, Rosalind English discusses this judgment and its implications for damages following clinical negligence claims with Judith Rogerson of 1 Crown Office Row.
As the dust settles on another year, it is (just about still) time to look back over the year gone to review some of the most dramatic, legally interesting or impactful cases of the year gone by. As ever, this is only a selection of the top cases of the year, but as a whole they reveal yet another year in which the courts have been drawn into the centre of the most important social and political debates of the society in which they find themselves.
On Friday, A 17-judge panel at the International Court of Justice delivered an interim ruling imposing provisional measures on the state of Israel in order to alleviate the ‘catastrophic humanitarian situation’ in Gaza. Though stopping short of calling for the complete suspension of military operations requested by South Africa, the court ordered that Israel must do everything in its power to prevent the commission of acts of genocide. President of the Court, Judge Joan E Donoghue, emphasised in judgment that the court does not need to find that Israel has broken the Genocide Convention in order to impose provisional measures. Rather, they must only find that Israel’s acts are ‘capable of falling within’ the remit of the Genocide Convention, and that the right of Palestinians in Gaza to be protected from genocide was plausibly under threat. The Court held that this was the case, and that there was a risk of the situation deteriorating further before final judgment could be delivered.
16 members of the court, including Israel’s own Judge Aharon Barak, voted that Israel must take ‘immediate and effective measures’ to address the ‘adverse conditions of life’ in the Gaza strip. The Court also directed that Israel produce a report within one month on the actions it has taken to give effect to the order. Judge Donoghue concluded by reiterating that this interim ruling ‘in no way prejudges’ the jurisdiction of the court to deal with the case, or the merits of the case itself – a case which may take years to reach final judgment.
In Other News
During the ECHR’s annual press conference on Thursday, President of the ECHR Síofra O’Leary reminded the UK Government of its duty to comply with the Rule 39 injunction against flights to Rwanda. This comes as the House of Lords are due to discuss the Safety of Rwanda (Asylum and Immigration) Bill on Monday, a bill which clearly provides that it is at the discretion of ministers whether they comply with the injunction. The Rwanda Scheme has come under further scrutiny this week after it has been reported that the housing secured by the UK Government for refugees has been sold on or reserved for Rwandan nationals. An undercover reporter at openDemocracy, posing as an international investor, was told at a meeting with the sales team of the housing developer that the homes were ‘not for refugees’.
The UK and the US jointly launched a second set of air strikes on Houthi targets in Yemen on Monday night. As ships affiliated with Israel and the West travelling through the Red Sea trade route continue to be attacked, the UK Government has released a statement on the legality of military action against Houthi targets. A letter sent by the Houthi-controlled Foreign Affairs Ministry to the UN’s humanitarian coordinator for Yemen on Wednesday has ordered US and British nationals, including all humanitarian aid workers, to leave the country within one month. The removal of aid workers is likely to cause further deterioration of the fragile humanitarian situation in Yemen, with opposition leader Keir Starmer asking what steps are being taken to materially support Yemenis who have already “suffered terribly as a result of that country’s civil war”. UK Foreign Secretary Lord Cameron is planning to visit the region in the coming days.
Commentators are claiming a ‘blow to the rule of law’ as Hong Kong’s Court of Final Appeal overturned the acquittal of pro-democracy protester and human rights barrister Chow Hang-tung last week. Chow had originally been convicted of ‘inciting others to take part in an unauthorised assembly’ following her involvement in organising and hosting the Tiananmen Vigil in 2021, a vigil which had been held annually for the last thirty years. Despite being later acquitted, the prosecution successfully appealed the decision. The Court of Final Appeal found by a 3-2 majority that the prohibition of the vigil had been a lawful and proportionate restriction of freedom of assembly, thereby reinstating Chow’s conviction. She remains in a maximum-security prison and is now facing a potential life sentence under a separate national security charge.
In the Courts
The High Court held this week that the Home Secretary’s withholding of decisions on leave to remain for victims of trafficking was in breach of articles 8 and 14 ECHR. The Home Office had neglected to issue decisions on leave to remain for victims of trafficking who had applied for asylum while the seminal case of R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 Admin progressed through the upper courts. The High Court and Court of Appeal had found in KTT that in order for the United Kingdom to comply with its duties under the European Convention Against Trafficking, confirmed victims of trafficking who are claiming asylum in the UK (at least in part for fear of re-trafficking) must be granted leave to remain while their asylum case is being decided. The Home Secretary was seeking to appeal this decision, though permission to appeal to the Supreme Court was eventually refused in October 2022.
Judgment was handed down on Tuesday in the case of XY v Secretary of State for the Home Department [2024] EWHC 81 (Admin), where a confirmed victim of trafficking had been denied a decision on his leave to remain while his asylum case was decided for over 18 months. Consequently, the claimant was unable to rent a property, open a bank account, or otherwise fulfil the necessary prerequisites to participating in society. Lane LJ held that this amounted to a breach of Article 8(1) ECHR, the right to respect for private and family life. A breach of Article 14 (protection from discrimination) was also found on the grounds of the differential treatment between trafficking victims who had applied for asylum and those who had not, given that both groups had equal need for a decision on leave to remain.
As of 30th January 2023, decisions on leave to remain for trafficking victims are now made according to the Nationality and Borders Act 2022.
And do listen to the latest episode of Law Pod UK, in which Rachel Marcus and Marcus Coates-Walker of 1 Crown Office Row join Lucy McCann to explore the principle of the scope of duty in the context of clinical negligence claims.
Graham Phillips, the Claimant, is a British national and video blogger who posts content from the Donbass dressed in Russian military fatigues. He says he is a journalist who provides a “counterbalance” to widespread western misunderstanding of the true situation in Ukraine but the Administrative Court disagrees. On 12 January 2024, it handed down judgment in R (Phillips) v Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWHC 32 (Admin), in which it upheld the Government’s view that the Claimant is a propagandist for Russia who is lawfully subject to a sanctions regime which allows the state to freeze his assets.
In Episode 192 of Law Pod UK Rachel Marcus and Marcus Coates-Walker of 1 Crown Office Row join Lucy McCann to explore the principle of the scope of duty in the context of clinical negligence claims: first by analysing the decision in Khan v Meadows and then discussing how the courts have grappled with scope of duty issues since.
The Post Office is being investigated by the Metropolitan Police for potential fraud offences committed in what has been termed the Horizon IT Scandal. This investigation builds on a pre-existing one into potential offences of perjury and perverting the course of justice in relation to prosecutions carried out by the Post Office. Between 1999 and 2015 hundreds of sub-postmasters were prosecuted by the Post Office for alleged theft, fraud, and false accounting, despite evidence having come to light in 2010 that the Post Office’s Fujitsu accounting systems were faulty. The prosecutions resulted in over 700 sub-postmasters being handed criminal convictions as well as being forced to pay back apparent shortfalls. A 2019 high court case overturned some of these convictions and led to partial victim compensation but the Post Office continues to oppose appeals. In the wake of a new ITV drama concerning the scandal, 50 new potential victims have come forward. Rishi Sunak has signalled that the government is taking steps to exonerate victims of the faulty technology.
Other nations have come under pressure to support South Africa’s case against Israel at the ICJ, which accuses the wartime state of committing genocide against Palestinians. The application stated that Israel’s recent actions have violated the 1948 Genocide Convention “because they are intended bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group”. The White House has criticised South Africa’s accusation as “meritless … counterproductive and completely without any basis in fact whatsoever.”
The Irish government has announced it will challenge the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 in the European Court of Human Rights. The Act, which came into force in September 2023, was created to address the ‘legacy of the Northern Ireland Troubles’. The legislation has been controversial because it allows individuals accused of Troubles-related offences to be granted immunity in return for cooperation with the newly-formed Independent Commission for Reconciliation and Information Recovery (ICRIR). The Act is already facing a number of legal challenges in the Belfast High Court. In this latest challenge, the Irish government will ask Strasbourg whether the Act is compatible with the UK’s obligations under the European Convention on Human Rights.
Meanwhile, in France, new legislation has been passed which significantly toughens French immigration rules. The bill went through several iterations, with the final version including much harsher provisions than originally proposed. It includes measures for reducing access to social security benefits for immigrants, migrant quotas, and toughened rules for family members of migrants. The bill has been criticised by Human Rights Watch for putting ‘the rights of foreigners at risk.’
In the US, Donald Trump has been disqualified from running as a presidential candidate in Colorado and Maine. The Colorado Supreme Court was the first state to rule that Donald Trump should not be allowed to run for president because of Section 3 of the 14th Amendment, which disqualifies people who engage in ‘insurrection or rebellion’ from holding any office. The Colorado ruling has been appealed, and the Supreme Court is expected to decide whether to intervene on the issue early this year.
In other news
Before the Christmas break, the Court of Appeal ruled that the government’s approval of the planned Sizewell C nuclear plant in Suffolk was lawful. The legal challenge was brought by Together Against Sizewell C (TASC), who argued the government had failed to consider the need for a water supply when it approved the nuclear plant in Suffolk. The Court of Appeal disagreed, holding it was logical for the government to consider the issue of water supply separately from the plant itself. The protest group has said it would continue to fight against the development.
In Lord Tennyson’s Arthurian ballad ‘The Lady of Shalott’, the eponymous heroine is stranded in her island castle. Continually weaving a web in her loom of the reflections of the outside world she sees in her mirror, she knows she will be cursed if she stops and looks out to nearby Camelot. But one day, Sir Lancelot rides by her castle and she abandons her loom and looks outside. Her mirror cracks “from side to side” and she is cursed. She leaves her castle and floats down to Camelot in a boat, dying before she reaches it.
Victorian poetry scholar Erik Gray analyses the Lady of Shalott as Tennyson’s exploration of the role of an artist: knowing what is better (staying inside and looking at reflections of the real world) and choosing to do what is worse (going outside into the real world). Just as the Lady of Shalott’s mirror cracked, the Supreme Court in Dalton’s application for judicial review marked possibly one of the largest cracks yet in the mirror principle: that the rights provided under the Human Rights Act 1998 (HRA) should mirror those under the ECHR. But this analogy with the Lady of Shalott raises two important questions: was the jurisprudence flowing from the mirror principle better and is the turn away from it worse?
At the outset, I acknowledge my involvement in the Dalton litigation. This post is not an exploration of that litigation. Instead, I look at the possible impact of the Supreme Court’s judgment on the mirror principle and what it may tell us more broadly about the HRA.
In Episode 191 Jon Metzer and Lucy McCann join Rosalind English to review the judgements and decisions of the past year that we at Law Pod UK consider to have the most important implications for the law. The cases we discuss are the following:
The central question facing the Supreme Court in Griffiths v TUI UK Limited [2023] UKSC 48 concerned the extent to which a party must put criticisms of a witness’ evidence to him in cross-examination. The Supreme Court made clear that the general rule in civil cases is that a party is required to challenge by cross-examination the evidence of any witness (whether factual or expert) if he wishes to submit that the evidence should not be accepted by the court. Importantly, this rule is not confined to allegations that the witness is dishonest. The rule is, however, a flexible one; it will not always be necessary for every point of challenge to be put to a witness, and in some cases (such as where evidence is “manifestly incredible”) it may not apply at all. Although the Supreme Court gave a conceptually clear answer to the question before it, difficult practical issues are likely to continue to arise for trial advocates who wish to challenge factual or expert witness evidence.
The appeal in Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47 concerned injunctions obtained by over 38 different local authorities between 2015 and 2020 to prevent unauthorised encampments by Gypsies and Travellers. These “newcomer injunctions” as they are known, are a wholly new form of injunction, granted without prior notice, against persons unidentified at time of the grant of the injunction and who have not yet performed, or even threatened to perform the acts which the injunction prohibits. They therefore apply “to potentially anyone in the world” [143(i)].
Local authorities sought to use such injunctions, due to the inefficacy of obtaining an injunction against named Gypsies or Travellers who, by the time proceedings have commenced, have left, and been replaced by another group, against whom the injunction has no effect.
This interesting case concerns a problem endemic to the manner of regulating water bodies under the Water Framework Directive and the regulations passed under it. This is what happened.
The anglers’ group Pickering Fishery Association raised concerns with the Environment Agency regarding the deterioration in the water quality of the Upper Costa Beck (“UCB), a ground water fed stream in North Yorkshire. It is described by the water campaigning group that acted for them in this litigation as “one of the best trout and grayling rivers in Yorkshire”. They owned the leasehold and freehold fishing rights for most of the UCB. The UCB provides water to two fish farms and downstream is the Yorkshire Water’s water treatment works, which discharges back into the UCB.
The claimant’s concerns included the impact of the recorded sewage overflows from Pickering Waste-Water Treatment Works; the level of sediment deposits resulting from the fish farm ‘suspended solids’ emissions; and the adequacy of the Environment Agency’s environmental permit conditions and other controls. Sewerage overflows from the water treatment works occurred over 250 times in 2020 and over 400 times the year before.
Episode 190: join environmental law expert David Hart KC of 1 Crown Office Row and Roy Harrison, professor of public health and expert in airborne emissions of Birmingham University, for a fascinating and disturbing discussion of two cases concerning the contamination of the environment in countries where enforcement standards are not as strong as they are in the West. You will hear both the scientific details of how these contaminants behave when they get into the environment, and the practicalities of getting class actions going in the courts to bring the polluters to book.
We have the Royal Society of Chemists to thank for this interesting discussion, in particularly the Society’s Toxicology Group which held a seminar in November to bring scientists and lawyers together to explore current perspectives on environmental toxic tort claims and review recent cases.
In For Women Scotland Limited v The Scottish Ministers [2023] CSIH 37 (“For Women Scotland 2”), the Inner House of the Court of Session has confirmed (for Scotland, at least) the relationship between the Gender Recognition Act 2004(“GRA”) and Equality Act 2010 (“EqA”). In summary, it was held that the meaning of sex in s.11 EqA incorporated the GRA framework. The upshot is that, for transgender people, sex under the EqA is determined by possession of a GRC. Thus, for EqA purposes, the sex of a transgender person without a GRC is their natal sex. On the other hand, the sex of a transgender person with a GRC is their “acquired” (to use the language of the GRA) gender.
This case note briefly sets out some of the relevant law, explores the background to the case and the judgment, and then offers some brief comments by way of conclusion. References in square brackets are to paragraphs of the judgment.
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