Right of appeal against refusal of a residence card: the conclusion

10 September 2019 by

Field House, where the Upper Tribunal sits

The question of whether non-married partners and wider dependent relatives (e.g. grown-up children) of EEA nationals (known as ‘extended family members’) have a right of appeal against a decision by the Home Secretary to refuse them a residence card under the EEA Regulations has had a fraught recent history.

Now, as a result of the final decision of the Upper Tribunal in Banger (EEA: EFM – Right of Appeal) [2019] UKUT 194(IAC), full appeal rights have been restored to ‘extended family members’ whose applications are refused.


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The Weekly Roundup: Facial Recognition Technology (and Brexit)

10 September 2019 by

Image: UK Parliament/ Jess Taylor

In the news

As we inch towards October, the £100m government campaign to ‘Get Ready for Brexit’ has been launched. But to all intents and purposes, the government are jumping the gun. By the time businesses have managed to get themselves ready for Brexit (again), Boris Johnson will probably have been required to request an extension to Article 50 under the anti-no deal bill proposed by Hillary Benn, which today was given royal assent and passed into law.


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No-deal Brexit and the right to life

5 September 2019 by

One intervention that did not quite make it onto this week’s packed Parliamentary highlights reel came from Emily Thornberry MP.

The Shadow Foreign Secretary suggested that deaths caused by a lack of basic medicines following a No-deal Brexit would entitle coroners to reach a finding of ‘neglect’ in future inquests.  She added that it was her understanding the government had received legal advice to that effect.

Her remarks follow the leak two weeks ago of government documents prepared as part of ‘Operation Yellowhammer’. These reportedly predicted severe, extended delays to the supply of medicines in the event of a No-deal departure.

Neglect

Depending on the content of the warnings about medicines, Ms Thornberry may be right.  An argument that a deceased’s death has been caused or contributed to by neglect is usually levelled against a local police force that fails to provide basic medical attention to a detainee in need, or a hospital that does not act to counter a life-threatening illness in a patient. It is not commonly deployed against central government on the basis of a decision said to have denied basic medical attention to whole sections of the population.


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The Round Up: Prorogation, Kashmir, and Protests

2 September 2019 by

Conor Monighan brings us the latest updates in human rights law

guardian

Credit: The Guardian

In the News:

Last week, Boris Johnson decided to ask the Queen to prorogue (suspend) Parliament. The decision means that Parliament will be closed for 23 working days, reducing the amount of time MPs will have to pass legislation about Brexit.

Supporters of PM Johnson pointed out that Parliament has already been sitting for around two years. They have also suggested that proroguing Parliament is entirely proper because it is simply an exercise of a prerogative power. Finally, they argue that it will allow the government to hold a Queen’s Speech and outline its plans.

A number of figures spoke against the move:

  • Tom Watson (Labour) stated proroguing Parliament was an “utterly scandalous affront to our democracy”.
  • Nicola Sturgeon (SNP) has asked that MPs work together to stop Mr Johnson, or “today will go down in history as a dark one indeed for UK democracy”.
  • Dominic Grieve (Conservative) described it as “an outrageous act”.
  • Anna Soubry (Independent Group for Change) tweet that it was “outrageous that Parliament will be shut down at a moment of crisis as we face crashing out of the EU with no deal & for which there is no mandate”.

Ruth Davidson, who had been the leader of the Conservative Party in Scotland, quit. She said her decision was driven by political reasons and personal ones (she recently had a baby). The government whip, Lord Young, also resigned.

Demonstrations took place over the weekend. A judicial review, led by Gina Miller and her legal team, is also being launched.

Following the summer recess, MPs will return to Parliament on the 8th October.

In Other News….

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The line between legitimate protest and anti-social behaviour

30 August 2019 by

Public order cases involving protests have always sparked controversy, with the collision between the state’s responsibility to ensure the smooth running of civil society and the individual citizen’s right to draw attention to what they regard as a pressing moral concern.

The optics on this are tricky. Protesters giving up their time and energy to raise attention; police moving them on. Which do we support, freedom of physical movement or free expression of thoughts?

There is a welter of debate and criminal legislation behind public protest action and this or that provision that authorises arrest. With the recent case of Dulgheriu & otrs v Ealing Council [2019] EWCA Civ 1490, I want to focus attention on what exactly triggers a prohibition of public protest under Section 59 of the Anti-social Behaviour, Crime and Policing Act of 2014. This provision allows councils to local authorities to issue a “Public Service Protection Order (“PSPO”) to prohibit public protests if they are satisfied that these are “detrimental” to the quality of life of “those in the locality”. Anyone who fails to comply with the requirements of a PSPO or to violate any prohibition contained in the order is liable to a fine of £1000.

The Court of Appeal dismissed a challenge to one of these PSPOs prohibiting anti-abortion protests in the immediate vicinity of Marie Stopes’ UK West London Centre. The Court concluded that the judge below had been correct to find that the pro-life activists’ activities had a detrimental effect within the meaning of s.59 of the 2014 Act. The Article 8 rights of the women wanting to access the clinic’s abortion procedures had been engaged and outweighed the pro-life activists’ rights under Articles 9, 10 and 11.


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Judicial review against prorogation of Parliament launched

28 August 2019 by

The day began with the news that the Prime Minister Boris Johnson had asked the Queen to prorogue (suspend) Parliament in order to table a Queen’s Speech — with the effect that the number of days that MPs would sit between now and Brexit Day on Halloween being significantly reduced.

Tonight, Gina Miller, the successful claimant in the case challenging Theresa May’s attempt to trigger Article 50 and begin the process of leaving the EU without a vote in Parliament, announced that she has reassembled the same legal team and launched a legal challenge to this move.

On Newsnight (see 31 mins, 20 seconds into this episode), former Supreme Court Justice Lord Sumption said that whilst he considered what Boris Johnson has done to be politically “shocking”, he did not expect the courts to block the move, saying that

I think that it’s a very very long shot. This is such an unusual situation that nobody can stand here and say what the answer is definitely going to be, but there are huge difficulties in the way of an application like that … the relations between the Crown and Parliament are governed by conventions … [which are] binding only in the sense that it would be politically costly to disregard them … the courts are not there to decide what are good political reasons and what are bad political reasons, they are there to decide what’s lawful.

We shall have to wait to see what happens next.

No Deal Brexit risks reversing human rights progress in extradition law

28 August 2019 by

The UK Government’s vow to leave the European Union “whatever the circumstances” on the 31st October has left the UK hurtling towards a no-deal Brexit this Halloween, but what does this mean for the rights of people subject to future extradition between the UK and the EU?

For the last 15 years, extradition between EU states has functioned under the European Arrest Warrant (EAW). The EAW is a fast track extradition measure that works on the basis of mutual recognition — the principle that the decision of a court in one Member State is carried out by the courts in another Member State.

Despite appearances in the negotiations, this is one area where the UK and the EU seem to agree on the need for continued close cooperation that largely mirrors current arrangements — the Political Declaration agreed by the UK and the EU envisaged ‘efficient and expeditious’ extradition arrangements.


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Airspace in a crowded sky

27 August 2019 by

Lasham Gliding Society Ltd, R (on the application of) v. the Civil Aviation Authority and TAG Farnborough Airport Limited read judgment

The Claimant, the Lasham Gliding Society, challenged a decision by the Civil Aviation Authority, the statutory regulator of UK airspace, to permit the introduction of air traffic controls in airspace around Farnborough Airport, which is presently largely uncontrolled. Lasham Gliding Society (“LGS”) is one of the largest gliding clubs in the world. Its concern was that one of the effects of the CAA’s decision would be to increase the risk of a mid-air collision between its gliders and those aircraft which divert away from any newly controlled airspace around Farnborough Airport into the adjacent uncontrolled zone over Lasham where its gliders fly.

To put it in more detail, LGS argued that as a result of the CAA’s decision, light powered aircraft would be unable to enter their proposed controlled airspace which would compress them into the limited channel of non-controlled airspace near Lasham, thus creating “bottlenecks” that would increase the risk of mid-air collisions (referred to in the judgment as the “Lasham bottleneck” or “Lasham Gap”

LGS challenged the CAA’s decision on the basis that the CAA had misconstrued the Transport Act 2000; was in breach of its duties under the Act and had acted irrationally. The relevant provision is Section 70 which provides, broadly, that “the CAA must exercise its air navigation functions so as to maintain a high standard of safety in the provision of air traffic services, and that duty is to have priority over [the CAA’s obligation to secure the most efficient and expeditious flow of aircraft, to satisfy the requirements of owners of all classes of aircraft and to take account of environmental objectives, national security interests, etc.].”


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In the News: no-deal rumblings and abortion buffer zones

27 August 2019 by

Protesters outside the Marie Stopes clinic in Ealing have been told they must stay 100m from the building

In the News

Rumours of a coming parliamentary coup to avoid a no-deal outcome rumble on, prompting the usual range of responses. 

Speaking at the G7 summit in Biarritz on Sunday, Boris Johnson stated that Britain can ‘easily cope’ with a no-deal Brexit. The Prime Minister ascribed sole responsibility for whether or not Britain crashed out of the European Union on 31 October to ‘our EU friends and partners’, while Brussels officials asserted that it was ‘squarely and firmly’ up to Britain to find a solution to the Irish border issue. His comments come after a week in which Angela Merkel and Emmanuel Macron indicated their unwillingness to countenance reopening the withdrawal agreement, while Donald Trump promised a ‘very big trade deal’ between the United Kingdom and the United States once the country had freed itself from the ‘anchor’ of the EU. 

Writing in the Times, Cambridge historian Robert Tombs argues that those who consider parliamentary resistance a legitimate expression of its sovereignty would ‘do untold damage to the institution they claim to defend’ by preventing the government from ‘[carrying] out a policy approved by the electorate’. In the Guardian, Heather Stewart and Rowena Mason covered the opposing view, outlining the key points in the six-page document prepared for Jeremy Corbyn by the shadow attorney general, Shami Chakrabarti. The advice includes an assertion that Boris Johnson would be committing the ‘gravest abuse of power and attack on UK constitutional principle in living memory’ if he shuts down parliament to help force through a no-deal Brexit. 

Earlier this week, the archbishop of Canterbury sparked criticism by Brexiteers, including former Conservative party leader Iain Duncan Smith, for reportedly meeting MPs with a view to chairing citizens’ assemblies to stop a no-deal departure from the EU. Today, Jeremy Corbyn met with the leaders of the SNP, the Liberal Democrats, Plaid Cymru, the Green party and the Independent Group for Change and issued a joint statement agreeing to work together to avoid ‘a disastrous no-deal exit’.


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Costs budgeting is not inevitable – Charlie Cory-Wright QC

26 August 2019 by

Assuming that from now on you will always have to budget your costs? Maybe, but not necessarily…

Introduction

Generally speaking, we lawyers dislike procedural change. While we may well understand that a particular change is necessary and we will certainly recognise that we need to adapt to it when it comes, such changes nonetheless tend to make us feel ignorant and highly uncomfortable. We have to treat any new procedural regime as a known unknown, which presents pitfalls for the unwary, at least until we become familiar with it. And in the meantime, a culture of half-knowledge develops, an uncertain and dangerous combination of a little learning, anecdote, and false assumptions. This very often leads to negative over-simplification. 

The typical common lawyer’s attitude to costs budgeting is a good example of this. There will be many litigators who are fully familiar with the new regime, who, maybe on a weekly basis, have to provide their own draft budgets (and to try to agree those set by their opponents), and therefore know their way around and navigate it quite happily. However, for many of the rest of us, the budgeting regime still, even now, feels like an inflexible and inscrutable monolith for which we have to relearn all we know every time we approach it.


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Who’s afraid of the big bad wolf?

22 August 2019 by

The Finns are, or so it appears from a recent referral to the European Court of Justice: Case C‑674/17.

Man up, Finns! That is the AG’s advice. The Habitats Directive allows of no derogation from the protection of species obligation that does not come up with a satisfactory alternative. Furthermore it must be shown that any derogation does not worsen the conservation status of that species.

Whatever the CJEU decides, the opinion of AG Saugmandsgaard Øe makes for fascinating reading, going to the heart of the conservation problem. As human populations spread, how to secure the preservation of wild species, particularly carnivores?


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‘With great power comes great responsibility’ – contributory negligence post-Montgomery

21 August 2019 by

Matthew Fisher is a doctor and aspiring barrister with an interest and experience in MedTech.

Might Uncle Ben’s words prove prescient in the context of medical negligence?

Regardless of whether one attributes this famous quote to Voltaire or Spider-Man, the sentiment is the same. Power and responsibility should be in equilibrium. More power than responsibility leads to decision-making with little concern for the consequences and more responsibility than power leads to excessive caution. This article argues that there is now a disequilibrium in the NHS, which is the root cause for defensive medical practice and the growing NHS litigation bill.

Montgomery v Lanarkshire affirmed a transition from patients as passive receivers of care to active consumers by making the collaborative patient-doctor relationship a legally enforceable right. However, as yet patients are not expected to share responsibility for a negative outcome. Medical paternalism may now be dead but judicial paternalism appears to be alive and well. However, contributory negligence is a necessary counter-weight in this balance and it must urgently be applied to restore equilibrium.


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What is the correct standard to be applied in police misconduct cases? Plus a new inquiry launches, and cake goes to the ECtHR – the Round Up

19 August 2019 by

Conor Monighan brings us the latest updates in human rights law

cake

Credit: The Guardian

In the News:

An application in the Ashers ‘gay cake’ case has been lodged at the European Court of Human Rights (“ECtHR”). The case involved a Christian bakery which refused to bake a cake bearing the message ‘Support Gay Marriage’. The Supreme Court found in favour of the bakery, ruling its actions were not discriminatory because the appellants were not under an obligation to express a political view which conflicted with their religious beliefs.

Lawyers representing Mr Lee, the customer whose order was refused, have outlined some of the arguments they will be making. In their submission, merely baking the cake did not mean the bakery, or the bakers, supported its message. They argue that no reasonable person would think that the bakery supported gay marriage simply because they had produced Mr Lee’s cake. Mr Lee described the Supreme Court’s decision as allowing shopkeepers to “pick and choose” which customers they serve.
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Father of Islamic State fighter fails in judicial review claim

19 August 2019 by

The flag of Islamic State

R (on the application of Abdullah Muhammad Rafiqul Islam) v Secretary of State for the Home Department [2019] EWHC 2169 (Admin)

In a case that was described as “the first such case to have come on for hearing before this court” and one that shares many similarities with the tabloid-grabbing story of Shamima Begum (discussed on the Blog here), Mr Justice Pepperall refused permission to bring judicial review proceedings on behalf of an Islamic State combatant whose citizenship had been revoked by the Home Secretary.

The Facts

A father (Mr Islam) brought judicial review proceedings on behalf of his son (Ashraf) challenging the Home Secretary’s decision to revoke Ashraf’s British citizenship because of his involvement with the Islamic State / Islamic State of Iraq and the Levant (referred to in the judgment as ISIL).

Ashraf was born in London and is a British citizen by birth. He has lived and studied in both Bangladesh and the United Kingdom throughout his life and was studying in Dhaka at the time of his disappearance in April 2015. Shortly after his disappearance, Mr Islam learned that his son had crossed into Syria and joined ISIL.


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The Weekly Roundup: Police powers and freedom of information

12 August 2019 by

Photo by Andrew Parsons

In the news

On Friday, Prime Minister Boris Johnson set down his stance on law and order in three major announcements, fulfilling his promise to ‘come down hard on crime’. This follows the announcement of 20,000 ‘extra’ police officers a few weeks ago.

Firstly, Home Secretary Priti Patel announced enhanced stop-and-search powers for police officers under s.60 Criminal Justice and Public Order Act, on the basis of a ‘knife-crime epidemic’. Under the new rules, an officer need only believe that a violent incident ‘may occur’, not that it ‘will’, and a lower level of authorisation will be required to exercise the power.

Secondly and thirdly, Mr Johnson has promised penal reforms. The Ministry of Justice has allocated £2.5bn to create ‘modern, efficient prisons’, including 10,000 new prison places. Alongside this, Mr Johnson has announced a sentencing review, by which he hopes to increase sentences for violent and sexual offenders, and reduce the use of ‘early release’ on licence – currently available to most offenders after they served half of their sentence, under the Criminal Justice Act 2003.

The resources of this crackdown are welcome, especially with an extra £85m for the chronically underfunded CPS. However, the approach is controversial. Stop-and-search in particular has been heavily criticised in the past. Some say that it is ineffective – a study released by the Home Office in 2016 found that enhanced stop-and-search had not decreased crime when used in key London boroughs. Others say that the policy is discriminatory in its application, and worsens the relationship between the public and the police, drawing links to the 2011 London riots.

The review of the Prevent counter-terrorism initiative is expected to begin today, following the appointment of the independent reviewer. However, the process of appointing the reviewer has been criticised for its opacity – Ed Davey MP has spoken of a ‘whitewash’, while Liberty director Martha Spurrier has suggested that the government are ‘[shielding] Prevent from the scrutiny it desperately needs’.

In further unwelcome news, a report found that a chartered deportation flight lacked ‘common decency’ towards passengers. Passengers were subjected to excessive restraint (up to 14 hours at a time); not allowed appropriate privacy when using the toilet; not appropriately supervised; and subject to long delays. This was followed by revelations that the Home Office used restraint against deportees in 447 cases between April 2018 and March 2019, as reported by Guardian.


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