Search Results for: prisoners/page/55/[2001] EWCA Civ 1546

The right of appeal against refusal of a residence card: where are we up to?

27 February 2018 by Jonathan Metzer

One way for an immigrant to gain the right to be in the UK is by making an application under the Immigration Rules. But these applications are relatively expensive and the requirements have become increasingly stringent (e.g. in a case of a partner, the normal minimum income requirement of £18,600 p/a, which was upheld by the Supreme Court).

For as long as the UK remains in the EU, there is also an alternative option – an application under the Immigration (European Economic Area) Regulations. This offers a route for the family of an EU citizen to apply for a UK residence card.

But the law in this area concerning the right of appeal has been on the move. This article will aim to give an update of where we are up to and what is still yet to be decided.

UPDATED following the Advocate General’s opinion in Banger – see end of this post.

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The Weekly Round-up: proposed reforms to judicial review, Truss’s promise to cut taxes, strip-searching of children by Metropolitan Police

9 August 2022 by Ruby Turok-Squire

A leaked report from the Ministry of Justice has suggested that Dominic Raab is considering reforms to judicial review that would effectively limit ministers’ accountability. This comes in the context of Suella Braverman’s suggestions that judicial reviews are being brought for ‘political ends’, and Lord Reed’s cautionary note regarding campaigning organisations bringing challenges to discrimination law, having lobbied unsuccessfully against such legislation whilst it was considered in Parliament (R (on the application of SC, CB and 8 children) (Appellants) v Secretary of State for Work and Pensions and others (Respondents) 2021, 162). 

Concerns continue that such reforms would not respect the separation of powers. For example, Jolyon Maugham QC recently commented that Raab ‘seems to want… a world in which government is above the law’. 

Conservative frontrunner Liz Truss is promising to cut taxes this winter to support families amidst rising energy bills, through an emergency budget that would be enacted this September. Sunak, her rival, has pledged to provide a £15bn overall package of assistance with energy bills. Criticisms have been raised of Truss’ plans, however, with suggestions that they could cost £30bn, £40bn or even £50bn per year. Both candidates’ plans have been criticised for not being accompanied by plans for lower spending that would make them sustainable. Labour’s Rachel Reeves has argued that amidst ‘fantasy economics and unfunded announcements from the Tories’, Labour alone can offer Britain the fresh start that it needs.

A survey by the British Dental Association and the BBC has shown that 91% of NHS practices in England are not accepting new adult patients. Louise Ansari, national director of Healthwatch England, has called the results of the survey ‘dire’. Stories have emerged of people pulling out their own teeth and making their own teeth out of resin to stick back on with superglue. The health secretary has noted the ‘urgency’ of preparing the NHS for winter, amidst the pressures of coronavirus, the rising cost of living and seasonal flu. Whether the Department of Health and Social Care’s recent comment regarding the ‘government priority’ of NHS dental care will translate into satisfactory results remains to be seen. 

The Supreme Court on statelessness, EU citizenship and proportionality

31 March 2015 by Hannah Noyce

Pham v Secretary of State for the Home Department [2015] UKSC 19 – read judgment

Angus McCullough Q.C. and Shaheen Rahman from 1COR acted as Special Advocates earlier in these proceedings. They had nothing to do with the writing of this post.

On first glance, this was not a judgment about human rights. It concerned the definition of statelessness under article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons, and raised issues of competence and jurisdiction in relation to EU citizenship. Its specific interest for human rights lawyers lies primarily in the observations about the principle of proportionality; and in where the case, which most certainly does raise human rights issues, is likely to go next.

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Court of Appeal laments systemic failures in family justice

9 September 2013 by Rosalind English

Re A (a child) [2013] EWCA Civ 1104 – read judgment

Appellate judges are obliged to review systemic failings in the family justice system as a whole, not just the merits of the trial judge’s determination, particularly where the process has deprived the parties of their rights to procedural fairness under Articles 6 and 8.  Whilst this particular appeal was  not “a fitting vehicle to enable a root and branch appraisal of the procedural history of this protracted case”,  McFarlane LJ has taken the opportunity to give full voice to the “profound feeling of failure” felt by Court on the part of the Family Justice system.

The law does its best in the triangulation of estranged parents and their children . But sometimes it does nothing more than concentrate an already toxic mixture of manipulation, mistrust and deception that seeps over the fragile construct of family life that has fallen apart at the start.  As anyone involved with the family justice system would readily agree, the conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges.  Nevertheless, as the Court of Appeal points out,  “substantive” resources have been made available to courts and judges to discharge their responsibility in matters relating to children in a manner which affords paramount consideration to the welfare of those children “and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.”  
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Chagossians: Wikileaked cable admissible after all

26 May 2014 by David Hart KC

Bancoult v Secretary of State for Foreign and Commonwealth Affairs  [2014] EWCA Civ 708 – read judgment

Rosalind English (here) has summarised this unsuccessful appeal against the rejection of the Chagossians’ claims by the Divisional Court, and I have posted on this litigation arising out of the removal and subsequent exclusion of the population from the Chagos Archipelago in the British Indian Ocean Territory: see here, here, here and here. The photograph is from 1971 – the last coconut harvest for the Chagossians.

There were three remaining grounds alleged against the Foreign & Commonwealth Office in this judicial review

(i) its decision in favour of a Marine Protected Area  was actuated by an improper motive, namely an intention to prevent Chagossians and their descendants from resettling in the BIOT;

(ii) the consultation paper which preceded the decision failed to disclose that the MPA proposal, in so far as it prohibited all fishing, would adversely affect the traditional and historical rights of Chagossians to fish in the waters of their homeland, as both Mauritian citizens and as the native population of the Chagos Islands; and

(iii) it was in breach of the obligations imposed on the United Kingdom under article 4(3) of the Treaty of the European Union.

I want to look at (i), the improper purpose grounds, and (iii) the TEU/TFEU grounds, because in both respects the CA took a different course than the Divisional Court, even though the outcome was the same.

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The Weekly Round-Up: Police Taser use, GDPR and the basic right to protest

31 August 2021 by Calla Randall

In the news:

The independent police watchdog has published a report this week claiming Black people and those with mental health problems are more likely to be subject to prolonged Taser use. The report from the Independent Office for Police Conduct reviewed some of the most serious cases of Taser use in the last five years, including 16 deaths. The report suggested that 60% of Taser incidents against Black people lasted for longer than 5 seconds, more than double the 29% of white people subjected to a similar length. The report made 17 recommendations, including a new system of police training on the use of the weapons. Following the report, families of victims killed by the use of a Taser have argued that the police should be banned from using them where it is clear the subject is suffering from a mental health crisis, and suggested that many of the cases of Taser deaths (some of which were sent to the Crown Prosecution Service but never reached court) should be reinvestigated. However, the police rebutted the report’s findings, asserting that they were ‘vague’ and misrepresentative, given that the report looked at only 0.1% of Taser use between 2015-2020, and focused on serious cases which had already been investigated by the Commission. This issue is becoming ever more relevant as a greater number of police officers are issued with Tasers each year.

In other news:

Gas from Mozambique in difficult times for energy: breach of the Paris Agreement?

28 March 2022 by Rosalind English

R. (on the application of Friends of the Earth Ltd) v Secretary of State for International Trade/Export Credits Guarantee Department (UK Export Finance) [2022] EWHC 568 (Admin)

The claimant (FoE) applied for judicial review of the decision by the Secretary of State to provide export finance and support in relation to a liquified natural gas project in Mozambique.

The mission of the International Trade/Export Credits Guarantee Department (UKEF) is to ensure that no viable UK export fails for lack of finance or insurance from the private sector, while operating at no net cost to the taxpayer. It is afforded a significant margin of appreciation when considering factors when deciding whether to provide this finance and support. Indeed it has been the first UK Government Department to assess climate change impacts in the context of a long-term foreign project with many public interest considerations.

Background facts

The project comprised the development of offshore deepwater gas production facilities connected to an onshore gas receiving and liquefaction facility. It was to be operated by the first interested party (Total Mozambique) and funded via the second interested party (a financing company). UKEF acknowledged that climate change impacts and the Paris Climate Change Agreement were factors that ought to be taken into account alongside other factors in making its decision in relation to the project. A report was prepared summarising the climate change matters considered by UKEF, including that the potential Scope 3 greenhouse gas emissions from the use of the project’s exported liquid natural gas would be very high, and that it was unlikely that Mozambique would attract significant international investment into the renewables sector without first being in receipt of financial resources from investment into sectors such as natural gas.

Batty behaviour in Hampshire habitat

21 January 2011 by Rosalind English

Morge (FC) (Appellant) v Hampshire County Council (Respondent) on appeal from [2010] EWCA Civ 608- Read judgment

We cannot drive a coach-and-horses through natural habitats without a bit of soul-searching, says the Supreme Court .

The UK has conservation obligations under EU law to avoid the deterioration of natural habitats and this goes beyond holding back only those developments that threaten significant disturbance to species. Detailed consideration must be given to the specific risks to the species in question. But this consideration can be left to the quangos; planning committees are not obliged to make their own enquiries.

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Coronial Causation

18 March 2019 by Dominic Ruck Keene

The Divisional Court in R (Chidlow) v HM Senior Coroner for Blackpool [2019] EWHC 581 has given a concise and authoritative judgment reiterating and summarising the current common law concerning causation in inquests. Given the ever increasing importance of inquests and their conclusions as preliminaries to civil litigation, as well the growing number of inquests being held into historical deaths, the judgment will doubtless be frequently cited over the coming months and years.

Mr Childlow brought the judicial review following the inquest into the death of his brother (Carl Bibby). Mr Bibby died from a cardiac arrest in circumstances where an ambulance had been called, but there were admitted delays in the ambulance attending. At the inquest, the jury heard evidence from a consultant in Critical Care & Emergency Medicine that had paramedics attended Mr Bibby before he suffered cardiac arrest, he would, on the balance of probabilities, have survived. Nevertheless, the coroner ruled that it was not safe to leave the issue of a causal link between the delay and Mr Bibby’s death to the jury. Mr Chidlow sought a declaration that the coroner acted unlawfully, an order quashing the record of inquest and an order that a fresh inquest be held before a different coroner.

High Court says Lord Carey “mistaken” on religious discrimination [updated]

29 April 2010 by Adam Wagner

McFarlane v Relate Avon Ltd [2010] EWCA Civ B1 (29 April 2010) – Read judgment

Gary McFarlane, a Christian relationship counsellor, has lost his application to appeal his Employment Appeal Tribunal decision in the High Court. Mr McFarlane was sacked by a marriage guidance service after he said he would not promote gay sex. He claimed he had been discriminated against on religious grounds.

The case caused a furore as the former Archbishop of Canterbury Lord Carey submitted a witness statement stating that cases such of these should be heard by judges with special religious sensitivity. Lord Justice Laws in the High Court has now rubbished that suggestion. He said:

18. Lord Carey’s observations are misplaced. The judges have never, so far as I know, sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as “disreputable”. Nor have they likened Christians to bigots. They administer the law in accordance with the judicial oath: without fear or favour, affection or ill-will.

19. It is possible that Lord Carey’s mistaken suggestions arise from a misunderstanding on his part as to the meaning attributed by the law to the idea of discrimination. In cases of indirect discrimination (such as are provided for by paragraph 3(1)(b) of the 2003 Regulations, which is centre stage in the present case) the law forbids discriminatory conduct not by reference to the actor’s motives, but by reference to the outcome of his or her acts or omissions. Acts or omissions may obviously have discriminatory effects – outcomes – as between one group or class of persons and another, whether their motivation is for good or ill; and in various contexts the law allows indirect discrimination where (in a carefully controlled legislative setting) it can be shown to have justifiable effects. Accordingly the proposition that if conduct is accepted as discriminatory it thereby falls to be condemned as disreputable or bigoted is a non sequitur. But it is the premise of Lord Carey’s position.

Read more:

• More posts on religious discrimination
• Judgment in Mcfarlane v Relate Avon Ltd.
• Update 30/4/10 – Lord Carey responds: legal battle against believers is “”a deeply unedifying collision of human rights””

Can AI qualify as an “inventor” for the purposes of patent law?

28 September 2021 by Rosalind English

Thaler v Comptroller General of Patents Trade Marks and Designs [2021] EWCA Civ 1374

The Court of Appeal has ruled that an artificial intelligence machine cannot qualify as an “inventor” for the purposes of Sections 7 and 13 of the Patents Act because it is not a person. Further, in determining whether a person had the right to apply for a patent under Section 7(2)(b), there was no rule of law that new intangible property produced by existing tangible property was the property of the owner of the tangible property, and certainly no rule that property in an invention created by a machine was owned by the owner of the machine. 

Background Facts and Law

This was an appeal by the owner of an artificial intelligence machine against a decision upholding the respondent Comptroller’s refusal of his patent applications in respect of inventions generated by the machine.The appellant had submitted two patent applications designating an artificial intelligence machine (DABUS), as the inventor. DABUS stands for “Device for the Autonomous Bootstrapping of Unified Sentience”, an artificial neural system owned by Dr Thaler. The first invention was entitled “Food Container” and concerned the shape of parts of packaging for food. The second was entitled “Devices and Methods for Attracting Enhanced Attention”, and was a form of flashing light. On the face of it each disclosed a potentially patentable invention, that is to say patentable as defined by s1 of the 1977 Act. The appellant owned the machine, but had also created it and set it up to produce the inventions in issue. In response to the box requiring him to indicate how he had the right to be granted a patent, he wrote: “by ownership of the creativity machine ‘DABUS'”. The Intellectual Property Office indicated that the statement of inventorship form did not satisfy the Patents Act 1977 Pt I s.13(2), which required him to identify a person as the inventor (section 13 (2) (a) and to indicate how he had derived his right to be granted the patent (section 13(2) (b)). It therefore determined that the applications were deemed to be withdrawn. The applicant was still not entitled to apply for a patent simply by virtue of ownership of DABUS, because a satisfactory derivation of right had not been provided (as machine cannot pass on ownership). The High Court upheld that decision. First, it considered Section 7, which sets out the circumstances in which a person might right to apply and obtain a patent, and found that its natural meaning was that the inventor was a person. Second, it found that although the appellant could perhaps have claimed a right to be granted a patent as the inventor under Section 7(2)(a), he had not advanced such a case. Third, it found that an applicant’s subjective and honest belief that they were entitled to apply for a patent was insufficient to entitle them to the grant of a patent as that would render the provisions of s.7 otiose.

Seizure of passport actionable in law

9 June 2011 by Rosalind English

Atapattu, R. (On the Application of) v The Secretary of State for the Home Department [2011] EWHC 1388 (Admin) – read judgment

1 Crown Office Row’s John Joliffe appeared for the Secretary of State the Home Department in this case. He is not the writer of this post.

This case on the wrongful retention of the passport of a Sri Lankan national raises some interesting questions about the scope of the duty  owed by the Home Office’s agents when exercising their powers of entry clearance under the Immigration Act 1971.

The question in this case was whether the claimant, who had applied for a United Kingdom student visa, could sue the Secretary of State for the Home Department for damages for conversion under the Torts (Interference with Goods) Act 1977. There were other submissions, that the withholding of the passport breached his rights under the European Convention on Human Rights 1950 and that the Secretary of State was liable to him in negligence.
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The Weekly Round-up: Suspension of funding to the UN agency assisting Palestinian refugees; changes to the Immigration Rules

5 February 2024 by Emilia Cieslak

In the UK:

The government has confirmed the dates on 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. 

Nuisance by Knotweed – Jeremy Hyam QC

25 July 2018 by Guest Contributor

A radical problem determined by ‘straightforward application of established principles’? 

 Network Rail Infrastructure v. Stephen Williams (1) Robin Waistell (2) [2018] EWCA Civ 1514 – read judgment

Introduction

Hancock’s curse, monkey fungus, elephant ears, pea shooters, donkey rhubarb are all (bizarre) English names for Fallopia japonica or Japanese knotweed.  Although initially lauded for its beauty (it was so celebrated that in 1847 it was named by one Horticultural society as the ‘most interesting new ornamental plant of the year’) it is now well known as a fast growing and pernicious weed that is very difficult to eradicate. This is because it has a large underground network of roots (rhizomes). So bad is its destructive nature that since 2013 a seller of property is required to state whether Japanese knotweed is present on their property through a TA6 form – the property information form used for conveyancing.

Its destructive potential, and its potential for devaluation of property was at the heart of this recent decision of the Court of Appeal.

The appeal arose from the decision of Recorder Grubb sitting in Cardiff that the Appellant, Network Rail (‘NR’), was liable in nuisance by reason of the devaluation of the Claimant’s property due to the presence of knotweed on an embankment behind the Claimant’s property. The appeal raised a number of key issues as to what kinds of damage give rise to an actionable claim in the tort of private nuisance.

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One step closer to a review of assisted suicide

30 January 2018 by Dominic Ruck Keene

In Noel Douglas Conway v The Secretary of State for Justice [2018] EWCA Civ 16, the Court of Appeal gave an unusually detailed judgment granting permission to appeal against the decision of the Divisional Court in Conway, R (on the application of) v Secretary of State for Justice [2017] EWHC 640, refusing permission for the applicant to judicially review the criminalisation of physician-assisted suicide under the Suicide Act 1961.

The Divisional Court had held that that Parliament had recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act  was incompatible with the right to privacy and autonomy under Article 8 of the ECHR.

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