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Hearings in the Supreme Court are now shown live on the Court’s website.

On Monday 10 and Tuesday 11 December, the Supreme Court will hear the appeal of KV (Sri Lanka) v Secretary of State for the Home Department. This appeal will consider what the correct approach is to the assessment of medical evidence in asylum claims alleging torture. This will be heard in Courtroom 2.

On Wednesday 12 December, the Supreme Court will hear the appeal of R (Derry) v Commissioners for HMRC. This appeal will consider the correct procedure HMRC is required to follow under the Taxes Management Act 1970 where it wishes to enquire unto a claim for carry-back share loss relief made in a self-assessed and calculated tax return. This will be heard in Courtroom 2.

On Thursday 13 December, the Supreme Court will hand down the judgment in The UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill – Reference by the Attorney General and Advocate General for Scotland. The proposed panel for hand down is  Lady Hale, Lord Reed, and Lord Hodge. This appeal considered whether the UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill, passed by the Scottish Parliament on 17 Apr 2018, is within the devolved legislative powers.

On Thursday 13 December, the Supreme Court will hear the appeal of R & S Pilling t/a Phoenix Engineering v UK Insurance Ltd. This appeal will consider whether on its true construction a policy of motor insurance covers extends to liability for damage to the property of third parties because of fire caused by repair work to the car when it is immobilised. This will be heard in Courtroom 2.

A full list of the cases scheduled for the Michaelmas term can be found here.

The following Supreme Court judgments remain outstanding:

Keefe (by his litigation friend Eyton) v Hoteles Pinero Canarias SL, heard 7 Mar 2017.

Arcadia Petroleum Ltd & Ors v Bosworth & Anor, heard 10-11 Apr 2017.

R (Hallam) v Secretary of State for Justice; R (Nealon) v Secretary of State for Justice, heard 8-9 May 2018.

In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland) and other cases, heard 19-21 Jun 2018.

In the matter of an application by Geraldine Finucane for Judicial Review (NI), heard 26-27 Jun 2018.

OWD Ltd, trading as Birmingham Cash & Carry, & Anor v Commissioners for HMRC, heard 12 Jul 2018.

Poole Borough Council v GN (through his litigation friend, ‘The Official Solicitor’) & Anor, heard 16-17 Jul 2018.

R (DA & Ors) v Secretary of State for Work and Pensions, heard 17-19 Jul 2018.

The UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill – A reference by the Attorney General and the Advocate General for Scotland, heard 24-25 Jul 2018.

In the matter of D (a child), heard 3-4 Oct 2018.

Takhar v Gracefield Developments Ltd & Ors, heard 10 Oct 2018.

Wells v Devani, heard 11 Oct 2018.

Williams v The Trustees of Swansea University Pernsion & Assurance Scheme & Anor, heard 16 Oct 2018.

Welsh Ministers v PJ, heard 22 Oct 2018.

In the matter of an application by Hugh Jordan for Judicial Review, heard 23 Oct 2018.

SAE Education Ltd v The Commissioners of HMRC, heard 30 Oct 2018.

UKI (Kingsway) Ltd v Westminster City Council & Anor, heard 6 Nov 2018.

Lachaux v Independent Print Ltd & Anor, hears 13-14 Nov 2018.

Robinson v Secretary of State for the Home Department, heard 15 Nov 2018.

Actavis Group PTC EHF & Ors v ICOS Corporation & Anor, heard 19-20 Nov 2018.

Perry v Raleys Solicitors, heard 27 Nov 2018.

Cameron v Liverpool Victoria Insurance Co Ltd, heard 28 Nov 2018.

R (Privacy International) v Investigatory Powers Tribunal & Ors, heard 3-4 Dec 2018.

Hancock & Anor v Commissioners for HMRC, heard 7 Dec 2018.

Konecny v District Court Czech Republic, heard 7 Dec 2018.

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On appeal from: [2017] EWCA Civ 1220

London Borough of Southwark and another (Respondents) v Transport for London (Appellant) - YouTube

This appeal considered whether the effect of a Transfer Order, which transferred to Transport for London certain roads in London, was only to transfer the surface of the highway and sufficient sub-soil (normally called the two top spits) as is necessary for the maintenance of the surface, or whether it was to transfer to TfL the entire interest held by the council in the land on which the highway ran.

The Supreme Court unanimously allowed the appeal, finding that the entire interest had been transferred to TfL. The Court held that the word “highway” has no single meaning in the law. The Court considered the Baird principle which provided that a transfer of highway interests was limited to the road surface, the subsoil immediately beneath it and airspace sufficient to enable use and enjoyment by the public and maintenance by the highway authority. However the Court decided that the Baird principle did not apply to article 2 of the Transfer Order or to the Highways Act 1980,  s 265, upon which article 2 was modelled. In conclusion, the Supreme Court disagreed with the Court of Appeal’s reasoning that the word “highway”, used in article 2 and s 265, has a clear common law meaning, and took an approach which largely avoided irrational types of multi-layering on the vertical plane in the sense of different highway authorities owning parts of the vertical plane in the same highway.

For judgment, please download: [2018] UKSC 63
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (24 Oct 2018 morning session) (24 Oct 2018 afternoon session) (25 Oct 2018 morning session)

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On appeal from: [2017] EWHC 1670 (QB)

S Franses Limited (Appellant) v The Cavendish Hotel (London) Ltd (Respondent) - YouTube

This appeal considered the construction of the Landlord and Tenant Act 1954. It specifically considered whether a landlord which intends to carry out works if, and only if, those works are necessary to satisfy s 30(1)(f), and which offers an undertaking to carry out those works in the form of the undertaking given by the respondent in the present case, has the requisite intention for the purposes of ground (f). It also considered whether a landlord whose sole or predominant commercial objective is to undertake works in order to fulfil ground (f) and thereby avoid the grant of a new lease to the tenant, and which offers an undertaking to carry out those works in the form of an undertaking given in the present case, has the requisite intention for the purposes of ground (f).

The Supreme Court unanimously allowed the appeal, finding that ground (f) cannot be invoked. The Court considered that ground (f) requires a firm and settled intention to carry out the scheme of works and that the landlord’s purpose or motive is immaterial except to test whether the intention required by section 30(1)(f) exists. The Court held that the reason why the landlord’s approach cannot satisfy ground (f) was not merely the conditionality of its intention to do the proposed works, but the nature of the condition. Because ground (f) assumes that the landlord’s intention to demolish or reconstruct the premises is obstructed by the tenant’s occupation, the landlord’s intention to carry out the works cannot be conditional on whether the tenant chooses to assert his claim to a new tenancy. The intention to demolish or reconstruct the premises must exist independently of the tenant’s statutory claim to a new tenancy. The Court concluded that the entire value of the proposed scheme lay in removing the tenant and not in any benefit to be derived from reconstruction itself, and as such ground (f) could not be invoked.

For judgment, please download: [2018] UKSC 62
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (17 Oct 2018 morning session) (17 Oct 2018 afternoon session)

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On appeal from: [2016] EWCA Civ 1103

Volcafe Ltd and others (Appellants) v Compania Sud Americana De Vapores SA (Respondent) - YouTube

This appeal considered where the burden of proof in relation to negligence lies in respect of alleged breaches of the Hague Rules, art III rule 2, and the defence of inherent vice under art IV rule 2(m).

The Supreme Court unanimously allowed the appeal, holding that the legal burden of disproving negligence rested on the carrier, both for the purpose of art III.2 and art IV.2 of the Hague Rules. Lord Sumption gave the sole judgment, with which all members of the Court agreed.

The Court held that the Hague Rules must be read against the background of the common law rules on bailment that: (i) a bailee of goods is only under a limited duty to take reasonable care of the goods, but (ii) the bailee nonetheless bears the legal burden of proving the absence of negligence. The Court ruled that imposing a duty of care on the carrier by article III.2 is consistent with his bearing the burden of disproving negligence.

As to article IV, the Court held that the exceptions cannot be relied upon if they were caused to operate by the negligence of the carrier. The carrier must prove facts which show not only that an excepted peril existed, but that it was causative of the damage. The Court highlighted that the carrier bears the burden of proving that the exception was not caused to operate by the carrier’s negligence.

With regards to the exception in article IV.2(m) for “inherent vice”, the Court emphasised that the test is whether the cargo was fit to withstand the ordinary incidents of the specified service, and its application can be decided only by reference to some assumed standard of care. The mere propensity of the cargo to emit moisture is not inherent vice if reasonable care in lining the containers would have resulted in the cargo being discharged undamaged.

The judge’s factual findings are therefore restored and, given the absence of evidence on the weight of the paper used, the Court decided that the carrier had failed to discharge its legal burden.

For judgment, please download: [2018] UKSC 61
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (3 Oct 2018 morning session) (3 Oct 2018 afternoon session) (4 Oct 2018 morning session)

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Introduction

ECHR, art 8 prevents someone from being removed from the UK where doing so would have a disproportionate impact on their private life and/or family life. Where a migrant seeks to rely on art 8, it is accordingly necessary for the Home Office, or on appeal the First-tier Tribunal, to conduct a balancing exercise between the individual’s private and family life rights on the one hand and the ‘public interest’ on the other.

By the Immigration Act 2014, Parliament introduced Part 5A to the Nationality, Immigration and Asylum Act 2002 which seeks to direct courts and tribunals as to how to conduct this balancing exercise. KO (Nigeria) and Rhuppiah are the first cases in which the Supreme Court has had to consider these provisions. In doing so, the Supreme Court has largely continued to narrow the scope of protection provided for migrants in the UK by art 8.

Statutory scheme

Part 5A of the 2002 Act comprises ss 117A-117D. S 117A(2) requires a court or tribunal, when determining whether an interference with a person’s right to private and family life is justified, to have regard to the considerations listed in s 117B and, in cases concerning the deportation of foreign criminals, additionally to those listed in s 117C.

s 117B provides:

(1) The maintenance of effective immigration controls is in the public interest.

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—

(a) are less of a burden on taxpayers, and

(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—

(a) are not a burden on taxpayers, and

(b) are better able to integrate into society.

(4) Little weight should be given to—

(a) a private life, or

(b) a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.

(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.

s 117C contains different matters to which regard must be had. Relevant for present purposes is that, for someone sentenced to less than four years imprisonment against whom a deportation order has been made, s 117C(5) provides that the public interest does not require the individual’s deportation “where C has… a genuine and subsisting relationship with a qualifying child, and the effect of deportation on the…child would be unduly harsh.”

Rhuppiah

Rhuppiah [2018] UKSC 58 concerned s 117B(3) and (5). Mrs Rhuppiah, a Tanzanian national, entered the UK in 1997 with leave to remain for 3 months in 1997. She was granted various other periods of leave to remain, although sometimes with breaks between her visas during which time she was in the UK unlawfully. While studying at college, Mrs Rhuppiah met Ms Charles who suffers from a gravely debilitating illness. Mrs Rhuppiah lives with Ms Charles and provides care gratuitously to her. Mrs Rhuppiah’s leave to remain expired in 2009 and she had not been able to obtain a visa since then. She applied for leave to remain on the basis that her removal would breach her art 8 rights. The Secretary of State disagreed. The First-tier Tribunal upheld the Secretary of State’s decision, giving little weight to her private life, under s 117B(5) on the basis that it was established, it said, at a time when her status was “precarious”. Additionally, the First-tier Tribunal considered that Mrs Rhuppiah was not “financially independent” to which it is required to have regard under s 117B(3).

Happily for Mrs Rhuppiah, the long duration of the proceedings meant that before the appeal to the Supreme Court was heard, she had achieved continuous residence in the UK for 20 years, which provided her with another route to remain under the Immigration Rules. Nevertheless, the Supreme Court decided that it was appropriate to hear and determine the appeal which raised issues of wide application.

Precariousness

The first question for the Supreme Court was accordingly whether her status in the UK had been “precarious”. In relation to that, the Court adopted a narrow definition, concluding that a person’s status is precarious if it is dependent upon a further grant of leave. This is to be regretted for two reasons.

First, this means that even those people who come to the UK on a visa which expressly provides a route to settlement and who might therefore reasonably expect to be able to develop their private and family life in the UK indefinitely, are to have little weight accorded to any such private and family life. The Strasbourg jurisprudence on precariousness generally refers to people who know at the time they start their family life, that it may not be able to continue in the host country. However, those on a route to settlement do not know that and their inclusion within the definition of precarious migrants runs counter to the grain and rationale provided by the Strasbourg Court.

Secondly, this definition runs contrary to the policy rationale for, for example, s 117B(2) and (3), of promoting better integration. If someone’s private and family life is to be given little weight, not because of anything they can control such as financial independence or their ability in English, but by the type of visa they happen to possess, they have little incentive to integrate into the society to which they have migrated if regardless of their level of integration their family and private life rights are to be accorded little weight in any event. Whether migrants ought to integrate themselves or not into a host country is a political question on which reasonable opinions differ, but given that an express policy of the legislation appears to be to encourage such integration, for the Court to adopt an approach that undermines that is lamentable.

Financial independence

The second question for the Supreme Court was whether Mrs Rhuppiah was “financially independent” for the purposes of s 117B(3). In relation to this issue, the Court considered that financial independence meant independence from the state, not from all other individuals. This aspect of the judgment is to be welcomed. Whilst the protection of the public purse can be said to be in the public interest, it plainly does not require an individualistic approach to financial independence whereby members of a family should not rely on each other or divvy up different household duties differently.

KO (Nigeria)

In the case of KO (Nigeria) the Supreme Court had to consider the position of parents of children who have been in the UK for over 7 years, or are British or have leave as a refugee. Under s 117B(6) if it is not reasonable to expect that child to leave the UK then their parent can be granted leave too. A similar question is asked in the case of those subject to deportation orders under s 117C(5). In the Court of Appeal (at that stage the case was called MA (Pakistan) v The Upper Tribunal [2016] EWCA Civ 705), it had been determined that, although the test in s 117B(6) was self-contained, in the sense that once the question whether it was reasonable to expect the child to leave the UK had been answered that determined the answer to the proportionality question, in determining that reasonableness question you could take into account any wrongdoing by the parents. The Supreme Court disagreed with this approach and restored the orthodox position that you cannot blame the child for the sins on the parents. However, the Court then held that the starting point in answering what is reasonable for the child is the expected location of the parents, as it will normally be reasonable to expect a child to live with his or her parents, and the wrongdoing of the parents may be relevant to that if that wrongdoing is what has caused them to lose their leave. There are three fundamental difficulties with this approach.

First, the reasoning is to some extent circular. The reason a Tribunal is asking this question is to determine whether a parent should be granted leave to remain in the UK. In order even to be asking that question, that parent necessarily has no leave to remain in the UK. In determining that it is reasonable to expect a child to follow a parent with no leave, it to some extent therefore assumes what it seeks to prove.

Second, in cases with two foreign-national parents, the starting point as a result of this judgment will always be that it is reasonable to expect the child to leave. However, the whole point of asking this question is to properly take into account the length of time or other connection with the UK that the child has, not the parents. We will have to see how this issue plays out in subsequent cases, but on the face of KO, this diminishes the position of children in the UK, even British children, which is to be regretted.

Thirdly, both of the cases before the Supreme Court concerning s 117B(6) were families where neither parent had leave to remain. Those are therefore simple cases in which to work out the correct starting point for the purposes of the reasonableness test. But what of families in which one parent has no leave, but the other does? And does it make a difference if that leave is temporary or permanent? What if the other parent is British? What is the starting point then? The answer is that we simply do not know. The Court appears to have approved a statement of the Court of Appeal in EV (Philippines) [2014] EWCA Civ 874 at [58] which stated that “the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted.” Unfortunately, that tells us nothing about how to conduct that assessment. Given that this was a test case in which the Supreme Court suggested the immigration law fraternity might have applied to leap-frog the Court of Appeal, it is deeply unsatisfactory that the Court did not consider how their judgment should apply more widely than the precise facts before them.

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Hearings in the Supreme Court are now shown live on the Court’s website.

On Monday 3 and Tuesday 4 December, the Supreme Court will hear the appeal of R (Privacy International) v Investigatory Powers Tribunal & Ors. This appeal will consider whether the Regulation of Investigatory Powers Act 2000, s 67(8) precludes judicial review of a decision of the Investigatory Powers Tribunal. This will be heard in Courtroom 1.

On Wednesday 5 December, the Supreme Court will hear the appeal of Mastercard Inc & Ors v Deutsche Bahn AG & Ors. This appeal will consider whether the appellants’ new claim, introduced by amendment of the original claim, is deemed to have commenced on the commencement dates of the original claims for the purposes of limitation. This will be heard in Courtroom 2.

On Wednesday 5 December, the Supreme Court will hand down the judgment in Volcafe Ltd & Ors v Compania Sud Americana De Vapores SA. The proposed panel for hand down is Lord Reed, Lord Sumption and Lord Briggs. This appeal considered where the burden of proof lies in relation to negligence in respect of alleged breaches of the Hague Rules, art III Rule 2 and the defence of inherent vice under art IV Rule 2(m).

On Wednesday 5 December, the Supreme Court will hand down the judgment in London Borough of Southwark & Anor v Transport for London. The proposed panel for hand down is Lord Reed, Lord Sumption and Lord Briggs. This appeal considered whether the effect of a Transfer Order, which transferred to Transport for London certain roads in London, was only to transfer the surface of the highway and sufficient sub-soil (normally called the top two spits) as is necessary for the maintenance of the surface, or whether it was to transfer to TfL the entire interest held by the council in the land on which the highway ran.

On Wednesday 5 December, the Supreme Court will hand down the judgment in S Franses Ltd v The Cavendish Hotel (London) Ltd. The proposed panel for hand down is Lord Reed, Lord Sumption and Lord Briggs. This appeal considered the construction of the Landlord and Tenant Act 1954. It specifically considered whether a landlord which intends to carry out works if, and only if, those works are necessary to satisfy s 30(1)(f), and which offers an undertaking to carry out those works in the form of the undertaking given by the respondent in the present case, has the requisite intention for the purposes of ground (f). It also considered whether a landlord whose sole or predominant commercial objective is to undertake works in order to fulfil ground (f) and thereby avoid the grant of a new lease to the tenant, and which offers an undertaking to carry out those works in the form of an undertaking given in the present case, has the requisite intention for the purposes of ground (f).

On Thursday 6 December, the Supreme Court will hear the appeal of Hancock & Anor v HMRC. This appeal will consider whether a conversion of both non-qualifying corporate bonds and qualifying corporate bonds in a reorganisation is to be treated as a single conversion or two distinct conversions for the purposes of the Taxation of Chargeable Gains Act 1992, s 132.. This will be heard in Courtroom 1.

On Thursday 6 December, the Supreme Court will hear the appeal of Konecny v District Court Czech Republic. This appeal will consider, where an individual has been convicted, but that conviction is not final because he has an unequivocal right to retrial after surrender, whether he is ‘accused’ pursuant to the Extradition Act 2003, s 14(a) or ‘unlawfully at large’ pursuant to s 14(b) for the purposes of considering the ‘passage of time’ bar to surrender. This will be heard in Courtroom 2.

A full list of the cases scheduled for the Michaelmas term can be found here.

The following Supreme Court judgments remain outstanding:

Keefe (by his litigation friend Eyton) v Hoteles Pinero Canarias SL, heard 7 Mar 2017.

Arcadia Petroleum Ltd & Ors v Bosworth & Anor, heard 10-11 Apr 2017.

R (Hallam) v Secretary of State for Justice; R (Nealon) v Secretary of State for Justice, heard 8-9 May 2018.

In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland) and other cases, heard 19-21 Jun 2018.

In the matter of an application by Geraldine Finucane for Judicial Review (NI), heard 26-27 Jun 2018.

OWD Ltd, trading as Birmingham Cash & Carry, & Anor v Commissioners for HMRC, heard 12 Jul 2018.

Poole Borough Council v GN (through his litigation friend, ‘The Official Solicitor’) & Anor, heard 16-17 Jul 2018.

R (DA & Ors) v Secretary of State for Work and Pensions, heard 17-19 Jul 2018.

The UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill – A reference by the Attorney General and the Advocate General for Scotland, heard 24-25 Jul 2018.

Volcafe Ltd & Ors v Compania Sud Americana De Vapores SA, heard 3-4 Oct 2018.

In the matter of D (a child), heard 3-4 Oct 2018.

Takhar v Gracefield Developments Ltd & Ors, heard 10 Oct 2018.

Wells v Devani, heard 11 Oct 2018.

Williams v The Trustees of Swansea University Pernsion & Assurance Scheme & Anor, heard 16 Oct 2018.

S Franses Ltd v The Cavendish Hotel (London) Ltd, heard 17 Oct 2018.

Welsh Ministers v PJ, heard 22 Oct 2018.

In the matter of an application by Hugh Jordan for Judicial Review, heard 23 Oct 2018.

London Borough of Southwark & Anor v Transport for London, heard 24-25 Oct 2018.

SAE Education Ltd v The Commissioners of HMRC, heard 30 Oct 2018.

UKI (Kingsway) Ltd v Westminster City Council & Anor, heard 6 Nov 2018.

Lachaux v Independent Print Ltd & Anor, hears 13-14 Nov 2018.

Robinson v Secretary of State for the Home Department, heard 15 Nov 2018.

Actavis Group PTC EHF & Ors v ICOS Corporation & Anor, heard 19-20 Nov 2018.

Perry v Raleys Solicitors, heard 27 Nov 2018.

Cameron v Liverpool Victoria Insurance Co Ltd, heard 28 Nov 2018.

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Art 8 and Private Life: Supreme Court Confirms Bright-line Interpretation of ‘Precarious’ in s 117B(5) of NIAA 2002

In interpreting the meaning of “precarious” in the Nationality, Immigration and Asylum Act 2002 (as amended), s 117B(5), whereby little weight should be given to a private life established by a person at a time when their immigration status is precarious, the Supreme Court has held that anyone present in the UK who is not a British citizen and who has time-limited leave short of indefinite leave to remain has a precarious immigration status. Lord Wilson disagreed with Sales LJ that some migrants holding limited leave to remain could have an immigration status which was not precarious. Moreover, the Justices also unanimously held that the expression “financially independent” in s 117B(3) means an absence of financial dependence upon the state. The Tanzanian appellant, Ms Rhuppiah, arrived in the UK in 1997 and renewed her student visa a dozen times. She befriended one Ms Charles, a fellow student who suffered from ulcerative colitis. They lived together since 2001 and Ms Charles provided Ms Rhuppiah accommodation in exchange for her care without which Ms Charles would face formidable difficulties and seek state care. When her leave expired in November 2009, Ms Rhuppiah was twice refused ILR because of intermittent periods of overstaying and because of using the wrong form and random changes to the Immigration Rules. The decision-maker also refused her claim outside the rules under the ECHR, art 8.

Subsequently, FTTJ Blundell dismissed Ms Rhuppiah’s appeal since her private life in the UK had been established at a time when her immigration status had been precarious. He also determined that she was not financially independent as she depended on support from her father and from Ms Charles, who was a skilled systems engineer for the Ministry of Defence. FTTJ Blundell observed that her first ILR application failed owing to the ineptitude of her college. Moreover, her second ILR application was hampered because she used the incorrect form and enclosed the wrong fee and by the time she corrected her mistake the 14-year rule in para 276B(i)(b) she sought to rely upon was deleted on 9 July 2012. FTTJ Blundell accepted that she rightly felt cheated by events. But applying Patel [2013] UKSC 72 he held that a “near miss” was irrelevant and was as good as a mile. Further appeals to the Upper Tribunal and the Court of Appeal failed but Ms Rhuppiah was granted 30 months leave to remain in February 2018 on the basis of para 276ADE(1)(iii) because she had lived continuously in the UK for at least 20 years. This rendered her appeal academic but the Supreme Court heard her case because of the public importance of definitively interpreting the word “precarious” in s 117B(5).

The Supreme Court

Lords Wilson, Carnwath, Hughes, Lloyd-Jones and Lady Black allowed the appeal. Giving the sole judgment, Lord Wilson thought that Ms Rhuppiah’s friendship with Ms Charles, who depended on her for care, was a “striking feature” of her private life in the UK. Indeed, Ms Rhuppiah’s sudden departure from the UK would impact adversely on Ms Charles’s health and severely disrupt her life given that she suffers from nausea, an inability to eat, anaemia, fatigue, joint pain and reduced mobility and depends heavily both physically and emotionally on her friend. Nevertheless, rather than allowing uncertainty to prevail over varying degrees of precariousness in light of potential paths to settlement, Lord Wilson favoured the application of a bright-line approach and held that a person’s immigration status in the UK can be precarious even when he or she is lawfully present here.

(i) Meaning of Precarious

In the context of art 8 and removal, Lord Wilson traced the first use of the word “precarious” to Mitchell v UK [1998] ECHR 120 where the ECtHR said that precariousness was an “important” but “not decisive” consideration and where family life had been developed with clear knowledge of one spouse’s precarious immigration status then only in the “most exceptional circumstances” could the removal of the foreign spouse breach art 8.

The expansion of the doctrine meant that alleged family life without marriage came to be captured by it and as shown by Rodrigues da Silva, Hoogkamer v Netherlands (2007) 44 EHRR 34 the question became whether family life was created at a time when it was known that a mother’s immigration status was such that the persistence of family life with her minor Dutch daughter within the host state would from the outset be precarious. Only after applying the exceptional circumstances test did the court find a breach of art 8.

In Useinov v Netherlands [2006] ECHR 1213 the asylum-seeking applicant was allowed to live in the Netherlands while his case was pending for more than five years and the ECtHR found that it was not possible to equate his situation with a lawful stay where the authorities grant an alien permission to settle in their country. It was held that his stay was “precarious for most of it, and illegal for the remainder” and no exceptional circumstances existed. Contextually, Useinov was different because focus fell on the precariousness of the applicant’s stay and not whether the persistence of family life was known to be precarious. Nnyanzi v UK (2008) 47 EHRR 18 confirmed the distinction that permission to “settle”, as opposed to permission to stay pending determination of applications, erases the bright-line between a precarious and a secure immigration status. Butt v Norway [2012] ECHR 1905 confirmed the earlier approach and in Jeunesse v Netherlands (2015) 60 EHRR 17 the Grand Chamber authoritatively dealt with the issue further by holding that “settled migrants” were special because the subsequent withdrawal of settlement rights (owing to criminal activities) will constitute an interference with the respect for private and/or family life.

This article was originally posted here.

Please see Part Two here.

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Submissions of Privacy International and the Interested Parties
  1. Lord Justice Sales recorded the submissions of Privacy International, which, in summary, were that:
    1. RIPA 2000, s 67(8) is not drafted in sufficiently clear language to exclude a right to apply to the High Court for judicial review, particularly as s 67(8) ought to read in a narrow and restricted way in line with established principle;
    2. the restrictive approach to interpretation of ouster clauses which is illustrated by Anisminic Ltd v Foreign Compensation Commission ([1969] 2 AC 147; [1969] 2 WLR 163) is an example of the application of the principle of legality;
    3. taking into account the restrictive approach and Anisminic, if the clause sought to oust jurisdiction it ought to have provided in terms that this exclusion of judicial review applied even if the IPT had made an error of law. [20-22]

  1. The submissions of the interested parties were also recorded, which, in summary, were that:
    1. there are different ways in which and degrees to which the principle of the rule of law and the right to have access to a court or tribunal might be brought into question by an ouster clause in a statute, depending on the context, and the clarity needed in the statutory language depends on the level of how intrusive an ouster of judicial review would be to the rule of law (“variable impact of the principle of legality”);
    2. it is the substantive effect of the language used which is important rather than the use of any particular formula; and
    3. in this case, the IPT is an independent and impartial judicial body, presided over a High Court Judge and RIPA 2000,  s 67(8) is in clear terms and should be construed to mean that there is no right to apply for judicial review in the High Court in relation to decisions and determinations of the IPT. [23]
Judgment
  1. Lord Justice Sales found that the case turned on a short point of statutory construction in relation to RIPA 2000 and saw force in the general thrust of the interested parties’ argument about the variable impact of the principle of legality. However, he also noted that a provision which isolates a tribunal from any prospect of appeal on points of law which may be controversial and important, such as determinations on the lawfulness of action taken by the intelligence services, involves a substantial inroad upon the usual rule of law standards in England and Wales. [24-25]
  2. Lord Justice Sales considered that the statutory language of s 67(8) was clear when considered in its legislative context and by it meant that “all determinations, awards, orders and decisions of the IPT ‘shall not… be liable to be questioned in any court’, including in the High Court on judicial review”. [26]
  3. Lord Justice Sales then considered the case law on ouster clauses relied upon by Privacy International beginning with Anisminic and noted the Supreme Court’s interpretation of that case in R (Cart) v Upper Tribunal (Public Law Project intervening) ([2012] 1 AC 663, which was that Anisminic effectively removed the distinction between errors of law and errors in excess of jurisdiction.  His Lordship also considered that language between the ouster clause in issue in Anisminic and the case before him was materially different as was their relative contexts. [27-32]
  4. The text in parentheses in RIPA 2000, s 67(8), “(including decisions as to whether they have jurisdiction)”, had particular importance for Lord Justice Sales as he found that “at least so far as the word ‘decision’ is concerned, it is not tenable to apply the simple distinction relied upon in the Anisminic ” He then went on to extend that finding to the other types of decision referred to in the section, including determinations, awards, and orders, and further justified it, having considered the preliminary procedure of the IPT, by noting that there is nothing to indicate that Parliament intended there to be any difference in the availability of a judicial review challenge between the various types of decisions. [34-36]
  5. Other reasons relied upon by Lord Justice Sales included that:
    1. the statutory language implied that Parliament considered that the IPT can be trusted to make sensible decisions and reference was made to the standards for membership of the panel in terms of expertise and independence;
    2. the preliminary issue in this case on the interpretation of the Act of 1994, s 5 was one that went to jurisdiction;
    3. there was no good reason for reading s 67(8) in a “narrow way” so that the words in parentheses only refer to decisions where the IPT gives its attention to a particular issue affecting its jurisdiction and reasons a considered view on it. Moreover, this would create a new form of esoteric distinction;
    4. his Lordship’s interpretation promotes the legislation’s purpose, which was a tribunal capable of considering claims against the intelligence services under closed conditions and thereby prevent disclosure of sensitive confidential information, whereas judicial review in the courts would subvert that purpose;
    5. his Lordship agreed with what he characterised as the persuasive authority of the obiter dictum of Lord Brown JSC in R(A) v Director of Establishments of the Security Service [2000] 2 AC 1 which described RIPA 2000, s 67(8) as “an unambiguous ouster” of the jurisdiction of the courts. [37-48]
Supreme Court: Grounds of Appeal
  1. Privacy International’s grounds of appeal to the Supreme Court are, in summary, that the Court of Appeal erred in law by:
    1. failing to address or give effect to authorities regarding “no certiorari” clauses;
    2. failing to apply Anisminic properly and as a result, finding that there a material distinction between the ouster clause considered in Anisminic and the one in the extant case;
    3. placing reliance on an irrelevant consideration, namely, the ‘quality’ of the members of the IPT; and
    4. placing reliance on the IPT’s capacity to deal with sensitive material, particularly as in this case, there was no sensitive material in issue; or
    5. judicial review of decision of an inferior tribunal of limited jurisdiction is a fundamental constitutional principle which cannot be excluded by statute, regardless of the way it is drafted.
Comment
  1. This appeal is of general public and constitutional importance because the Supreme Court will have an opportunity to review the seminal judgment in Anisminic and offer guidance on the form of words parliament may use to oust the jurisdiction of the courts. In particular, the Supreme Court is likely to make a finding as to whether the variable impact of the principle of legality should apply to ouster clauses.
  2. As regards the substantive case, a finding in favour of Privacy International will permit the High Court to review the IPT’s construction of the Intelligence Services Act 1994, s 5 and thereby consider whether the wide scope of specificity in warrants relied upon by the security services to legitimise their activities is lawful.

Please see Part One here.

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  1. On Monday and Tuesday, the 3 and 4 December 2018, the Supreme Court (Lady Hale, Lord Reed, Lord Kerr, Lord Wilson, Lord Sumption, Lord Carnwath, and Lord Lloyd-Jones) will hear Privacy International’s appeal (UKSC 2018/0004) against the Court of Appeal’s decision in R (Privacy International) v Investigatory Powers Tribunal ([2017] EWCA Civ 1868; [2018] 1 WLR 2572), which found that the Regulation of Investigatory Powers Act 2000 (“RIPA 2000”), s 67(8) ousted the jurisdiction of the High Court in respect of applications for judicial review against any determination, award, order or decision of the Investigatory Powers Tribunal (“IPT”).
  2. The IPT is represented in these proceedings. However, the burden of the submissions resisting the appeal falls to the two interested parties: Secretary of State for Foreign and Commonwealth Affairs; Government Communications Headquarters.
  3. Permission to appeal to the Supreme Court was granted by the Supreme Court (Lord Mance, Lady Black and Lord Lloyd-Jones) on the 22 March 2018.

Issue on the appeal
  1. The issue on the appeal is whether the Court of Appeal was wrong in interpreting s 67(8) of RIPA 2000 as ousting the jurisdiction of the courts to determine an application for judicial review against the IPT. s 67(8) RIPA 2000 states:

“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.”

Background Underlying substantive proceedings
  1. In May 2014, Privacy International filed a complaint and a human rights complaint against Government Communications Headquarters (“GCHQ”) and Secretary of State for Foreign and Commonwealth Affairs alleging that GCHQ was engaging in unlawful computer network exploitation activity; in particular, by infecting individuals’ computers and mobile devices on a widespread scale to gain access to the functions of those devices, for example, activating a camera or microphone without the user’s consent or to obtain stored data.
  2. A well-established procedure for the IPT is to make assumptions as to the significant facts in favour of the claimant and reach conclusions on that basis at a preliminary hearing. If the conclusion is that the respondent’s conduct would be unlawful if the assumed facts were proved, then the IPT continues the claim in closed session.
  3. One of the issues at the preliminary hearing of Privacy International’s claims on which the IPT ruled concerned the proper interpretation of the Intelligence Services Act 1994, s 5, and, in particular, the degree of specification required in a warrant issued by the Secretary of State under s 5(2) of the 1994 Act in order for s 5(1) of that Act to apply and, thereby, give lawful authority to “entry on or interference with property or with wireless telegraphy”.
  4. In a judgment of the 12 February 2016 ([2016] UKIP Trib 14_85-CH), the IPT rejected Privacy International’s submissions on the specificity point and upheld the submissions of GCHQ and the Secretary of State, which included that s 5(2) permits the Secretary of State to issue warrants authorising the taking of such action as is specified in the warrant in respect of any property so specified provided that both the activity and the property were “objectively ascertainable”. [36-37, 47]
Judicial Review: Procedural History
  1. Following the IPT’s judgment, Privacy International applied for judicial review of the IPT’s interpretation of the Intelligence Services Act 1994, s 5.
High Court
  1. On the 17 June 2016, Ms Justice Lang granted Privacy International permission to apply for judicial review and observed that she had ‘real doubt’ as to whether the Court had jurisdiction to determine the substantive claim. As a result, she ordered a preliminary issue to be tried as to whether the decision of the IPT was amendable to judicial review.
Preliminary issue: Jurisdiction
  1. The preliminary issue was heard by the Divisional Court (Sir Brian Leveson PQBD and Leggatt J) on the 2 November 2016, and by Order of that Court, the IPT was not amenable to judicial review.
  2. However, the Order was a result of an unusual procedure adopted by Mr Justice Leggatt. While Mr Justice Leggatt’s judgment was that he was inclined to the view that RIPA 2000, s 67(8) does not exclude the possibility of judicial review, he agreed to the form of the order proposed by Sir Brian Leveson, who found that the IPT was not amenable to judicial review, in order to avoid the matter being re-argued by a differently constituted Divisional Court.
  3. On the 9 February 2017, permission to Appeal to the Court of Appeal was granted by Sir Brian Leveson.
Court of Appeal
  1. On the 23 November 2017, the Court of Appeal (Floyd, Sales, Flaux LJJ) dismissed Privacy International’s appeal against the Divisional Court’s Order on the preliminary issue.
Decision of the Court of Appeal
  1. Lord Justice Sales gave judgment in the Court of Appeal to which Lords Justice Floyd and Flaux agreed.
Nature and function of the IPT
  1. Lord Justice Sales adopted the passages of Sir Brian Leveson in the High Court as to the structure and functions of the IPT as well as identifying the impetus for the establishment of the IPT as being necessary for compliance with human rights and outlined the patchwork of statutory bodies which the IPT replaced. [5]
  2. Lord Justice Sales noted the particular sensitivity in relation to the evidential material in issue and the public interests which may be jeopardised if it is disclosed and the rules by which the IPT protects those public interests, namely national security, for example, by examining “in private and without disclosure of any relevant confidential evidence which cannot safely be reveal to the complainant” [10]. Lord Justice Sales also noted that at the relevant time there was no right of appeal from the IPT under RIPA 2000 but made provision for the Secretary of State by order to provide otherwise. [11].

Please see Part Two here.

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