The UK Human Rights Blog aims to provide a free, comprehensive and balanced legal update service. Our intention is not to campaign on any particular issue, but rather to present both sides of the argument on issues which are often highly controversial.
In our continuing reposts of Professor Catherine Barnard’s series on the legal steps to Brexit, we have reposted her episode on the Draft EU Withdrawal Agreement – the Brexit political agreement turned into a legal document. Professor gives Boni Sones her own analysis of the text.
Conor Monighan brings us the latest updates in human rights law
Photo credit: The Guardian
In the News:
Over 100 female detainees have gone on hunger strike at Yarl’s Wood Immigration Removal Centre.
The women began their strike on the 21st February, over “inhuman” conditions, indefinite detentions, and a perceived failure to address their medical needs. The UK is the only European state that does not put a time limit on how long detainees can be held.
This week, the strikers were given a letter from the Home Office warning their actions may speed up their deportation. Labour criticised the letter, but Caroline Nokes, the Immigration Minister, said the letter was part of official Home Officer guidance and was published last November on its website.
A number of parties have commented on the issue. A 2017 report on the facility found significant improvements since its assessment in 2015, which found that the centre was “failing to meet the needs of the most vulnerable women”.
Brandon Lewis, the Conservative party chairman, stated on Question Time that there are different processes for asylum seekers, refugees, and those in the UK illegally. He also argued refugees were not held in detention centres and that the only people detained were those who were in the UK illegally. The Home Office states it detains people at Yarl’s Wood for the “minimum time possible”.
In Other News….
International Women’s Day took place this week. A number of Spanish women went on strike to highlight sexism and the gender pay gap, McDonald’s tribute sparked debate about ‘Mcfeminism’, and Theresa May accused Jeremy Corbyn of mansplaining during PMQ’s. The Law Society released the largest international survey of women in the law, which found progress was being made but unconscious bias is all too prevalent. You can read a summary of its findings here.
The ex-Russian agent Sergei Skripal, and his daughter Yulia, were poisoned in Salisbury earlier this week. Military personnel have been decontaminating the area, including ambulances which may have been affected. A police officer was also committed to hospital. The Home Secretary, Amber Rudd, described the attack as ‘outrageous’. The authorities have said there is no evidence of a wide public health risk (the BBC reports).
In the Courts:
Surico v Public Prosecutor of the Public Prosecuting Office of Bari, Italy: The Administrative Court has ruled that a man found guilty of sexual offences against a minor could be extradited to Italy, despite his medical conditions. They upheld the trial judge’s decision that it was not unjust or oppressive to extradite Mr Surico even taking into account his physical and mental health (following s.25 of the Extradition Act 2003). The appellant’s physical conditions were either controlled, or it could be assumed Italy would be able to provide appropriate treatment for them. Whilst some deterioration in the appellant’s medical condition was possible, it did not reach the threshold of oppression. The Court also held that although the European Arrest Warrant was only issued in October 2016, the appellant had known of his sentence since January 2012. Accordingly, the appellant was not burdened with a false sense of security. Whilst some hardship would inevitably be caused by the extradition, it did not meet the threshold of causing oppression. Finally, the Court upheld the trial judge’s conclusion that it would not be disproportionate under Article 8 of the Convention on Human Rights to extradite the appellant.
Daly, R (on the application of) v The Commissioner of Police of the Metropolis & Anor: The Administrative Court has also dismissed an application for judicial review of the granting of a search warrant. The application concerned an alleged mistake of fact, namely that the thermal imaging of the claimant’s property had been misinterpreted. Mistake of fact resulting in unfairness is a ground for judicial review. The defendants pointed out that such an error of fact must involve a mistake which is uncontentious and objectively verifiable. They further submitted that this criterion was not satisfied in this case, because the police disputed the alleged mistake. In addition, Sir Brian Leveson and Males J held that a subsequently established material error cannot invalidate a warrant properly obtained. To allow such action would circumvent the need for proof of malice, which is normally required when the police act pursuant to a warrant properly obtained. Whilst this requirement of malice makes it difficult for a claimant to recover damages, it is what the law requires. Finally, the submission that there was malice in this case was rejected on the facts. The police clearly presented reasonable grounds to the district judge who properly granted the warrant.
BS, R (On the Application Of) v Secretary of State for the Home Department: The Secretary of State failed to act with reasonable diligence when removing an Indian national, resulting in a period of unlawful detention. The claimant had been identified as a victim of torture and sexual abuse, creating a presumption of release. The Deputy High Court Judge found that the Secretary of State was justified in taking the view that the risk of absconding outweighed the risk of harm. However it should have become apparent to the Secretary of State that removal was unlikely to take place during a reasonable timeframe, due to checks needed on the claimant.
On the UKHRB
Jo Moore has written an post on R (QSA and others) v Secretary of State for the Home Dept and Secretary of State for Justice, in which the High Court ruled that women forced into prostitution as teenagers will no longer have to disclose related convictions to potential employers.
Jonathan Metzer, the Commissioning Editor of this blog, has recorded a podcast with Rosalind English discussing the right of appeal against refusal of a residence card under the EU immigration rules. And Josh Newmark posted on demolitions in the West Bank.
Josh Newmark is a History and Politics graduate from Durham University and an incoming History MSc at the University of Edinburgh, currently teaching in Salamanca. He is part of the youth-led #DontSettleForThis campaign with Yachad, the pro-Israel, pro-peace movement in the UK.
The security of a roof over one’s head, a space for personal and familial privacy… Having “a place to call home” is widely recognised as an essential prerequisite for human wellbeing. This is acknowledged across the political spectrum – from the phrase “property-owning democracy” shared by both Thatcherites and American liberal philosopher John Rawls, to left-wing movements for affordable housing. In Judaism, too, the value of having a home is recognised. A key aspect of Judaism’s story is learning from the experience of being a people in exile, yearning for a home – “love the stranger, for we were once strangers in Egypt” is a frequent refrain in the Torah. Moreover, the Jewish household is of central importance to Jewish life – with its important physical features, like the mezuzah (boxed prayer scroll attached to each door frame), and key practical functions, such as hosting the traditional Friday night family meal to welcome the Sabbath. Undoubtedly, this is one of the motivating factors for young British Jews’ repugnance towards the Israeli’s government continuing policy of demolishing Palestinian homes.
Yachad is a British Jewish NGO which promotes support for a political solution to the Israeli-Palestinian conflict within the Jewish community through education, debate, and advocacy. Under the hashtag #DontSettleForThis, young Yachad activists are raising awareness within the Jewish community of the demolitions of Palestinian homes, and pushing the UK government to help prevent these demolitions.
According to Israeli humans rights NGO B’Tselem, Israel has demolished at least 1,323 Palestinian residential units in the occupied West Bank, plus over 600 just in East Jerusalem, since 2006. This policy has taken homes from over 8,000 people in that time period, more than 50% of them minors. These figures exclude the demolitions which Israel controversially carries out upon the family homes of convicted or deceased terrorists. Rather, these are homes which are being demolished because they have been built without permits. While demolishing such structures might seem to be the right, even obligation, of a governing authority, only a little detail is necessary to make clear that this policy is an inflammatory and unjust policy which compounds the wider injustice of the occupation itself. The dual policy of allowing and stoking a Palestinian housing shortage whilst allocating land for well-planned, well-connected illegal Israeli settlements, often with illegal (even under Israeli law) structures tolerated on them, highlights the deep inequality inherent in the occupation.
Here are the details. The Oslo Accords, the failed peace process initiated in the mid-1990s, divided the West Bank into three categories of land. The more densely-populated urban Palestinian areas such as Ramallah were designated Areas A and B and placed under de jure Palestinian Authority control. The remaining 61% was designated Area C, remaining under full Israeli control, but intended to pass gradually into Palestinian control apart from those areas whose fate would be decided by the “permanent status negotiations” on key sticking points (Jerusalem, the Jewish settlements, etc). Palestinians are completely barred from construction in roughly 70% of Area C (over two-fifths of the total land of the West Bank) due to moves by Israeli authorities such as designating areas as “state land”, closed military zones (20% of the West Bank), and nature reserves or national parks. In the remaining 30% of Area C, the Israeli authorities (elected only by Israeli citizens) very rarely grant permits for building or infrastructure to their 180-300,000 Palestinians residents, even on private land. Only 1.5% of such applications between 2010 and 2014 were approved.
From 2010 to 2015, the Palestinian Authority prepared 108 outline plans for 116 communities in Area C, 77 of which were submitted to the planning authorities in the Civil Administration [Israeli military authorities governing Area C] for approval. However, these efforts were to no avail. By the end of 2015, only three had been approved, covering a total area of 57 hectares (0.02% of Area C).
Against this backdrop of a suppression of Palestinian development in Area C, the Palestinian population has almost doubled since the Oslo Accords saw the West Bank divided in 1995, leaving the remaining land reserves in the Palestinian-governed parts of the West Bank insufficient. Of that land that does remain in Areas A and B, even land better suited for agriculture has been used up for new housing, a symptom of the growing shortage. In East Jerusalem, the existence of a Palestinian housing crisis is abundantly clear, with an annual deficit of 1500 residential units for Palestinians resulting in constant illegal construction works. With last year having the second-highest number of demolitions in East Jerusalem since 2000, it is a very real threat hanging over Palestinian families. And whereas when the authorities do occasionally demolish the homes of Israeli settlers for lack of permits, those illegal settlers are often compensated handsomely, as with the Amona and Netiv Ha’avot outposts, while Palestinians can expect nothing.
These statistics attest to an abject policy failure at best, and at worst, when regarded besides the evidence (Netanyahu: “we are building and we will continue to build”) that the Israeli administration is keen to grant new planning permission for Israeli settlements, they point to a grave injustice. Attempts to justify the policy have become more untenable, with one right-wing Israeli Member of the Knesset (Israel’s parliament) labelling unauthorised Palestinian attempts to build as “construction terror”. Such a tactic is increasingly familiar, with nonviolent Boycott, Divestment and Sanctions (BDS) activism labelled “terrorism” and Palestinian attempts to challenge the Israeli State through international litigation as “lawfare”. The designation of all nonviolent forms of Palestinian protest or opposition as “terrorism” is creating a hopeless situation in which actual terrorism will thrive. In fact, unlawful construction only ‘terrorises’ those seeking total Jewish settlement of Area C. Take the example of Umm Al-Khair, a tiny Bedouin village, on privately-owned Bedouin land, in which almost every building is under threat of demolition. Who are the residents terrorising, by clinging on to their own land there and surviving in “ramshackle” and, yes, illegal structures? Metres away stands the illegal Israeli settlement of Carmel, which resembles “ city”, and where the chickens on the poultry farm receive more water and electricity than the Bedouins. Consider then, what is really meant by “construction terror”.
To return to the young Yachad activists. We are largely drawn from positions of leadership in various Jewish community youth groups, and our aim, through the various campaigns we have organised, is to campaign and raise support for human rights, an end to the occupation of Palestinian land and people, and the coexistence of a just, pluralistic Israel and a just, independent Palestine. The demolition issue is only one component of this complex conflict, but it is one which seems particularly malicious, dehumanising, and destabilising in the quest for peace. To create the minimal good faith that is needed to build solutions to the conflict and rectify the dire situation of many of its actors, people should say #DontSettleForThis and take action to end the demolitions.
R (QSA and others) v Secretary of State for the Home Dept and Secretary of State for Justice  EWHC 407 (Admin) – read judgment
The High Court ruled on 2nd March 2018 that three women forced into prostitution as teenagers will no longer have to disclose related convictions to potential employers.
The claimants challenged the criminal record disclosure scheme which required them to reveal details of multiple decades-old convictions for ‘loitering or soliciting’ for the purposes of prostitution.
The women had been groomed, coerced or forced into sex work, two of them when they were children. They were required to divulge their convictions under the regime of the DBS (Disclosure and Barring Service) governed by Part V of the Police Act 1997. DBS checks (previously CRB checks) are made when an applicant seeks certain paid or voluntary work involving children or vulnerable adults. While the claimants weren’t strictly barred from such jobs, they had to inform would-be employers of their historical convictions. They said this placed them at an unfair disadvantage, caused embarrassment and put them off applying in the first place. They argued that this interference with their private and working lives was unjustified by the scheme’s aims and unlawful. The Court agreed.
The Court’s factual summary is a sad read. The first claimant (“C1”) was forced into prostitution when she was only 14 and under a care order. Her first conviction was for soliciting at the age of 16, and the last was eight years later, in 1998.
The second claimant, Fiona Broadfoot, waived her right to anonymity and is an active campaigner against sexual exploitation. She was 15 years old when coerced into sex work, and her convictions date between around 1984 and 1988.
The third claimant (“C3”) was groomed into prostitution aged 18 and first convicted aged 21. Her last offence was in 1992.
Lord Justice Holroyde and Mrs Justice Nicola Davies both contributed to the judgment, which noted at the outset that C1 and Ms Broadfoot were themselves victims of crime; they were underage when procured to have sexual intercourse with others. Having considered their evidence, the Court also had “no difficulty in accepting that all three claimants have, even as adults, been victims in many other ways”.
The Court noted that “greatly to their credit”, the women escaped prostitution many years ago. Nonetheless, they did so with considerable criminal records – over 100 offences between them. While the penalties were comparatively minor, in most cases being fines, their effect resonated throughout their lives. Ms Broadfoot, in an interview with BuzzFeed News last August, spoke of the “humiliating” effects of her convictions:
I couldn’t get on a university degree, a social work degree, I couldn’t get into child development at college. They said I could get on to the course but I wouldn’t be able to find a placement because of my criminal record.
I’ve been discriminated against in my workplace – I wouldn’t even apply for some jobs. I wanted to be on the PTA at my son’s school and I had to tell the headteacher, it was really embarrassing.
The legal background
The claimants’ convictions were under Section 1 of the Street Offences Act 1959: ‘Loitering or soliciting for purposes of prostitution.’
At the time, the common law restricted the offence to women. The law was amended to include men, but evidence showed that in the decade following amendment, 95% of those convicted or cautioned were female. This is relevant because – as we will see – the claimants argued that the disclosure scheme amounted to unlawful sex discrimination.
The Rehabilitation of Offenders Act 1974 introduced the concept of convictions (and later cautions) becoming ‘spent’ after a specified period. After that time passed, a person wouldn’t have to disclose convictions. However, the 1974 Act is subject to ‘exceptions orders’ made by the Secretary of State for Justice. Under the 1975 exceptions order, people applying to work with vulnerable adults and in children and family services still had to disclose otherwise ‘spent’ convictions. Similar provisions in the Police Act 1997 also require disclose of otherwise “spent” convictions in certain cases.
The scheme described above was considered by the Supreme Court in R (T) v Chief Constable of Greater Manchester Police  AC 49 (“T”). Those claimants had cautions or warnings for very minor offences at a young age, and challenged the lawfulness of the scheme which continued to require their disclosure. They argued that it unlawfully interfered with their right to a private and family life, as protected by Article 8 of the European Convention on Human Rights (“ECHR”). As summarised at para 37 of the judgment in this case, the Supreme Court in T agreed, holding that:
… the statutory provisions were not in accordance with the law because they contained no safeguards against arbitrary interferences with Article 8 rights. It was further held that, although it was necessary to check that persons wishing to work with children or vulnerable adults did not present an unacceptable risk to them, the disclosures required by Part V of PA 1997 were not based on any rational assessment of risk and so failed the test of being necessary in a democratic society.
The scheme changed in 2013 to remedy the defects identified in T. Amendments provided that even in relation to work with vulnerable groups, certain listed spent convictions not resulting in imprisonment don’t have to be disclosed. To benefit from this exception, a person must have “not been convicted of any other offence at any time”. In short, only those with single convictions could resist disclosure. The claimants in this case, however, were all caught by what the Court called the “multiple conviction rule.”
The multiple conviction rule is indiscriminate in that it applies without consideration of any of the features identified by Lord Reed [in T]. If an individual has been convicted of more than one offence, the rule will apply automatically irrespective of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought. Therefore, in my view, Lord Reed would conclude that it is not ‘in accordance with the law’, unless there is a mechanism for independent review.
There is a pending appeal to the Supreme Court in the case of P, to be heard later in 2018 alongside a Northern Irish case dealing with similar provisions.
The Court’s decision
The claimants argued that the scheme described above is unlawful as it stands. They advanced seven grounds of challenge initially, later abandoning one.
The disclosure scheme violates Article 8 (Ground 1)
The claim succeeded on this ground only. The Court noted that it was bound by P to conclude that the statutory scheme was “not in accordance with the law, because the multiple conviction rule operates in the indiscriminate, and hence arbitrary, manner summarised at paragraph 44 of P”. Further, the Court held at para 56:
We would have reached the same conclusion even if not bound by P, in particular because the facts of this case vividly illustrate the fact that the multiple conviction rule operates in circumstances in which any link between the past offending, and the assessment of present risk in a particular employment, is either non-existent or at best extremely tenuous.
The disclosure scheme as it stands interferes with the claimants’ Article 8 rights arbitrarily, bearing “no, or very little, relationship to the aim of safeguarding children and vulnerable adults” (para 58). In fact, the Court found that scheme may work against that safeguarding aim. First, it could exclude people like them from working with and helping vulnerable people; their experiences, drawn from “a school of very hard knocks”, might be an asset and not a detriment in some professions, and secondly, because an inability to enter certain work may cause vulnerable people to remain in prostitution when they wish to leave (para 59).
The Court found that it was not sufficient justification that an employer could decide whether or not the disclosed convictions render the applicant unsuitable, that was not information employers should, or needed to, know in the first place. The Court also recognised that the claimants had not only suffered an employment disadvantage, that they had also been embarrassed and stigmatised by the requirement to release very personal information, whether or not they were eventually taken on as an employee.
However, it is not for the Court to change the law – that task is left to the legislature:
62. In our view, it should be and is possible for Parliament to devise a scheme which more fairly balances the public interest with the rights of an individual applicant for employment in relevant areas of work. It may be that only broad lines can be drawn to act by way of filter before the employer is left to assess the risk. But that is not a good reason for adopting the blanket approach which the present schemes adopt in widely-differing circumstances. As was said in P, it is not for the court to devise a scheme.
Ground 2 repeated in large part ground 1, but added that there was no evidence that convictions for soliciting could be an indicator of present risk to vulnerable people. Considering the decision on ground 1, ground 2 was ‘otiose’ and therefore failed, but the Court commented that there was nothing inherently unlawful about minor offending giving rise to disclosure obligations.
The disclosure scheme unlawfully discriminates against women (Ground 3)
The claimants relied on Article 14 ECHR alongside Article 8. Article 14 must be combined with another right, and provides that the other convention rights must be protected in a way which does not discriminate on the grounds of, amongst other things, gender.
The Court accepted that Article 14 was engaged, and that a “disproportionately high percentage of women commit the offence of soliciting” and have multiple convictions for that offence, and that significantly more women than men apply for jobs which DBS checks are required.
However, prostitution-related offences were not to be “viewed in isolation” – in general, men commit more crimes than women. Both genders are affected by the multiple conviction rule, in fact, it affects more men than women. There is a sound justification for the general operation of the rule and so far as gender discrimination is concerned, the scheme is a proportionate means of achieving legitimate aims.
Forced labour and trafficking (ground 4)
The claimants argued that the disclosure scheme violates Article 4 ECHR, which prohibits slavery and forced labour, and an EU Directive on preventing trafficking, which requires among other things that member states do not penalise trafficked people (2011/36/EU). They submitted that the scheme penalises victims of trafficking and violates the right to anonymity for victims of trafficking.
However, the Court held that disclosing a ‘soliciting’ offence does not of itself indicate that the offender was a victim of trafficking, and that the claimants’ submission untenably stretched the meaning of “penalty”.
Retention of convictions data (ground 5)
This ground alleged that the recording and/or retention of information concerning prostitution-related convictions and cautions, regardless of whether it is disclosed, violated Article 4 and/or Article 8 and/or Article 14 (with Article 8) ECHR.
The court rejected this, holding that there was only very limited interference with individual rights when a state retains but does not disclose records, which was plainly justified in the public interest.
The criminalisation of women in prostitution is itself unlawful (Ground 7)
The claimants’ most ambitious ground effectively argued that criminalising women in prostitution amounts to unlawful gender discrimination. They argued that the criminalisation of conduct within the scope of s.1 of the Street Offences Act 1959 (soliciting and loitering) overwhelmingly affects women. They form the vast majority of those convicted of the offence and are, they argued, disproportionately and unlawfully prejudiced by the provision. The claimants relied on numerous international instruments, including a UN Committee on the Elimination of Discrimination Against Women (“CEDAW”) recommendation endorsing the repeal of legislation criminalising women in prostitution.
The Court dealt with this ground shortly – describing it as a “very bold submission [with…] no arguable basis” and noting that “the claimants’ case based on gender discrimination – on which the ground depends – has failed. Not all who commit offences of soliciting have been coerced or trafficked.” (para 124)
The author respectfully disagrees that this ground depended on the Court’s conclusions on ground 3, or on the question of trafficking or forced labour (ground 4). Both of those arguments sought to impugn the disclosure scheme. This broader ground apparently did not address itself to that scheme at all, but directly to the criminal offence at the heart of the case. That offence does disproportionately affect women, and the Court had already accepted that Article 14 was engaged.
Notwithstanding that, there was force in the Defendant’s arguments that the ground sought a remedy not open to the claimants: they were convicted under a previous version of the offence, not the one they were now challenging.
In determining this ground, the Court focused on the limits of its constitutional role and found that the claimants had not shown requisite “very compelling reasons” for interfering with the Parliament’s role in the creation and regulation of crimes (see the speeches of Lord Bingham and Lord Mance R v Jones  UKHL 16). Permission was refused:
It is for Parliament to determine the ambit of the criminal law (para 125).
The claimants have stated in the press that they will seek permission to appeal the ‘broader points’ of whether the scheme discriminates against women, or is contrary to the state’s duties to trafficked women.
The Court has made it clear, in respect of ground one, that the disclosure scheme is unlawful as it stands. It is for Parliament to make the next move.
Both sides will keenly be awaiting the decision in the pending Supreme Court appeal in the case of P, and the UK Human Rights Blog will keep its readers up to date with any developments in this interesting area.
UK charity Migrants Rights Net have been granted permission to proceed with their challenge to the data-sharing agreement between the Home Office, the Department of Health and NHS Digital. The agreement has meant that the Home Office may require the NHS to hand over patients’ personal non-clinical information, such as last known address, for immigration enforcement purposes.
Currently, the Home Office makes thousands of requests per year, of which only around 3% are refused. A joint response from Home Office and health ministers suggested that opponents of the agreement had downplayed the need for immigration enforcement, and that it was reasonable to expect government officers to exercise their powers to share this kind of data, which ‘lies at the lower end of the privacy spectrum.’ However, critics of the agreement argue that it compromises the fundamental principle of patient confidentiality, fails to consider the public interest, and results in a discrepancy in operating standards between NHS Digital and the rest of the NHS. The good news for Migrants Rights Net was twofold: the challenge will proceed to a full hearing with a cost-capping order of £15,000.
In further migrants’ rights news, a “particularly vulnerable” 16-year-old Afghan boy is challenging the government’s refusal to grant him sanctuary in the UK, in a case which could have major implications for thousands of other lone child asylum seekers. The challenge will focus on the Home Office’s interpretation and implementation of section 67 of the Immigration Act 2016, commonly known as the Dubs amendment. Counsel for the boy, known only as ZS, will argue that the home secretary’s guidance concerning children in Calais applied unlawful criteria, and that procedures used to determine which children were granted entry to the UK were unfair. The Home Office faces separate litigation concerning their implementation of the Dubs amendment from the charity Help Refugees, who have been given permission to appeal their challenge in judicial review.
Former Sex Workers Will No Longer Have To Reveal Soliciting Convictions
The claim was brought by three former sex workers who were induced to enter the trade as teenagers, and who each carry multiple convictions for soliciting or loitering, contrary to section 1 of the Street Offences Act 1959. The “multiple conviction rule” lies at the heart of the case : its effect is the result of a series of statutory provisions.
The Rehabilitation of Offenders Act 1974 introduced the concept that after a period of time, a criminal conviction would become “spent”, and the “rehabilitated” person be exempted from the duty of disclosure to employers. The effect of related provisions was that, whilst a person convicted of a single offence under s1 of the SOA would benefit from these protections, if this person were convicted at another time of any other offence then any soliciting conviction would be rendered unprotected. The claimants argued that this ensnared many abused and/or vulnerable women who had entered into sex work in circumstances which made it likely that they would be convicted of more than one soliciting offence. With regard to the two fundamental aims of safeguarding children and other vulnerable adults, and rehabilitating offenders, the court found that use of the multiple disclosure rule in this context was not ‘necessary in a democratic society’ . Furthermore:
the facts of this case vividly illustrate the fact that the multiple conviction rule operates in circumstances in which any link between the past offending, and the assessment of present risk in a particular employment, is either non-existent or at best extremely tenuous.
Further claims brought by the women, that the law amounted to discrimination and to a breach of the state’s obligations towards victims of trafficking, were dismissed. Counsel for the claimants, Harriet Wistrich, will be seeking permission to appeal on these ‘broader points.’
On the discrimination ground, it was accepted that Article 14 was engaged, that section 1 of the SOA disproportionately affected women, and that women were disproportionately represented in the nurturing professions which required disclosure. However, fatally, it was not section 1 itself which was directly at issue: rather, the court was asked to examine the effect of the multiple conviction rule. Across the ten most common multiple conviction offences, including theft and burglary, women were not over-represented: indeed, men had disproportionately heavier criminal records and committed more multiple offences overall .
Several international legal instruments, including an EU Directive and the Council of Europe’s Trafficking Convention, were relied upon to submit that the state was failing to fulfil its obligations to victims of trafficking, including the duty of non-penalisation, and the protection of the privacy and identity of victims [93-94]. This submission, on the right to anonymity, failed simply because there was nothing in the disclosure of an offence pursuant to section 1 of SOA 1959 to of itself indicate that the offender was a victim of trafficking .
Fiona Broadfoot, the one victim to waive her anonymity, said “I can’t tell you how relieved I am to know that I don’t have to disclose any more that horrible history of abuse and violence…In our view, it should be and is possible for parliament to devise a scheme which more fairly balances the public interest with the rights of an individual applicant for employment in relevant areas of work.”
Georgiev & Ors v Bulgarian Judicial Authorities: Three Bulgarian nationals have failed to convince the court to ignore assurances by the Bulgarian authorities that their article 3 rights would not be breached upon extradition. The relevant legal principle was set out at paragraph 8:
v) The requesting state might satisfy that burden by evidence that general prison conditions are in fact article 3-compliant. However, even where it cannot show that, that does not result in a refusal to surrender, because the assessment of whether there will be a breach of human rights is necessarily fact-specific. Therefore, where the court finds that there is a real risk of inhuman or degrading treatment by virtue of general prison conditions, it must then go on to assess whether there is a real risk that the particular individual will be exposed to such a risk.
Given the importance of extraditing those who face criminal charges elsewhere, and the principle of mutual respect, this fact-specific exercise required the court to make information requests about prison conditions to the relevant authority. The Respondents had given various assurances as to how the Appellants would be treated if extradited.
Whilst it was accepted that conditions in Bulgarian prisons did put prisoners at risk of being subject to inhumane or degrading treatment amounting to a breach of their article 3 rights, the issue before the court was the reliability of the Bulgarian authorities in complying with the specific assurances made regarding the Appellants. On the facts, Hickinbottom LJ was satisfied that the presumption that the authorities would honour their assurances had not been displaced; as such, the Respondents had adequately discounted the risk of a breach of article 3 .
In other news…
The Judicial College has released a new edition of the Equal Treatment Bench Book, containing updated and expanded guidance aimed at making courtrooms a more accessible environment for uncertain, fearful, or otherwise marginalised parties and witnesses. It includes sections on Islamophobia and anti-Semitism, refugees, modern slavery, and litigants in person, as well as practical tips on communication.
The book urges that litigants in person ‘should not be seen as an unwelcome problem’ and predicts that courts and tribunals will continue to see an increased number of such litigants in court ‘as a result of financial constraints and the consequences of the legal aid reforms’.
Amongst other things, the Judicial College take a nuanced approach to the delicate issue of when a witness must remove their veil during proceedings, and which conditions should be attached to this. Suggestions made under the new guidance include limiting the number of observers allowed into court, temporarily stopping court artists from drawing, and limiting screening to the judge and jury.
Rafferty LJ commented in the foreword that the ‘profound desire’ of the team behind the book was that “all those in and using a court leave it conscious of having appeared before a fair-minded tribunal.”
A Solution to the Problem of Unregistered Schools: Greater Investigatory Powers?
As safeguarding concerns continue to mount over unsafe, unsanitary and abusive conditions at unregistered schools, Ofsted’s chief inspector, Amanda Spielman, has said that the law as it stands is ‘not strong enough’: Ofsted needs further investigatory powers, including powers to remove unsuitable and/or extremist teaching materials.
Ofsted set up a specialist taskforce in 2016 which has identified 350 suspected unregistered schools and issued warning notices to 50 proprietors, but none have yet been prosecuted. Spielman said that the Department for Education “could and should” have taken forward many cases. The Department issued a statement to the effect that “the secretary of state has to consent to a prosecution, but this happens at the end of the process, after the director of public prosecution has made a decision to charge. So far no case has reached that stage.”
For Your Eyes, Mainly
Finally, the government has for the first time acknowledged that MI5 spies can commit crimes in the UK, revealing instructions to the Investigatory Powers Committee after a seven-month legal battle with Reprieve and Privacy International. Further details regarding the circumstances in which spies can commit crimes, and how far they can go, remain under wraps.
Commissioner of Police of the Metropolis v DSD and Anor  UKSC 11 – read judgment
Matthew Flinn covered this Supreme Court case in his excellent analysis here. I focus on one point of disagreement between the judges, which is whether a court, before holding that the state owes an investigative duty for the actions of private parties, would require the clearest statement in consistent decisions of the European Court of Human Rights.
In particular, if Strasbourg jurisprudence is “less than clear” on this point, would the appropriate course be to allow the government to stick to the principles of the common law – in this case, no duty of care in tort – and wait until it is called before the Strasbourg judges to deploy its arguments?
The story starts with the House of Lord in R (Ullah) v Special Adjudicator  2 AC 323. Lord Bingham quoted with approval the statement of Lord Slynn the year before in Alconbury regarding the extent to which UK courts should be guided Strasbourg jurisprudence:
Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 AC 295 at para 26)
But what in fact constitutes “clear and constant jurisprudence”? Some cases from Strasbourg suggest that the positive duty of the state under Article 3 (and Articles 2, 4 and 8) covers the actions of private parties. Other cases seem to confine the investigative duty to allegations against state agents only. Naturally the appellants in this case relied on the former, the respondents on the latter.
Another closely related question arises out of the respondents’ arguments that the question whether a liability such as that contended for by the appellants was one on which ECtHR should be invited to pronounce. As Lord Kerr said (para 73)
the sub-text to this argument appeared to be that, where Strasbourg has not yet spoken, national courts should not venture forth.
This argument has precedents in high places, such as Lord Brown in R (Al-Skeini) v Secretary of State for Defence  UKHL 26, and Lord Phillips in R (Smith) v Oxfordshire Assistant Deputy Coroner  UKSC 29 1 AC 1.
This is the so-called “mirror principle”, whereby pronouncements by national courts on Convention rights should match those of Strasbourg. It is, as Lord Kerr observes, often attributed to Lord Bingham’s statement in Ullah where he said “The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more but certainly no less” (at para 20).
Does the mirror principle reflect the true nature of decision making in the higher courts?
Lord Kerr (with Lord Neuberger and Lady Hale) thinks not, citing a number of authorities, including Rabone v Pennine Care NHS Foundation Trust  UKSC 2. Here it was held that there was a positive obligation to protect the life of a mentally ill young woman who had been admitted to hospital informally because of serious attempts to take her own life. This decision was reached notwithstanding the fact that there was no authority from Strasbourg to that effect.
This seemed to Lord Kerr to be the correct approach.
Reticence by the courts of the UK to decide whether a Convention right has been violated would be an abnegation of our statutory obligation under section 6 of HRA. This section makes it unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right.
Lords Hughes and Mance (in the minority, albeit obiter as with this whole issue) did not agree.
When combined with the open-ended nature of the positive obligation of the state to protect individual citizens against other individuals, this eagerness to compensate human rights infractions threatens to undermine the basis of tort law. And this has been wrought from the balancing, over decades, of citizens’ rights versus resource allocation. Nor is this approach mandated by the Strasbourg Court, whose reliance on its own case law has contributed, they suggest, to the muddle we’re now in.
in none of these cases has the basis for, and thus the ambit of, any obligation to investigate third party violence ever been addressed. Reference back to MC v Bulgaria, and to its reliance on Assenov, Calvelli and Osman is frequently made, but never examined and the uncertainties mentioned above have not been confronted.
Discussions about the state’s obligation often cite a line of Turkish cases, which are irrelevant as they all involve allegations of serious police torture or ill-treatment of suspects;
the citation of such cases illustrates the manner in which the difference between the first gloss [positive to investigate state agents’ actions] and the second [positive obligation to pursue private parties] has not received attention.
This approach is very close to, if not indistinguishable from, a view that the outcome of the trial was wrong, and moreover that if it was wrong that could itself amount to a breach of article 3. See also Beganović at .
Such instances suggest that Strasbourg may be neglecting its own subsidiarity vows. It has often said that breach of Article 3 is not constituted by a bona fide decision in the course of investigation or law enforcement which is afterwards held to have been an error. It is about systemic failings, which are the only ones that a supranational court can properly assess. This is all the more important because the right to investigation applies not only to Article 3.
This “parasitic” right raises the “prospect … of the response to every complaint of burglary, car theft or fraud becoming the subject of an action under the Human Rights Act” Lord Hughes, para 129), though the majority did not agree with this.
But the absence in English law of a duty of care in tort owed by the police to individual citizens and sounding in damages is not an oversight. It is a “core principle” which has remained unchallenged for since Hill was decided in 1981. The need to respect this principle becomes ever sharper in the light of contemporary terrorist activity:
It is well known that large numbers of possible activists are, to some extent or other, known to the police or security services. The most delicate and difficult decisions have to be made about whom to concentrate upon, whose movements to watch, who to make the subject of potentially intrusive surveillance and so on. [Lord Hughes at ]
It cannot be in the public interest that, in the wake of a terrorist attack, the courts “should become the forum for a review of the information held about different suspects and of the decisions made as to how they were to be dealt with.”
As Lord Hughes points out, the English cases make a clear distinction between the objectives served by a tortious duty to compensate and a Convention-based duty to uphold the prohibition on inhuman or degrading treatment. The distinction remains alive as long as we remain alive to the underlying purpose of human rights law, which is to deter states from abusing their power. You can’t have it both ways by employing a Convention claim to serve substantially the same purpose as an action in tort.
Lord Mance strongly supports Lord Hughes’ critique of the Strasbourg approach. That Court may start from a solidly rationalised principle, he says,
but then extends it to situations to which the rationale does not apply, without overt recognition of the extension, without formulating any fresh rationale and relying on supposed authority which does not actually support the extension. (para 142)
The investigative duty which Strasbourg case law now recognises is getting out of control. It is not tied down by properly formulated restrictions, and now simply arises “from the fact of the offence”. Our international obligations and the Human Rights Act obliges this country to align domestic law with Strasbourg law, with the requisite scrutiny of that court’s jurisprudence. But the converse of Lord Bingham’s dictum in Ullah is that domestic courts should not, at least by way of interpretation of the Convention rights as they apply domestically, forge ahead, without good reason.
This is a very important divergence in the Supreme Court between majority and minority as how to deal with the delicate relations between our courts and Strasbourg. Given the closeness of the result, the issue has a lot more life in it.
A speech by Mark Rowley (the outgoing Assistant Commissioner of the Metropolitan Police for Specialist Operations and National Lead for Counter Terrorism Policing) to Policy Exchange has been given the front page treatment with headlines like, “Extremists should lose access to their children.” The speech has been made available in full by the Policy Exchange on their website and on Youtube.
Additionally, The Times quotes Mark Rowley as saying, in response to questions from the press in advance of the speech,
We still see cases where parents convicted of terrorist-related offences, including radicalisers, retain care of their own children.
If you know parents are interested in sex with children, or if you know parents believe that people of their faith or their belief should hate everybody else and corrupt children for it, for me those are equally wicked environments to expose children to.
The speech is phrased more tentatively but included this passage,
The family courts and social services now routinely wrestle with child protection and safeguarding cases arising out of terrorism and extremism. However, we still see cases where parents convicted of terrorist-related offences, including radicalisers, retain care of their own children. I wonder if we need more parity between protecting children from paedophile and terrorist parents.
It is important to stress that this point was developed by the Assistant Commissioner in a speech which covered a broader canvas. His main theme was a call for an, “all-society approach” in response to the growing threat of extremist terrorism (i.e. ISIS & extreme right). However, it is apparent from Policy Exchange’s own twitter feed that even his hosts thought that media had it right in signalling his proposal to treat terrorism as a safeguarding issue was his sole eye-catching idea.
The law in this area is principally concerned with the need to prevent people from being drawn into terrorism and a duty to this effect was placed on public authorities by the Counter-Terrorism and Security Act 2015. It was this that led to the flurry of applications by local authorities for orders to protect children. Establishing the approach of the Courts is not as clear as it could be – in part, because only a fraction of the cases have been the subject of published judgments.
It was Hayden J who identified “radicalisation” as a potential new form of child abuse in London Borough of Tower Hamlets v B  EWHC 1707 . His thinking on the subject is more subtle than many head notes might suggest and is concerned with the suborning of vulnerable children and young adults into perverted thinking and the most profound harm, including death. This has been considered very controversial with some in the field who consider that it is better to examine these problems through the prism of conventional concepts such as the risk of physical, sexual and emotional harm and neglect (see for instance the lecture given by Deirdre Fottrell QC, the co-chair of the ALC at their annual conference in 2017).
The police and other agencies recognise the point made by Hayden J that “in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations.”
many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or “model” them in their own lives but those children could not be removed for those reasons.’
I agree with [counsel]’s submission”. [para 28]
Bearing in mind that the Prevent strategy also encompasses right wing extremism, it is significant that in the case of Re A (A Child)  EWFC 11, the President was keen to stress (at para ) that membership of an extremist group such as the EDL is not, without more, any basis for care proceedings.
It is perhaps unsurprising that Hayden J and others have, emphasised the rigorous preparation that these cases require. They also involve fine judgements by social workers as stressed by Tony Stanley and Surinder Guru.
One particular problem about the proposal of the Assistant Commissioner to treat terrorism as akin to paedophilia is that local authorities could not be expected to simply await the outcome of police investigations and trials. They would be expected to intervene and safeguard children from the relevant risks as soon as they became apparent. So far as these involve court proceedings, this would involve advancing some evidence to support the same. Experience shows that this can cause problems for the police and other agencies of the state because of the sensitivity of some of the material and, for example in Re C (A Child) (No 2) (Application for Public Interest Immunity)  EWHC 692 (where Marina Wheeler QC appeared for the Home Secretary), Pauffley J approved an application for public interest immunity by the Home Secretary in a Radicalisation Case. Specifically, the Judge upheld the Home Secretary’s assessment that national security considerations precluded disclosure, and also underlined the importance of examining:
what other – non-sensitive – evidence might be available in a case such as this which would allow the Court to draw inferences and find the threshold criteria satisfied – the Court agreed that the Home Secretary’s decision to exercise the Royal Prerogative so as to refuse to issue the father with a passport (based on the assessment that he is an Islamist extremist who seeks to travel to Syria for jihad) was ‘evidence.’ The Home Secretary’s decision was amenable to judicial review but there has been no challenge;
Alternatives to public law proceedings – especially other safeguarding measures such as the ‘Channel Programme’, the new Home Office initiative, the ‘Desistence and Disengagement Programme’ and steps to disrupt travel plans involving flight to a war zone by passport restrictions.
The Family Courts have no family procedural rules equivalent to Part 82 of the Civil Procedure Rules 1998 (‘CPR’) and solutions have had to be improvised – including as to the funding of special advocates (Cobb J found in R (Closed Material Procedure Special Advocates Funding)  EWHC 1793 that the agency that holds the sensitive material should pay the costs of the special advocate).
Child victim or young terrorist?
If terrorism is to be compared with sexual abuse, the question arises as to how to treat children and young people who become involved in terrorism. To what extent should be the state seek to be protective of the child and when should a more punitive approach be appropriate? The speech raised,
the case of the youngest Briton ever to have been guilty of a terrorist offence. 14 at the time, the boy from Blackburn plotted with an Australian jihadist over the internet to behead police officers at an Anzac Day parade in Australia. The “normal” teenager from Blackburn had been “immersed” in online extremist material and “groomed” by adult extremists.
If the language of grooming is to be adopted and the argument taken at face value, it is difficult to understand why the 14 year old was not treated as a victim to be protected rather than a terrorist to be given a life sentence.
An issue for the Family Court?
The principal thrust of the argument by the Assistant Commissioner appeared to be aimed at the families of those convicted of terrorism. Considering the seriousness with which the criminal courts treat these matters, the offenders would have received custodial sentences and it is important to remember that it would then be for the Prison Service to regulate the problem while a serving prisoner and the Probation Service to manage the offender while on licence as confirmed by the Court of Appeal in Re ZX, R (on the application of) v The Secretary of State for Justice  EWCA Civ 155) (where David Manknell appeared for the Secretary of State).
It is important that when considering the protection of children from extremism this does not mean that all other lessons and approaches should be forgotten. Prevent [Para 62] itself stresses that it should be read with Working Together. The Channel Duty Guidance stresses that participation is voluntary and, in the case of children, that means obtaining parental consent . It is only in rare cases where it is sought to persevere despite a lack of parental consent then Local Authorities are directed at their powers – including the possibility of bringing care or wardship proceedings.
There will always be some cases which require the intervention of the courts. These are likely to be modest in number and the fact that the Assistant Commissioner in his speech stated that since the start of the Syria conflict around 100 children have been safeguarded through the Family Courts – would tend to confirm that.
As can be seen above, local authorities have been discerning about the cases they bring before the courts and the judges have adopted a rigorous human rights based analysis of the applications that have reached them. To the extent that Mark Rowley’s speech appears to call for an increase in the number of Family Court applications on grounds of terrorism then it is problematic. There is always a danger that the very strategies used to combat extremism may prove to be counter-productive – especially if used indiscriminately – with parents being further alienated and leading to despair and anger. A potent breeding ground for terrorism one might think.
Listen to Martin Downs talking about radicalisation of children in 1 Crown Office Row’s Seminar on Law Pod UK Episode 13
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.
Introducing the Immigration (EEA) Regulations
These Regulations transpose into domestic law the rights of admission and residency in the UK for EEA citizens and their family members. They provide for rights of appeal against decisions made under the Regulations. These appeals are heard by the First-tier Tribunal, like other immigration appeals. Unlike in judicial review, the tribunal will regularly consider oral evidence and make extensive findings of fact.
But there is not just one set of Regulations. There are old and new ones.
The old regulations are the Immigration (EEA) Regulations 2006 and the new ones are the Immigration (EEA) Regulations 2016. The 2016 Regulations provide that the 2006 Regulations have been revoked (see Schedule 4 (1)). But this is not the end of the story. Schedule 4 (2) (3) of the 2016 Regulations provides that that 2006 Regulations continue to apply to a case where a person had a right to an appeal or a pending appeal on 31st January 2017. For the time being, then, both sets of Regulations remain live.
Who has the right of appeal?
The Regulations draw a distinction between ‘family members’ and ‘extended family members’. Spouses, direct descendants (including stepchildren) who are dependent or under 21, and dependents in the direct ascending line count as ‘family members’. But non-married partners and other relatives (e.g. grown-up children) are ‘extended family members’.
A refusal decision against a ‘family member’ confers a right of appeal. But the question of whether an ‘extended family member’ has a right of appeal is more complicated.
Let’s start with the 2006 Regulations. For many years it seemed clear that an ‘extended family member’ enjoyed the usual appeal rights. However, on 19th August 2016 the Upper Tribunal handed down the decision in Sala v Secretary of State for the Home Department  UKUT 411.
In that case, although the representative of the Secretary of State agreed that an ‘extended family member’ of an EEA national (in this case, a non-married partner) had a right of appeal against the refusal of a residence card under the 2006 Regulations, the tribunal preferred the view of an amicus curiae (a non-party who can be asked to assist the court in its decision). It held that the proper interpretation of the 2006 Regulations meant that the refusal of a residence card to an ‘extended family member’ was not a decision under the Regulations. As such, there was no right of appeal. This meant that judicial review was the only appropriate way to challenge the decision.
Enter the CJEU
But this was not the end of the story. In Banger (Unmarried Partner of British National)  UKUT 125 (IAC), the Upper Tribunal referred four questions of EU law to the Court of Justice of the European Union. The fourth question concerned whether the new interpretation of the 2006 Regulations, as approved in Sala, was compatible with the EU Citizens Directive. It was as follows:
(4) Is a rule of national law which precludes an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an extended family member compatible with the Directive?
The CJEU heard this case in January 2018 and its decision is expected later this year.
The other questions, beyond the scope of this post, concerned the ‘Surinder Singh principle’. Put broadly, this principle requires that if a British citizen was exercising Treaty rights and living with their spouse outside the UK, and the British citizen returns to the UK, the spouse gets the right of residence in the UK. Another major aspect of Banger concerns whether this principle should be extended to include non-married partners too.
Back to the UK courts
So, the right of appeal issue went to Europe. But then on 9th November 2017 the tectonic plates moved again. In Khan v Secretary of State for the Home Department  EWCA Civ 1755, the Court of Appeal held that Sala had been wrongly decided. It made it clear that a decision to refuse a residence card to an ‘extended family member’ under the 2006 Regulations was a decision which could be appealed in the ordinary way to the First-tier Tribunal.
But if you think this wraps everything up in a neat little package then I am afraid you have to keep reading. Now we need to bring in the 2016 Regulations.
The 2016 Regulations
The issue of whether an ‘extended family member’ has a right of appeal under the 2006 Regulations concerned the correct interpretation of a regulation which did not give an express answer one way or the other.
But the 2016 Regulations are much clearer and much more stringent. Regulation 2 provides as follows:
… does not include a decision to refuse to issue a document under regulation 12(4) (issue of an EEA family permit to an extended family member), 17(5) (issue of a registration certificate to an extended family member) or 18(4) (issue of a residence card to an extended family member) …
So, the 2016 Regulations expressly state that the refusal of a residence card to an ‘extended family member’ is not an ‘EEA decision’. This means that there is no right of appeal to the First-tier Tribunal.
As a result, the reasoning in Khan is very unlikely to apply to cases under the new Regulations. This would mean that the effect of Khan will ebb away as the 2016 Regulations slowly but surely take over.
Spotlight on the CJEU
This gives the fourth question in Banger renewed importance. If the CJEU holds that the availability of judicial review against the refusal of a residence card to an ‘extended family member’ is sufficient to meet the requirements of the Citizens Directive, then the 2016 Regulations will stand. However, it is possible that the CJEU will rule the other way and decide that a full appeal is needed to give proper effect to the Directive.
On 14th February 2018, the Supreme Court decided the case of SM (Algeria) v Entry Clearance Officer, UK Visa Section  UKSC 9. In this case, the Supreme Court referred another set of questions to the CJEU, concerning whether a child in the permanent guardianship of an EU citizen under the Islamic arrangement of kefalah counted as an ‘family member’ / ‘extended family member’.
This case concerned the 2006 Regulations, so it was clear that even if the CJEU found that such a child was not a ‘family member’ but was an ‘extended family member’, there was still a right of appeal against the refusal decision. This is in accordance with the decision in Khan, which was affirmed as being correct.
But the court also noted the importance of Banger. Lady Hale put it like this:
40. For completeness, it should be recorded that on 20 February 2017, in
Secretary of State for the Home Department v Banger ( UKUT 125,
unreported), a differently constituted Upper Tribunal referred a number of questions concerning the claim of the unmarried partner of a British national to the Court of Justice of the European Union. Among those questions, in the light of Sala, was this:
“Is a rule of national law which precludes an appeal to a court
or tribunal against a decision of the executive refusing to issue
a residence card to a person claiming to be an extended family
member compatible with the [Citizens] Directive?”
Despite the decision in Khan, that question is not moot, as the 2006 Regulations
have since been replaced by the Immigration (European Economic Area)
Regulations 2016 (SI 2016/1052). These largely reproduce the 2006 Regulations, as
amended, but decisions to refuse to issue an EEA family permit, a registration
certificate or a residence card to an extended family member have been expressly
excluded from the definition of an “EEA decision” in regulation 2(1).
41. We understand that the oral hearing in Banger took place in January 2018.
The issue is whether the procedural safeguards laid down in articles 15, 20 and 21
of the Directive require a full merits appeal to a court or tribunal or whether they
can be satisfied by the UK’s procedure for judicial review of administrative action:
is that an effective remedy for this purpose? Given the conclusion we have reached
in this case, it would be inappropriate for us to comment further on this issue. We
shall await with interest the outcome of the reference in Banger.
So, the state of play is as follows:
If an ‘extended family member’ was refused a residence card and had a right of appeal or a pending appeal on 31st January 2017, then they still have the right of appeal to the First-tier Tribunal under the 2006 Regulations.
But if the refusal postdates this, then there is currently no right of appeal, as the case falls under the 2016 Regulations. Only judicial review is available. This will remain the case unless the CJEU determines that this represents a breach by the UK of its EU law obligations. However, if bringing a judicial review against such a decision, it it suggested that it would make sense to bring this (at least in part) as a challenge to the lawfulness of the 2016 Regulations and invite the court to stay the matter behind the decision in Banger.
The Advocate-General’s opinion in Banger will be the first sign of which way the court might lean. It was first expected to come out in March, but it has been delayed. So now we play the waiting game.
Jonathan Metzer is a barrister at One Crown Office Row. Although he is an ‘extended family member’ of lead counsel to the appellant in Banger, this post was written without his involvement.
Alder Hey Children’s NHS Foundation Trust v Evans, James and Alfie Evans (a child by his guardian Cafcass Legal)  EWHC 308 (Fam) – read judgment
This was an application by the hospital for a declaration to allow their doctors to withdraw life support from a 19 month old child, Alfie. He suffers from a progressive, ultimately fatal neurodegenerative condition, probably a mitochondrial disorder. His epileptic seizures have not been brought under control by anti-convulsant treatment. The evidence before the court was that even if these seizures were to end, his brain is “entirely beyond recovery”. However caused, his neural degeneration is both “catastrophic and untreatable”.
In simple terms the thalami, basal ganglia, the vast majority of the white matter of the brain and a significant degree of the cortex have been wiped out by this remorseless degenerative condition.
The MRI scans of the child showed that the thalami, which regulate the pathways of the brain, had entirely disappeared. This controls the stimuli to the most basic sensory functions. Alfie has lost the capacity to hear, see, smell or respond to touch, other than reflexively.He is tube fed into the small intestine and has suffered a number of urinary tract infections. Despite all of this, the high quality intensive care that Alfie is receiving at Alder Hey could “sustain him for a long time”.
The medical consensus was that the combination of the futility of Alfie’s life (i.e. the absence of any prospect of recovery) and the uncertainty of knowing whether the child is suffering were key factors in withdrawing life support.
The Trust first brought this application in December 2017. The parents, opposing this application, represented themselves. Both are Roman Catholics, brought up in that tradition. The mother chose not to give evidence. The father pressed for Alfie to be permitted to travel to a hospital in Rome and provided with a tracheostomy and PEG feeding. If that proffered no solution, he argued that there should be a further transfer to a hospital in Munich. If that too were to fail the father argued that Alfie should be allowed home to die “when he decides to”.
Hayden J noted the “extremity” of the father’s grief which was “raw and intense.” It was the judge’s very clear impression that he wanted to do everything in his power to buy time for his son. But the Trust was entirely correct to oppose the father’s application. The medical evidence did not allow the court or any of the litigation teams to assume that Alfie is free from pain. Instead, all the evidence pointed compellingly towards futility of treatment.
In conclusion, Hayden J observed that every reasonable option had been explored for Alfie. The continued provision of ventilation, in circumstances which I am persuaded is futile, now compromises Alfie’s future dignity and fails to respect his autonomy.
I am satisfied that continued ventilatory support is no longer in Alfie’s best interest.
The fact that the court has given the hospital the authority to withdraw life support and transfer Alfie to palliative care is not the end of the story; the family’s plans to appeal could derail or delay the implementation of this declaration.