Category: News

Representing a wider range of family structures

Newly appointed heads of 1MCB’s family team, Moira Sofaer and Christina Warner, see the future of family law as having greater emphasis on children retaining strong ties across a wider range of family structures and the representation of such within the family courts.

They will help to navigate the team through the ongoing erosion of legal aid and the challenges faced by family practitioners in ensuring access to justice whilst encouraging development of all areas within family practice including public and private law, international and matrimonial finance disputes.

Immigration appeals: new guidance on trafficking

Summary

The UT in DC (trafficking: protection/human rights appeals) Albania [2019] UKUT 351 (IAC) confirmed, clarified, and broadened the jurisdiction of the Tribunal to determine issues for itself, where there is an extant trafficking (NRM) decision from the Competent Authority.  Alex Chakmakjian acted for the Appellant, instructed by Heather Kilby of Kilby Jones Solicitors.

 

The appeal was heard by the President of the Upper Tribunal (IAC), Mr Justice Peter Lane, alongside UTJ Finch and UTJ Gill.  Interestingly, the case saw both UTJ Finch and UTJ Gill revisiting their own reported decisions, among others, in order to clarify the law in this area.

 

The judgment

The UT took much of the analysis advanced by Alex to draw together the key principles and produce consolidated guidance on the vexed role of trafficking decisions that interact with immigration appeals.  The judgment in DC therefore usefully summarises the relevant caselaw on the proper approach, explaining the effects of MS (Pakistan) [2018] EWCA Civ 594, AUJ (Trafficking – no conclusive grounds decision) Bangladesh [2018] UKUT 200, ES (s82 NIA 2002; negative NRM) Albania [2018] UKUT 335 and R (MN) v SSHD [2018] EWHC 3268.  The decision also opens the way for rationality challenges to NRM decisions, albeit narrow in scope, even where there has not been a preceding judicial review.  Furthermore, the judgment recognises that establishing an appellant as a victim of trafficking can remain relevant to Art.8 issues, giving the example of mental health or medical needs arising as a consequence of trauma.

 

The UT began by reviewing the Court of Appeal decision in MS (Pakistan).  In MS, Flaux LJ had ruled that (following AS (Afghanistan) [2013] EWCA Civ 1469) the UT had erred in re-determining for itself whether the appellant had been trafficked where it had not first established that the decision of the Competent Authority was perverse or irrational.  Recognising that significant uncertainty had arisen as a result of this judgment, the UT in DC clarified that Flaux LJ was specifically addressing the ground of appeal that the decision was not in accordance with the law.

 

The UT in DC went on to acknowledge the scope for challenging the rationality of an NRM decision in an immigration appeal against a removal decision, even where there had not been a judicial review of the NRM decision.  At para.32, the UT held:

“…where the respondent has failed to follow her own policies relating to the Trafficking Convention, which impact upon whether and in what circumstances a person might be given leave to remain as a victim of trafficking, the weight to be given to the respondent’s side of the proportionality balance may, depending on all the circumstances, be significantly reduced”.

 

Although speculating that instances of such challenges are unlikely to be commonly encountered, the UT accepted that even where there was no risk on return on asylum/Art.3 grounds:

“…a “conclusive grounds” decision that is found by the tribunal to have been reached irrationally may well lead to the tribunal deciding that removal at this stage would be a disproportionate interference with the appellant’s Article 8 rights.”  (para.33)

 

The UT confirmed that it was then open to the SSHD to remake the decision, seeking to rectify any errors of law.

 

At para.35, the UT observed that an irrational trafficking decision should be afforded no weight in an immigration appeal.  However, acknowledging the distinct processes behind trafficking decisions and immigration appeals, the UT added that even where the trafficking decision was “impeccable” it was perfectly possible for a tribunal to reach a different conclusion.  “Conclusive grounds” decisions were reached on the balance of probabilities, and moreover, the tribunal may have additional evidence on appeal that was not before the Competent Authority.

 

At para.36, the UT added that a positive “conclusive grounds” decision will point strongly in favour of an asylum/Art.3 appeal, although it will not necessarily be determinative.

 

The UT then turned to give important clarification to AUJ (Bangladesh).  It will be noted that AUJ was a judgment by UTJ Gill, who also sat on the panel in DC.  Para.62 of AUJ appears to limit challenges to “conclusive grounds” decisions to grounds of irrationality only.  However, the UT in DC noted that this had to be seen in light of their analysis of MS (Pakistan), and that in fact there was:

“no question of the tribunal deciding a protection appeal being bound to accept a “reasonable grounds” or a “conclusive grounds” decision, unless that decision is shown to be perverse.”(para.39)

 

In explaining the proper meaning of para.63(2) of AUJ, the UT in DC held that even where there is no issue as to risk on return, the fact of being a victim of trafficking may remain relevant to appealing a removal decision.  The UT gave the hypothetical example of a case where the fact of being trafficked may have caused physical or psychological harm to the appellant, with consequent medical needs that may need to be addressed by the tribunal as part of an Article 8 claim.

 

Referring to ES (Albania), the UT in DC endorsed the principle that a “conclusive grounds” decision was not of primary relevance to the determination of an asylum appeal as “plainly correct” (paras.45-46).  However, it was clarified that notwithstanding the reasoning in ES, there was no distinction to be drawn by the different appeals regimes in MS and ES (para.46).  ES was the judgment of UTJ Finch, who also sat on the panel in DC.

 

Finally, the UT in DC turned to the High Court decision in R (MN).  The UT adopted the findings of Farbey J at paras.45-48 and 55-64 of MN.  Key passages include:

  1.  The distinction between the United Kingdom’s obligations under ECAT and its non-refoulement obligations is reflected in the Secretary of State’s policies about the grant of leave to enter or remain. The policy of granting discretionary leave to victims of trafficking states that it is intended to provide an additional ground for remaining in the United Kingdom ‘based on…individual circumstances’ where the victim does not qualify for other leave ‘such as asylum or humanitarian protection’. The policy is not a substitute for, or an addition to, the United Kingdom’s non-refoulement obligations.

  1. ..the appropriate standard for the assessment of a claim to have been trafficked will depend on the legal issue to which it is relevant. If the issue is whether a person will suffer persecution under the Refugee Convention or ill-treatment prohibited by article 3 ECHR, the lower standard will apply. If the issue is whether a person has the specific rights available to victims of trafficking under ECAT, the standard has been rationally set by the Secretary of State as the balance of probabilities…
  2. In principle, it is possible that the Secretary of State may reject a trafficking claim on the balance of probabilities but accept the same evidence in an asylum claim on the lower standard…

 

The judgment in DC therefore forms a useful summary of the relevant caselaw, and a consolidation of the key principles when dealing with the interaction between trafficking decisions and immigration appeals.  It also opens the way for rationality challenges to NRM decisions, albeit narrow in scope, even where there has not been a preceding judicial review.  Furthermore, the judgment recognises that establishing an appellant as a victim of trafficking can remain relevant to Art.8 issues, giving the example of mental health or medical needs arising as a consequence of trauma.

Leading juniors ranked in 2020 guides

1MCB barristers and clerks have been recognised in the Legal 500 and Chambers & Partners guides for 2020.

 

Legal 500

This year’s Legal 500 guide describes us as an “excellent” common law set: “1MCB is well regarded in crime as well as immigration and asylum circles where is has ‘performed consistently for a number of years’ with ‘knowledgeable and experienced’ barristers”.

We are delighted that two members of our immigration team – Ben Hawkin and Bernadette Smith – have been recognised as leading juniors in the Legal 500.  This year’s guide to the immigration bar says Ben “goes straight to the core of the matter and provides clear and concise advice” and Bernadette “really is a ‘people’s barrister’, with empathy and making sure clients are comfortable”.

In the international crime and extradition field, Iain Edwards maintains his outstanding reputation. He is ranked in band 1, and described as a “star in the field of international crime”.

We are particularly pleased that our clerking team is described as “efficient and helpful”, and “offering ‘flexible, professional and reliable’ service”.

 

Chambers and Partners

Two members – Iain Edwards and Nick Bano – are ranked in their fields by Chambers & Partners.

Iain Edwards is one of just 14 juniors ranked in international criminal law.  The guide highlights his recent work at the International Residual Mechanism for Criminal Tribunals: “He excels at combining domestic and international law. One of those advocates that has it all, he is very persuasive.” “He is a passionate practitioner.”

Nick Bano is described as a “rising star in housing law”. He is ranked as an up-and-coming junior, with his review noting: “He is really thorough and comes up with unusual arguments. He also has good face-to-face skills with clients”.

Housing and equality law: two Court of Appeal decisions

This week the Court of Appeal handed down judgment in two cases that considered the role of the courts in housing cases involving breaches of the Equality Act 2010.  Nick Bano was junior counsel in both, having appeared as sole counsel at first instance.

Forward v Aldwyck Housing Group [2019] EWCA Civ 1334 was a second appeal on the question of the remedy that the courts should grant for an established breach of the Public Sector Equality Duty (section 149 of the Act) in possession proceedings.  During an anti-social behaviour trial Nick had elicited a concession in cross-examination that the decision maker had failed to comply with section 149 when deciding whether to take steps to evict a disabled tenant.  The circuit judge nonetheless made a possession order, which Cheema-Grubb J upheld on appeal to the High Court ([2019] EWHC 24 (QB)).  The Court of Appeal held that, because the trial judge had made a finding that there was no viable option other than possession, the breach of primary legislation was not material and it had been open to the courts below to make (and uphold) the possession order.  Longmore LJ’s judgment approved the recent decision of the High Court in London & Quadrant v Patrick [2019] EWHC 1263 (QB), in which Nick had also acted for the disabled tenant.

Adesotu v Lewisham LBC (Equalities & Human Rights Commission intervening) [2019] EWCA Civ 1405 concerned whether the County Court has jurisdiction to consider allegations of disability discrimination in a statutory homelessness appeal.  HHJ Luba QC had struck out the discrimination challenge as a preliminary issue, ruling that there was no jurisdiction to entertain such allegations under the Equality Act 2010 or the Housing Act 1996, but granted permission to appeal and transferred the case to the Court of Appeal because of the significant public importance of the issues.  The Equality & Human Rights Commission joined the appeal as an intervener.  The Court of Appeal upheld the circuit judge’s decision: Parliament had not provided for homelessness appeals in the ‘Enforcement’ chapter of the Equality Act, and it is therefore not open to a homeless person to include discrimination grounds in a statutory homelessness appeal.

In Forward Nick was instructed by ARKrights Solicitors and appeared with Toby Vanhegan and Hannah Gardiner (4-5 Gray’s Inn Square).  In Adesotu Nick was instructed by Morrison Spowart and appeared with Liz Davies (Garden Court Chambers).

Funded mini-pupillage promotes diversity & legal aid

June 2019 saw 1MCB Chambers’ first funded mini-pupillage pilot for A-level students, which aimed to provide an insight into the legal system and the legal profession.  Our members and pupils wanted to reach young people who attend state schools, and in particular those who might have been put off pursuing a career in law by the costs of training or because they did not have as much access to people who are university educated or working in law.  The mini-pupillage was funded to ensure anyone could participate, whatever their means.

The mini-pupillage programme  

Three young women aged 16-17 joined us for a packed programme over three days. We asked the partner school to select students on the basis of a number of criteria including interest in the law, but achieving top grades was not part of the criteria. Students receiving government assistance (such as free school meals) and students whose parents had not attended university were prioritised.

The mini-pupils attended presentations on criminal law and actions against the police. They observed members of chambers appearing in the criminal courts and the immigration tribunal.   During more informal sessions the students were able to discuss different routes into the profession. Crucially, they met barristers who came from non-traditional backgrounds who were able to speak about the obstacles they had overcome in developing a career at the bar.

The students also visited Lambeth Law Centre where they had a chance to meet members of the housing team, who spoke to them about the history of law centres.  They heard about the importance of a movement aiming to make legal advice accessible to ordinary people, about breaking down barriers to justice, and about campaigning against inequality.

On the final day the three students were given papers in a sentencing matter and took part in a session on pleas in mitigation and then, dressed in wigs and gowns, made submissions to try to keep their client out of prison for a drugs offence.

The future

After the three days, all of the students reported that they were more interested in law. One student explained she had enjoyed speaking to barristers and finding out about their different experiences. As a result of the experience she now believes that she could become a lawyer if she chooses to. The experience broke down negative stereotypes of the bar being the preserve of the rich elite, and demonstrated that people from different cultural, ethnic and religious backgrounds can forge a career as a barrister.

If we want to see diversity in the legal profession and in the judiciary there is a need to engage with A-level students and show that socio-economic background does not have to be a barrier to working in law. It is critical to draw in students at the stage at which they are making decisions about university and their next steps, especially because funding education and putting off earning money can be a barrier to entering into long-term study.     The mini-pupillage programme hopes to provide a bridge to the profession and a unique exposure to legal aid work for young people.

We hope to expand our scheme and run our mini-pupillage experience again next year. We would welcome other chambers getting in touch with a view to developing further mini-pupillage experiences which seek to encourage diversity in the legal profession.

 

Charity quiz night – 5 July 2019

1MCB Chambers is hosting a charity quiz night on Friday 5th July 2019.  Please join us to support three excellent charities:

  • Evolve-FILA (a charity that improves access to justice in Uganda)
  • Galop (an LGBT+ anti-violence charity)
  • Project 17 (working to end destitution among migrant children)

 

The quiz will take place at Doggett’s Coat & Badge pub, 1 Blackfriars Bridge, South Bank, London SE1 9UD at 7.00pm.  Teams can be up to six people, with £5 entry per team.

 

Please RSVP by 3rd July 2019 to Adam Brosnan (adam.brosnan@1mcb.com).

 

We look forward to seeing you there!

Sentencing Guidelines Committee of Uganda visits London

A delegation from the Sentencing Guidelines Committee of Uganda visited London from 20-24 May 2019. The sentencing benchmarking visit, headed by the Honourable Principal Judge Dr Yorokamu Bamwine, was funded by the Rule of Law Expertise UK (ROLE UK) and the Ugandan judiciary. The visit was organised by Evolve – Foundation for Legal Assistance (‘Evolve’), who also hosted the Committee during their time in the UK.

 

 

In 2013, it was determined that the judiciary of Uganda would be assisted by the creation of sentencing guidelines to promote fairness, transparency and consistency in the sentencing of criminal cases.  The Sentencing Guidelines Committee was therefore created in order to oversee the implementation of the guidelines and to make proposals for their reform.

Guidelines were produced for the High Court in 2013, and the Committee has since made proposals for the development of further sentencing guidelines for the magistrates’ courts.  The Committee has representation from each area of the criminal justice sector in Uganda. Its members are in the process of initiating potential sentencing reforms in furtherance of a sentencing policy for Uganda.

As part of the Committee’s important work on reform and development its members were invited to the United Kingdom by Evolve, a criminal justice development organisation that provides expert legal assistance and advice to a range of stakeholders in Uganda on a pro bono basis.  Evolve has worked with the Ugandan judiciary for several years in a number of capacity-building and reform activities in the criminal justice system.

This visit was another element of the partnership activities between Evolve and the Ugandan judiciary in the area of sentencing reform. The purpose of the visit was to examine the perspectives, experiences, and evidence of sentencing issues in the jurisdiction of England & Wales.  The visit was also designed to enable the Committee to share their experiences and learning with their counterparts in the UK, and give an opportunity to found durable lines of communication for mutual exploration, assistance and exchange in the future.

On the first day of the programme, the delegation attended the Supreme Court of the United Kingdom, where the delegation was able to discuss matters of sentencing with Lord Lloyd-Jones and Lord Reed.  The delegation heard about the experiences of the Privy Council, which acts as the final court of appeal for a number of Commonwealth nations, and also about the challenges raised by complex sentencing legislation in England & Wales.  They also heard from Professor David Ormerod QC – a deputy High Court judge and the Law Commissioner for criminal law since 2010. Professor Ormerod spoke about the new Sentencing Code which contains all of the law on sentencing procedure. The delegation was hosted at the Supreme Court for lunch, where they were also joined by Lord Briggs and Lord Kitchin.

After their meetings in the Supreme Court, the delegation met with senior officials from the UK’s Serious Fraud Office, where the operational relationships between investigators, prosecutors and the criminal justice system were considered.

On the second day the delegation attended the offices of the Solicitor-General for England & Wales.  The Solicitor-General of Uganda, Mr Francis Atoke, was one of the first to meet his newly appointed counterpart, Ms Lucy Frazer QC.  The meeting included a comparative review of the role of the Solicitor-General in overseeing consistent sentencing, and involvement in appeals against unduly lenient sentences. The delegation then met Mr Robert Neil MP, Chair of the Justice Select Committee who spoke about the Committee’s role in providing feedback on draft sentencing guidelines.  In the afternoon, the delegation attended the commercial courts to discuss the deepening of judicial international ties with the chair of the International Training Committee of the Judicial College, Mr Justice Knowles, and Dr Karen Brewer of the Commonwealth Magistrates’ and Judges’ Association.  The day concluded with a final meeting with representatives of the Sentencing Council of England & Wales to consider the methodology of researching and structuring and producing sentencing guidelines.

The third day began with a fascinating talk with leading international lawyer Edward Fitzgerald QC and Amanda Clift-Matthews of the Death Penalty Project.  The delegation was able to raise a range of topics arising from the case of Attorney General v Kigula and 417 others, in which the Supreme Court of Uganda held the mandatory death penalty to be unconstitutional.  The meeting included the shared experiences of a number of jurisdictions facing similar challenges to Uganda, when dealing with issues of sentencing the most serious criminal offences.  Discussion also covered the challenges of balancing the objectives of punishment, deterrence, public protection, reparation and rehabilitation.

The delegation were later hosted for lunch by the Commonwealth Secretariat, following a productive meeting with the new deputy secretary-general Dr Arjoon Suddhoo and other staff at the secretariat.  The lunch took place in at Gray’s Inn Hall.  The delegation then moved on to the Royal Courts of Justice, where they met with Ms Sheridan Greenland, the executive director of the Judicial College, to discuss training of judges in England and Wales.  Later in the afternoon, the delegation heard from senior members of the Sentencing Council of England & Wales, Mrs Justice Maura McGowan QC and Lord Justice Holroyde, regarding the effects of sentencing guidelines on judicial practices.  The group were then joined by Sir Brian Leveson, President of the Queen’s Bench Division, who related some of the experiences in England & Wales of procedural reform to improve efficiency in the justice system.

On the fourth day, the delegation returned to the Royal Courts of Justice to meet with representatives of the UK’s Department for International Development to discuss ways in which the UK might support the work of the Sentencing Committee and the development of the Ugandan justice system.  Ms Fuschia Allen then joined the delegation to discuss the operation of the National Probation Service in England & Wales, and the delegation were able to raise matters about the role of Probation in sentencing offenders.

In the afternoon, the delegation were hosted by the most senior criminal trial judges in England & Wales, at the Old Bailey.  The delegation were joined for lunch by the Old Bailey judges before observing proceedings in an inquest on a terrorism case, before watching some of the country’s most talented barristers conduct sentencing hearings before Her Honour Judge Munro.  It was a useful opportunity to see the sentencing guidelines in action, and assess the differences and similarities across the jurisdictions.

Following the mock hearings, Her Honour Judge Molyneux of the Old Bailey and Mr Martin Jones, chief executive of the Parole Board, conducted a helpful conference on the way in which those sentenced to very long terms of imprisonment are assessed for suitability for release, depending on whether they have reformed, developed an understanding of the causes of their offending, and no longer pose a threat to the public. On the evening of 23 May 2019, the Uganda High Commissioner to the UK, His Excellency Julius Moto, hosted a dinner for the delegation, the Evolve team and other guests at Uganda House, London.

On the final day, the delegation met with officials at the Ministry of Justice to discuss to sentencing policy.  The discussions included how data can be analysed to allow assessment of trends and rate of reoffending.  After this meeting, the delegation engaged with Max Hill QC, the Director of Public Prosecutions.  This was a valuable chance for the attendees to review the role of prosecutors in sentencing.

Lunch was hosted by the Advocacy Training Team of Middle Temple at Middle Temple Hall.  After consideration of training and mentoring lawyers to better assist judges in sentencing, the delegation were hosted at the First-Tier Tribunal (Immigration and Asylum Chamber) to meet with senior judges.  The discussions encompassed the range of legal issues and complexities that judges must contend with to ensure that there is always a fair hearing, and just results.

The visit was of great use to the delegation, and also to each of the representatives, officials and judges that had hosted the meetings in the UK.  Following the events, the Sentencing Committee of Uganda resolved to expedite its review of the current sentencing guidelines, and the completion of the guidelines for magistrates’ courts.  The Evolve team will assist in the facilitation of technical experts to assist in the revision process.  The committee seek to build capacity of a dedicated statistical unit, and data collection processes to support the Committee and the judiciary.  Evolve will conduct further research into the experiences of other jurisdictions, particularly on the issue of life sentences.  This would assist the committee’s proposed consultation with various stakeholders in the justice system on life sentencing options, with a view to clarifying the legislation in this area.  There is to be similar research and reviews of developing probation services, as well as consideration of a system of parole.  Finally, the committee will work with stakeholders to refine sentencing policy, taking into account efficiency, procedure and scope for future development.

Finding the ‘fact’ in fact findings

Christina Warner and Ghazala Hussain published an article in this month’s Family Law Journal (Volume 49, June 2019), titled ‘Finding the ‘fact’ in fact-findings: the trouble with PD12J’. Fact-findings in the context of PD12J are intended to provide the means for courts to adjudicate on disputed allegations of domestic abuse in Children Act proceedings.  This is a vital mechanism in Children Act proceedings to safeguard children. In practice, there is a the lack of clarity in the court’s application of PD12J.  The article examined PD12J, its application and the impact this has on families involved in Children Act proceedings, particularly in the context of unnecessary delays that are caused by the inconsistent application of this provision.

 

Christina Warner shortlisted for ‘We Are The City’ award

Christina Warner has been shortlisted for The Times and The Sunday Times’ We Are The City Awards.  Her nomination is for a Rising Star in Law award for her work with the LGBT+ & Spanish-speaking communities. The awards celebrate and support the achievements of women across numerous industries.

ILPA wellbeing conference

Rajesh Rai has accepted an invitation to speak at the Immigration Law Practitioners’ Association‘s first wellbeing conference, to be held on 16th May 2019 to mark Mental Health Awareness Week.  The day will consist of a series of talks and workshops around the topics of mental health, vicarious trauma and wellbeing in the workplace.  Rajesh – who runs a retreat centre alongside his successful practice at the Bar – will be taking part in a panel discussion about self care and care for others in the workplace.

1MCB is proud to support this event as part of our commitment to the wellness of those who work in the law, which is often unforgiving in the demands it makes of its practitioners.

Salma Lalani secures acquittal in serious aggravated burglary case

Salma Lalani has secured an acquittal following the trial of a defendant charged with two counts of aggravated burglary.

It was alleged that the defendant and three others, dressed in hoodies, masks and surgical gloves, broke into two occupied houses at night. At the first property a female occupant was held by the assailants at knifepoint, and at a neighbouring property the male occupant was attacked and injured with a screwdriver and secateurs. Blood identifying the defendant was found on an inside door pane used to gain access to the property and on the handle of the screwdriver.

The defendant denied any involvement and said that he had been attacked shortly before the incidents by a group of males. There were complex issues of identification and expert forensic evidence.

Judicial appointment: Anna Watterson

1MCB Chambers is delighted to announce that Anna Watterson has been appointed as a fee-paid tribunal judge.

Anna will sit in the Social Entitlement Chamber, a tribunal which hears, amongst other things, social security and child support appeals.