Category: News

Before Covid-19, equality of arms was often lacking between unrepresented appellants and the Home Office. However, following the sweeping changes to procedure in the First-tier Tribunal Immigration and Asylum Chamber, there is a real risk that those without representation are denied access to justice and a fair hearing.

Immigration barristers Bernadette Smith and Geeta Koska have developed a practical guide to assist organisations and representatives who have contact with unrepresented appellants, as well as unrepresented appellants themselves. The guide was developed with input from Michael Tarnoky at Jesuit Refugee Service UK and includes an overview of the key changes to the tribunal procedure, submissions for an application to adjourn and a “questions and answers” handout for unrepresented appellants about adjournments, the CMH, decisions taken on paper and remote hearings.

Even before the Covid-19 pandemic, cuts to legal aid and pressures on asylum and immigration legal aid providers led to a rise in unrepresented appellants who, without assistance, already faced unique challenges in navigating the legal system.  We hope that the guide will provide practical assistance to counteract the negative effects of the new procedural rules which are likely to further disadvantage unrepresented appellants at this time.  

If any organisation or unrepresented appellant would like a copy of the guide please email Tim Markham.

1MCB Chambers has also produced a comprehensive guide to the procedural changes in the First-tier and Upper Tribunals for representatives that can be accessed here.

Following the unprecedented changes being made to the procedures in immigration tribunals, 1MCB Chambers has prepared a guide to assist representatives. These changes impact every aspect of proceedings, from whether there will be a hearing at all, to the format of proceedings, to funding – particularly in cases that are publicly funded. 

The guide provides an overview of some of the key challenges, as well as practical advice for making applications and submissions within the new procedural framework. Summaries of applicable case law and links to guidance and additional resources are also included.

Whilst access to justice remains crucial during the Covid-19 pandemic, it must be practical and effective rather than theoretical or illusionary. We hope this guide provides a useful starting point and shortcut to ensure that the rights of appellants are enforced and protected. 

The Covid-19 pandemic continues to evolve and in turn affects the response of the HMCTS and the judiciary, and we hope to update this guide as the situation develops. 

The most up to date version of the guide can be accessed here.

The Covid-19 lockdown has caused a great deal of uncertainty, but one thing that is clear is that there will be a profound and lasting impact on the circumstances of almost all workers.  In this new and changing context, it is important for workers to bear in mind their relevant established rights, in particular regarding wage protection, dismissal and redundancy.

In the first of a series of blog posts, employment and discrimination barristers Michael Sprack and Amrit Bachu outline the legal protections available to workers.  To read their analysis, view here.

We would like to reassure all our solicitors and lay clients that we remain open for business and that we have in place a robust business continuity plan to enable us to continue to serve you at this difficult time.

In keeping with our commitment to the welfare of our employees and in accordance with government guidance, our staff are working from home, but continue to have full access to our diary and billing software, as well as a dedicated online file sharing system which allows you to securely transfer papers.  Chambers’ contact number remains as set out on the ‘Contact us’ page.

Our barristers are set up with video conferencing facilities, allowing them to continue to hold conferences with clients as well as attend hearings remotely.

We are unable to accept physical deliveries at chambers’ address at the moment.  If you need to have hard copies of bundles delivered to us, please discuss alternative arrangements with the relevant clerk, who will be happy to assist you.  We are also unable to accept payment by cheque for the time being and would be grateful if you could arrange to make payments by BACS.

We understand that this is a challenging time for all those who instruct us.  If there are other ways in which we can work in order to better support you, please let us know.  In the meantime, stay healthy and safe.

Salma Lalani successfully defended a case that involved substantial quantities of high purity cocaine blocks imported from The Netherlands and concealed in frozen meat.  A joint Metropolitan Police and National Crime Agency taskforce estimated importation by the Organised Crime Group of 990kg of cocaine, with a street value in excess of £100 million.

It was alleged that cocaine, concealed in imports, was brought into the UK on numerous separate shipments. From its arrival, it was transported to a cold storage facility where it was held until collection by a lorry to be taken to an industrial unit where the consignments were broken down. During this operation the blocks of high purity cocaine were removed from their concealment, and then distributed to a network of dealers.

The defendant was arrested with a co-defendant following covert surveillance at an industrial unit where 55kg of cocaine blocks were present and being separated from a consignment. The defendant accepted that he was present on a number of such occasions but asserted that he was unaware of the consignment’s illicit contents.

The operation involved seizure of large sums of cash, multiple mobile telephones and other devices, as well as numerous encrypted mobile phones. The prosecution compiled hundreds of pages of cell site maps and schedules from multiple phones across a five month period, which was central to their case, as it enabled them to co-locate the co-defendants on various key dates.

The joint Met and NCA investigation deployed considerable resources, involving cell site, ANPR, satnav downloads, covert surveillance, forensic investigations (fingerprints/DNA) and expert witnesses.  The weight of evidence gathered resulted in the co-defendants pleading guilty on the first day of trial.

The defendant was acquitted by a jury following a three-week trial and two days of deliberations.

1MCB Chambers (including members from our days at 8KBW) would like to pay tribute to the life of Len Woodley QC, who passed away on Sunday 19th January 2020.

Chambers owes much of its present character to the leadership of Len Woodley QC, who was head of chambers for the twelve years from 1988 to 2000. Len’s genius was to be radical without being showy. His achievement was to be one of the first black barristers to be Queen’s Counsel, Recorder and Bencher of the Inner Temple, while retaining complete integrity and devotion to the service of his clients and fellow members of chambers.

Throughout his long career at the Bar, specialising in crime, he appeared in trials with a political or civil liberties element, including the Brixton riots trials and the Mangrove Nine trial. He was instructed in the Scarman inquiry (into the 1981 Brixton riots), chaired the Laudat inquiry into mental health, and sat on the Royal Commission on long term care for the elderly. He was also a member of the Bar of Trinidad and Tobago.

Len was very much aware of others’ struggles. In 1988, he invited Nelson Mandela, who was then serving a life sentence, to be an honorary door tenant of Chambers, as a mark of solidarity with the South African freedom struggle. He endowed the Leonard Woodley Scholarship at the Inner Temple, to be given to black or Asian pupils with a view to promoting greater diversity at the Bar. He was also a patron of the children’s rights charity, Plan International UK.

Len always had a tennis racket (or several) close at hand and closely followed both tennis and cricket. He was a quiet man who enjoyed opera.  He had an eye for the interesting without being showy – perhaps displayed by his owning a green convertible Audi (the first in the UK) which he cared for for twenty years (with maybe 15,000 miles on the clock).

As a Recorder sitting in the Crown Court, Len was always loathe to send anyone to prison, and would always opt for a non custodial option if he possibly could – so much so that he eventually upset the Establishment so much that he was written to by the Lord Chancellor’s department and reminded of his public duty, and asked if he really wanted to do this job. Needless to say, Len ignored what he interpreted as a veiled threat and carried on showing compassion  whenever he sat.

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.

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:

55.  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.

…

64. ..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…
65. 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.

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”.

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).

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.

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!