Category: News

1 Mitre Court Buildings is delighted to welcome two new tenants.

Mohammed Ismail and Tanya Murshed join chambers upon successful completion of their pupillages.

Shuyeb Muquit was instructed on behalf of the Claimant in Jeffers v The Labour Party [2011] EWHC 529 (QB), challenging the control exercised by the Labour Party over the internal administration of one of its affiliate organisations, BAME Labour, of which the Claimant was Secretary.

For press coverage please click here.

For the full judgment click here.

Chambers are pleased to announce that Satnam Bains and Rajesh Rai have just returned from a historic Judicial Colloquium on international developments in equality and non discrimination law, held in New Delhi on the 29th and 30th of January 2011.

The event was jointly organised by the Human Rights Law Network based in India, the Equal Rights Trust based in the UK and the Bar Human Rights Committee of England and Wales. The event covered a broad range of issues including gender and sexual orientation, discrimination on the basis of caste, race, environmental tort litigation, forced marriages and security and terrorism law.
Satnam Bains was an invitee on behalf of the Human Rights Law Network with whom he works on human rights litigation in India, whilst Rajesh Rai was invited by the Bar Human Rights Committee with whom he has previously worked in India.
Other prominent speakers included Lord Walker of the Supreme Court of England and Wales, Lord Justice Sedley, Altamas Kabir Justice of the Supreme Court of India, Justice Ganguly of the Supreme Court of India, Chief Justice Deepak Mishra of the High Court in Delhi, Kate O’Regan of the Constitutional Court of South Africa, and Justice Elizebeth Palm of the European Court of Human Rights.

Tanya Murshed appeared in this case concerning a passenger who grabbed the steering wheel of a double decker bus, causing it to crash.

For press coverage click here.

ZH (Tanzania) v SSHD [2011] UKSC 4

The Supreme Court (Lord Hope, Lady Hale, Lord Brown, Lord Mance, Lord Kerr) today handed down its judgment in ZH (Tanzania) v SSHD.

Their decision is already being heralded as a landmark ruling, which will have far-reaching consequences for immigration (and other) decisions that affect children. It is clear that from now on the “best interests” of the child or children involved will have to be considered first, and that those best interests will only be displaced by powerful countervailing factors.

The case concerned the appeal of a Tanzanian woman against the Secretary of State’s decision that she be removed from the United Kingdom. She relied on the right to respect for her private and family life under Article 8 of the European Convention on Human Rights, in particular the effect of removal on her two children, who were British citizens by birth.

Baroness Hale gave the leading judgment, with which Lord Brown and Lord Mance both agreed.

The over-arching issue was the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from this country. Within this was a more specific question: in what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave?

There is no power to remove or deport a person who is a United Kingdom citizen: see Immigration Act 1971, section 3(5) and (6). They have a right of abode in this country, which means that they are free to live in, and to come and go into and from the United Kingdom without let or hindrance: see 1971 Act, sections 1 and 2. The consistent stance of the Secretary of State is that UK citizens are not compulsorily removed from this country. However, if a non-citizen parent is compulsorily removed and agrees to take her children with her, the effect is that the children have little or no choice in the matter. There is no machinery for consulting them or giving independent consideration to their views.

The mother is a national of Tanzania who arrived in the UK in December 1995. She made three unsuccessful claims for asylum, one in her own identity and two in false identities. In 1997 she formed a relationship with a British citizen. They have two children, now aged 12 and 9, who are both British citizens and have lived here all their lives. The parents separated in 2005 but the father continues to see the children regularly. After the father’s diagnosis with HIV in 2007, the mother made further representations to the Secretary of State. These representations were accepted as a fresh claim but were rejected. The mother’s appeal was dismissed by the Asylum and Immigration Tribunal and by the Court of Appeal. The Court of Appeal upheld the tribunal’s finding that the children could reasonably be expected to follow their mother to Tanzania.

The “best interests of the child” broadly means the well-being of the child. A consideration of where these best interests lie will involve asking whether it is reasonable to expect the child to live in another country. An important part of discovering the best interests of the child is to discover the child’s own views (paras 29 and 34-37).

Although nationality is not a “trump card” it is of particular importance in assessing the best interests of any child. The children in this case are British not just through the “accident” of being born here, but by descent from a British parent; they have an unqualified right of abode here; they have lived here all their lives; they are being educated here; they have other social links with the community here; they have a good relationship with their father here. It is not enough to say that a young child may readily adapt to life in another country (paras 30-31).

The intrinsic importance of citizenship should not be played down. As citizens these children have rights which they will not be able to exercise if they move to another country. They will lose the advantages of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults (para 32).

In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother’s appalling immigration history and the precariousness of her position when family life was created. But the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her. In those circumstances, the Secretary of State was clearly right to concede that there could only be one answer (para 33).

Lord Hope observed that the fact of British citizenship will hardly ever be less than a very significant and weighty factor against moving children who have that status to another country with a parent who has no right to remain here, especially if the effect of doing this is that they will inevitably lose the benefits and advantages of this citizenship for the rest of their childhood. The fact that the mother’s immigration status was precarious when the children were conceived cannot be held against the children in the assessment of whether their best interests are outweighed by the strength of any other considerations. It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible (paras 41 and 44).

Lord Kerr stated that the fact that a child is a British citizen also has an independent value, freestanding of the debate in relation to best interests, and this must weigh in the balance in any decision that may affect where a child may live (paras 46-47).

Click here for the full judgment.

Click here and here for press articles on the case.

The Appellant was represented by Manjit S Gill QC and Benjamin Hawkin.

If you wish to enquire about this or other cases, please contact the clerks on               020 7452 8900        or clerks@1mcb.com

Anwar and Others v SSHD [2010] EWCA Civ 1275
(Sedley, Lloyd and Sullivan LJJ)

The issue

In three linked appeals, the Court of Appeal had to consider the question of whether, if an immigration decision has only an out-of-country right of appeal but the point is not taken before the First-Tier Tribunal, the issue of jurisdiction can still be raised thereafter i.e. before the Upper Tribunal.

Although Ms Pengeyo’s case settled by consent the day before the hearing in the Court of Appeal, her arguments were adopted by the remaining two appellants.

The background

The background facts were rather disturbing. Both Ms Pengeyo and Mr Anwar had leave to remain as students at the London School of E-Commerce which at the time was on the register of training and education providers. The college was removed from the register in May 2008 because it had been found to be issuing bogus qualifications. Ms Pengeyo asked the Home Office for advice and was told to find a new college, which she did. Mr Anwar had already left in November 2007 to join another college.

It therefore came as a shock to both appellants when in November 2008 they were each notified of a decision under section 10 of the Immigration and Asylum Act 1999 to remove them on the ground they had obtained leave to remain by deception. Not only were these decisions made without giving them an opportunity to rebut the allegation, but the right of appeal under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002, is only exercisable from abroad.

However, the appellants submitted their notices of appeal whilst still in the United Kingdom, and attended hearings at the then Asylum and Immigration Tribunal. The respective Immigration Judges found that neither appellant had used deception and gave determinations allowing their appeals.

Rather than simply accept the Immigration Judges’ conclusions, the Home Office applied for reconsideration on the basis that the Immigration Judges had had no jurisdiction. Senior Immigration Judges subsequently accepted that argument and overturned the determinations.

The Court of Appeal’s judgment

Giving the judgment of the Court, Sedley LJ held (paras 19-23) that the Immigration Judges did have jurisdiction to hear the appeals, but that once the point of jurisdiction was raised it operated in bar of the proceedings. Had the point not been taken the Immigration Judge would have been bound to proceed with the appeal. The jurisdiction point was one that could but need not be taken.

Referring to the separate judicial review proceedings brought by Ms Pengeyo in case her appeal to the Court of Appeal had failed, Sedley LJ stated (para 24) that permission had rightly been granted to challenge the decision of the Home Office to make a deception decision enabling it to stifle any appeal, as opposed to a variation of leave decision which carried an in-country right of appeal. He also considered that permission would have been properly granted to argue that the election of the Home Office to take the out-of-country point in order to stifle an appeal was a “serious” abuse of power:

“Once it is established that the point is good only when taken, to take it in order to prevent the exposure of a shameful decision – the effective criminalising and enforced removal of an innocent person without either worthwhile evidence or the opportunity to answer – is without doubt justiciable by way of judicial review.”

Sedley LJ then went on (para 25) to query whether the original Home Office decisions, taken in defiance of basic standards of fairness and morality, were nullities. In a stinging rebuke of the Home Office, he said:

“Although we have not been called on to determine the question on the instant appeals, it is right to flag up a concern which all the members of the court share that, on the evidence before us, the powers of one of the great offices of state appear to have been so misused as to rob the successive administrative decisions of legal authority. We wish this to be brought to the Home Secretary’s attention.”

In the case of the third appellant Mr Adjo, Sedley LJ held (paras 27-32) that as his last application to the Home Office had not been accepted as a fresh claim, there was no “immigration decision” giving him any right of appeal under section 82(2) of the 2002 Act.

Though the appeals were dismissed, the Court clearly intended the Secretary of State to act on its trenchantly expressed concerns.

Implications for practitioners

(1) It is hoped that Home Office decisions withdrawing leave to remain on the ground of deception will now (a) only be made after giving the individual an opportunity to rebut the allegation with representations, and (b) be made via a route e.g. Rule 323 of the Immigration Rules, which carries an in-country right of appeal under section 82(2) of the 2002 Act.

(2) If nonetheless a decision is made under section 10 of the 1999 Act, the representative should lodge a notice of appeal with the First-Tier Tribunal, as it does have jurisdiction unless and until the Home Office object (Anwar and Others, para 19).

(3) Even if the Home Office do object, their objection can be challenged via judicial review proceedings as an abuse of power, as indeed can their decision to use section 10 in the first place (Anwar and Others, para 24). A decision by the First-Tier Tribunal to reject a notice of appeal because it has no jurisdiction would also be judicially reviewable for very similar reasons. A hearing at which the Home Office Presenting Officer takes the point of jurisdiction may have to be adjourned to allow an application for judicial review to be made. In all such applications expedition should be requested.

(4) A way of forestalling the problems associated with appealing a section 10 decision in-country would be to raise any arguable asylum, human rights or EEA issues in the notice of appeal – and preferably also put them in a separate set of representations to the Home Office – this should have the effect of converting an out-of-country right of appeal to in-country (see section 92(4) of the 2002 Act and Anwar and Others, para 16).

The Appellant Ms Pengeyo was represented by Benjamin Hawkin.

Click here for the full transcript.

The case of ZH (Tanzania) v SSHD (UKSC 2010/0002) was heard by the Supreme Court on 9-10 November. The panel comprised Lord Hope, Lady Hale, Lord Brown, Lord Mance and Lord Kerr.

The principal issues were:

(1) Whether the British citizenship of children to a mother who is removed is a special or decisive factor in the Article 8 ECHR balancing exercise.

(2) Whether the father of the children being practically unlikely to be able to visit them abroad means that his Article 8 rights should prevail over the interest in removal.

The Secretary of State accepted in her Written Case that on the facts, the Asylum and Immigration Tribunal had been wrong to dismiss the Article 8 appeal, and that the Court of Appeal had erred in upholding the Tribunal’s determination. The purpose of the hearing was therefore to give guidance on the issues.

In particular, issue (1) inevitably covered the concept of “the best interests of the child”, how this should be evaluated, and what effect it should have in an immigration context. The arguments ranged across Section 55 of the Borders, Citizenship and Immigration Act 2009, the United Nations Convention on the Rights of the Child, the European Union Charter of Fundamental Rights, various General Comments of the United Nations Human Rights Committee and the United Nations Committee on the Rights of the Child, and judicial decisions such as Chen v SSHD (ECJ) (Case C-200/02), [2005] QB 325, M v State (South African Constitutional Court) (Case CCT 53/06), (2007) 23 BHRC 697, and Neulinger and Shuruk v Switzerland (ECtHR) (GC) (Application No. 41615/07), [2010] 28 BHRC 706.

Judgment was reserved.

The Appellant ZH was represented by Manjit S Gill QC and Benjamin Hawkin.

Rajesh Rai has been invited by the Kurdish Human Rights Project (KHRP) to chair their annual cross border conference held this year in South East Turkey.

This is the second year that Rajesh has been invited to speak at the cross border conference. The delegates operate in the Kurdish regions and will include NGO’s working in Iraq and Turkey. Rajesh will be speaking on capacity building for NGOs, international conventions governing prevention of torture and ill treatment, especially against children, and chairing a round table discussion on women’s rights and international law.

The conference will take place on 13th and 14th November.

Between 3rd – 9th October 2010, Paul Richmond trained 40 Russian lawyers in Moscow and St. Petersburg on the law and practice of monitoring criminal trials for compliance with international fair trial standards. The training workshops were organised by the International Commission of Jurists following the recent publication of its practitioner text entitled “Trial Observation Manual for Criminal Proceedings”, which Paul co-authored. Paul is scheduled to conduct further trial observation training courses in Russia in early 2011.

David Stephenson acted for Miss Josiah last year in her claim for race discrimination and victimisation under the Race Relations Act 1976. The Employment Tribunal found that Miss Josiah had been unlawfully suspended by the Respondent’s officers after voicing her concerns about racial bias towards black defendants. Even after it was decided that she should be re-instated, it was another four months before she was allowed to resume sitting on cases in Enfield. The Employment Tribunal made no ruling as to alleged race bias by magistrates, but upheld her claim against the Ministry of Justice that she was victimised after complaining of race discrimination.

David Stephenson recently represented Miss Josiah at her remedy hearing in her claim for injury to feelings, aggravated and exemplary damages. Judgment is eagerly awaited.

For news coverage please see the BBC, The Daily Mail, or The Evening Standard.

Pieretti v London Borough of Enfield, Court of Appeal (Mummery, Longmore and Wilson LJJ)

David Stephenson acted for Mr Pieretti in his s. 204 Housing Act 1996 appeal against Enfield’s decision to find him intentionally homeless and subsequent appeal to the Court of Appeal.

Mr and Mrs P entered into an assured shorthold tenancy for a period of 12 months on 11th March 2006. Things progressed reasonably well for the first year and the tenancy was renewed in March 2007. Thereafter the relationship between the landlord and P deteriorated. P had accused the landlord of not returning housing benefit cheques, harassment and was concerned that she would not return his security deposit. Hence, P withheld rent in March and April 2008 to protect his deposit. The landlord complained that their payments of rent became erratic and eventually took possession of the property on 18th April 2008 under the accelerated procedure and executed a warrant for eviction on 5th June 2008.

On 14th May 2008, P applied to Enfield for housing assistance and in so doing disclosed that he and his wife were both disabled within s. 1 of the DDA. Both had a long history of depression. Enfield made limited enquiries to ascertain whether or not they were vulnerable and in priority need but did not seek any information from their GP to determine disability for the purposes of s.1 DDA.

Enfield found P intentionally homeless on the basis that his withholding rent was a deliberate act not done in good faith (P had received advice in 2007 that withholding rent could put his tenancy at risk) in consequence of which he lost his accommodation.

It was argued on appeal before HHJ Mitchell in the Central London County Court that when P ticked that he was disabled in Enfield’s housing application form, they were fixed with notice that he may well be disabled within the meaning of the DDA and ought to have made sufficient enquiries to ascertain the full nature and extent of P’s disability.

HHJ Mitchell dismissed P’s appeal on the basis that P was not disabled within the meaning of s. 1 of the DDA and/or Enfield was not required to consider the general duty contained in s.49A of the DDA and Paragraph 11.17 of the Code of Practice because P did not raise his disability (depression) as an issue with the council: paragraph 14 of Cramp v Hastings [2005] EWCA Civ 1005 applied.

P appealed to the Court of Appeal on the following grounds:

• HHJ Mitchell erred in law by failing to hold that the equality objectives contained in s.49A DDA were applicable to the present case. The obligation on public authorities to have due regard to the need to eliminate discrimination required Enfield to make such enquiries so as to ascertain the full nature and extent of any disability that P might have before determining that his act was a deliberate one and not in good faith.
• HHJ Mitchell’s finding that P was not disabled within the meaning of the act was a conclusion not open to him to reach. It is not the place of the judge on appeal to make such a conclusion in the absence of all the evidence.
• In reaching his conclusion that P was not disabled within the meaning of the Act HHJ Mitchell erred in law by adopting the wrong approach. He wrongly concluded that P was not disabled because he had requested to speak with the review officer himself and was able to write letters setting out his position.

This appeal involves consideration of an important legal point of principle which will determine when the General Duty contained in s.49A DDA is triggered in respect of an individual and whether s.49A DDA requires a local authority to make more onerous enquiries when it is fixed with actual or imputed notice.

Judgment is eagerly awaited.

Desmond Allum, Senior Counsel at the Trinidad and Tobago Bar, and an overseas member of our Chambers for many years, has died at the age of 75.

Desmond was a towering figure in fighting for human rights in the Caribbean. He was a humanitarian and an activist for justice. He stood firm against the death penalty. His skill as an advocate brought him briefs on behalf of the Chief Justice of Trinidad and Tobago and the Leader of the Opposition, in high profile cases.

He won respect at an early stage in Britain when as a law student he successfully sued the Metropolitan Police for assault and false imprisonment. He often took time off from his work in Trinidad to act as defence counsel in London, where he will be mourned by many colleagues and friends.