Category: News

Geeta Koska recently published a blog on the future impact on the protection of children’s welfare of the High Court’s decision in R (W, A Child By His Litigation Friend J) v The Secretary of State for the Home Department & Another [2020] EWHC 1299 (Admin).  The blog was published in ‘Children and Young People Now’.

The No Recourse to Public Funds (NRPF) condition is imposed on almost all migrants and excludes access to mainstreamwelfare benefits, including those designed to protect children, such as child benefit; it also excludes children from support that is tied to such benefits, including free school meals.It is estimated that approximately ​674,000​ undocumented people in the UK, including 106,000 UK born children, are subject to the NRPF regime in the UK. The NRPF policy has severe consequences for many migrant families, and it has been widely criticised for disproportionately impacting single mothers and children from minority ethnic backgrounds.

In W, the High Court held that the NRPF regime lacked sufficient clarity to protect people from the risk of inhuman and degrading treatment flowing from destitution, which is prohibited under Article 3 of the European Convention on Human Rights and the common law principle of the “law of humanity”. In the judgment, the Court affirmed the state’s positive obligations to pre-empt the risk of destitution – a duty that is owed to everyone regardless of their immigration status.

The Court also cited R v Secretary of State for the Home Department ex p. Simms [2000] 2 AC 115, and the principle known as the “principle of legality”, which means:

“Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.” [13]

This is a crucial reminder that where rights are limited or curtailed, politicians must confront the political consequences that will follow. Fundamental rights can only be excluded by express language, and laws, policies and practices that limit the practical scope of those rights will be unlawful.

As a result of the ruling in W, the Home Office guidance has been amended to state that:

“In all cases where an applicant has been granted leave, or is seeking leave, under the family or private life routes, the NRPF condition must be lifted or not imposed if an applicant is destitute or is at risk of imminent destitution without recourse to public funds”.

Although this is of course a welcome development, the policy only applies to those who are applying for, or who already have, leave to remain on family or private life grounds: it does nothing to assist the very many others subject to an NRPF condition who are seeing a significant decline in their income during the current public health crisis.  Despite the High Court’s recognition that the risk of destitution amounts to a breach of Article 3 and the law of humanity, very many migrant families remain subject to a NRPF condition and hence in danger of destitution, exploitation and abuse.

Project 17 is a pioneering frontline organisation that works to end destitution among migrant children, which acted as intervener in W.  The organisation fights to get support for NRPF families undersection 17 of the Children Act 1989, which confers upon local authorities a duty to safeguard and promote the welfare of children within their area who are in need; 1MCB member Gwawr Thomas is one of its founding trustees.   The Home Office has frequently used the existence of the section 17 ‘safety net’ to defend its NRPF policy. However, the significant cuts to local authorities’ budgets over the last decade mean that section 17 support is very difficult to access: six in ten families who approach their local council are turned down, and those who do manage to access support are provided with exceptionally low levels of support – often well below asylum support rates which is the minimum that the Home Office recognises as being required to avoid a breach of the European Convention on Human Rights.  Project 17’s report, ‘Not seen, not heard: Children’s experiences in the hostile environment’ explores the pernicious effect on children’s welfare of the Home Office’s policy of shifting the burden of supporting children living in NRPF families onto cash-strapped local authorities.

We join Project 17 in calling for the abolition of the NRPF regime for all migrants. Project 17’s recent submission to the All-Parliamentary Group on No Recourse to Public Funds details the particularly pernicious and potentially lethal impact of Covid-19 for migrants subject to the NRPF condition as they are at high risk of homelessness and engaged in precarious work. Project 17’s submission also highlights how the obstacles to benefits and support particularly impact migrant women who experience sexual and domestic abuse.

The judgment in W is an important and welcome first step, and it is hoped that it will inspire lawyers to make creative use of the concept of a pre-emptive ‘duty of humanity’ in promoting access to other socio-economic rights: if the economic effects of lockdown are as dire as many experts are predicting, we will need to deploy every tool in our arsenal to fight for the rights of our most vulnerable clients.

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 updated the practical guide to assist organisations and representatives who have contact with unrepresented appellants, as well as unrepresented appellants themselves. The original guide was developed with input from Michael Tarnoky at Jesuit Refugee Service UK and includes an overview of the key changes to 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 further changes to the immigration tribunals, we have updated our guide on access to justice and the right to a fair hearing in the Immigration and Asylum Tribunal (IAC) during Covid-19.

Presidential Practice Note No 2 of 2020 came into force on 22nd June 2020, and consolidates, updates and amends the procedure in the IAC during the Covid-19 pandemic. The guide includes an overview of the new procedures and provides practical and strategic considerations to navigate the new system.

Since March 2020, procedural rules in the IAC have sought to introduce new ways of operating, including using technology to keep the wheels of justice turning during the pandemic. However, the capacity of the IAC to guarantee that justice is delivered will depend on the context of the case and the needs of the particular appellant.  Keeping the wheels of justice turning does not require compromises to be made on an appellant’s right to a fair hearing and access to justice and the guide sets out important new considerations to assist representatives.

Despite the significant changes to the procedure in the First-tier Tribunal, legal aid funding for fixed fee cases remains inadequate. In response to the negative impact on access to justice of the new regime, members of 1MCB Chambers have issued a joint statement with members of nineteen other chambers adopting a policy not accept instructions to prepare an Appellant Skeleton Argument in fixed fee legal aid cases, other than in exceptional circumstances.

1MCB also fully supports YLAL‘s campaign A Prayer for Legal Aid supporting an Early Day Motion to strike down the statutory instrument that introduced the new standard fixed fee.

Version two of the guide can be accessed here.

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The theme for this year’s World Refugee Day, held on 20th June, is “every action counts”.  It is a reminder of the need to build a more inclusive and equal society, and of the huge contributions made by refugees to society.

‘Refugee’ has a specific meaning: it is someone who seeks protection owing to a well-founded fear of persecution because of their race, religion, nationality, political opinion, or membership in a particular social group.  Membership of a particular social group includes those who fear persecution because of their sexual orientation, gender, or are victims of trafficking.

Refugees flee their countries, generally with very little but memories of the homes and families they have left behind and, in most cases, the traumatic experiences they have suffered because of their beliefs or attributes about themselves they cannot change.  In fact, prior to the last century, “the practice of sheltering those compelled to flight was not perceived as a burden, but rather as a necessary incident of power, and indeed as a source of communal enrichment” (Professor Hathaway, ‘The Law of Refugee Status’).  And refugees have enriched many societies.  Some who have reached prominence, or whose children have reached prominence, include Elbert Einstein, Chagall, Bob Marley, Freddie Mercury, Madeleine Albright, Henri Kissinger, Jackie Chan, Marlene Dietrich, Viktor Hugo … and the list goes on and on.

But “every action counts” is not just about prominent refugees, but about all refugees and how they enrich society.  There are now 70.8 million forcibly displaced people in the world, of which 26 million are refugees.  Over half of are under the age of 18.  57% of UNHCR’s refugees (11.7 million people) come from three countries: South Sudan, Afghanistan, and Syria.  World Refugee Day is a celebration of their contribution and that everyone can make a difference because every action counts. The UNCHR, the guardians of the Convention on Refugees, put out a statement for 20th June 2020 reminding us that we all have a part to play:

“The COVID-19 pandemic and the recent anti-racism protests have shown us how desperately we need to fight for a more inclusive and equal world: a world where no one is left behind. It has never been clearer that all of us have a role to play in order to bring about change. Everyone can make a difference. This is at the heart of UNHCR’s World Refugee Day campaign. This year, we aim to remind the world that everyone, including refugees, can contribute to society and Every Action Counts in the effort to create a more just, inclusive, and equal world.”

1MCB Chambers has a long-standing commitment to the protection of refugees. From assisting those seeking asylum to secure their right to remain here, to ensuring that people have access to housing and social assistance, members of 1MCB are committed supporting the rights of refugees.  Through our work we seek to contribute to creating a more just, inclusive and equal society and celebrate World Refugee Day with our partners across the world.

An edited version of this piece, authored by Rajesh Rai, first appeared on Sahoja, an online community which seeks to spark positive change in ourselves, our communities and the world at large.

The brutal killing of George Floyd on 25th May 2020 by police renewed protests by the Black Lives Matter (BLM) movement in the US and globally, calling for an end to systemic and institutionalised racism against black people.

Soraya Bauwens, Alex Bennie, Geeta Koska and Bernadette Smith of 1MCB Chambers joined an open call from Black Protest Legal Support UK – a grassroots network of lawyers and legal advisers founded by Ife Thompson – to provide BLM protesters in London with pro-bono legal support, by attending the Black Lives Matter protests in London held on 3rd, 6th and 7th June 2020, as Legal Observers.

Their role as Legal Observers on 6th June 2020 at Parliament Square and on 7th June 2020 at the US Embassy was as independent observers, monitoring and recording police behaviour and actions during protests while BLM protesters exercised their fundamental and internationally protected right to protest and free assembly. The presence of Legal Observers was even more important following the Met police’s use of kettling (a crowd containment practice) over several hours on both Saturday and Sunday evening.  Legal Observers provide a vital function in supporting the right to protest, by holding police accountable through contemporaneous note taking or recording of police action on the day and by ensuring protesters and activists know where to get legal support, what to do if they are arrested or subject to kettling.

It is critical that police are held accountable for their actions both in the context of the Black Lives Matter protests and more broadly in addressing police brutality against black people in the UK, who are overly policed, disproportionately affected by police violence and have a higher chance of receiving a custodial sentence.  Those politicians who suggested, over the weekend, that the BLM protests in the UK are only about calling for justice for George Floyd are somehow ignorant or unwilling to engage with widely publicised reports of ongoing discrimination and institutional racism in the UK.

This is a time for reflection. The government must examine the extensive data that already exists revealing the toxic reach of racism and discrimination in the UK, and look for new and better ways to police, to educate, and to improve access, equality and representation. The government must engage not only with Britain’s colonial legacy and role in the slave trade, but with the voices of generations of black people in this country that have, for too long, gone unheard.

So too must the Bar actively address and combat racism, open up conversations, listen to and increase efforts to end discrimination against black barristers and other minorities and enable further access to and continued professional development in our profession.

1MCB Chambers was founded as a radical set, dedicated to upholding equal access to justice. It owes its dedication to anti-racism and discrimination to its first head of chambers Len Woodley QC, the first Afro-Caribbean barrister in Britain to become Queen’s counsel, a recorder (part-time judge, 1989-2000) of the Crown court and a bencher of the Inner Temple.  Our members have dedicated their careers to the furtherance of anti-racism and accountability. That is reflected in our diverse practice areas including actions against the police, representing protesters in criminal and civil matters, and representing the Commission for Racial Equality in the Stephen Lawrence Inquiry.

We will not stop there. 1MCB Chambers is committed to our founding principles and stands in solidarity with the global community condemning violence and discrimination against black and minority communities. We will continue to support all those fighting for accountability and justice, and will continue to support the Black Lives Matter movement in the UK and internationally in whatever ways we can.

We are extremely grateful to Black Protest Legal Support UK for galvanising the legal community into action through training and supporting the presence of Legal Observers at the London protests.

Headline quote by Cynthia McFarlane.

1MCB Chambers was founded forty years ago and remains committed to providing exceptional representation to all sectors of the community.  We are a genuinely diverse community of barristers, dedicated to promoting social justice, civil liberties and access to justice.

We are looking to recruit outstanding silks and junior practitioners across all of our practice areas, who are committed to our ethos, innovative and want to contribute to the life of Chambers.

What we offer

1MCB Chambers is committed to supporting its members and offers a flexible working environment for those with caring commitments outside of work or those who require reasonable adjustments.  We welcome applications from those returning to the Bar and run a return to work mentorship scheme.

As a tenant at 1MCB Chambers, you will benefit from:

• A positive and collaborative working environment;
• Opportunities and support to progress your practice;
• A professional team of clerks and excellent fee collection;
• Competitive terms for high earners;
• Wellbeing support services;
• Strong links with community organisations and legal charities, both in the UK and internationally;
• Fluidity between teams that promotes sharing of knowledge and ideas between practice areas.

How to apply 

We invite applications from individuals or from groups.

To join a vibrant and creative team of lawyers, please send your CV and completed application form to tenancy@1mcb.com. All applications will be treated in strictest confidence.

The tenancy committee will review your application and contact you about an interview.  Interviews will focus on

• your experience and practice;
• your reasons for wanting to join 1MCB Chambers;
• any work that demonstrates an affinity with Chambers’ ethos; and
• your plans for developing your practice.

Chambers is committed to the Equality & Diversity Code for the Bar.

In line with our commitment to access to justice and to representing all sectors of the community, and in particular disadvantaged groups, 1MCB’s immigration team has issued a joint statement with 19 other chambers in response to legal aid changes.

Procedural changes in the First-Tier Tribunal (Immigration and Asylum Chamber) introduced in the wake of Covid-19 have altered the way appeals are run. This means that appellants are now required to submit an Appellant’s Skeleton Argument ahead of a Case Management Hearing. The new fixed fee proposed in the Amendment to the Civil Legal Aid (Remuneration) Regulations 2013, however, does not provide adequate funding for legal aid barristers or solicitors to carry out the work required under the new regime.

Over the years, remuneration for legal aid work has  been subjected to deep cuts and working within this area is all too often a balancing act. Failure to provide a fair payment scheme for the new procedural requirements will impact access to justice.

In response to these changes, the members of 1MCB’s immigration team have made the difficult decision to adopt the following policy in relation to legal aid fixed fee cases:

Other than in exceptional circumstances, each member of the immigration team of the chambers listed below will not accept instructions under the ‘Reform Procedure’ to prepare an ‘Appeal Skeleton Argument’, unless specific provision is made for that work to be adequately remunerated.

The same policy has been adopted by members of immigration teams across the UK, including:

4 King’s Bench Walk Immigration Team

10 King’s Bench Walk Immigration Team

36 Public and Human Rights, The 36 Group

Broadway House Immigration Team

Doughty Street Chambers Immigration Team

Garden Court Chambers Immigration Team

Garden Court North Chambers Immigration Team

Goldsmith Chambers Immigration Team

Hirst Chambers

Justitia Chambers

KBW Chambers Leeds

Kenworthy’s Chambers

Lamb Building Immigration Practice Group

Landmark Chambers Immigration Group

Matrix Chambers Immigration Team

No. 5 Immigration Group

No. 8 Immigration Team

One Pump Court Immigration Team

Trinity Chambers

The Immigration Law Practitioners’ Association has prepared a detailed breakdown of the Regulations and their impact. ILPA have consistently recommended that practitioners are paid hourly rates for their work.

The Bar Council has issued a statement and fully supports ILPA’s position. The Law Society has also expressed serious concerns, including the difficulties in reaching the new “escape fee” limit.

Should you wish to discuss an appeal and how this policy will affect our work, please contact our Senior Civil and Family Clerk, Tim Markham.

In the third instalment in a series of blogs examining workers’ rights during the Covid-19 pandemic, employment barristers Michael Sprack and Amrit Bachu analyse employers’ obligations to ensure the safety of workers and consider the practical steps available to workers who are concerned about returning to work following the government’s latest announcement.

To read the post, click here.

1MCB’s crime team is pleased to present a series of webinars to enable you to continue to meet your CPD requirements during lockdown.

14th May

Coronavirus, lockdown and sunbathing restrictions: law or advice?

Michael Chambers

28th May

Modern slavery and human trafficking: current developments

John Benson QC

9th July

Police officers and gang evidence: independent experts or prosecution witnesses?

Ishan Dave

Each of the webinars will be held via Zoom, and will start at 6pm.

To register your interest in any or all of these sessions, please email Adam Brosnan.

Ishan Dave acted as sole counsel for LG who was charged with attempted murder together with 13 other defendants.

The attack was on an alleged rival gang member, the allegation being that the victim had been spotted in a London Probation office by two co-defendants, who were then seen on CCTV to use their mobile phones to alert others of the victim’s presence.  The majority of the incident was captured on CCTV from inside the Probation office and from cameras in the nearby streets.  Within minutes of the mobile phone usage, a large group of males gathered outside the Probation office in question, including LG who arrived at the scene in a car, along with a passenger.  Seconds later, the victim emerged from the Probation office and was chased and attacked by the waiting group.  LG followed the chasing group in his car whilst the passenger filmed part of the attack on his mobile phone.  The victim suffered multiple stab wounds.  The defendant’s car was recovered shortly afterwards and  a number of knives and machetes were recovered from the boot.

At trial, Ishan established, through careful analysis of the CCTV evidence and the video recording taken by the passenger,  that his client had arrived in the vicinity by chance and had reversed his car away from the scene of the attack before it had really begun.  In addition, there had been little interaction with any of the waiting group and no evidence of recent telephone communication.  The officer in charge of the case, when cross examined, had to accept that on the evidence, LG did not even get out of his car or make any attempt to assist the attackers.

The case involved detailed and lengthy legal argument, not only in relation to joint enterprise, but also as to the admissibility of evidence of alleged gang affiliation.  The Crown sought to call expert evidence from a member of the Met Police Gangs Unit to establish that this was a revenge attack on a rival gang member: the defence successfully challenged his status as an expert witness as well the admissibility of the evidence itself.

LG was unanimously acquitted following a lengthy trial.

In the second of a series of blog posts looking at the implications of the current lockdown on workers’ rights, employment and discrimination barristers Michael Sprack and Amrit Bachu consider the protections available to disabled workers who are shielding.

Read their analysis here.

The unprecedented times brought on by the global pandemic of Covid-19 have resulted in the country being on lockdown since 23rd March. Reports have reflected an expediential rise in those seeking help with domestic abuse. In collaboration with US organisation, Positive Links, Christina Warner will explore the reasons for the rise in complaints and discuss whether the figures are an accurate depiction of vulnerable households during quarantine.

To join the webinar on 6th May, register here.