Experts And Temporary Leave To Remove From Jurisdiction

AB (A Child: Temporary Leave To Remove From Jurisdiction: Expert Evidence) [2014] EWFC 2758 is an important case where an arranged marriage broke down and during the course of private law proceedings the mother wanted to take her six year old child to India, a non-Hague Convention country, for a three-week holiday. The mother, who arrived in the UK by virtue of her marriage, did not wish to return to India for good and provided assurances about coming back to the UK after three-weeks. The court considered an expert report used in another, similar, case, from a dually qualified lawyer in Indian and English law. The expert concluded that the father would have to take lengthy court proceedings in India, and that orders made by the High Court in England would be one of many factors weighed in the balance and the Indian courts would inevitably give independent judgment on merits having regard to the welfare of the child.

The family is Sikh. The father feared that once in India by the mother’s family – her father being a sarpanch (an elected head of a village level statutory institution of local self-government, a panchayat or village government) – could use the son as a bargaining tool in support of an attempt to claim some of his family’s land in India. For him, in the event that the mother wished to go and see her family then he and his parents would very gladly care for their son whilst she makes her trip. Continue reading

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Lord Neuberger: the Price of Liberty is Eternal Vigilance

Lord Neuberger PSCOn 26 August 2014, Lord Neuberger of Abbotsbury PSC delivered a speech entitled The Third and Fourth Estates: Judges, Journalists and Open Justice at the Hong Kong Foreign Correspondents’ Club. It can be viewed here and despite the seriousness of the issues he debated, Lord Neuberger nevertheless charmed and humoured his audience during the course of his luncheon address. Genuinely enforceable rights under the rule of law – central to a civilised society – accessible by everyone remained at the heart of his Lordship’s thoughts. “Rights which are unenforceable are as bad as no rights at all,” he said and “the rule of law also requires the honest, fair, efficient and open dispensation of justice,” he explained further. Lord Neuberger made no secret of his view that for the rule of law to prevail, judges must not only be independent, honest, fair, and competent but the public must also perceive them as having these qualities. He said that it was obvious that judicial jobbery fatally undermined the rule of law.

His Lordship moreover clarified that “an incompetent or unfair judge is almost as much of a contradiction in terms as a dishonest judge” and emphasised that the judiciary’s duty of fairness – i.e. the equal application of the law regardless of age, class, gender etc. – is well reflected in lady justice being portrayed as blind in western art. Stressing that the separation of powers between the legislature, the executive and the judiciary (which in addition to being impartial must also be independent from the executive’s meddling, influence and interference) is crucial to the rule of law, Lord Neuberger neatly explained that: Continue reading

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Litany of Forensic Criticisms Unacceptable in Appeals

VHR (unmeritorious grounds) Jamaica [2014] UKUT 367 (IAC)

This is an interesting decision of the Upper Tribunal (Haddon Cave J & UTJ Hanson) where it decided that appeals should not be mounted on the basis of a litany of forensic criticisms of particular findings of the First-tier Tribunal, whilst ignoring the basic legal test which the appellant has to meet. At first instance, the FtT panel had dismissed this appeal involving a Jamaican appellant (A), a forty one year old with children in the UK born out of multiple relationships, who had appealed against the SSHD’s decision to make an automatic deportation order triggered by his conviction for the offence of wounding with intent to do grievous bodily harm committed in July 2010. The UT was hypercritical of legal aid barrister of the year S Chelvan. However, it is noteworthy that Haddon Cave J’s dubious EU law analysis in McCarthy & Ors [2012] EWHC 3368 (Admin) has recently been impeached by AG Szpunar – whose Opinion was also partially criticised by Professor Peers for chasing a “semantic butterfly” – in Case C-202/13 McCarthy.

A claimed he entered the UK in December 2001. He was removed for overstaying in 2004 but re-entered in 2005 and was granted ILR as the spouse of a settled person in 2008. In 2011, while sentencing A to four years’ imprisonment on the basis that his victim would recover, HHJ Roach said the wounding was doubly serious because A not only carried a knife but used it to cause irreversible harm to his victim’s dominant left hand. Continue reading

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Defence of Illegality Inapplicable to Trafficked Nigerian Woman’s Discrimination Claim Says Supreme Court

220px-Mansfield_OldHounga v Allen & Anor [2014] UKSC 47 (30 July 2014)

“A small claim generates an important point”, said the Supreme Court in this intriguing case regarding the circumstances in which the defence of illegality should defeat a complaint by an employee that an employer has discriminated against her by dismissing her in breach of section 4(2)(c) of the Race Relations Act 1976 – subsequently subsumed by section 39(2)(c) of the Equality Act 2010. In January 2007, at age 14, Miss Hounga (H), a Nigerian national, the appellant (in employment rather than immigration proceedings), entered the UK by assuming a false identity under which the UK immigration authorities granted her a visitor’s visa for six months. She came to work (without the right to do so) as a domestic servant for Mrs Allen (A), a dual Nigerian and British national, who “arranged” her entry into the UK. H appealed the Court of Appeal’s decision that her race discrimination claim against A failed because of the illegality of her contract of employment.

H was not paid for looking after A’s children and was seriously physically abused and threatened that if she left A’s house – from where she was ultimately ejected in July 2008 – the authorities would put her in prison because she did not have a visa. Apart from the human trafficking aspect, that lead the Supreme Court to touch upon some international law and jurisprudence, this case also produced significant analysis of contract and tort. Indeed, the towering figure of Lord Mansfield (LCJ, 1756–1788, see 2013 biography Justice in the Age of Reason ) – who famously held that, irrespective of the laws of the colonies, slavery had no legal basis in England and Wales – is also remembered in this judgment (albeit for different reasons). Continue reading

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Advocate General Sharpston: Charter Constrains “Verifying” Asylum Claimants’ Sexual Orientation

In her recent Opinion in Joined Cases C-148/13, C149/13 and C-150/13, A, B and C, AG Sharpston agreed with the view that “an individual’s sexual orientation is a complex matter, entwined inseparably with his identity, that falls within the private sphere of his life.” She observed that homosexuality is not considered a medical or psychological condition in the European Union (EU) and no medical test exists to determine sexual orientation. She considered the pseudo-medical test of phallometry, focusing on the subject’s physical reaction to pornographic material, to be a “particularly dubious” method to confirm homosexual orientation. She thought that any medical examination to confirm sexual orientation violates article 3 (right to integrity of the person) and article 7 (respect for private and family life) of the Charter of Fundamental Rights of the European Union (CFR) and also falls foul of the proportionality requirement under article 52(1). Therefore, AG Sharpston concluded that establishing a gay asylum claimant’s credibility using a medical test is a terrible idea. The question posed by the referring court, the Raad van State (Netherlands), was abstractly expressed in the following terms:

What limits do the Qualification Directive, and the Charter, in particular articles 3 and 7 thereof, impose on the method of assessing the credibility of a declared sexual orientation, and are those limits different from the limits which apply to assessment of the credibility of the other grounds of persecution and, if so, in what respect?

Continue reading

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Arden LJ on CSIC and Permanent Residence

th-12Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988 (16 July 2014)

Should the spouse of an economically inactive EEA citizen, i.e. a national of one of the member states of the EU or of one of the countries in the European Economic Area (“EEA”), be entitled to permanent residence without the citizen holding Comprehensive Sickness Insurance Cover (“CSIC”)? The Court of Appeal said otherwise and answered this question in the negative. Arden LJ (with whom Beatson & Sharp LJJ agreed) held that in circumstances where an EEA citizen resided in the UK but was economically inactive, the right of such a citizen’s spouse to permanent residence was conditional upon the EEA citizen holding comprehensive sickness insurance cover as laid down in article 7(1) of Directive 2004/38/EC (“the Directive”). The conditions in article 7(1) required strict compliance and the right to a permanent residence card was a privilege that was not conferred unless they were met. Similarly, the EEA citizen’s entitlement to free healthcare under the National Health Service (“NHS”) did not alter this conclusion.

Arden LJ made it extremely clear at paragraph 72 that the conditions in article 7(1) must not be interpreted dynamically. Instead, in line with the CJEU’s decision in Case C-140/12 Pensionsversicherungsanstalt v Brey [2014] 1 WLR 1080, the conditions required strict and literal interpretation but remained subject to the general principles of EU law such as proportionality. Continue reading

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Retained Right of Residence Question Referred

NA v Secretary of State for the Home Department & Anor [2014] EWCA Civ 995 (17 July 2014)

In this case, the Court of Appeal (Lord Dyson MR, Sullivan & Sharp LJJ) referred to the CJEU the question whether, in order to retain a right of residence under article 13(2) of Directive 2004/38/EC, a third country national ex-spouse of a Union citizen must be able to show that their former spouse was exercising Treaty rights in the host Member State at the time of their divorce? An application for permanent residence – on the basis that upon divorce the applicant had retained a right of residence under regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 – made by Nazia Ahmed (NA, the appellant) in September 2009 was refused in March 2010. This was because although NA demonstrated that she had worked as a self-employed carer between 2007 and June 2011, she had failed to show that her former husband was exercising Treaty rights in the UK at the time of the divorce.

The Upper Tribunal ([2013] UKUT 89 (IAC), Lang J & Judge Storey) found that NA did not have a retained right of residence under article 13(2) but that she did have a right of residence under both article 20 of the Treaty applying Case C-34/09 Zambrano [2012] QB 265 principles and article 12 of Regulation 1612/68. The tribunal also allowed her appeal on article 8 ECHR. The Home Secretary’s appeal against the tribunal’s decision that NA had a right of residence on article 20 and article 12 grounds has been adjourned but she has not appealed against the tribunal’s decision to allow NA’s appeal on article 8 ECHR. Continue reading

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