Sedley said

Lord Justice Sedley has been a great influence on human rights law and lawyers alike. He is an example of an English judge who took a no-nonsense approach to interpreting the law. Equally, in performing his judicial duties, Sedley LJ has extracted apologies from major newspapers whose reporting he viewed as damaging to his professional reputation. For anyone working in public or human rights law, Sedley LJ is a Herculean champion of justice.

Sedley LJ sat as a judge of the Court of Appeal from 1999 until early 2011 and during his tenure he has pronounced a litany of judgments. The first time I went to the Court of Appeal in 2005 (as Mr Ramby de Mello’s mini-pupil in the Master of the Rolls Court), Sedley LJ informed Ramby that he could not see the relevance of the SQV Scheme to a Yemeni asylum seeker’s case!

I must confess that I have not acquired Sedley LJ’s collection of essays entitled Ashes and Sparks as yet (however, I am certain that these are superb) but hope to do so imminently. All one can wonder is whether another judge will be able to fill Sedley LJ’s Shoes? Only time will tell.

This post recalls some of the things which Sedley has said. Anyone wishing to add to the extracts below should please leave a reply under this post and the name of the case so that I may add to the list below.

I. Entry Clearance Officer (Mumbai) v NH (India) [2007] EWCA Civ 1330 (13 December 2007) at paragraph 4:

“It is not too much to ask that counsel, like the rest of the world, should understand and follow these straightforward directions and that solicitors should not lodge documents that do not comply with them.”

II. Patel, Modha & Odedra v Entry Clearance Officer (Mumbai) [2010] EWCA Civ 17 (25 January 2010) at paragraph 10:

“If the evidence before us is representative, this is boiler-plate decision-making. It fails to engage in any meaningful way with the issues raised by the application. It is also illogically organised. Until it is established that refusal of clearance will involve a significant disruption of an applicant’s family life, article 8 of the Convention (not of the Human Rights Act) has no application. It is only if and when the character and extent of such a disruption is established that its proportionality can be gauged. Such decision-making has the unfortunate effect of suggesting that the decision-maker does not fully understand his or her task.”

III. Quila & Ors v Secretary of State for the Home Department & Ors [2010] EWCA Civ 1482 (21 December 2010) at paragraph 45:

“In my judgment the question whether the spouse of a United Kingdom national who exercises the right to marry is entitled prima facie to the benefit of the other spouse’s right of abode without interference under the immigration rules is not concluded by any Strasbourg authority. (I say prima facie because I would not wish to exclude cases in which there are good grounds, such as criminality, for excluding the non-national spouse.) It is, however, the subject of domestic authority.”

IV. VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5 (16 January 2009) at paragraph 50:

“In my judgment, despite the elements which are capable of telling against the art. 8 claim, the enforced break-up of this family – the more so, not the less, if the break-up is to be only temporary – is not justified by the legitimate demands of immigration control. The appellant is a failed asylum-seeker but no more; her partner has no job at present, but he is her child’s father and joint carer and this country is his home. Above all, consideration is owed to a child who is a British citizen and who, whatever was to follow from her mother’s removal, would be the principal sufferer. In the end there is only one right answer.”

V. Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 (23 June 2010) at paragraph 1:

“Although the issue which each of these appeals raises looks on its face marginal almost to the point of triviality, it is an issue of constitutional importance and of real difficulty. The issue is whether the executive, in rules which are required, subject to parliamentary oversight, to set out how it proposes to exercise its statutory functions, can lawfully reserve to itself the power to add to or modify those rules. It raises questions about the constitutional status of the immigration rules and about their relation to departmental policy and human rights.

At paragraph 17:

“There is no point in lamenting that things are not as they used to be or that constitutional lawyers no longer know where they are. In the United Kingdom, as the late Professor J.A.G. Griffith memorably said, the constitution is what happens. But to acknowledge, as the courts have done more than once, that the immigration rules are sui generis tells one nothing about what the genus is. In my judgment the time has come to recognise that, by a combination of legislative recognition and executive practice, the rules made by Home Secretaries for regulating immigration have ceased to be policy and have acquired a status akin to that of law. Because they derive from no empowering primary legislation, they cannot be subordinate legislation or therefore open to conventional ultra vires challenges. But as an exercise of public power, which they undoubtedly are, they can be no more immune to challenge for abuse of power or for violation of human rights than any other exercise of the prerogative power, including prerogative Orders in Council … (Emphasis added.)

At paragraph 23:

“Counsel, to whom we are indebted for having together presented an economical and orderly set of documents and arguments, have agreed that the questions for the court are …

At paragraph 35:

“Such potential anomalies are going to be an inevitable by-product of this kind of hybrid provision which conforms to no previously understood model. But the law, faced with it, cannot simply abandon a constitutional principle which for four centuries has stood as a pillar of the separation of powers in what is today a democracy under the rule of law. The answer has to be that ministers are to be expected to do what is required of them: Parliament will expect the Home Secretary to lay before it any rules by which he or she proposes to manage immigration; the courts will expect such rules, like any other source of law, to be those and only those which have Parliament’s approval; and appellate tribunals will expect to find in the rules the certainty which rules must have if they are to function as law. If for some reason this model breaks down, the courts or the legislature will have to decide how to fix it. (Emphasis added.)

Finally, at paragraph 46:

“If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route.” (Emphasis added.)

VI. TE (Eritrea) v Secretary of State for the Home Department [2009] EWCA Civ 174 (11 March 2009) at paragraph 18 (not entirely happy with Mr Kovats QC):

This seems to me both a counsel of despair and a somewhat eccentric approach to public policy.  The state has, or ought to have, an interest in not multiplying administrative proceedings and appeals, especially where the facts and issues overlap and where segregating them creates uncovenanted difficulties for the individual.  If, by inviting submissions as to why removal should not follow if the application for variation of leave is refused, a comprehensive decision can be arrived at and if necessary appealed, there can be few cases in which this would not be the right course to take.” (Emphasis added.)

VII. Tiensia v Vision Enterprises Ltd (t/a Universal Estates) [2010] EWCA Civ 1224 (11 November 2010) – The Deposit Protection Scheme case – at paragraph 51:

“What is a matter for us is the converse: that to sanction compliance at any time up to the moment of judgment is to eviscerate the legislative scheme. Not only the innocent defaulter but the scheming one can evade the penalty with ease. The only lessor likely to be taken to judgment is one who has appropriated the money and is no longer worth powder and shot (since otherwise he would have paid at the eleventh hour into a scheme).” (Emphasis added: and too right he was yet again.)

Lord Justice Sedley was (and indubitably still is) a great trendsetter in interpreting the law. Accordingly, his judgments (which provided the most masterful of legal expositions) will be very sorely missed – not just by lawyers in this jurisdiction, but by public and human rights lawyers worldwide.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Cases, Court of Appeal, ECHR, Sedley LJ and tagged , , , . Bookmark the permalink.

3 Responses to Sedley said

  1. Thom Dyke says:

    Ashes and Sparks is an excellent collection – I reviewed it on the Guardian this week:

  2. mkp says:

    Thanks Thom, hope to get a hold of it this week. What an inspiration for everyone in the legal profession the man has been. Hats off to his greatness, I was looking forward to him in the UKSC but alas it is not to be (as you clarified in your article). Cheers!

  3. mkp says:

    Just to clarify, Mr de Mello had only mentioned the SQV Scheme as an example of discrimination and he had not related it to Yemen in any geographic sense.

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