Category: News

In a recent success before the First-tier Tribunal (Immigration and Asylum Chamber), Sonya Kalyan, instructed by J M Wilson Solicitors, secured the allowing of an asylum and human rights appeal for a Sierra Leonean national who had fled sustained threats, abuse, and persecution linked to both gender-based violence and imputed political opinion.

The Tribunal, presided over by a First-tier Tribunal Judge (“FTTJ”), allowed the appeal on asylum, Article 3, and Article 8 ECHR grounds, finding the appellant to be a credible witness who faced a real risk of persecution and serious harm on return to Sierra Leone.

Background and Context

The appellant’s claim centred on two interlinked narratives: her exposure to gender-based abuse and victimisation as a woman activist in Sierra Leone, and her risk arising from her association with her father, a long-standing political critic of the Sierra Leonean government residing in the United States.

Educated to university level, the appellant had engaged in campaigns promoting women’s rights and tackling sexual harassment in professional settings. She used the platform of a national beauty pageant to raise awareness of gender inequality; an event which later attracted political controversy when her father publicly accused the government of tribal bias and corruption in the selection process. His social media broadcasts, viewed widely within Sierra Leone and the diaspora, directly identified her by name.

Following these events, the appellant was subjected to sustained online abuse, threats, and harassment, forcing her into hiding. In the aftermath, her mother was targeted by unknown men believed to be linked to state authorities and later died in custody under suspicious circumstances.

Having entered the UK lawfully as a student, the appellant’s situation worsened when a former partner circulated intimate images of her online without consent; an experience which led to profound psychological trauma and reinforced her sense of exposure and danger.

The Home Office accepted the appellant’s identity and her father’s political profile but rejected her account as lacking credibility, alleging inconsistency and insufficient corroboration. It contended that she would not face persecution on return and could safely relocate within Sierra Leone.

Legal Framework

The case was determined post-Nationality and Borders Act 2022 regime, requiring the Tribunal to apply the two-stage test in section 32 NABA 2022, as clarified by JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 100 (IAC).

The FTTJ summarised the legal framework by reference to:

1. MAH (Egypt) [2023] EWCA Civ 216, on the proper approach to credibility assessment in asylum claims;
2. Paposhvili v Belgium [2017] Imm AR 867 and AM (Zimbabwe) [2020] UKSC 17, concerning Article 3 ECHR medical claims; and
3. TZ (Pakistan) & PG (India) [2018] EWCA Civ 1109, confirming that satisfaction of the Immigration Rules on private life is positively determinative of proportionality under Article 8.

The appellant’s protection claim relied on two Convention grounds:

1. Imputed political opinion, derived from her father’s political activism; and
2. Membership of a Particular Social Group (PSG), as a single woman in Sierra Leone, a group the Home Office accepted faced discrimination and societal disadvantage.

Representation and Advocacy

At the outset of proceedings, Sonya successfully applied for the appellant to be treated as a vulnerable witness, relying on the detailed Report prepared by a Clinical Psychologist. The Tribunal accepted that the appellant suffered from moderately severe Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD), and accordingly applied the Joint Presidential Guidance Note No. 2 of 2010 to ensure appropriate procedural adjustments.

During the hearing, Sonya made detailed oral submissions supported by a comprehensive Appellant’s Skeleton Argument, engaging directly with both the credibility issues and the evidential gaps raised in the refusal letter.

Her submissions highlighted:

1. The internal consistency and plausibility of the appellant’s account, including her explanations for delays in claiming asylum, supported by her mental health evidence;
2. The gendered dimension of the persecution faced, including cyber-harassment and the misuse of intimate imagery as a tool of intimidation, contextualised by country expert evidence;
3. The report of the Country Expert, which confirmed that women in Sierra Leone continue to face entrenched patriarchal barriers, limited state protection, and impunity for sexual and technology-facilitated violence; and
4. The absence of any meaningful family support network or access to treatment in Sierra Leone, reinforcing both her risk and the “very significant obstacles to reintegration” under Appendix Private Life of the Immigration Rules.

In addressing the Respondent’s reliance on section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, Sonya advanced a nuanced argument that delay in claiming asylum was explicable and did not go to the core of the claim, given the appellant’s psychological fragility and cultural stigma surrounding sexual violence.

She further submitted that the combination of the appellant’s gender, public profile, mental health, and absence of family support rendered internal relocation unduly harsh and unsafe, engaging both Articles 3 and 8 ECHR.

The Tribunal’s Findings

The Tribunal accepted the appellant’s evidence as credible, consistent, and corroborated by both the expert and medical material. The FTTJ expressly found that the appellant possessed characteristics engaging the Refugee Convention and faced a real risk of persecution on return.

In particular, the Tribunal held that:

1. The appellant’s father’s political activity placed her within the scope of imputed political opinion, and her own visibility as his daughter made her identifiable to state actors;
2. Single women in Sierra Leone constitute a PSG due to societal discrimination, lack of protection, and exposure to violence;
3. The appellant’s previous victimisation through “revenge porn” and her trauma-related mental health conditions significantly heightened her vulnerability;
4. There was no sufficiency of protection available and no viable internal relocation alternative as conceded by the Home Office; and
5. Given her health and lack of support, there were very significant obstacles to reintegration, and her removal would result in unjustifiably harsh consequences, breaching her Article 8 rights.

The Tribunal found that the appellant’s treatment and anticipated harm on return would amount to persecution for Refugee Convention reasons and to a violation of Articles 3 and 8 ECHR. The appeal was therefore allowed on all grounds.

Significance of the case

This case underscores the growing recognition within the asylum framework of gender-based persecution, particularly where intersecting vulnerabilities, such as online abuse, mental health conditions, and political imputation, coalesce to create real risk on return.

It also illustrates the practical operation of the Nationality and Borders Act 2022’s evidential framework, and how careful case preparation, expert evidence, and trauma-informed advocacy can ensure that credibility is assessed holistically and fairly.

The decision affirms that women facing both gendered harm and political association risk are entitled to the full protection of the Refugee Convention, and that “revenge porn” and technology-facilitated abuse can amount to serious persecution where state protection is ineffective.

Conclusion

Through detailed case preparation, careful management of vulnerability, and persuasive submissions grounded in expert and medical evidence, Sonya Kalyan succeeded in establishing that her client’s fear of persecution was both credible and well-founded, and that removal would breach her fundamental human rights.

Sonya continues to accept instructions in complex immigration and asylum matters, including those involving challenging factual matrix and country contexts.

To instruct Sonya, please contact the chambers’ immigration clerk at immigration@halcyonchambers.com.

The views stated in this article belong to the writers in a personal capacity. No warranty is given, express or implied, in respect of the contents of this article. Nothing in this article is tendered as or is intended to be taken as legal advice and the contents should not be construed or relied upon as legal advice. Specialist legal advice should always be taken in every case noting that the application of the law may vary according to the individual facts of the case and the nature of the dispute.

The family court is frequently tasked with determining applications under section 8 of the Children Act 1989 (“the Act”).

However, with competing positions, interests and allegations, how is the court to determine, for example, with whom the child should live, or whether one parent should be prevented from taking certain steps they would ordinarily be entitled to take? Such orders naturally and necessarily infringe on the rights a parent would normally enjoy by virtue of their parental responsibility and are therefore serious orders with significant consequences for the child and their parents.

How does the court go about making such important decision? The court normally orders the production of a welfare report under section 7 of the Act, which provides:

“7 Welfare reports.

(1) A court considering any question with respect to a child under this Act may—
(a) ask an officer of the Service or a Welsh family proceedings officer; or
(b) ask a local authority to arrange for—
(i) an officer of the authority; or
(ii) such other person (other than an officer of the Service or a Welsh family proceedings officer) as the authority considers appropriate,
to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report.”

Frequently, but not exclusively, Cafcass are tasked with producing the report[1]. The role of Cafcass is outlined on their website:

 “We independently advise the family courts about what is safe for children and in their best interests. We focus on their needs, wishes and feelings, making sure that children’s voices are heard and are at the heart of the family court’s thinking and decision making. Our duty is to safeguard and promote the welfare of children going through the family justice system.” [2]

The aim of the section 7 report is to establish what is happening for the subject child, to analyse their situation and, applying the welfare checklist, make recommendations in their best interests. Therefore the advice given by Cafcass in a section 7 report is of central importance to the court in reaching its decision; ultimately they are the independent professionals who give recommendations.

The court therefore rightly places a great amount of reliance on the section 7 report when deciding what orders, if any, to make. This was highlighted by Thorpe LJ in Re W (residence) [1999] 3 FCR 274:

“Judges are hugely dependent upon the contribution that can be made by the welfare officer, who has the opportunity to visit the home and to see the grown-ups and the children in much less artificial circumstances than the judge can ever do.”

However, the section 7 report is not the final word as the court is always the ultimate arbiter of the welfare best interests of any child. In Scott v Scott [1986] 2 FLR 320 Dillon LJ highlighted the point, noting that the role of Cafcass is to:

“…investigate the circumstances of the child or children concerned and all the important figures in their lives, so as to provide the court with reliable factual observations and factual details which will be the base on which a Judge can form his own opinion.” (emphasis added).

Therefore, the question is when can a court depart from the recommendations of a Cafcass officer?

Firstly, the court should have an evidential basis to justify a departure from the recommendations of the section 7 report.  In Re B (Care: Expert Witnesses) [1996] 1 FLR 667, Ward LJ stated:

“The expert advises but the Judge decides. The Judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court, which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the Judge suspends judicial belief simply because the evidence is given by an expert.”

And Butler-Sloss LJ added:

“An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for the Judge to give reasons for disagreeing with experts’ conclusions or recommendations. That, this Judge did. A Judge cannot substitute his own views for the views of the experts without some evidence to support what he concludes.” (emphasis added).

Secondly, Butler-Sloss LJ highlights the requirement to give reasons when recommendations are not followed, pursuant to the authorities of W v W (A Minor: Custody Appeal) [1988] 2 FLR 505 and Re W (Residence) [1999] 2 FLR 390, which were subsequently confirmed in Re R (Residence Order) [2010] 1 FLR 509 where Ward LJ stated at paragraph 36:

“Mr Hepher draws our attention to Re W (Residence) [1999] 2 FLR 390 at 395 where Thorpe LJ said:

“… Authority has established clearly, since at least the decision of this Court in W v W (A Minor: Custody Appeal) [1988] 2 FLR 505, 513, that judges are not entitled to depart from the recommendation of an experienced court welfare officer without at least reasoning that departure.”

Thirdly, Re R also deals with the important issue of whether the court is required to explore with the Cafcass Officer in oral evidence any issues they may have with their recommendations and any potential departure they may have in mind.

The decision of the court was not unanimous on the issue with Ward LJ dissenting. Rix LJ and Moore-Bick LJ concluded that, unless there are strong reasons to do otherwise, in a report with clear recommendations that a judge should hear from the Cafcass officer before reaching a different conclusion. This follows the earlier decision of Re A (Children: 1959 UN Declaration) [1998] 1 FLR 354 which “emphasises the importance of the judge testing any misgivings that he may have developed from the written report of the welfare officer in the witness box.”[3]

In Re R Rix LJ stated at paragraph 59:

“Similarly, I consider that the judge has erred in rejecting Dr Cochrane’s conclusions without hearing Dr Cochrane for himself. It is widely recognised in the authorities that this should not happen if it can be avoided. Thus in Re CB (Access: Attendance of Court Welfare Officer) [1995] 1 FLR 622 at 629(CA), Purchas LJ said:

‘In cases where there are clear-cut recommendations and warnings such as those present in the second report, as indeed there were in the first report, in my judgment, it is wrong for a judge to proceed to form conclusions directly contrary to such recommendations without availing himself of the opportunity of receiving further assistance from the court welfare officer in the form of evidence. It is open to the judge to adjourn the case and demand the presence of the court welfare officer. The court welfare officer may vary his opinion in the light of the evidence or in the light of points put to him by the judge or, alternatively, he may hold his opinions. Whichever event occurs, the judge, having availed himself of the opportunity of receiving the further evidence, may then make his decision applying his own discretion. But to apply his discretion without availing himself of that opportunity is, in my judgment, a defective exercise of discretion.’

In Ward LJ’s dissenting judgment on this issue, he interpreted Re CB as recognising that it is a matter of discretion as to whether court needs oral evidence from Cafcass[4]. He also highlighted the practical difficulties of have a Cafcass officer available every time to give oral evidence, referencing the potential delays and “procedural straitjacket”[5] mentioned by Hale J in Re C (Section 8 Order: Court Welfare Officer) [1995] 1 FLR 617.

However, Rix LJ addressed the decision of Re C at paragraph 60:

“In Re C (Section 8 Order: Court Welfare Officer) [1995] 1 FLR 617, the judge upheld the status quo (residence with the mother) in accordance with (and not contrary to) the slight preference of the court welfare officer, but the complaint of the father was that he should not have done so without adjourning to permit the officer to attend. However, the judge had been able to see the teenage boy in question to obtain his own views. This court dismissed the appeal, upholding the judge’s exercise of discretion not to adjourn. Hale J said that where a report was without any firm recommendation in any particular direction, it was unnecessary to adjourn and it would have been open to the judge to conduct his own evaluation of the relevant considerations and to weigh them slightly differently, even in favour of the father, without the presence of the court officer. She added (at 620):

‘Thus the case of Re CB cannot be a hard-and-fast rule of law. Procedural straitjackets in cases of this kind would be most undesirable, especially in the light of the balancing act which is required by the paramount consideration of the child’s welfare and the provisions as to delay in s 1(2). Many factors will have to be taken into account in the exercise of the court’s discretion. These will include how much further assistance the court welfare officer can give, and the extent to which it would be safe and proper to depart from any recommendations made.’

Rix LJ upheld the principle espoused by Hale J in Re CB that in marginal cases, without clear recommendations in either direction, the court is entitled to conduct its own evaluation and reach its own conclusions without hearing from the Cafcass officer. He appears to have concluded that this is not inconsistent with Re CB which requires the court to hear from the Cafcass officer should they look to depart from “clear cut recommendations”. In doing so, Rix LJ highlighted the dichotomy the court must draw between marginal cases and those with firm recommendations in order to determine whether oral evidence from the Cafcass officer should be called upon before departing from the recommendations.

The authorities recognise that there is not an absolute rule when it comes to hearing oral evidence from a Cafcass Officer (or not) when considering making an order contrary to their recommendations. It seems the firmer the recommendation and the more significant the departure, the greater the need becomes for the court to hear oral evidence from the Cafcass officer.

Conclusion

It remains unusual for the views of Cafcass to be significantly departed from. It is notable that all of these cases were decided a number of years ago. It is a settled legal position.

The court therefore must (and clearly should) place a large amount of reliance on the recommendations of Cafcass in coming to decisions in cases. It is open to the court in these cases to come to a different conclusion, provided that the reason for the departure can be clearly explained, based on evidence and realistically having heard evidence on the point to test any misgivings about the section 7 report.

[1] Alternatively it may be a social worker employed by the local authority. However, for the purposes and remainder of this article I will refer only to Cafcass or a Cafcass Family Court Advisor).

[2] Cafcass website as of September 2025

[3] Thorpe LJ in Re W (Residence) [1999] 2 FLR 390 at 395

[4] Paragraph 40

[5] Paragraph 41

HHJ Evans sitting at the Manchester County Court dismissed an appeal against a Civil Penalty Notice in the amount of £40,000 issued to an employer following a data sharing from HMRC.  As a first breach, the maximum penalty was £45,000 which was reduced to £40,000 in line with the Code of Practice.

The employee was somebody who had entered the UK as a dependent and then overstayed.  Although the employer appealed on the principle basis that it was not liable for a penalty or in the alternative had a statutory excuse, in the course of argument at the hearing it accepted that as a result of employing someone who did not have the right to work, it was liable and because it did not carry out the prescribed checks, could not rely on the statutory excuse.  The only issue left was whether the penalty amount was too high.

Tony Muman was instructed for the Secretary of State to defend the appeal.

HHJ Evans rejected the employer’s claim that the Secretary of State had failed to exercise her discretion properly.  The learned judge found that not only was the Secretary of State entitled to exercise her discretion to issue the penalty, but that she was right to do so.  HHJ Evans rejected the submission that the Secretary of State acted unreasonably, finding that the law is absolutely clear and the process by which checks are to be carried out specified in the statute and statutory instruments.  The learned judge agreed with the employer that £40,000 was a large amount of money, especially for an employer who up until that point was of good character.  But, that  is the figure that the Secretary of State and Parliament has chosen to set the starting point at, noting that it was now significantly higher than it used to be.  The employer was also ordered to pay the Secretary of State’s costs.

Tony Muman is an expert in civil penalty cases and was instructed by Lauren Pritchard at Keoghs Solicitors.

For any booking enquiries, please contact the civil clerk at civil@halcyonchambers.com

HHJ Marquand, sitting at the Wandsworth County Court, dismissed an appeal against a Civil Penalty Notice, in the total amount of £90,000 issued to a sole trader following an unannounced immigration visit to the business premises, a garage in South London.  As a first breach, the maximum penalty was £45,000 per worker.  Two men were found working at the garage when the Home Office visited.

On appeal, the employer claimed that one of the men was his brother and that he was not working but simply visiting. The employer admitted that the second man was working but claimed that he was there working for another business operating from the same garage.

Tony Muman was instructed for the Secretary of State to defend the appeal.

Following trial, HHJ Marquand rejected the employer’s claim and found that the two men were employed under a contract of service and endorsed the civil penalty. He also ordered the employer to pay the Secretary of State’s costs.

Invalid appeal?

The legislative scheme works in the following way:

A Civil Penalty Notice is issued under s.  15(2) of the Immigration, Asylum and Nationality Act 2006. It must be in prescribed form: s. 15(6).

Section 16 applies where an employer to whom a penalty notice is given objects on grounds including that he is not liable to the imposition of a penalty. This is referred to a notice of objection: s. 16(2). A Civil Penalty is usually accompanied by a proforma form for an objection to be made. The objection does not, however, have to be made using the form but must be given in the prescribed manner: s. 16(3)(c). Provided all the information that is required to be given, is given; an employer can object by simply writing to the Home Office. It is sensible to ensure that the objection is signed (‘I confirm that the above information is correct to the best of my knowledge’).

Under s. 17(1), an employer to whom a penalty notice is given may appeal to the County Court. It is important to remember that the decision giving rise to the appeal is the penalty notice, and not the objection outcome notice. The latter is unappealable; the former is appealable.

An appeal is commenced by completing an Appellant’s Notice (Form N161), which must identify the correct date of the decision being appealed.

The appeal is a rehearing of the Secretary of State’s decision to impose a civil penalty. It is not a rehearing of the objection outcome notice.

The Secretary of State is then required to determine the objection: s. 16(4). She can cancel the penalty, reduce the penalty, increase the penalty, or decide to take no action (i.e., to maintain the penalty).

Under s. 17(4A), an appeal against the penalty notice may only be brought if the employer has given a notice of objection under section 16 and the Secretary of State has determined the objection.

Under s. 17(4B), an appeal must be brought within the period of 28 days beginning with the relevant date.  The relevant date is the date specified in the objection outcome notice issued in accordance with s. 16(5)(b) as the date on which it was given: s. 17(4D).  This date is important. It is a statutory time limit and one that Parliament has decided cannot be extended.

In this case, the employer filed the N161 within the 28-day limitation period, and it was issued by the court.

Under section 2 of the N161, the date of the decision appealed was said to be 5 March 2025. This was, in fact, the date of the objection outcome notice. There is no statutory right to appeal the objection outcome notice. Parliament has crafted a scheme allowing for the appeal against the penalty notice only: s.17(1).

This omission, which may have been fatal, was perhaps saved by section 5 of the N161, which confirmed that the appeal was against the civil penalty notice.

Section 6 of the N161 confirmed that the grounds of appeal were attached. Section 7 of N161, which relates to skeleton arguments, was left blank.

Section 9 of the N161, dealing with the order sought from the County Court, was completed.

Section 10 of the N161 deals with ‘other applications’.

Section 11 of the N161 is for reasons and evidence in support of any section 10 application. Both sections are mutual. In this appeal, because there was no application sought, sections 10 and 11 were left blank.

The form then proceeds to require a signature underneath a Statement of Truth. In express terms, the Statement of Truth must be completed in support of the evidence in section 11. Absent a section 10 application, the need for a section 11 Statement of Truth is redundant.

In this appeal, despite not making a section 10 application, the employer signed and dated the Statement of Truth.

Section 14 of the N161 is the operative part for an appellant’s signature. By signing the form at section 14, an appellant confirms that the form is complete and is no longer a draft. It is an important final procedural step in any appeal. The failure to sign the form is a serious omission.

In this appeal, section 14 was not signed. What appears to have happened is that the employer signed the Statement of Truth in the mistaken belief that this was the signature required by the form.

In Nathadwarawala v General Medical Council [2025] EWHC 459 (Admin), the GMC raised a jurisdictional objection to an appeal on grounds that the appeal had not been brought within the statutory 28-day period for appealing to the High Court. Whilst the N161 had been submitted and the fee paid a few days before the 28-day period expired, it was not signed, and the signature box was blank. The appellant sought to correct his mistake reasonably promptly after the error was pointed out to him by the court’s administrative staff, but by then the 28-day appeal period had already elapsed. The GMC argued that the court did not have the power to extend the time for bringing the appeal.

The High Court decided that (1) the appellant’s submission to the Administrative Court Office of an unsigned N161 did not suffice to constitute the bringing of an appeal within the 28-day period; (2) the absence of a signature was a serious omission, and (3) in the circumstances, the court had no power either to treat the appeal as having been brought within time or to extend time. As such, the court lacked jurisdiction to entertain the late-filed appeal, which fell to be dismissed regardless of its substantive merits.

In General Medical Council v Konathala [2025] EWHC 1550 (Admin), the N161 was filed on behalf of the GMC with sections 1 to 13 fully completed, including a signed and dated Statement of Truth prior to the expiry of the 28-day appeal period. The GMC had failed to sign the signature box at Section 14 of the N161 and made no attempts to correct this failure at any stage. Despite the lack of signature, the GMC’s N161 was sealed by the court office within the 28days. Following this, a hearing date was fixed, and hearing bundles and skeleton arguments were filed by both parties. During these procedural stages of the appeal, neither the court nor the parties raised the fact that section 14 of the N161 had not been signed.

Having realised the error, the respondent argued that, in line with Nathadwarawala, the lack of a signature meant that the GMC’s appeal was invalid and that the court had no jurisdiction to hear the appeal.

The GMC submitted that the factual position was vastly different to that in Nathadwarawala. The N161 was signed by the GMC solicitor, albeit at the statement of truth section, whereas in Nathadwarawala, there was no signature anywhere on the form. Therefore, the statement of truth signature was sufficient to indicate that the N161 was complete, as demonstrated by the fact that the court office issued the appeal.

The High Court held that because the court office had issued the GMC’s N161, the appeal proceedings had begun in accordance with CPR.r.7.2, and as such the court could, on application, exercise its discretion under CPR.r.3.10 to remedy the GMC’s omission to sign the box in section 14 of the form.

There appears to be some tension between the two decisions. In the end, given his findings on the substantive issue, the Secretary of State did not press HHJ Marquand to rule on validity as a preliminary issue and the point remains live for another case.

Tony Muman is an expert in civil penalty cases.  For any booking enquiries, please contact the civil clerk at civil@halcyonchambers.com

The views stated in this article belong to the writer and no warranty is given, express or implied, in respect of the accuracy of the contents of this article. Nothing in this article is tendered as or is intended to be legal advice and the contents should not be construed or relied upon as legal advice. Specialist legal advice should always be taken in every case, noting that the application of the law may vary according to the individual facts of the case and the nature of the dispute.

Sonya Kalyan recently secured a significant victory before the First-tier Tribunal (Immigration and Asylum Chamber), successfully representing two Iraqi Kurdish brothers in linked asylum appeals. The case was both factually and legally complex, involving deeply rooted family, tribal, and political dynamics in the Kurdish region of Iraq. The outcome underscores the value of strategic case management, rigorous preparation, and fearless advocacy in crucial immigration litigation.

Due to the sensitive nature of the appeals, anonymity orders were granted to protect the appellants’ identities. Their names remain withheld in this article in accordance with Tribunal procedure and to ensure their safety.

Background and Factual Matrix

The brothers appealed refusals of their asylum claims, each grounded in a well-founded fear of persecution. Their fears stemmed from a longstanding family debt and a broken marriage arrangement with MB, a powerful figure affiliated with the Kurdish Democratic Party (KDP). They also feared forced military recruitment and violent reprisals from MS, a senior official associated with the Patriotic Union of Kurdistan (PUK).

While the Home Office accepted their nationality and ethnicity, it disputed whether the brothers faced a personal risk, raising concerns about credibility and arguing that state protection or internal relocation were viable alternatives.

Legal Framework

The appeals were determined under the Refugee Convention, as it stood prior to the implementation of the Nationality and Borders Act 2022. The Convention protects individuals who are outside their country of nationality and unable or unwilling to return due to a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership of a Particular Social Group. The applicable standard of proof, “a reasonable degree of likelihood” is lower than the criminal threshold but still demands consistency and credibility. See MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216.

Strategic Use of Linked Appeals

Recognising that both claims arose from the same factual matrix, Sonya represented the brothers in linked appeals, ensuring a coherent and unified approach. With no conflict of interest, she was able to advocate vigorously for both clients throughout the proceedings. Linking the appeals allowed for consistent findings, reinforced credibility, and avoided duplication of evidence.

The case demanded meticulous fact-finding and careful handling of sensitive material, including detailed witness statements and live testimony delivered through Kurdish Sorani interpreters. Sonya maintained a clear focus on presenting a credible and consistent narrative, supported by extensive country guidance and legal authority.

Particular Social Group (PSG) and blood feud risk

The Tribunal relied on the Country Policy and Information Note: Iraq – Blood feuds, honour crimes and tribal violence (July 2024), which confirms that individuals caught in blood feuds may constitute a PSG.

Drawing on the authority of EH (Blood Feuds) Albania [2012] UKUT 348 (IAC), the Tribunal found that the brothers, as members of a Kurdish family embroiled in a violent dispute with Barzani and later Sangawi, clearly fell within such a group. The risk of targeted harm was real and ongoing.

State Protection and Internal Relocation

In assessing whether the Iraqi and Kurdistan Regional authorities could offer effective protection, the Tribunal applied the principles from Horvath [2000] UKHL 37. The evidence, including findings in SMO & KSP (Civil Status Documentation; Article 15) Iraq CG [2022] UKUT 110 (IAC), demonstrated that law enforcement in the region often avoids tribal disputes, sometimes takes sides, and operates within a system where corruption is rife. The Judge accepted that MS’s influence over the Kurdistan Regional Government rendered any approach to the authorities futile.

Internal relocation was also deemed unreasonable. The brothers spoke only Kurdish and had no connections in Arabic-speaking areas such as Baghdad. Moreover, the pervasive tribal influence and cooperation between the Iraqi and Kurdistan Regional governments meant there was no part of the country where they could genuinely be safe.

Advocacy in a complex legal context

Sonya’s advocacy was instrumental in navigating the legal and evidential complexities of the case. She addressed the Home Office’s challenges to credibility with precision, offering clear and persuasive explanations for any discrepancies, including those relating to financial figures and timelines. Her submissions demonstrated that the brothers’ membership of a PSG exposed them to blood feud violence, and that neither state protection nor internal relocation could mitigate the risk.

Sonya relied on up-to-date country guidance and relevant case law to substantiate the claims, ensuring that the Tribunal fully appreciated the lived realities and nuanced threats faced by the appellants.

Tribunal’s findings on credibility

The Tribunal made unusually strong credibility findings in favour of the brothers. It found them to be honest and reliable witnesses, whose accounts were internally consistent, inherently plausible, and supported by country evidence.

The Judge accepted their account in full, including their father’s debt to Barzani, the arranged marriages of their sisters to settle the debt, their decision to renege on that agreement and flee, their temporary refuge with MS, his coercion to join the peshmerga, and the death threats they received upon leaving. These events were corroborated by general country evidence on blood feuds, tribal honour disputes, and the political influence wielded by MS.

Although the brothers had not claimed asylum en-route to the UK, the Judge accepted their explanation and concluded that this did not undermine the core of their account.

Determination and legal outcome

Having considered all aspects of the case, the Tribunal concluded that both brothers had a genuine and well-founded fear of persecution for a Convention reason. It found that they could not obtain protection from the Iraqi or Kurdistan Regional authorities, and that internal relocation was not a viable option. Their removal would breach the UK’s obligations under the Refugee Convention and Article 3 of the European Convention on Human Rights (ECHR). In the alternative, removal would also breach Article 8 ECHR due to the very significant obstacles to reintegration.

Conclusion

This case illustrates the importance of comprehensive case management and fearless representation in asylum claims involving intersecting political, social, and familial complexities. Sonya’s approach, grounded in legal precision, cultural sensitivity, and strategic advocacy, was central to the successful outcome.

Sonya continues to accept instructions in complex immigration and asylum matters, including those involving linked appeals and challenging country contexts.

To instruct Sonya, please contact the chambers’ immigration clerk at immigration@halcyonchambers.com.

The views stated in this article belong to the writers in a personal capacity.  No warranty is given, express or implied, in respect of the contents of this article.  Nothing in this article is tendered as or is intended to be taken as legal advice and the contents should not be construed or relied upon as legal advice.  Specialist legal advice should always be taken in every case noting that the application of the law may vary according to the individual facts of the case and the nature of the dispute. 

Halcyon Chambers is delighted to announce that Paige Procter-Harris has accepted an offer of tenancy.

This comes after successful completion of pupillage under the supervision of Suzanne Hodgkiss and Inderjit Thind.

During her Pupillage year, Paige gained experience in Chambers’ core specialist areas including Civil and Family Law. Paige has proved incredibly popular with our Instructing Solicitors and already has experience of work above the level of her Call.

Everyone at Halcyon Chambers welcomes Paige as a Member of Chambers and we look forward to seeing her career grow over the coming years.

Any enquiries in relation to the availability of Paige should be directed to the Clerks.

Miss Gonzalez-Jaspe recently represented an applicant Father in the third set of s.8 Children Act proceedings where allegations of domestic abuse, including abuse of two children, were made against him.

An unusual feature of this case is that the respondent Mother’s principal allegation of physical abuse was not only in respect of a non-subject child (NSC) but was in respect of an alleged incident of which the Mother had no direct knowledge and could not, therefore, give direct evidence about. By the time the court had considered the allegations at a fact-finding hearing, the Father had been under police investigation for this allegation for some two years.

In the first set of proceedings, the Mother had alleged (inter alia) that the Father was coercive and controlling throughout, and since, their relationship. Following a fact-finding hearing in those proceedings, the Court found the allegations against the Father not proven. This allegation was being reconsidered by the Court following the decision in H-N [2021] EWCA Civ 448 which now requires the Court to focus on the wider context of whether there has been a pattern of coercive and controlling behaviour, as opposed to a list of specific factual incidents that are tied to a particular date and time, since abusive, coercive and controlling behaviour is likely to have a cumulative impact upon its victims which would not be identified simply by separate and isolated consideration of individual incidents.

In the second set of proceedings, the Mother alleged that the Father had acted inappropriately toward the subject child. She then withdrew that allegation but raised it as a continuing concern within these proceedings.

Evidence was heard over three days. Due to the Court not hearing evidence from the NSC or their mother, Miss Gonzalez-Jaspe made lengthy submissions in respect of the principal allegation which required a detailed analysis of the police and medical disclosure, multiple witness statements from the NSC’s mother, ABE interview of the NSC and police interview of the Father as well as various audio and video footage.

Miss Gonzalez-Jaspe was successful in persuading the court that the principal allegation, as alleged, was not proven. Further, the allegation of inappropriate behaviour toward the subject child, and the allegation of coercive and controlling behaviour toward the Mother were also not proven on the balance of probabilities.

Miss Gonzalez-Jaspe frequently represents parties in cases that involve serious allegations of domestic abuse and abuse toward children. She takes a sensitive but robust approach to her advocacy and client management in such matters.

Article by Sonya Kalyan

The question before the Supreme Court in this case was:

‘When will a refusal by the Secretary of State for the Home Department (“SSHD”) to grant Leave to Remain (“LTR”) to an individual, who cannot be removed to their country of nationality, breach their right to respect for private and family life under Article 8 of the European Convention on Human Rights (“ECHR”)?’

Relevant Law and Immigration Rules

• Article 8 ECHR
• 1(5)(a) of Schedule 10, Immigration Act 2016
• Paragraph 276ADE, The Immigration Rules (as applicable at the relevant time, now replaced by Appendix Private Life)
• Section 117A- 117C, Nationality, Immigration and Asylum Act 2002

Background Facts

AM is a Belarusian national who arrived in the UK in 1998 and claimed asylum. His asylum claim was refused on 12 December 2000, and he was deported to Belarus on 29 June 2001. As AM told the Belarussian authorities that he was not a Belarussian citizen, he was refused entry and returned to the UK. Attempts by the SSHD to obtain necessary travel authorisations for AM from Belarussian authorities failed and he remains in the UK. Between 1999 and 2018, AM was also convicted of a number of offences and sentenced to several terms of imprisonment. AM was present in the UK without LTR, but he was able to reside in the community because he had been granted immigration bail under paragraph 1(5)(a) of Schedule 10 to the Immigration Act 2016, this was known as AM’s ‘limbo’ status. AM suffered from ill-health. In early 2018, he was diagnosed with psychotic symptoms and his mental health has been adversely affected by delays in resolving his case and lack of status.

Decisions and comment

In R (AM) v SSHD (legal ‘limbo’) [2021] UKUT 62 (IAC) a Presidential panel of the Upper Tribunal (“UT”) held that, as the likelihood of removing AM to Belarus was remote, continuing to refuse to grant AM LTR would be a violation of his right under Article 8 ECHR.

The SSHD appealed to the Court of Appeal and his appeal was dismissed.

The SSHD appealed to the Supreme Court.

Lord Sales found [95] that the UT failed to give any significant, let alone proper weight, to the deliberate actions of AM in contributing to the situation in which he had limbo status as a material factor in its proportionality analysis. Furthermore [96] the UT erred in its assessment of the strength of the public interest that AM should be removed and, if that was not possible, that he should be maintained by the state with limbo status rather than granted LTR.

On considering Private Life 276ADE of the Immigration Rules (as applicable at the relevant time, now replaced by Appendix Private Life) and the potential impact of circumvention of immigration controls, the Court noted that the UT had made an additional error in evaluating the public interest in the individual’s removal. If removal was not possible, the individual would remain in a state of limbo, dependent on the State, rather than being granted LTR. The Court emphasised that Paragraph 276ADE reflects the SSHD’s policy on granting LTR when specific conditions are met and does not address the weight of the public interest in enforcing immigration controls for the broader application of Article 8. Therefore, the UT’s reliance on Paragraph 276ADE was misplaced.

An individual who has lived illegally in a country for twenty years is typically eligible to apply for legal status under Immigration Rules. However, AM was ineligible for this option due to his criminal record, which disqualified him based on the suitability criteria for that pathway. As a result, he had to depend on human rights grounds for his case.

When an individual’s state of limbo results from circumstances beyond their control, or they are destitute, have genuine prospects of employment, or have established personal or family ties, the issue remains one of proportionality, meaning the outcome is not guaranteed. Even if an individual’s limbo status is entirely self-inflicted, there is no legal rule that precludes a proportionality assessment.

Consequently, [104] it fell to the Supreme Court to determine whether Article 8 obliged the SSHD to grant LTR to AM. Whilst Lord Sales found that Article 8 was engaged [107], he found that the decision to maintain AM in limbo was in accordance with law [108] and was proportionate in that the decision struck a fair balance between AM’s rights and interests and the general interest of the community in the state maintaining effective immigration controls and focusing state benefits and other resources on citizens and lawful immigrants [117].

Lord Sales added that granting AM LTR would create an incentive for others to do their best to obstruct their removal as well, ‘thereby directly undermining the due operation and enforcement of the United Kingdom’s immigration controls’.

Outcome

The Supreme Court allowed the SSHD’s appeal and dismissed AM’s claim under Article 8 ECHR to be granted LTR.

It will be interesting to observe how this precedent is applied in future cases, particularly in the context of the Illegal Migration Act 2023. The new legislation prohibits the government from granting immigration status to anyone who has entered the country illegally after 7 March 2023. However, an exception exists if refusing the grant of status would violate an individual’s human rights, in which case Article 8 ECHR and sections 117A to 117C of the Nationality, Immigration and Asylum Act 2002 must be considered.

Article by Thomas Wheeler

This is a case note on the recent case of Matthew Robert Haw, Diana Frangou (As joint administrators of QM Systems Limited (in administration) v QM Systems Limited (In Administration) [2024] EWHC 1944 (Ch).

It concerned an application by the joint administrators to confirm the validity of their appointment as joint administrators, pursuant to paragraph 63 of Schedule B1 to the Insolvency Act 1986 and Insolvency Rule 12.64.

The issue the joint administrators had in this case, was that the Notice of Appointment, pursuant to Insolvency Rule 3.24, had the following errors:

1. the heading of the notice of appointment form incorrectly suggested that the Company appointed the Applicants rather than the directors of the Company;
2. only one, as opposed to three copies of the NOA were filed at court; and
3. the Notice of Appointment failed to exhibit the consent given by National Westminster Bank Public Limited Company, being the holder of a qualifying floating charge over the Company’s property.

Legal Background

Paragraph 63 of Schedule B1 to the Insolvency Act 1986 provides that “the administrator of a company may apply to the Court for directions in connection with his functions.”

It has long been established that an administrator of a company can apply to the Court pursuant to this paragraph seeking an order confirming the validity of their appointment – see the decision of Marcus Smith J in Eason & Anor v Skeggs Beef Ltd [2019] EWHC 2607 (Ch).

Pursuant to Insolvency Rule 12.64:

”No insolvency proceedings will be invalidated by any formal defect or any irregularity unless the court before which objection is made considers that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of the court.”

The above provisions formed the basis of the joint administrators’ application to the Court. As stated above, there were issues with the Notice of Appointment which had been filed. Therefore, the Court had to look at the rules in relation to those particular issues.

First, the Notice of Appointment had incorrectly stated that the company had appointed the administrators and not “the directors of the company”. Pursuant to rule 3.24(1):

“Notice of an appointment under paragraph 22 of Schedule B1 (when notice of intention to appoint has been given under paragraph 26) must be headed “Notice of appointment of an administrator by a company (where a notice of intention to appoint has been given)” or “Notice of appointment of an administrator by the directors of a company (where a notice of intention to appoint has been given)” and must contain …” [Emphasis added].

There is then a list of requirements from (a) to (j) which prescribe the required information. (b) is of note:

“A statement that the company has, or the directors have, as the case may be, appointed the person names as administrator of the company.”

Second, pursuant to Insolvency Rule 3.26(1) there must be three copies of the Notice of Appointment filed with the Court (in this case there was only one), and that must be accompanied by the written consent of all those persons to whom notice was given (National Westminster Bank PLC’s consent was not attached).

As such, the Court needed to determine whether the Notice was defective such that it was a nullity, or could be cured.

Decision

HHJ Michael Berkley (sitting as a Judge of the High Court), hearing the application, came to the following decision.

The Judge set out the three categories concerning defective out-of-court administration appointments, as set out by Marcus J in Eason at [21]:

“(1) Cases where the defect is fundamental. In such cases, the purported administration appointment is a nullity. There are no insolvency proceedings on foot, and so there is nothing that the court can cure.

(2) Cases where the defect is not fundamental and causes no substantial injustice. Rule 12.64 of the Insolvency (England and Wales) Rules 2016 provides […]

Thus, provided the defect is not fundamental (i.e. not falling within paragraph 21(1) above), so that there are indeed insolvency proceedings on foot, the court must first satisfy itself that the defect or irregularity has caused no “substantial injustice”. If so satisfied, then the proceedings will not be invalidated by any formal defect or irregularity.

(3) Cases where the defect is not fundamental, but substantial injustice is caused. If the defect – again, not being a fundamental defect within paragraph 21(1) above – is found to cause “substantial injustice”, then the court must ask itself whether that substantial injustice can be remedied by an order of the court. Of course, the court will consider, in light of all the circumstances, whether it is appropriate to make a remedial order. If so, then the defect is cured on the court making the order. If the court cannot make a remedial order or does not consider that it is appropriate to do so, then the defect remains uncured.”

Having considered the authorities, it was found that the erroneous heading was a procedural defect, it was therefore ordered that it did not have the effect of invalidating the appointment.

It was said that in so ordering, the Judge was satisfied that the error related to procedure and not connected with the defined circumstances where the power to appoint arises. Further, that the substance of the form is correct and so no-one could be mis-led by the incorrect heading.

It was said by HHJ Michael Berkley held: “The purpose behind the heading provisions is, I find, for the plain and obvious reason to enable a reader to identify the relevant document: in this case the notice of appointment, no matter who made it. In my judgment it is plain that it cannot have been intended that a breach of that specific provision would render an appointment a nullity.”

Finally, in relation to the further two errors, the Judge was satisfied that, despite the reasoning behind those errors, they were procedural defects and, as with the above defect, did not concern circumstances in which the power to appoint arose. As such, they were defects which could be cured pursuant to Insolvency Rule 12.64.

The Judge, therefore, granted the application.

This case is an example of where defects, or errors, pursuant to legislation, can be cured, so long as they are not fundamental, nor any substantial injustice is caused as a result of those defects or errors.

Jonathan Bott recently advised and successfully represented the local authority in the High Court sitting at the Royal Courts of Justice on an application for injunctive relief against a father post final public law orders.

Following the making of final care orders, the father had attempted to contact and harass the child at school and in the foster carer’s care, which had put the child at risk of emotional and physical harm and had also led to the unfortunate breakdown of the child’s long term foster placement.

The issue related to the need for the kind of injunctive protection available under a Family Law Act 1996 (‘FLA’) injunction with a Power of Arrest (which was unavailable under the inherent jurisdiction of the High Court), but the difficulty being that the local authority was not a connected person under the FLA and therefore could not make an application of right, and there appeared to be no other person who could make such an application.

The solution was to make an application under the inherent jurisdiction of the High Court and thereafter, and within those proceedings, invite the court to make an FLA non- molestation order under s42(2)(b) of that Act under its own motion.

Following the hearing of submissions, the Court granted an injunction under the inherent jurisdiction coupled with a non-molestation order under the Family Law Act 1996 with a Power of Arrest attached protecting the child not only from further harassing and pestering behaviour, but preventing the father from attending at the school, any foster carers and removing the child from the care of the local authority.

Article by Katie Wilkinson

Acceptance of ‘PPI Complaint Redress’ can give rise to a valid compromise

Consumer practitioners will be familiar with the mass litigation that has ensued in recent years regarding claims of ‘Unfair Relationship’ following the Supreme Court Judgment in Plevin v Paragon Personal Finance Limited [2014] UKSC 61.

The basic crux of the claims centred on undisclosed commissions that were being retained by Banks from premiums being paid pursuant to the sale of Payment Protect Insurance (‘PPI’).  A declaration of unfairness together with a claim for compensation pursuant to s.140A/B Consumer Credit Act 1974 was routinely sought.

One of the common points of Defence taken by the Banks was that the Claimant had accepted a compromise of their claim following a pre-action complaint having been made, and a payment of money accepted under the Financial Conduct Authority redress scheme.

Following a hearing held between 15 – 17 May 2024 Judgment was handed down by the Court of Appeal on 26 September 2024 in the matter of Self v Santander Cards UK Limited and Harrop v Skipton Building Society [2024] EWCA Civ 1106.

In the case of both Mrs Self and Mr Harrop (the ‘Claimants’) unfair relationship claims were brought, and the claims were defended by Skipton and Santander on the basis that the claims had already been compromised.

As is common in PPI cases that reach the Courts, the Claimants had accepted pre-litigation redress payments made in full and final settlement following complaints having been made.  Skipton and Santander both successfully defended the claims at first instance, and also on appeal.

The Court of Appeal granted permission to appeal to the Claimants and both appeals were heard together.

As has been the case in hundreds of claims at first instance, the Claimants disputed that there could have been a valid compromise on the basis that:

1. There was a lack of consideration to form a valid compromise given that offers of redress were in line with the FCA complaint process which obligated finance companies to make such offers
2. The ‘settlement’ was in relation to the pre-litigation complaint and did not preclude a claim being issued under the unfair relationship provisions
3. The ‘settlements’ were itself open to be considered under the unfair relationship provisions, and they were unfair to the Appellants

Those 3 issues were under appeal, and the Court of Appeal dismissed both appeals on a unanimous basis.

Giving the lead Judgment, Lord Justice Stuart-Smith recognised that the effect of the FCA’s Dispute Resolution Complaints sourcebook (“DISP”) App 3 imposed a mandatory obligation to ‘investigate and assess the complaint and offer redress or remedial action if and when it decides that is appropriate (paragraph 71).   It was rejected by the Court of Appeal that the Respondents were obligated to make an offer of redress to complainants.

At paragraph 75, it was said ‘it is obvious that, on the respondent making an offer of redress, the complainant and respondent will be in the territory of (negotiated) consensual settlements’.

Unsurprisingly, the Court of Appeal held that whether the offer of redress and its acceptance gives rise to a legally binding agreement depends on the terms used by the parties, whether they intend to create legal relations and whether the offeror gives good consideration for the agreement (paragraph 81).  In the cases of Santander and Skipton, given that they were not obliged to make offers of redress to Mr Harrop and Mrs Self, there was valid consideration in doing so.  The Appellants’ reliance on Arrale v Costain Civil Engineering Ltd I[1976] 1 Lloyd’s LR 98, a case frequently relied upon by Claimants appearing in the County Court, was firmly rejected.

In respect of the argument that the settlement only compromised the complaint rather than any right to pursue a civil claim, Stuart-Smith LJ considered the position to be both unarguable and misconceived.  It was held that both the redress letter and customer acceptance form which was signed by Mrs Self clearly set out that a claim for undisclosed commission was being settled.  The claim that was brought before the Court mirrored the complaint that was made pre-litigation.

Whilst properly acknowledging that the Court retains jurisdiction to consider unfairness arising from a compromise of a CCA 1974 claim, the Court of Appeal adopted and endorsed what was said by Nugee J in Holyoake v Candy [2017] EWCA Civ 92, that the fact that a compromise had been reached was ‘highly relevant’ when considering what order, if any to make under s.140B.  In line with Holyoake, it was held that a Court should be very slow to go behind a compromise reached in such circumstances where the terms of the offer were clear and unambiguous, with the offeree retaining the right to either accept or reject it.  Skipton and Santander were held to have discharged the burden of showing the relationship was fair.

Whilst the number of cases involving PPI complaints has significantly decreased, the decision of the Court of Appeal has helpfully clarified the availability of ‘compromise’ defences to Finance Companies who may still be dealing with both ongoing and new claims.

Article by Harry Owen

On 24 September 2024 the Financial Conduct Authority announced a revised timetable for announcing its much anticipated findings following the investigation into discretionary commission arrangements (DCAs) in respect of car finance loans.

The FCA are now planning to announce the findings of their investigation and next steps in May 2025, stating that this will allow the time needed to assess whether firms should be allowed to handle complaints in the usual way or whether to introduce a different approach.

While investigating, the FCA also extended the deadline that providers (lenders or brokers) must provide a final response to customer car finance complaints to after 4 December 2025.

On 11 January 2024, the FCA announced a review into whether motor finance customers have been overcharged because of the past use of DCAs. At that time the FCA paused the 8-week deadline for a final response to complaints, in an effort to avoid disorderly, inconsistent and inefficient outcomes for consumers, as well as knock-on effects on firms and the market, while the issue was investigated and a way forward determined.

On 30 July 2024, the FCA consulted on a proposal to extend the DCA complaint handling pause, due to delays in obtaining the relevant data required.

The FCA is also awaiting the outcome of a judicial review launched by Barclays Partner Finance, which will consider the Financial Ombudsman Service’s decision to uphold a complaint relating to its use of a DCA. It is considered that the judicial review will consider legal issues highly relevant to the FCAs investigation. The hearing is due to take place in October 2024.

It is now anticipated that the FCA will set out the next steps in their review into the past use of DCAs in May 2025. By then, the FCA expect to have completed their analysis and assessed the outcome of the Barclays Partner Finance judicial review and other relevant cases in the Court of Appeal.

The indication from the FCA is that the once the extended pause finally comes to an end, it looks increasingly likely that a consumer redress scheme will be introduced as an alternative way of dealing with DCA complaints.

It has been confirmed by the FCA that consumers have until the later of 29 July 2026 or 15 months from the date of their final response letter from the firm, to refer a DCA complaint to the Financial Ombudsman (instead of the usual 6 months). This will prevent consumers from having to decide whether to refer their complaint to the Financial Ombudsman before any proposals for alternate resolutions are announced.

It has been reported that in excess of 500,000 motor finance complaints have been raised and as such there has been much anticipation as to how matters will move forward, but it appears for the time being at least, that the wait will continue.

Halcyon Chambers is inviting applications to join our Civil, Family and Immigration teams. It is an exciting opportunity to join a growing team of diverse and specialist barristers.

More details can be found on our Tenancy page.

All applications and queries should be directed to Senior Clerk, Chris Ridley. All correspondence will be dealt with in the strictest confidence.

Article by Katie Wilkinson

In May 2024 the High Court handed down Judgment in The Tropical Zoo Limited v The Mayor and Burgesses of the London Borough of Hounslow [2024] EWHC 1240 (Ch) following a five day trial before Mrs Justice Bacon.

The trial considered three primary issues:

1. Whether breach of a ‘Jervis v Harris’ clause triggered a right of re-entry and forfeiture;
2. Whether there had been a waiver of forfeiture by the Defendant;
3. Whether the Claimant required, or was able to obtain relief from forfeiture.

The Facts

The case involved a parcel of land covering an approximate area of 25 acres located close to Heathrow Airport.  The Claimant is an operator of Zoos and the Defendant was the Local Authority.

The Defendant had granted a 125-year Lease to the Claimant in 2012.  The Lease was in relatively standard form in containing covenants for which the tenant was to perform, and a right of re-entry for the landlord.

The Lease also contained a ‘Jervis v. Harris’ clause.  Such a clause grants the landlord a right to serve notice on a tenant specifying breaches of covenants relating to the condition of the property.  If the tenant then fails to remedy the breaches identified in the notice within a specified period (as set out in the Jervis v. Harris clause), the clause grants a right for the landlord to enter the property to carry out the works themselves and to then recover the costs of doing so from the tenant as a debt.

It was a term of the Lease that the Claimant would construct a Zoo on a part of the land within 2 years.  Planning permission for the construction of the Zoo had been granted.

In 2020, being some 8 years since the grant of the Lease, the Claimant had failed to build the Zoo.  As a result, the Defendant served two notices under s.146 of the Law of Property Act 1925 requiring the tenant to remedy its breach of the Lease.

The Claimant brought a claim seeking declarations that the Lease was not liable to be forfeit because inter alia the Defendant was said to have waived any right of forfeiture by its acceptance of ongoing rent payments.  In the alternative, the Claimant sought relief from forfeiture. 

The Jervis v Harris Clause

There was no dispute that the Claimant was in breach of the obligation to construct a Zoo within two years of the grant of the Lease and that rent was subsequently accepted by the Defendant thereby waiving the breach (being the period between circa 2014 and service of the notices).  However, the Court accepted the Defendant’s argument that the failure to comply with the s.146 notice requiring the Claimant to remedy the breach was freestanding.  It was held that the defendant had been entitled to serve the s.146 notice and take steps to forfeit the Lease even though the breach had occurred many years earlier.

Waiver of Forfeiture

The law applicable to the doctrine of waiver is complex and the Judgment helpfully included a summary of the status of the law.

The Defendant relied upon the express wording of the re-entry clause which was to the effect that the landlord retained the right to re-enter the premises even if it had waived any previous right of re-entry.

It was argued by the Claimant that the clause was inconsistent with the doctrine of ‘waiver’ at common law and thus had no effect.  The effect of the clause was also in issue as a matter of construction.

The Court held that the clause did not oust the common law doctrine of waiver as a matter of construction and, on consideration of the facts, the Defendant was not found to have acted inconsistently with forfeiture even though the return of rental payments made by the Claimant were delayed in some instances.

Relief From Forfeiture

As a result of the Court’s findings, the Claimant required relief from forfeiture.  The application was made on the basis that a Zoo would be constructed in remedy of the breach.  In principle, the Defendant did not oppose the Claimant’s position, but the Defendant doubted that the Claimant had sufficient funds to construct the Zoo.  The granting of relief from forfeiture is discretionary for the Court.

The Court confirmed that it should consider whether there was a real likelihood that the conditions required to remedy the breach would be met.  The Court was not satisfied that the Claimant had any real prospects of erecting the Zoo and thus remedying the breach, and for those reasons the Court refused the application for relief from forfeiture.

The Claimant was granted permission to appeal to the Court of Appeal.

Article by Trevor Berriman

Claimants seeking an injunction to prevent acts of nuisance or harassment under the Protection From Harassment Act 1997 often make a claim for damages to compensate for the distress that has been caused.

Damages claims for harassment, alarm and distress are usually pleaded at a relatively low value; claimants are primarily seeking the protection to be gained from achieving a final injunction and the damages claim is simply included as a matter of course.

Reported court awards of damages for general inconvenience and distress also tend to be modest.

It is possible, however, to make a claim for diminution in the value of property in cases where neighbours have committed acts of nuisance and harassment.

The case of Raymond v Young [2015] EWCA Civ 456 involved just this point.

In Raymond v Young it was held by the Court of Appeal that the Judge in the Court below had been entitled to make an award for diminution in value of the claimants’ property caused by nuisance, despite the grant of a permanent injunction restraining the defendants from further acts of nuisance. At first instance, however, the Court had made an additional award of damages for distress and loss of amenity.  The Court of Appeal held that the lower Court was wrong to have done so as it amounted to double recovery.

Narrative

The appellants appealed against a decision awarding damages in favour of the respondents for diminution in the value of their property.

The appellants owned a cottage, and the respondents owned an adjacent farmhouse. The farmhouse had originally been owned by the father of the first appellant, but it had been sold on the father’s retirement. It was eventually purchased by the respondents as a holiday home.

At trial, the Court made a finding of fact that the appellants had been responsible for continuous acts of harassment, trespass and nuisance against the respondents over a period of many years. Those acts included obstructing the respondents’ driveway, vandalising their property, burning noxious materials causing smoke, dumping rubbish, and physical intimidation.

The Court also made a finding of fact that the acts of harassment and nuisance were motivated by resentment at the respondents’ acquisition of the farm as a weekend home.

The Court granted a permanent injunction to prevent further nuisance and made a financial composite award of £20,000 for distress and loss of amenity.  

The Court further found that the appellants’ actions had caused a diminution in the value of the farm of 20 per cent, amounting to £155,000 and a further award in that sum was made.

On appeal, it was considered relevant whether the nuisance was transitory or time limited.  If so, the measure of damages should reflect the diminution in the value of the right to live in the property during the relevant period only.

In Raymond v Young however, the recorder had found that the appellants’ conduct could not be described as transitory, and that it was likely to continue to be a facet of the First Appellant’s character and behaviour, so far as not restrained by the injunction. Therefore, the grant of a permanent injunction was not likely to be treated by a potential purchaser as a guarantee that they would not be subjected to the same treatment.

The benefit of the injunction was said to be personal to the respondents and, on any sale of the property, the protection that the injunction afforded would end. 

The Court of Appeal therefore held that the Judge below was entitled to make an award of £155,000 for diminution in value calculated on the basis that the threat of a nuisance to future purchasers would continue.

It was held to be wrong to have awarded damages of £20,000 for loss of amenity along with the full measure of capital loss of £155,000. That amounted to double recovery, as the sums were alternative methods of calculating the diminution in value of the respondents’ property. If damages were awarded for loss of capital value, then damages for loss of amenity were excluded and it was not appropriate to make separate awards of damages for distress in cases of nuisance.

Claimants should ensure that any claim for damages based on acts of nuisance or harassment are not duplicitous.  If a diminution in value claim is available to a claimant, it may result in a much higher award of damages than what may have been achieved solely in a damages for harassment claim.

Halcyon Chambers is delighted to announce that three new pupils have commenced their First Six Pupillage from 1 July 2024.

Simon Villau will be commencing a mixed Common Law Pupillage under the supervision of both Inderjit Thind and Katie Wilkinson.

Sonya Kalyan will be commencing an Immigration Law Pupillage under the supervision of Tony Muman.

Paige Procter-Harris will be commencing a Family Law Pupillage under the supervision of Suzanne Hodgkiss and Inderjit Thind.

All three will be able to accept instructions from 1 January 2025 and everyone at Halcyon Chambers wishes them the very best.

Barbara was recently instructed to represent a respondent mother in private children law proceedings where contact between the applicant father and the child had ceased following a disclosure made by the child that suggested she had been sexual harmed by the father. The father denied the allegation and made a cross-allegation that the mother was fabricating these disclosures to prevent him from having contact with the child and she had been obstructive to contact progressing since the conclusion of the first set of private law proceedings.

Upon hearing oral evidence and taking a holistic view of the evidence before the court, the Judge took the view that the child had made these disclosures and she had been honest with what she had said. The court found that on the balance of probabilities, the father had perpetrated sexual harm on the child. The court also said the mother had been actively the progression of contact until the child made this disclosure and her actions following this had been entirely appropriate and supported by the local authority. The court agreed that the mother had not acted maliciously by stopping contact, nor did she fabricate the disclosure made by the child as a means of alienating the child from the father.

To instruct Barbara Gonzalez-Jaspe please contact the Clerks.

The Festive period can be worrying and an expensive time of year for those families that struggle to make ends meet.

Birmingham City Mission was established in 1966 helping those in need throughout the City. Every December, Birmingham City Mission delivers presents for those families who see Christmas as a burden rather than a special and joyous occasion as it should be.

Halcyon Chambers are proud to have contributed to this fantastic cause and on Friday morning, our Senior Clerk Chris Ridley along with other Members of Halcyon Chambers delivered this year’s donations.

We would like to thank all our Staff and our Barristers who generously donated, making the festive season a memorable one for so many families across the City.

There is still time to donate to this fantastic cause and please see link here if you would like to read more about Birmingham City Mission and the work they do throughout the year.

Merry Christmas to all from everyone at Halcyon Chambers.

Members of Halcyon Chambers attended the 28th Annual Asian Legal Awards at the Royal Lancaster Hotel in London organised by the Society of Asian Lawyers.

It was great to catch up with so many of our colleagues from the legal world.

We thoroughly enjoyed the evening and congratulations to all the nominees and winners. We look forward to the next one.