The Importance of ADR: Further Guidance from the Court of Appeal

Article by Katie Wilkinson

The Court of Appeal have clarified the powers of the Court to require parties to engage in early dispute resolution which goes much further than the Courts’ general encouragement of mediation, and the imposition of costs sanctions to those who unreasonably refuse.

On 6 August 2019 the Court heard Lomax v Lomax [2019] EWCA Civ 1467 which concerned the effect of CPR 3.1(2)(m), and specifically the Courts’ powers to take case management steps that include hearing an ‘Early Neutral Evaluation’ (‘ENE’) ‘with the aim of helping the parties settle the case’. The issue before the Court in this inheritance dispute was whether such a hearing could be ordered in the absence of consent between the parties.

The decision of the Court of Appeal was a resounding YES.  The specific reference to an ‘ENE’ within the CPR came into effect on 1 October 2015. It is not the same process as mediation and falls into the Courts’ general case management powers.

It was noted by LJ Moylan that, although it would have been simple to include the same, the CPR did not contain an express requirement for the parties to consent to the ordering of an ENE. ENE was part of the court process, whereas mediation was not.

An ENE was held to be “a step in the process which can assist with the fair and sensible resolution of cases”.

The ‘Surinder Singh’ principle: ‘Centre of Life’ test unlawful says Upper Tribunal – Omarkhail v Home Secretary

Article by Tony Muman

The Surinder Singh principle, or ‘route’ as commonly referred to, takes its name from the old Court of Justice judgment in R v IAT and Surinder Singh ex.p. SSHD Case C-370/90 [1992] 3 CMLR 358. The Court had to decide whether Community law grants a right of residence to a national of a non-member country who is the spouse of a Community national when the latter returns to work in his or her own country having in lived and worked in another member-State. The Court held that in the context of Mr Singh’s British wife, she had activated her Community status by working in Germany and that activation continued its effects when she returned to the United Kingdom, and that one of those effects was the right of Mr Singh – an Indian national – to accompany her with an entitlement to live and work in the United Kingdom whilst they remained married; in the same way that she could if she were a German national moving to the United Kingdom to live and work.

Regulation 9 of the Immigration (EEA) Regulations 2006/1003 gave effect to the (‘the Surinder Singh principle’) and, as enacted provided:

Family members of United Kingdom nationals

9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.

(2) The conditions are that—

(a) the United Kingdom national is residing in an EEA State as a worker or self employed person or was so residing before returning to the United Kingdom; and

(b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.

(3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member.

On 1 January 2014 the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 / 3032 amended Regn 9 inter alia of the 2006 Regulations. The changes were said to ensure that a British citizen engages in genuine and effective use of the rights conferred by Directive 2004/38/EC before a right to reside in the United Kingdom is conferred on a non-EEA family member. Regn 9 was amended still further on 25 November 2016. The general consensus was that the Home Office introduced these changes to try and ‘plug the hole’ which many British citizens seeking to be reunited with family members were falling back on, relying on rights under EU law rather than the pernicious and often insurmountable UK immigration rules post July 2012. Many interpreted this change as another way to try and achieve the reduction of net migration that the then Home Secretary seemed obsessed with.

The decision in this appeal was taken under Regn 9 of the Immigration (EEA) Regulations 2016 / 1052 which came into force on 1 February 2017. As amended Regn 9 provides:

Family members of British citizens

9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member (“F”) of a British citizen (“BC”) as though the BC were an EEA national.

(2) The conditions are that—

(a) BC—

(i) is residing in an EEA State as a worker, self-employed person, self sufficient person or a student, or so resided immediately before returning to the United Kingdom; or

(ii) has acquired the right of permanent residence in an EEA State;

(b) F and BC resided together in the EEA State; and,

(c) F and BC’s residence in the EEA State was genuine.

(3) Factors relevant to whether residence in the EEA State is or was genuine include—

(a) whether the centre of BC’s life transferred to the EEA State;

(b) the length of F and BC’s joint residence in the EEA State;

(c) the nature and quality of the F and BC’s accommodation in the EEA State, and whether it is or was BC’s principal residence;

(d) the degree of F and BC’s integration in the EEA State;

(e) whether F’s first lawful residence in the EU with BC was in the EEA State.

(4) This regulation does not apply— (a) where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which F would otherwise be subject (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or (b) to a person who is only eligible to be treated as a family member as a result of regulation 7(3) (extended family members treated as family members).

(5) Where these Regulations apply to F, BC is to be treated as holding a valid passport issued by an EEA State for the purposes of the application of these Regulations to F.

(6) In paragraph (2)(a)(ii), BC is only to be treated as having acquired the right of permanent residence in the EEA State if such residence would have led to the acquisition of that right under regulation 15, had it taken place in the United Kingdom.

(7) For the purposes of determining whether, when treating the BC as an EEA national under these Regulations in accordance with paragraph (1), BC would be a qualified person—

(a) any requirement to have comprehensive sickness insurance cover in the United Kingdom still applies, save that it does not require the cover to extend to BC;

(b) in assessing whether BC can continue to be treated as a worker under regulation 6(2)(b) or (c), BC is not required to satisfy condition A;

(c) in assessing whether BC can be treated as a jobseeker as defined in regulation 6(1), BC is not required to satisfy conditions A and, where it would otherwise be relevant, condition C.

The Appellants, both Afghan nationals, are elderly dependents of their British son (‘the Sponsor’). The sponsor decided to relocate to Poland where he set up a business. He moved to Poland first and was to be later joined by his wife and children. In the meantime, he was joined in Poland by the Appellants who were granted family permits as his ‘family members’ and then residence cards valid until 2021. The Sponsor’s wife and children subsequently had a change of heart and decided not to relocate to Poland, ultimately resulting in the Sponsor returning to the UK accompanied by the Appellants. They then applied (even though they perhaps did not need to) to be issued with a residence card, the refusal of which is the subject matter of this appeal.

The Home Office refused the application on the basis that the Sponsor had not provided adequate evidence in support of the application. Specifically, he had failed to prove that he was economically active in Poland as a self-employed person and that his residence in Poland was genuine. The focus of the appeal fell therefore on the Sponsor.

The appeal was heard on 26th April 2018 at the First-tier Tribunal. Tony Muman represented the Appellants. Before the tribunal the Appellants argued inter alia that the ‘centre of life’ test and the requirement to demonstrate a degree of integration is unlawful and contrary to EU law and that the correct enquiry in a case like this focuses on whether the Appellants and the Sponsor have been, or were formerly, residing in Poland in accordance with Directive 2004/38/EC; further that there is no minimum time period to have been spent in the host Member State, either for the Sponsor or the Appellants alone or jointly and to insist on such criteria would undermine the very essence of freedom of movement; also, that Regn 9 cannot be used to deter or penalise the Union citizen Sponsor for having exercised Treaty rights with the Appellants. In a determination promulgated 4th May 2018 the tribunal dismissed the appeal applying the Regulation 9(3) criteria. The Appellants appealed to the Upper Tribunal maintaining the view that the ‘centre of life’ test and the requirement to demonstrate a degree or integration is unlawful and contrary to EU law.

On 16th July 2019 Upper Tribunal Judges Rintoul and Coker sat to hear the appeal. Ramby de Mello and Tony Muman represented the Appellants. Having heard argument the Upper Tribunal delivered an ex tempore judgment holding that the FTT determination contained material errors in law and was unsustainable. The panel observed that that much of what is contained in Regn 9 on which the Secretary of State placed reliance is not found in the directive or in the treaty or in the caselaw, and appeared to be contrary to the Advocate General’s opinion in O & B v The Netherlands C-456/12. The UT held that there is no requirement for someone to have sole residence in the host member state; nor is there a requirement that that residence has to be permanent and that said person has to demonstrate integration.

The Upper Tribunal set aside the determination of the First-tier tribunal and adjourned to consider the test question whether the mere production of a residence card issued by another member state is a sufficient basis to be determinative of the application.

The same principle was repeated by Upper Tribunal Judge Rintoul in the subsequent case ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC).

Tony Muman appeared for the Appellants in both the First-tier and the Upper Tribunal instructed by Habib Hussain at Guildhall Solicitors.  

Please contact the clerks for any further information.

Halcyon teams defend injunction claim in School LGBT row: a pupil’s perspective


Last week following an intense five-day trial in the High Court Mr Justice Warby reserved judgment in Birmingham City Council v Afsar and others. The case was compelling both in arguments of fact and law; and its magnitude cannot be underestimated or overstated. Over the course of the summer parent’s protests gained national media coverage and were debated in the House of Commons. The case involved issues concerning the right to protest, parental rights, freedom of religious expression, racial discrimination, both direct and indirect, the permissible limitations the Court could impose on the use of the internet and in particular social media communications.

After an interim injunction was granted in June 2019 an exclusion zone was placed around the Anderton Park Primary School. The Defendants challenged the legality of the Court’s Order. The interim injunction was also framed against ‘persons unknown’ i.e. anybody who came to properly know of it. This was criticised by the Fifth Defendant in particular, who is a blogger on religious expression and who successfully intervened in relation to the terms of the injunction curbing comment on social media.

The Council sought to challenge the Defendants right to protest by applying for a permanent injunction prohibiting protests outside the school. The Council further sought to extend the interim exclusion zone thus effectively banning any form of protest in the vicinity of the school or elsewhere in the local area. The Council argued the protests should be held in the City Centre or outside the offices of the DfE.

The Court heard evidence how the Council decided to bypass other relief available such as public space orders in favour of an injunction predominantly due to the alleged behaviour of the protesters. Such a move would have involved the Council having to undertake Equality Impact Assessments and in doing so to consult with the community. Instead the Council considered an injunction to be proportionate (and quicker). The Court heard evidence in support of the Council from the headteacher and deputy headteacher of Anderton Park Primary School. The School accepted that it had no prescribed lesson plans on which it had consulted parents but instead weaved into its equality teaching subjects touching on LGBT themes. This included the use of books such as “and tango makes three”, “mama, mummy and me” and “princess boy”. The significant point of dispute concerned whether the School had consulted with parents prior to implementing this teaching.

An important aspect of the case and the principal defence to the injunction was whether the School’s practice was discriminatory both indirectly and directly. There was a clear juxtaposition involving the religious beliefs of the parents, the majority (94%) of whom are British Pakistani Kashmiri Muslims, and their rights as parents to be consulted over any LGBT teaching practices at the school. It was argued by the Defendants that the acts and practices of the School in implementing the LGBT policies, failing to consult parents, referring to the protestors as homophobic and extremists and simultaneously sharing a platform with LGBT activists and inviting them onto the school premises whilst refusing to mediate with the protestors was discriminatory.

The Court also heard how the headteacher as a public authority figure should not be immune from abuse on social media and in any event an injunction brought by a local authority to prohibit abuse towards the headteacher was not the appropriate relief. It was argued that any abuse which concerns harassment, alarm and distress should be pursued through the criminal courts or the complainants should seek an alternative civil remedy through libel/slander.

Judgment is likely to be handed down within the next few weeks.

Ramby de Mello and Tony Muman appeared for Defendants 1, 2 and 3
Paul Diamond and Thomas Green appeared for Defendant 5
Both teams were gratefully assisted by Muhammad Ul-Haq (pupil)

France: Banning the niqab violated two Muslim women’s freedom of religion – UN experts

France: Banning the niqab violated two Muslim women’s freedom of religion – UN experts

On 27 November Tony Muman led by Ramby de Mello appeared before the Grand Chamber of the European Court of Human Rights in the renowned case of S.A.S. v France, in which the applicant argued that the French ban against face covering (which came into effect on 11 April 2011) violated articles 8 (on the right to privacy) and 9 (on the right to freedom of religion) of the European Convention of Human Rights.  Although the law banned all kinds of face coverings with certain exceptions, it was generally understood to especially aim at banning the niqab (full body Islamic veil).

At the hearing Tony argued that the French ban was unnecessary and disproportionate and that there were other options open to the French government to achieve their security or integration objectives. 

The Court disagreed and in a split judgment handed down on 1 July 2014 dismissed the case. Tony’s reaction was published on this website.

Human Rights Committee says Strasbourg was wrong

Yesterday, however, in two landmark decisions the UN Human Rights Committee held that France violated the human rights of two women by fining them for wearing the niqab. The judgments are in French.

As first argued by both Ramby and Tony in S.A.S., the Human Rights Committee found that the general criminal ban on the wearing of the niqab in public introduced by the French law disproportionately harmed the petitioners’ right to manifest their religious beliefs, and that France had not adequately explained why it was necessary to prohibit this clothing. The Committee was not persuaded by France’s claim that a ban on face covering was necessary and proportionate from a security standpoint or for attaining the goal of “living together” in society.

Again, as first argued by Ramby and Tony in S.A.S. the Committee acknowledged that States could require that individuals show their faces in specific circumstances for identification purposes but considered that a general ban on the niqab was too sweeping for this purpose.

The Committee also concluded that the ban, rather than protecting fully veiled women, could have the opposite effect of confining them to their homes, impeding their access to public services and marginalizing them.  This was a specific submission made to the Grand Chamber by Tony but rejected (wrongly) by the majority of the Court.   

Next Steps

The next step is for France within 180 days to report to the Committee on the action it has taken to implement the Committee’s decision, including compensation of the two petitioners and measures taken to prevent similar violations in the future, including by reviewing the law in question.

For further information about the case or to discuss any related matter, Tony Muman can be contacted via his clerks or on 0121 237 6035.  




Tony Muman: Immigration & Asylum Law Barrister of the Year 2018

Tony Muman: Immigration & Asylum Law Barrister of the Year 2018


43templerow is extremely proud to announce that Tony Muman has been awarded Barrister of the Year 2018 in Immigration & Asylum Law.

The annual Lawyer Monthly Legal Awards 2018 recognises the achievements of law firms, lawyers, counsel and those connected to the legal world who have a proven track record in delivering results for their clients over the past twelve months. The awards are divided into individual and firm categories and individuals are assessed against criteria including:

  • The amount of documented activity in the last twelve months when compared to industry peers
  • Involvement in significant legal cases and legal activity
  • Legal expertise and innovation
  • Peer recognition and personal achievement
  • Strategic thinking and planning

Tony has also been invited to the launch event for the prestigious Chambers UK Bar 2019, when the latest Bar rankings will be released.  He has annually received recommendations in the Chambers and Partners Guide to the Legal Profession.

For any further enquiries please contact Tony’s clerks on 0121 237 6035 or