Category: Uncategorised

Halcyon Chambers is hosting the Sikh Lawyers Association’s Annual Pupillage and Training Contracts Interviews on Saturday 9th March.

We are delighted to announce the appointment of Thomas Wheeler to the role of Deputy District Judge (DDJ), assigned to the Midland Circuit.

Tom was called to the Bar in 2011, and practises in the field of Civil and Commercial Law, with a particular expertise in Insolvency.  

Tom’s judicial role will be undertaken alongside his busy practice within Chambers.

Everyone at Halcyon Chambers wishes Tom the very best in his new role.

Chambers is delighted to announce that the advertisement for pupillage 2024 is now live on the Pupillage Gateway. Chambers is looking to take on up to 3 pupils in this round.

The Pupillage Application form will be available on our Pupillage page of this website from 1 January 2024, together with instructions on where to send it.

We wish you luck in your application.

Article by Christine Rutkowski

The consumer industry is becoming increasingly familiar with motor finance claims involving secret commission payments.

In such claims, a customer pleads a right to rescind vehicle finance agreements owing to the payment of an undisclosed commission from the lender to the credit intermediary, often being the car dealership itself.

The true fighting ground between the lenders and the customers focusses on the applicability of the case law to such claims, but before the parties even get to trial the Court is often required to determine the appropriate track allocation for the claim.

Lawyers for the consumer frequently assert that claims should be allocated to the fast track, or even the multi-track on grounds of complexity, the claim value, and the expected length of trial.  Lenders usually take a contrary view and routinely file directions questionnaires that advance allocation to the small claims track.  The result is that the Court will list the matter for a contested hearing.

The rationale behind the Lender’s position is that the true value of the claims fall well under the £10,000.00 small claims track limit.  Consumers usually plead a case that they are entitled ‘as of right’ to rescission subject to counter restitution. The raw figures to be used when calculating the value of rescission are the total amount payable under the agreement minus the cash price of the vehicle.

If the basic calculation results in a figure of less than £10,000.00, CPR r. 26.9(4) applies as the starting point:

‘the small claims track is the normal track for any claim which has a value of not more than £10,000’.

Consumers will usually present calculations to the Court that suggest the value of the claim exceeds £10,000.00 on the basis that interest will be awarded on a rescission calculation.  The contrary argument to this point is found in CPR r. 26.13(1)(a).  The true financial value of a claim is a matter for the Court to assess, and in doing so it will disregard any claim for interest (CPR 26.13(1)(b)).

Leaving aside the claim value, the parties are routinely at odds as to how complex these claims are.  The applicable case law is relatively new, and many Courts may be unfamiliar with the issues.  Likewise, some Courts will struggle to complete the cases in 3 hours and reserved Judgments are frequently given.

In terms of proportionality, the claims should undoubtedly be heard under the small claims track procedure.  In the early days of PPI Plevin disputes the Court would often list the trials for a full day.  If the same approach was to be adopted in motor finance claims, the litigation would be conducted at proportionate cost whilst the Court would have enough time to grapple with the novel arguments that are being advanced in this case.  With the volume of cases being litigated ever increasing however, it seems unlikely that the Courts would be able to accommodate so many full day trials.

Until the Courts become more familiar with the arguments, it is likely that claims will continue to be allocated to track on a case-by-case basis, with a more uniform approach to be adopted in the future.  

Emma Weaver recently attended a preliminary hearing on behalf of the wife during financial remedy proceedings. The issue at hand was whether or not the parties had reached a concluded agreement in respect of all their finances some 7 years prior to the husband lodging his Form A.

The former matrimonial home had been transferred into the sole name of the wife following separation. This matter had been dealt with formally by solicitors and therefore, proved conclusive. However, the question remained whether the other aspects of their finances including pensions had been the subject of a concluded agreement by way of a verbal agreement.

Ultimately, the Judge preferred the wife’s oral evidence and determined that a concluded agreement in full and final settlement of all of their financial claims against the other had been reached.

The case serves as a reminder to seek independent legal advice upon separation where finances are involved. Any agreement should be formalised and at the very least, communicated in writing to ensure there is a paper trail.

Article by Trevor Berriman

In motor finance claims, being claims where a customer is asserting a right to rescind a finance agreement on account of a secret commission having been paid by the Lender to the Credit Broker, the customer must first establish that the Credit Broker acted as their agent for the purposes of obtaining finance.

The requirements of such a claim were set out by Slade LJ in Industries & General Mortgage Co Ltd v Lewis [1949] 2 All ER 573 (quoted in Wood v Commercial First Business Ltd and Business Mortgage Finance 4 plc v Pengelly [2021] EWCA Civ 471 at para 20):

“…(i) that the person making the payment makes it to the agent of the other person with whom he is dealing; (ii) that he makes it to that person knowing that that other person is acting as agent of the other person with whom he is dealing; and (iii) that he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he knows to be the other person’s agent.”

The test for the type of relationship necessary for a secret commission claim was subsequently stated as follows: “in cases such as the present where an “agent” providing advice, information or recommendations has received or been offered a bribe or secret commission, the question that the court should ask and focus on is: did the “agent” owe a duty to be impartial and to give disinterested advice, information or recommendations?” (David Richards LJ in Wood at §102).

Two matters therefore arise:

1. Was the Credit Broker the customer’s agent?
2. Did the Lender know that the Broker was acting as the agent of the customer?

It is open to Lenders to argue that the Credit Broker was neither the customer’s agent nor under any other obligation to “provide information, advice or recommendation on an impartial or disinterested basis” in circumstances where the primary relationship between the customer and the Broker (who is also the Dealer!) was that of motor dealer and customer.  The primary goal was to sell a Vehicle, unlike the freestanding credit brokers in Wood).

In the absence of any contractual arrangements between the Credit Broker and the Customer, it may be that claims fail at (almost) the first hurdle.  If there was no agency, there was no duty and the Wood style rescission claim will not be available.

A helpful and persuasive judgment is contained in the case of Johnson v Firstrand Bank Limited (unreported, 6 July 2023 – available to download here). His Honour Judge Jarman KC clarified, on appeal, the position on whether a motor finance introducer owes a fiduciary duty to a customer. The court decided that there was an essential distinction between broker cases and motor commission cases. The judge stated “that it is difficult to see how in practice or in principle, a car dealer could offer single-minded loyalty to a customer [par.19]” and concluded that the motor dealer was not a fiduciary [Para.20].

Article by Katie Wilkinson

Practitioners in the field of consumer law have been waiting months for the Supreme Court to hand down Judgment in Smith and another v Royal Bank of Scotland [2023] UKSC 34.

Judgment was handed down on 4 October 2023 and the decision reverses the views of the Court of Appeal in Smith v Royal Bank of Scotland plc [2021] EWCA Civ 1832 on the issue of the date that time starts to run for the purposes of the Limitation Act 1980.

Financial institutions would routinely advance defences of limitation in circumstances where the policy of PPI had ‘ended’, usually by way of cancellation, more than 6 years before the claim was issued (the 6-year period being prescribed by s.9 Limitation Act 1980).  The largely uncontroversial position was that such claims were prima facie time barred, and thus the claims themselves were statute barred unless a Claimant could establish the right to rely on s.32 (which acts to postpone commencement of the limitation period in cases of ‘fraud, concealment or mistake).

The effect of the Supreme Court Judgment results in cases that were statute barred in light of the Court of Appeal decision, being no longer statute barred in circumstances where the underlying credit agreement subsists as at the date of issue, or to a date within 6 years of the date of issue.

The Judgment will undoubtedly impact dozens of cases that are currently within the Court system and awaiting trial, and may lead to the issuing of further claims where historical PPI policies once existed on credit agreements that remain live.

Thousands of ‘PPI’ claims have already been issued and heard in the years leading up to the Supreme Court Judgment.  At a time when such claims were significantly decreasing in number, it remains to be seen whether the decision will reignite the consumer forums and result in a further round of mass litigation.

Article by Katie Wilkinson

The Supreme Court has unanimously allowed the appeals in Smith and another v Royal Bank of Scotland [2023] UKSC 34.

The appeals followed the Court of Appeal’s decision in Smith v Royal Bank of Scotland plc [2021] EWCA Civ 1832.

The appeals focussed on the question of whether claims brought pursuant to s.140A of the Consumer Credit Act 1974 (‘CCA’), commonly known as the ‘unfair relationship’ provisions,  to remedy unfairness arising from a credit relationship, were brought in time.

The underlying claims sought a declaration of unfairness, together with a remedy under s.140B of the CCA in relation to undisclosed commission for payment protection insurance policies (‘PPI’). The policies of PPI were taken out by customers of the Royal Bank of Scotland (‘RBS’) at the same time as credit agreements were entered into.

Both Smith and Burrell brought separate claims in the County Court in 2019 seeking an order that RBS repay all the money paid by them for PPI (less the redress already paid), plus interest. The claims succeeded and the decisions were both upheld on appeal by the County Court Judge.

On second appeals, the Court of Appeal ruled in favour of RBS, holding that in each case the relevant time limit for bringing a claim had expired before the claim was brought.

Both Smith and Burrell appealed to the Supreme Court.

The Supreme Court has held that both claims were brought before the relevant time limit expired.  The orders made in the County Court in each case were restored.

The Judgment provides that the 6-year time limit to bring a claim, as provided for by s.9 Limitation Act 1980, does not start to run until the credit relationship ends.  This decision overturns the view of the Court of Appeal, whose decision held that time starts to run at the point the PPI policy (and any associated ongoing economic effect) comes to an end.

The Supreme Court noted that the decision did not unduly expose RBS and other creditors to stale claims given that the court retains a discretion as to what, if any, remedy to grant.

Please find a copy of the judgment by clicking here.

The recent appeal judgment in Irving v Morgan Sindall PLC [2018] EWHC 1147 (QB) by Mr Justice Turner is greatly appreciated for bringing much needed clarity over two issues credit hire practitioners regularly battle with:

1. Where is the line drawn for impecuniosity to be established; and
2. Must a claimant have a personal liability to pay the hire charges in order for it to be recoverable from the defendant?

His Honour Judge Saffman at trial dismissed a claim for credit hire charges amounting to £20,109.60 on the basis that he had “to be satisfied that the claimant is obliged to pay them” and in this case, her oral evidence “is that she is not”. Impecuniosity was pleaded but Miss Irving was held to be pecunious.  Mr Justice Turner allowed the appeal on both grounds.

Contingent Liability:

HHJ Saffman was not satisfied that Miss Irving was liable to pay the charges as it was elicited during cross examination that oral assurances were made by the credit hire company to her that she would not have to pay any car hire charges if the claim against the defendant failed. Her liability was held to be contingent, albeit appearing to contradict the written agreement. HHJ Saffman did not deal with the legal effect of oral evidence conflicting with written agreements and Mr Justice Turner’s judgment proceeded, albeit superficially, on the basis that her liability was contingent. Arguably, his judgment is only relevant to those cases where liability is without any dispute contingent upon a claim against the defendant, that failing, the claimant would have no personal liability to pay the charges.

HHJ Saffman did not refer to a jurisprudential basis in his finding. Mr Justice Turner referred to several authorities on point, including Giles[1993] ALL E.R., and found nothing that “precluded the recovery of a contingent debt (…) Indeed, the contrary would appear to be the case”. The question which the Master of the Rolls in Gilesasked himself was “if these plaintiffs recover reasonable charges reasonably incurred, they will be over compensated?”.Mr Justice Turner also referred to the case of Wakeling v Harrington [2007] EWCH 1184 (Ch) which similarly held that “whilst an obligation to repay is an essential characteristic of a loan, the manner in which the obligation is to be discharged may be restricted”.Mann J furthered that “it suffices that payment is to be made from a designated fund or from the proceeds of a specified asset”.In the present case, Mr Justice Turner concluded that HHJ Saffman was wrong to deem the oral assurances compromised her claim for credit hire charges.

Impecuniosity:

Miss Irving pleaded impecuniosity at trial but HHJ Saffman considered her to be pecunious. Miss Irving had made full financial disclosure, which revealed that she had a wage of £472 per month, sometimes fluctuating to £700. The lowest that her account would reach was £250. She had an ISA savings account containing £250 and a credit card with a limit of £500.

HHJ Saffman considered that she could have raised approximately £900 by depleting her funds and could have bought a replacement vehicle, the pre-accident value of her vehicle being £775.

Mr Justice Turner deemed this approach to be wholly incorrect with the test laid out in Lagden v O’Connor [2004] 1 A.C 1067 that the disclosure must show that there was an “inability to pay car hire charges without making sacrifices the plaintiff could not reasonably be expected to make”.  Mr Justice Turner emphasised that Miss Irving was not aware that her car was written off until two weeks elapsed from the incident and a further two weeks would have been needed to find a replacement vehicle. During this four-week period, Miss Irving would have had to hire a car and when factoring in the cost of hire over this period in addition to a replacement vehicle, the amount that Miss Irving needed was not simply £775. This far exceeded HHJ Saffman’s approximation of £900 being available to Miss Irving. Mr Justice Turner clarified that impecuniosity does not mean “reducing her capital to the bare minimum and increasing her debt”as she “would have been exposing herself to the risk of a serious financial challenge in the event that a modest but unexpected financial reverse might have afflicted her before her claim was satisfied. Impecuniosity need not amount to penury”.

By taking a pragmatic approach to issues such as impecuniosity and contingent liability, Mr Justice Turner has sought to clarify admittedly grey areas within credit hire litigation and it will be interesting to monitor the reliance upon this judgment.

Sharon Hughes

5 July 2018

Tony Muman successfully represented a Masters Student in the High Court wrongly expelled, see previous post together with article below for further details.

Tony Muman acted for HA and was led by Ramby de Mello. Martin Bridger at Bhatia Best Solicitors is HA’s solicitor.

R (HA) v University of Wolverhampton General Pharmaceutical Council (intervening) [2018] EWHC 144 (Admin)

https://www.google.co.uk/amp/s/www.birminghammail.co.uk/news/midlands-news/masters-student-wrongly-expelled-university-14297234.amp

43 Temple Row Chambers is delighted to announce the judicial appointment of Miss Kate Thomas as a District Judge.

Kate was called to the Bar in 1994 and after a few initial years of practise in London she returned to the city of her birth to establish a solid criminal defence practice.

Following her appointment in 2013 as an Assistant Coroner, Kate’s practice gravitated towards inquest work, and as an assistant she regularly presides over Article 2 ECHR and HSE Jury Inquests as well as complex medical deaths.

Kate was then appointed as a Deputy District Judge in 2015. Kate’s appointment will take effect from the 5th March 2018, based at Walsall County Court.

43templerow are extremely proud of Kate’s elevation and wish her every success in her new role.

SM (Algeria) v Entry Clearance Officer, UK Visas Section

A JUDGMENT OF TWO PARTS: a non-lawyer’s guide (2/2)

Susanna is a beautiful seven year old girl.  Abandoned at birth outside an Algerian hospital she was placed in the long-term care of Mr and Mrs M, a French couple living and working in the UK.  Unable to conceive their own child they decided to travel to Algeria to be assessed for the suitability as guardians under the Islamic kefalah system.  Following the transfer of legal custody and parental responsibility to Mr and Mrs M, Susanna applied for admission to the UK as a family visitor.  This was refused and Susanna reapplied, this time under the Immigration (EEA) Regulations 2006 as the family member of Mr and Mrs M.  The application was refused on the basis that the Algerian guardianship was not recognised as an adoption under UK law, and that Mr and Mrs M had not made an application under s 83 of the Adoption and Children Act 2002 for Susanna to be adopted once here.  She appealed to the First-tier tribunal who in a reserved determination dismissed the appeal.  Susanna then appealed to the Upper Tribunal which sat as a legal panel.  In a reserved determination the panel dismissed the appeal with reference to the 2006 EEA Regulations but allowed it on the basis of Article 8 of the ECHR.  Unhappy with that decision the Entry Clearance Officer successfully appealed to the Court of Appeal which held that the Upper Tribunal was wrong to allow the appeal on Article 8 ECHR grounds and that Susanna could not qualify as either a family member or, in the alternative, an extended family member under the 2006 EEA Regulations.  Thus it was that the matter came before the Supreme Court.

Part 2. Kefalah guardianship: is blood really thicker than water ??

In Islam adoption is prohibited.  However, the right is accorded a special institution: Kefalah or “legal care”.  In Islamic countries kefalah is defined as a voluntary undertaking to provide for a child and take care of his or her welfare, education and protection.  Kefalah represents the Islamic alternative to adoption.

There are three main features which distinguish kefalah from western adoption: non-severance of family ties; non-transference of inheritance rights; and no change in the child’s family name.  Although a child adopted under kefalah has no legal right to inherit from the adoptive family, in practice such a child is assigned an inheritance through testamentary succession.

Kefalah does not permit discrimination between kefalah children and those born to the household.  It is the highest form of protection and alternative care for orphans and abandoned children in Islam.  It also represents a form of social security for these children.  More significantly kefalah’s unlimited nature results in a permanent bonding relationship between the child and the family in question.  The child becomes a part of the family and is raised in the same manner as the natural children of the family.  This is important since kefalah is seen not only as a meritorious deed, but also as a religious duty.  However, over time, the emphasis is on providing a family-based alternative care for orphans and other abandoned children because they are destitute and require proper care and attention for proper overall development.  Kefalah is, in the main, a primary moral obligation for Muslims towards such children.  The principle of the best interests of the child remains the primary focus in any circumstance.  Islam places a great premium on raising the child within a family environment, the maintenance of one’s identity, traceable to one’s natural parents, occupies a more central position.

There are three approaches to international kefalah, determined by state law and practice.  Firstly, countries which strictly do not recognise or permit international kefalah (e.g. Egypt, Iran, Mauritania); secondly, countries that deal with international kefalah on a case-by-case basis (e.g. Algeria, Morocco, Jordan, Pakistan); and thirdly countries that provide legislation on adoption or the conversion of kefalah into adoption, where relevant (e.g. Tunisia, Indonesia).

Kefalah, as an alternative care for abandoned children in Islamic countries, is not incompatible with international instruments governing the recognition of adopted children in the European Union.  European Union States, which are signatories to the 1993 Hague Convention on Intercountry Adoption, recognise kefalah children as family members of their legal guardians even though these children are not treated as adopted children under their national law.  This practice allows for the child to develop family ties with their legal guardians and become integrated into society in which their legal guardians reside.  For example France and Italy which have a sizeable proportion of those of the Muslim faith, recognise children who are in care of their legal guardians under the kefalah system as being family members of their guardians.

Mr and Mrs M are French nationals.  Under French law legal guardians are not able to adopt children placed in their care under the kefalah system but their legal system allow for such children to move to and live with their legal guardians and to become French citizens.

This case was not concerned with the Immigration Rules but only entry and residence under the Citizens Directive and the 2006 EEA Regulations.  The question for the Court was whether Susanna is a direct family member or an extended family member or (as the Court of Appeal held) neither under EU law?

The Supreme Court had no hesitation in concluding that Susanna is an extended family member as defined.  The Court explained that the problem in this case was the use of the word ‘relative’ in the Regulations instead of the phrase ‘family member’ which the Citizens Directive uses.  The latter is wider than the former and can be interpreted to include those who are non-blood related and who fall within the broad concept of being a member of the family.  Susanna, being a dependent of Mr and Mrs M in Algeria and a member of their household clearly fell within this definition.

UK legislation relating to adoption is relevant to ensure that a child is not the victim of exploitation, abuse or trafficking or that the birth family has abandoned a claim to the child.  But just because the transfer of parental responsibility does not meet the stringent requirements of UK adoption law does not mean that the relationship cannot be recognised.  The statutory duty to act in the best interests of the child is a primary consideration.  It requires an assessment of all of the relevant facts including the child’s admission to the UK is in her best interests.  This evaluation would include the need to protect all children from the dangers of exploitation, abuse and trafficking.  Decision-makers would also have to consider that to refuse such a child admission to the UK could act as a powerful deterrent to the exercise of the right of free movement under the Citizens Directive.  This is precisely what happened in Susanna’s case.  Whilst Mr M was forced to return to the UK to resume his employment, Mrs M had to abandon her employment and he right to live with her husband to remain living with Susanna in Algeria.

The Court’s conclusion that Susanna is an extended family member however did not dispose of the appeal.  That is because if in fact Sarah qualifies as a direct family member then she gets an automatic right of entry and residence into the UK under the Citizens Directive.  This question was not so easy to resolve.  Clearly biological children are direct family members, as are children who have been lawfully adopted in accordance with the requirements of the host country.  Whilst the European Commission has indicated that children who are in the custody of a permanent legal guardian, including long-term foster children, may also fall under this definition there is no case law on this.  The case law that there is seems to suggest that the idea of who is a direct family member is a uniform concept which should have the same meaning throughout the European Union and that as such individual members cannot impose their own definition.  If, for example, the UK refused to recognise as direct descendants kefalah children whilst France and Italy did then it would not only place barriers to free movement for European nationals like Mr and Mrs M who have such children, but would also be discriminatory on grounds of religion and culture.

On the other hand the Court had concerns that if the definition of direct descendants was to be interpreted broad enough to include kefalah children, it might in some cases be taken advantage of to create opportunities for exploitation, abuse and trafficking in children, or might lead to children being admitted and placed in homes that would be rejected as unsuitable under UK law.

In the end the Supreme Court considered that there was no clear answer and decided to ask the European Court of Justice to give guidance on three questions:

(1) Is a child who is in the permanent legal guardianship of a Union citizen or citizens, under “kefalah” or some equivalent arrangement provided for in the law of his or her country of origin, a “direct descendant” within the meaning of the Citizens Directive?

(2) Can other provisions in the Citizens Directive be interpreted so as to deny entry to such children if they are the victims of exploitation, abuse or trafficking or are at risk of such

(3) Is a member state entitled to inquire, before recognising a child who is not the direct blood-related descendant of the EEA national as a direct descendant into whether the procedures for placing the child in the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of that child?

Commentary

To conclude that the term ‘direct descendants’ includes children who have been placed in the long-term custody of guardians, which could include fostering, would be welcomed in many quarters as a positive development of the law in this respect.  It would provide a much-needed compromise for children like Susanna who for religious and cultural reasons is unable to be adopted, let alone in accordance with the principles of the Hague Convention.  As important as safeguards are, indeed they must always be of primary consideration, Member States also need to recognise that nationals like Mr and Mrs M are through no fault of their own forced into invidious positions, having to choose between rights of free movement on the one hand and the right to family reunification on the other.  A balance must now be struck.

The European Court of Justice has been asked to expedite the case.  This is likely to be one of the last cases from the UK to the CJEU before Brexit.  Whether things change thereafter will remain to be seen.

Tony Muman and Katie Wilkinson appeared for Susanna, together with Jessica Smeaton and led by Ramby de Mello.  Lisa Tang at David Tang and Co. Solicitors is Susanna’s solicitor.

For any further enquiries please contact Tony and Katie’s clerks on 0121 237 6035 or clerks@43templerow.co.uk

SM (Algeria) v Entry Clearance Officer, UK Visas Section

A JUDGMENT OF TWO PARTS: a non-lawyer’s guide (1/2)

Susanna is a beautiful seven year old girl.  Abandoned at birth outside an Algerian hospital she was placed in the long-term care of Mr and Mrs M, a French couple living and working in the UK.  Unable to conceive their own child they decided to travel to Algeria to be assessed for the suitability as guardians under the Islamic kefalah system.  Following the transfer of legal custody and parental responsibility to Mr and Mrs M, Susanna applied for admission to the UK as a family visitor.  This was refused and Susanna reapplied, this time under the Immigration (EEA) Regulations 2006 as the family member of Mr and Mrs M.  The application was refused on the basis that the Algerian guardianship was not recognised as an adoption under UK law, and that Mr and Mrs M had not made an application under s 83 of the Adoption and Children Act 2002 for Susanna to be adopted once here.  She appealed to the First-tier tribunal who in a reserved determination dismissed the appeal.  Susanna then appealed to the Upper Tribunal which sat as a legal panel.  In a reserved determination the panel dismissed the appeal with reference to the 2006 EEA Regulations but allowed it on the basis of Article 8 of the ECHR.  Unhappy with that decision the Entry Clearance Officer successfully appealed to the Court of Appeal which held that the Upper Tribunal was wrong to allow the appeal on Article 8 ECHR grounds and that Susanna could not qualify as either a family member or, in the alternative, an extended family member under the 2006 EEA Regulations.  Thus it was that the matter came before the Supreme Court.

Part 1 : Sala… the final nail in the coffin ?

Immigration lawyers need no introduction to the mess that spawned after the Upper Tribunal’s judgment in Sala [2016] UKUT 411 (IAC), promulgated 7 September 2016.  In short, under the 2006 EEA Regulations (and the Citizens Directive that the Regulations give effect to) there are two types of family member, as defined.  The first is uncontroversial – direct family members (e.g. spouses, parents, children including adopted children etc.)  The second is extended family members (e.g. unmarried partners, uncles/aunts, nephews/nieces, cousins etc.)  Mr Sala, as an unmarried partner, claimed to be an extended family member of a Union citizen.  Before Sala, it was always accepted that in respect of both types, an adverse decision attracted a right of appeal to the First-tier Tribunal.  So far, so good.

In Sala, an ordinary case on its facts, things materially changed.  The appeal came before the Upper Tribunal, having been dismissed by the First-tier Tribunal.  Of his own accord the Deputy President of the Upper Tribunal raised as a preliminary issue the question whether under the 2006 EEA Regulations Mr Sala had a right of appeal in the first place and therefore whether the tribunal had jurisdiction to hear his appeal.  The Home Office and Mr Sala were agreed that he did have a right of appeal.  Dissatisfied with the consensus between the parties the Upper Tribunal adjourned and directed that the Attorney General appoint counsel to act as ‘a friend to the court’ and specifically to argue the contrary.  In the end counsel’s submission to the Upper Tribunal was that there was logic to the agreed position argued for by the Home Office and Mr Sala.  Despite the firm view taken by the parties, supported by the ‘friend to the court’, the Upper Tribunal in a reserved decision dismissed the appeal holding that a decision to refuse to issue a residence card to an extended family member was not one which attracted a right of appeal, and as such the tribunal had no jurisdiction to consider any such appeals.  The Upper Tribunal’s decision was reported, the designed effect of which was to set a procedural bar thereafter to any such appeals being litigated for want of jurisdiction.

Mr Sala did not appeal.  The effect of concessions made during his appeal meant that he would inevitably succeed upon a fresh application, which was in his best interests to pursue.  It was then left to the Home Office to appeal the Upper Tribunal’s determination.  In a surprise U-turn and contrary to its submission to the Upper Tribunal, the Home Office agreed that extended family members did not have a right of appeal to the tribunal and amended its guidance and subsequently the EEA Regulations to this effect.  No doubt the Upper Tribunal’s determination was gratefully received by a Secretary of State desperate to adopt any measure to eliminate rights of appeal in an effort to reduce net migration to the tens of thousands.

In practice thereafter appeals lodged by those claiming to be extended family members were summarily rejected by the First-tier tribunal and pending appeals, having been filed before Sala, were dismissed on grounds of lack of jurisdiction.  The luckiest cases were adjourned pending the hope of guidance from the higher courts.  Hundreds, if not thousands, of cases are likely to have been affected.

After Sala the Upper Tribunal considered the case of Banger [2017] UKUT 00125 (IAC).  Like Mr Sala, Mr Banger claimed to be an unmarried partner and therefore an extended family member of a Union citizen.  The issues before the Upper Tribunal were different to those in Mr Sala’s case which the President considered to be difficult enough to refer to the Court of Justice for the European Union for answers.  In the light of Sala the Upper Tribunal also decided at the same time to ask the Court of Justice for its opinion on whether extended family members have a right of appeal under European Union law.  The judgment is expected within the next few months.

Susanna was granted permission to appeal to the Supreme Court before any of the problems caused by Sala arose.  At no stage did anyone suggest that the tribunal or the Court of Appeal did not have jurisdiction to hear the appeal.  In the ECO’s written case to the court however, she drew attention to the Sala decision but said it was for information only.  Having done so, Susanna was able to invite the Supreme Court to determine, as a preliminary issue, whether it had jurisdiction to hear the appeal.  Although the ECO sought to resist at first, she soon accepted that Susanna was correct to ask the question.  The parties therefore agreed that the Supreme Court should decide whether the Upper Tribunal’s decision in Sala was correct.  The Court helpfully agreed to permit the parties to file written submissions and agreed, if necessary, to reconvene for a further hearing on the Sala point.  The hearing on 23 March 2017 dealt only with the issues which are explained in the second part to this blog.

In the meantime, the Court of Appeal heard the appeal in Khan [2017] EWCA Civ 1755.  Mr Khan claimed to be the extended family member of his uncle, a Union citizen.  Before Sala the First-tier Tribunal allowed his appeal but the Upper Tribunal subsequently ruled that it had had no jurisdiction to hear the appeal in the first place and allowed the Secretary of State’s appeal.  Mr Khan persuaded the Court of Appeal to grant permission to appeal on the critical issue of whether Sala was correctly decided.  In its judgment handed down on 9 November 2017, shortly before the Supreme Court reconvened to hear the argument, the Court of Appeal allowed Mr Khan’s appeal concluding that the Upper Tribunal was wrong in Sala to hold that extended family members did not have a right of appeal under the 2006 EEA Regulations.

On 29 November 2017 the Supreme Court resumed to consider what was essentially the Secretary of State’s appeal against the Court of Appeal’s judgment in Khan.  At § 35 of its judgment, the Court refreshingly described the argument as a “simple one”.  Contrast this with § 84 of the Upper Tribunal’s determination in Sala where the issue was described as “difficult”.  The reality, it seems, is that the 2006 EEA Regulations were, as the Master of the Rolls said at § 27 of Khan, “formidably obscure and badly drafted” and that the Upper Tribunal, without necessity or invitation, complicated what should have been (and was for many years before then) a straightforward exercise of interpreting simple language applying their ordinary and natural meanings.

At § 38 the Court held that the Court of Appeal was clearly correct to reach the conclusion that it did in Khan, overturning the Upper Tribunal’s decision in Sala; that under the 2006 EEA Regulations there was a duty on the Secretary of State to facilitate entry, to make full enquiries and to justify refusal; it was inevitable that there would be cases in which the refusal would be wrong, and that those persons once proven to be wrong would be entitled to be treated as family members under the 2006 EEA Regulations.  Such persons therefore did have a full right of appeal to the First-tier Tribunal.

Is that now finally the end of Sala?  The short answer is that it should be.  However, the Supreme Court concluded its judgment by reminding itself first at § 40 that the 2006 EEA Regulations have since been replaced by new regulations passed in 2016 which removes the right of appeal for extended family members, presumably to implement the now defunct decision in Sala.  One would therefore expect the Secretary of State to revise the definition of “EEA decision” in the 2016 EEA Regulations but, as recent form shows, she has a habit of doing the unexpected and we wait to see.

Second, at § 41 of its judgment the Supreme Court refers to the hearing in Banger, which has now taken place.  The outcome of that reference in Banger will determine the slightly different question of whether the procedural safeguards contained in the Citizens Directive require a full merits appeal to the tribunal.  If the Court of Justice agrees with the Secretary of State that the UK judicial review procedure does provide an effective remedy it may be that the issue has to be revisited.

Whatever happens hereon, looking back and especially in the context of the very many number of people who have undoubtedly been denied a right of appeal because of Sala, the Upper Tribunal must be wondering whether it was sensible to interfere with a longstanding practice that did not need or require disturbance.  No doubt those who have been denied the right of access to the tribunal because of Sala will now call for remedy at risk of being, as some have described, victims of historical injustice to arise from unwarranted judicial interference.

Tony Muman and Katie Wilkinson appeared for Susanna, together with Jessica Smeaton and led by Ramby de Mello.  Lisa Tang at David Tang and Co. Solicitors is Susanna’s solicitor.

For any further enquiries please contact Tony and Katie’s clerks on 0121 237 6035 or clerks@43templerow.co.uk

R (HA) v University of Wolverhampton

General Pharmaceutical Council (intervening)

[2018] EWHC 144 (Admin)

Spent Convictions and the MPharm Course: fitness to practice

In a judgment handed down this morning Mr Justice Julian Knowles declared unlawful and quashed the decision of the University of Wolverhampton excluding one of its accredited Master of Pharmacy (‘MPharm’) degree students (‘HA’) from the course on the basis that his fitness to practice was impaired as a result of having failed to declare prior to admission two convictions, received when he was aged 15. The judgment is here.

His Lordship held that HA’s Article 8 ECHR rights were engaged and that in reaching its decision to exclude him the University failed to have regard to mitigating circumstances, as it was required to do. In this case there were a number of mitigating factors that the panel should have taken into account including the fact that HS was only 14 years of age at date of offences and 15 at date of convictions, that he tried to tell the University about his convictions immediately after his induction course, that he expressed remorse for his actions, and that he had successfully completed his A-levels and was described by his sixth form as a ‘courteous and well behaved student’. Further the panel did not consider less intrusive sanctions as it was required to do both under the University policy and the principle of proportionality under Article 8 ECHR.

Commentary

HA lives with his parents and siblings in inner-city Birmingham. Reliance on historic convictions in the way that the University here sought to do undoubtedly has an adverse effect on a disproportionate number of BAME students, or potential students. Unlike the University, this is something that the Government finally seems to be catching up to and the early signs appear positive, with much credit (and thanks) owed to champions like David Lammy MP, who recently concluded a review on racial bias and BAME representation in the Criminal Justice System. See ‘The Lammy Review: An independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System’

Tony Muman acted for HA and was led by Ramby de Mello. Martin Bridger at Bhatia Best Solicitors is HA’s solicitor.

For any further enquiries please contact Tony clerks on 0121 237 6035 or clerks@43templerow.co.uk

Jonathan Bott has represented the father in Re. PQR (Children) [2017] EFWC B86 reported in The Guardian. 

The father and mother had an ‘open relationship’ which included the parents having relationships with other people. Her Honour Judge Williscroft indicated that the court should not be concerned about the parents’ private lives and how they conduct them ‘unless it impacts on the care of the children.’

The full report of the case can be found here

Chambers are proud to announce that Tony Muman has, for the sixth successive year, been ranked as a leading barrister in the prestigious Chambers and Partners Bar Guide 2018.

The guide notes Tony as “a well-regarded junior who is noted for his counsel on immigration law, asylum, EU and nationality law… regularly involved in significant cases before the Supreme Court” and that “He often handles cases concerning minimum income or English language requirements.”

The guide recognises Tony’s “really intellectual approach to law” and for “coming up with interesting arguments.”

A QUICK UPDATE ON MM (Lebanon)

3 days before the Rules change…

Following the Court’s judgment on 22 February 2017 the parties sought to agree an order which gave effect to it and in particular to paragraph 110 which reads:

110.  So far as concerns the instructions, we have indicated those aspects which require revision. However, given the passage of time, including new legislation, it would be wrong for this court to attempt to indicate how those defects should now be corrected. It is preferable to adjourn the question of remedies to allow time for the Secretary of State to consider her position, and to indicate to the appellants and to the court how she proposes to amend the instructions or other guidance to accord with the law as indicated in this judgment. The court will receive written submissions on such proposals, and consider whether a further hearing is necessary.

Despite the Home Secretary’s initial reservations, in the end she accepted that the appeals in the linked cases of SS (Congo) and Master AF had achieved complete success.  To the contrary, in MM (Lebanon), the first area of dispute was the Home Secretary’s contention that the appeal had been dismissed.

As to the declaration the Home Secretary proposed to confine the Court’s criticism of GEN 1.0 and 1.1 to just the MIR provisions of the partner rule in Appendix FM.  In reply and on behalf of MM (Lebanon) it was pointed out that this was incorrect and that GEN 1.0 and 1.1 were sweeping general provisions which extend to Appendix FM as a whole, and that furthermore the Court was equally critical of the Home Secretary’s guidance.

As to giving effect to paragraph 110 of the judgment the Home Secretary contended that the Court did not invite further submissions from the appellants on this issue and that any changes that were required of the Rules and Instructions were a matter for her, and not the appellants, including how she chose to give effect to the judgment of the Court.  In reply and on behalf of MM (Lebanon) it was pointed out that this was also incorrect and that the Court could not have been clearer at paragraph 110 in directing a sequential approach which required the Home Secretary to first indicate to the appellants and the Court her proposed changes which would accord with the law set out in the judgment, and for the Court to receive written submissions on such proposals and thereafter to decide whether a further hearing is necessary.

Unable to reach consensus the parties filed competing submissions and draft orders setting out their respective positions.

On 28 July 2017 the Supreme Court emailed its sealed order ordering that the appeals in Master AF and SS (Congo) be allowed and that the decision of the Upper Tribunal in SS (Congo) be restored.

Agreeing with the submissions filed on behalf of MM (Lebanon), SS (Congo) and Master AF the Court declared that the Immigration Rules and Instructions fail unlawfully to give effect to the duty of the Secretary of State in respect of the welfare of children under section 55 of the Borders, Citizenship and Immigration Act 2009.

Agreeing with the submissions filed on behalf of MM (Lebanon) the Court rejected the Home Secretary’s contention that the appeal had been dismissed and ordered it be allowed to the extent set out in the judgment.

Significantly, and again agreeing with the submissions made on behalf of MM (Lebanon), the Court went on to order the Home Secretary to file a statement as indicated in paragraph 110 within two months of the date of the order and for the appellants to file submissions two weeks thereafter on whether the statement accurately reflects the judgment of the Court.

On 21 July 2017 and seven days before receiving the Court’s final order the Government Legal Department wrote to the Court advising that on 20 July the Government had laid before Parliament HC 290 intended to give effect to the Court’s judgment and enclosed a copy.  The changes set out in HC 290 come into effect on 10 August 2017 and will apply to all decisions made on or after that date.  It is understood that revised guidance will also be published to coincide with the rule change.

A further post detailing the changes introduced by HC 290 will follow but in the meantime a letter has been sent to the Government Legal Department asking for clarity as to when we can expect to receive the Home Secretary’s statement or whether the letter sent to the Court on 21 July 2017 together with enclosure (HC 290) is to stand as her statement.  The Court’s intention is now clear.  It expects a statement from the Home Secretary as indicated at paragraph 110 of her judgment to be followed by submissions from the appellants thereafter as to whether the defects identified in the Court’s judgment have now been remedied.  The Court will then have to decide whether a further hearing is necessary.

The Home Secretary’s response is likely to be to rely on the Written Ministerial Statement (HCWS95) by the Immigration Minister Brandon Lewis MP together with what is set out in the Explanatory Memorandum.  As to whether there will be anything else remains to be seen but it is clear that HC 290 is the vehicle through which the Home Secretary purports to give effect to the Court’s judgment.  The real question, yet to be tested, is whether it goes far enough?

Tony Muman appeared for MM (Lebanon) led by Manjit S. Gill QC and instructed by Sanjeev Sharma of J.M. Wilson Solicitors

Tony Muman and Joseph Neville both appeared for Master AF and SS (Congo)

Immigration analysis: Tony Muman of 43 Temple Row Chambers explores the core issues in the Supreme Court’s decision in R (on the application of Kiarie and another) and examines why the ‘deport now/appeal later’ regime set out in section 94B of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002) was deemed to be incompatible with Article 8 of the European Convention on Human Rights (ECHR) in these cases.

Certifying human rights claims of individuals liable to deportation (Kiarie and another v Secretary of State for the Home Department)

R (Kiarie) and R (Byndloss) v Secretary of State for the Home Department [2017] UKSC 42

In the Conservative Party Conference 2013 Theresa May, then Home Secretary, announced her flagship policy to deport foreign criminals before they could appeal their deportation decisions – said appeal having to be filed from outside the UK.  The Immigration Act 2016 sought to extend this power to all arguable human rights cases.

For reasons explained in its judgment, the Supreme Court has this morning declared this power to be unlawful, which means that the Home Office cannot compel those who have made human rights claims to first leave the UK before they can appeal.

Tony Muman of 43templerow chambers, counsel for Mr Byndloss, said:

“The Court does not say anything about the merits of either of these two appeals.  That is a matter for the Immigration tribunal when it comes to hear these cases.  This judgment is all about procedural fairness and the Court has concluded that the system for dealing with appeals from abroad in human rights cases does not provide an effective right of appeal in such cases.  This is welcome news in particular to all those who were facing the grim prospect of having to leave the UK just so that they could then appeal the Home Secretary’s rejection of their human rights claims, and then to return at their own expense if they won.”

Key Points:

• The ‘deport first, appeal later’ regime was introduced in July 2014 by section 94B of the Nationality, Immigration and Asylum Act 2002 which confers a power on the Home Secretary to certify the human rights claims of individuals liable to deportation, where she is satisfied that deportation pending the outcome of an appeal would not breach human rights. The effect of such a certification is that the individual may appeal against his deportation only after removal from the UK.

• Between 28 July 2014 and 31 December 2016 1,175 certificates had been issued pursuant to section 94B. By 31 December 2016, only 72 of those individuals had filed a notice of appeal with the tribunal from abroad. As the Supreme Court noted this is probably due to the practical, financial and logistical difficulties involved. As of 13 February 2017, not one of the 72 appeals had succeeded.

• In October 2015 the Court of Appeal heard judicial review claims by Mr Kiarie and by Mr Byndloss, who had each committed crimes in the UK but who wished to appeal against deportation on grounds that it would interfere unjustifiably with their private and family lives. The Court of Appeal dismissed the claims, whilst holding the Home Secretary’s Guidance to staff to be unlawful in certain respects.

• In the time that it has taken for the case to reach the Supreme Court, the certification power has been extended by the Immigration Act 2016 to any human rights claim, irrespective of whether the individual is liable to deportation. The Supreme Court has specifically said that its judgment on section 94B will impact on the exercise of the extended power.

Manjit Gill QC of No. 5 Chambers and Tony Muman of 43 Temple Row Chambers was instructed by Sanjeev Sharma of J M Wilson Solicitors.

For any further enquiries please contact Tony Muman’s clerks on 0121 237 6035 or visit this link