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Costs in the First Tier Tribunal (Property Chamber)

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Following a recommendation in the Report of the Costs Review Group to the Senior President of the Tribunal in December 2011, costs in the First Tier Tribunal (Property Chamber) can now be awarded in the following circumstances:

  • Where wasted costs have been incurred; or
  • Where costs have been incurred by one party where a person has acted unreasonably in bringing, defending, or conducting proceedings; or
  • In a land registration case.

Jurisdiction is conferred on the Tribunal pursuant section 29(4) of the Tribunal Courts and Enforcement Act 2007 which reads:

Costs or expenses

(1) The costs of and incidental to—

(a) all proceedings in the First-tier Tribunal, and

(b) all proceedings in the Upper Tribunal,

shall be in the discretion of the Tribunal in which the proceedings take place.

(2)The relevant Tribunal shall have full power to determine by whom and to what extent the costs are to be paid.

(3) Subsections (1) and (2) have effect subject to Tribunal Procedure Rules.

(4) In any proceedings mentioned in subsection (1), the relevant Tribunal may—

(a) disallow, or

(b) (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with Tribunal Procedure Rules.

(5) In subsection (4) “wasted costs” means any costs incurred by a party—

(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or

(b) which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay.

(6) In this section “legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct the proceedings on his behalf.

(7) In the application of this section in relation to Scotland, any reference in this section to costs is to be read as a reference to expenses.”

Pursuant to this provision, Rule 13 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 now applies to unreasonable conduct arguments in proceedings in agricultural land and drainage cases, residential property cases, and leasehold cases.

If awarded to a party, costs can be summarily assessed by the Tribunal, awarded in an agreed sum, or made subject to detailed assessment.

Applicants and Respondents in the Tribunal should therefore ensure compliance with Orders and Directions, and avoid last minute applications, or risk defending a costs application on the basis of unreasonable conduct.

Katie Wilkinson

The Doctrine of Co-extensive liability in a tripartite relationship

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The principle, first outlined in Octagon Assets Limited v Remblance [2009] EWCA Civ 581 can be simply stated. A tenant, who had fallen into rent arrears, brought an action against the landlord for breach of various covenants. The landlord served a statutory demand on the tenant’s guarantor for the rent arrears.

The guarantor pointed to the unfairness of the situation. The landlord could not have served a statutory demand for the rent arrears against the tenant. The tenant would have been able to rely on the cross-claim as a ground to set aside the demand (under IR r. 6.4(5)(a)). The guarantor, however, had no such cross claim and therefore appeared to be unable to set aside the statutory demand.

The Court of Appeal (reversing the judgment of Mann J) held that as the tenant’s obligations and the guarantor’s obligations were “co-extensive”, justice required that the guarantor be in an equivalent position to the tenant. Dyson LJ held:

“It was unjust to allow Octagon [the landlord] to proceed against Mr Remblance [the guarantor] by the insolvency route if it could not proceed against JBR [the tenant] by that route.

The doctrine has no application to grounds for setting aside under IR r. 6.4(5)(c) or (d) as:

 

  • A creditor which has several remedies can choose which to enforce, at what time, in which order and in what way, being limited only by the proposition that it cannot recover more than is due to it on the debt with interest and costs by way of its several recovery procedures;

 

  • Where a security (or partial security) exists over the debt BUT the security given to the creditor is over the assets of a different person, then the existence of that security does not constitute any reason why the particular creditor should not proceed against this other debtor, who has given no security over his assets, for an undoubted debt by way of a personal claim or by way of insolvency proceedings.

 

White v Davenham Trust Ltd [2011] EWCA Civ 747.

This was another tripartite relationship of creditor, principal debtor and guarantor. The guarantor was served with a statutory demand in relation to the debt owed by the principal debtor. The creditor had not proceeded against the principal debtor as the latter had given complete security for the debt. The ground under IR r. 6.4(5)(c) would have permitted the debtor to set aside any statutory demand served, unless the creditor gave up his security (which in this case it did not wish to do). The guarantor attempted to rely on the principle of co-extensive liability and the ground under IR r. 6.4(5)(c). As the creditor could not validly proceed against the debtor it was argued, in reliance on Octagon Assets v Remblance, that it should not be permitted to proceed against the guarantor.

This was unanimously rejected by the Court of Appeal. Giving the leading judgment, Lloyd LJ first summarised the policy considerations where secured creditors were concerned:

“The prohibition on a secured creditor presenting a petition is subject to two exceptions, under s.269. The first is if the creditor states that, if a bankruptcy order is made, he is willing to give up his security for the benefit of all creditors. In that case, therefore, the creditor is secured but if the bankruptcy process follows he will be treated as unsecured and the asset over which the security exists will form part of the bankruptcy estate available for distribution as between all the creditors. The second case is where the petition is expressed not to be made for the secured part of the debt and the estimated value of the security is stated. In that case there are deemed to be two separate debts, one secured (to the amount of the value of the security) and the other unsecured (for the balance) and the bankruptcy petition is only for the unsecured balance. By virtue of s.383 of the 1986 Act the only security which is relevant for this purpose is security over an asset or assets of the particular debtor in question. Lying behind these arrangements is the fact that bankruptcy proceedings are not intended as a means for a single creditor to enforce his debt against the debtor but rather as a method of collective realisation of the assets of a debtor who cannot pay his debts, to be distributed for the benefit of all creditors with claims on those assets. A creditor who is fully secured over assets of that debtor does not need to take bankruptcy proceedings, and should not do so, unless he is willing to give up the security, because the asset over which the security exists will not be part of the estate divisible for the benefit of the creditors generally. That is why a secured creditor cannot present a bankruptcy petition under s.267(2)(b) unless either he is willing to give up the security or his security is not adequate to cover the whole debt, in which case he ranks with the other unsecured creditors but only so far as the shortfall is concerned.”

([2011] EWCA Civ 747 at [8]-[9])

Lloyd LJ then explained how the ground under IR 6.4(5)(c) was, as a consequence of these policy considerations, different from those under IR 6.4(5)(a) and (b), which took it outside the scope of the principle outlined in Octagon Assets v Remblance:

“It is clear and common ground that a creditor which has several remedies can choose which to enforce, at what time, in which order and in what way, being limited only by the proposition that it cannot recover more than is due to it on the debt with interest and costs by way of its several recovery procedures: see China and South Sea Bank v. Tan [1990] AC 536 at 545.

……Thus it is not open to a guarantor to argue that the creditor should pursue the principal debtor first or should realise security given by the principal debtor first. Mr Arden did not argue that Mr White would have any defence to civil proceedings for the undisputed amount of the debt, on this basis or any other. In my judgment the co-extensiveness principle which was the basis of the decision in Remblance, and which applies by reference to each of rules 6.5(4)(a) and (b), does not apply to rule 6.5(4)(c) because the purpose of the latter provision is different.

As against a given debtor, if a creditor has security over that debtor’s assets which is more than sufficient, there is no reason to allow the creditor to pursue bankruptcy proceedings because the existence of the security means that the creditor has no interest in that debtor’s estate. He would not be able to prove for his debt, and there is no reason for him to be able to invoke the collective realisation of assets which is the point of insolvency proceedings, unless he is willing to give up his security. By virtue of s.267 of the 1986 Act he is not even entitled to present a bankruptcy petition. It follows that there is every reason why he should not be entitled to take the preliminary step of serving a statutory demand.

If, however, the security given to the creditor is over the assets of a different person, then the existence of that security does not constitute any reason why the particular creditor should not proceed against this other debtor, who has given no security over his assets, for an undoubted debt by way of a personal claim or by way of insolvency proceedings. There is no bar to the creditor presenting a bankruptcy petition in relation to such a debtor and there is therefore no reason why the creditor should not serve a statutory demand as a preliminary to the presentation of a petition if the demand is not satisfied….For those reasons in my judgment the existence of third party security, which on a statutory demand against the debtor who gave the security would bring into application rule 6.5(4)(c), is by itself entirely irrelevant under rule 6.5(4)(d) to a statutory demand served on a separate debtor even if liable as guarantor for the same debt but who has given no security himself.”

Thus, the Court of Appeal distinguished Octagon Assets v Remblance. The ‘co- extensiveness principle’ could only be relied upon when the party with whom the liability was co-extensive would have been able to rely upon the grounds in IR r. 6.4(5)(a) or (b) to set aside a statutory demand. The position of secured creditor was different; the broader insolvency regime expressly gave such creditors a choice as to how they recovered the debt, which affected the justice of the situation, and hence the exercise of the court’s discretion.

Trevor Berriman

Direct Public Access – Narrowing the Divide

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The legal profession has been in existence for hundreds of years and there has traditionally been a clear distinction between the roles of Solicitors and Barristers.  Solicitors would liaise with the lay client and give advice and legal support, ultimately advising on the necessary course of legal action.  Barristers, however, would take their instructions directly from a Solicitor, advising them on specialist legal points, giving opinions as to the lay client’s likelihood of success, and representing the lay client in court.

In recent years, the rules for who can appear in Court have changed dramatically and the traditional division between Solicitors and Barristers has significantly narrowed.  For many years Solicitors have been able to obtain “higher rights”, enabling them to exercise rights of audience in the Crown Court, High Court and Appeal Courts.  The effect of this has been to limit the lay client’s access to a Barrister and the specialist knowledge and skill that they can bring to a case.

Over recent years the role of a Barrister has similarly developed allowing us to provide legal services directly to a lay client through a process called ‘Direct Access’.  Members of the public are now able to instruct Barristers directly without needing to incur the cost and effort of consulting a Solicitor first of all.  The benefits of the Direct Access route are numerous for the lay client and may include significantly reduced costs of bringing or defending a claim, and enhanced expertise from the outset.

A member of the public who instructs a barrister through Direct Access can tailor what work they need doing, but generally speaking your Barrister would be able to:

  • Advise you on your legal status or rights
  • Draft and send documents for you
  • Represent you at Court, Tribunals or Mediation
  • Negotiate on your behalf and attend employment or investigative interviews and hearings where appropriate.

All of our Barristers at 43 Temple Row Chambers provide high quality Direct Access services.  To discuss potential instructions and for a no-obligation fee quotation, please contact our Clerks.

Thomas Wheeler

July 2015

Court of Appeal rules on family migration and the minimum income threshold

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The Court of Appeal has today handed down judgment in which it has allowed the Home Secretary’s appeal against Mr Justice Blake’s decision in MM and others v Secretary of State [2013] EWHC 1900 Admin. The case concerns the Home Secretary’s controversial rules on family migration requiring that British Citizens or partners lawfully settled in the UK must show that they have an income of at least £18,600 p.a. with additional sums for each child before they can sponsor their foreign partners from outside the European Economic Area. The Court of Appeal has held that the requirements are lawful. The court reached this conclusion essentially on the basis that it was not for the court to analyse the basis of the Secretary of State’s decision to introduce such requirements into the immigration rules which are merely statements of administrative policy.

The test adopted by the court is the same as that which it adopted in Bibi [2013] EWCA Civ 322 (the case concerning the English language requirement), namely that it is enough that the Secretary of State should have a ‘rational belief’ that the policy embodied in the requirements will achieve the identified aim. This is an extremely restrained form of judicial review and suggests a lack of willingness to interfere with governmental decisions. This test seems to conflict with the approach adopted by the Supreme Court in cases such as Baiai [2008] UKHL 53 and Quila [2011] UKSC 45 where the court adopted a rigorous analysis in assessing the evidence and used a test requiring the Secretary of State to show an objective justification. The Supreme Court has already granted permission to appeal in Bibi on arguments which include the argument that the test of a mere rational belief is wrong. It is likely that the present case will also proceed to the Supreme Court on an expedited basis.  Whereas Mr Justice Blake’s decision had properly considered the detailed evidence provided by the claimants’ lawyers, the Court of Appeal barely considered it. The decision comes over four months after the appeals were heard in March 2014 and two years after the rules were introduced.

Since Mr Justice Blake’s decision, the Secretary of State has imposed a stay on considering applications which would otherwise have been refused for failure to satisfy the new rules. That stay will no doubt now be lifted. This will at least give people an opportunity to mount an appeal against negative decisions.  In the meantime, a great many families who are never likely to be a burden on the state will have been kept apart. Applicants may however still succeed under Article 8 of the European Convention of Human Rights even if they cannot satisfy the minimum income requirements under the rules. The Court of Appeal rejected the suggestion in Nagre [2013] EWHC 720 Admin that, if the rules cannot be satisfied, the applicant will need to show an arguable case before the decision-maker can move onto considering Article 8.

The Court of Appeal did not treat the rules on minimum income requirements as constituting a complete code for Article 8 purposes such that there was no need to consider Article 8 separately. Indeed, that was not the Secretary of State’s position. The Court of Appeal also noted the Guidance which had initially been produced in a draft form (only on the fourth day of the hearing before Mr Justice Blake) and the Guidance which had then been promulgated in final form after that hearing. That final Guidance directs caseworkers first to consider applications under the rules and, if the applicant does not meet the requirement of the rules, to move onto a second stage. Under that second stage caseworkers are required to consider  “whether,  based on an overall consideration of the facts of the case,  there are exceptional circumstances which mean refusal of the application would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8.  If there are such exceptional circumstances, leave outside the rules should be granted, if not, the application should be refused”.

The Court of Appeal has ruled that where the relevant group of immigration rules does not constitute a “complete code” then the proportionality test will be more at large, albeit guided by the Huang tests and UK and Strasbourg case law (see paragraph 134). In other words, unlike rules relating to the deportation of criminals, the application of Article 8 to cases which fail to satisfy the minimum income requirements will have to be carried out in any event in accordance with a straightforward Article 8 assessment. This is why the Court of Appeal goes on to say at paragraph 160 that if, as is suggested in the claimants’ evidence, decision makers have not been applying their minds to whether a “proportionality” test has to be used when considering “exceptional circumstances” in individual cases, the remedy lies in pursuing individual appeals and requiring decision-makers to apply the Huang and normal Article 8 tests. There is no other arguability or exceptionality standard.  Therefore, it would seem that, much of Mr Justice Blake’s general comments as to proportionality will in any event be relevant to individual decisions, even if the rules are formally not unlawful.

So all is not lost just yet. The rules have forced significant numbers of British people to go and live in Europe for a reasonable period for time, in exercise of their rights as EU Citizens, before they lawfully come back months later with their spouses under EU law. In other cases, the rules have forced such persons out of the United Kingdom and out of Europe altogether, even though they are British or have been lawfully settled in the UK for many years. The impact on young people, part-time workers and women, particularly those from a racial minority background, who are more likely to be in low-paid jobs, has been particularly severe. The income threshold rules have received criticism from other quarters too. In June 2013, the All-Party Parliamentary Group on Migration issued a report which concluded that the rules were disproportionate. http://www.appgmigration.org.uk/family-inquiry. After the Court of Appeal’s ruling, all factors going to the harshness of the rules will have to be assessed in the context of Article 8 in individual cases.

Tony Muman is instructed on behalf of the First Respondent and the Interested Party and Joseph Neville is instructed on behalf of the Interested Party in this case. To instruct any member of our Immigration & Public Law team please contact the clerks.

Reaction to Judgment S.A.S. v France

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Following the Judgment handed down today in the Grand Chamber, Public Law Barrister Tony Muman commented as follows: –

“The judgment is naturally disappointing for the client and she will take time to digest and reflect on it. The court does however reject the French government’s suggestion that her article 8 and 9 rights were not engaged. They also reject the government’s justification based on gender equality and public safety measures and reminds us of the importance of tolerance and pluralism. Ultimately the court has taken the view (not unanimously) that the state has a wide margin of appreciation and that the ban was a proportionate measure to the aims of “living together” and “protecting the rights and freedoms of others”. The client will continue to act lawfully as she always has done and respect the court’s judgment. She fears, however, that the judgment ironically will exclude her community even more than they have already felt since the law came into force, this would appear to undermine the very notion of living together.”

 

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.

Update: the published judgment can now be downloaded here

S.A.S. v France

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European Court of Human Rights to give judgment concerning the prohibition
on wearing the full-face veil in public in France

On Tuesday 1 July 2014 at 11am the Grand Chamber will promulgate its much awaited judgment in the case of S.A.S. v. Republic of France. The case was heard by the full court on Wednesday 27 November 2013 and concerns the complaint of a French national who is a practising Muslim, that she is no longer allowed to wear the full-face veil in public following the entry into force, in April 2011, of a law prohibiting concealment of one’s face in public places.

The application was lodged with the European Court of Human Rights on 11 April 2011. On 28 May 2013 the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber.

The Claimant is co-represented by Tony Muman of 43templerow chambers, Birmingham who argued:

“Life under the French ban is full of contradictions, perversity, inequalities and absurdity. Comedy, Satire and the Arts are given greater credence under the law than fundamental Convention rights. Wit and humour are given greater priority under the law than deeply and sincerely held religious belief and cultural practice. The choice to dress in a certain way for party reasons is given greater protection under the law than compulsion for religious and or cultural reasons to dress in a particular way.

The inescapable reality is that the manifestation of certain religious beliefs, to which the majority subscribe, is given greater respect under the law than the religious beliefs of others who fall within the minority.

S.A.S. is prepared to compromise. She is willing to remove her veil when there is a pressing social need and she is willing to wear a veil which strikes a fair balance between visibility and modesty. It is the State that has been overtly oppressive on the one hand whereas S.A.S. has offered compromise on the other.

S.A.S. underscores the reality that veil wearing Muslim ladies are no less patriotic about the Republic than their non-veil wearing comparators. Yet it is this group that has acutely felt the effect of the ban more than any other. In reality the law operates to prosecute the persecuted; it has had the effect of ostracising minority communities all the more and moreover ostracising the veil-wearing minority within that ostracised community.

Perversely the French ban has heightened racial tensions, brought about hostility and made society all the more intolerant.”

Background

S.A.S. is a French national who was born in 1990 and lives in France.

Under Law no. 2010-1192 of 11 October 2010, which entered into force on 11 April 2011, it is prohibited for anyone to conceal their face in public places in France.

S.A.S. is a devout Muslim. She wears the burqa and niqab in accordance with her religious faith, culture and personal convictions. She explained to the court that the burqa is a full-body covering including a mesh over the face, and the niqab is a full-face veil leaving an opening only for the eyes. She emphasised that neither her husband nor any other member of her family puts pressure on her to dress in this manner. She added that she wears the niqab in public and in private, but not systematically and was thus content not to wear the niqab in certain circumstances but wished to be able to wear it when she chooses to do so. Lastly, her aim was not to annoy others but to feel at inner peace with herself.

Relying on Article 3 (prohibition of inhuman or degrading treatment), S.A.S. complained that as it is prohibited by law, on pain of criminal sanctions, to wear a garment designed to conceal the face in public places, she risks not only incurring such a sanction but also suffering harassment and discrimination, if she wears the full-face veil.

Relying on Article 8 (right to respect for private and family life), she also complained that the statutory prohibition on the wearing in public places of a garment designed to conceal the face prevents her from dressing in public as she chooses.

Under Article 9 (freedom of thought, conscience and religion), S.A.S. complained of a violation of her right to freedom of thought, conscience and religion, as a result of the same circumstances. In her view, her inability to wear the full-face veil in public places is incompatible with the freedom to manifest her religion or belief individually or collectively, in public or in private, by worship, teaching, practice and observance of rites.

Relying on Article 10 (freedom of expression), she complained of a violation of her right to freedom of expression, as a result of the same circumstances and because she is thus unable to wear in public a garment that expresses her faith and religious, cultural and personal identity.
Relying on Article 11 (freedom of assembly and association), she further complained of a violation of her right to freedom of assembly and association, as a result of the same circumstances, and of the fact that she is prevented from assembling with others in public wearing the full-face veil.

Lastly, under Article 14 (prohibition of discrimination), S.A.S. complained that the statutory prohibition on wearing a garment designed to conceal one’s face in public places gives rise to discrimination based on gender, religion and ethnic origin, to the detriment of women who, like herself, wear the full-face veil.

This is an international case, the outcome of which will have wide-reaching repercussions. For further information concerning this case or any other public law matters, please contact Mr Muman via his clerks  or on 0121 237 6035

Handcuffs and denial of funeral rites to Hindu prisoner in clear breach of Articles 8 and 9 ECHR

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So held Mr Justice Leggatt in a very carefully considered ex tempore judgment given yesterday afternoon (1st April) in the Administrative court sitting in Birmingham.

“And when he dies…and when they place him on the fire,
Then he is born again out of the fire, and the fire consumes only his body.”
Satapatha Brahmana II.2.4.8

‟He who does not obtain funeral rites, is condemned to perpetually remain a preta‟
Garuda Purana II 9.47-49

The facts
The Claimant, a Hindu prisoner from Tamworth serving a default sentence for non-payment of a confiscation order at HMP Oakwood, Wolverhampton issued judicial review proceedings against the Secretary of State for Justice and G4S challenging in part the prison’s decision to refuse to allow him to attend and participate as Chief Mourner in the funeral of his 91 year old father, himself a lifelong devout Hindu who passed away with the sole instruction that his son faithfully perform the last rites. The urgency of the case reflected the looming end of the forty day mourning period during which the cremation must take place under Hindu last rites.
The Claimant had applied for permission to be released on temporary licence to allow him to attend the funeral. The request was denied on the basis that he posed a low risk of absconding. However the prison agreed to allow him to attend the crematorium on the condition that he would be accompanied by two warders and remain handcuffed to one for the duration. Specifically the Claimant would be prohibited from participating in any of the Hindu last rites rituals. The prison’s assessment was in stark contrast to the Claimant’s external probation officer who had approved his application for release on temporary licence.

When the Claimant’s wife pleaded with the Christian chaplain to permit him to attend free from handcuffs, but still in the company of warders, so that he could undertake the rituals as Chief Mourner the chaplain retorted that in all his years working for the prison he had never known an escorted leave to be permitted as requested and that he would eat his hat if that were to happen (Hmmm!) The Claimant’s wife asked if the chaplain had taken the advice of a Hindu colleague or if there was one he could/would speak to. The answer to both questions was no.
On 27 March the Claimant issued his claim using the services of the excellent Stuart Luke of Bhatia Best solicitors. In support of his application the Claimant obtained at great speed expert evidence on Hindu last rites.

On the day before the hearing the Hindu Council (UK) wrote to the prison to support the claim on the basis that it could not be in dispute that the eldest son performs the funeral rites and that he must be allowed to do so with dignity. The Council queried how the Christian chaplain was able to understand the unique sensitivities of Hindu last rites.

The expert evidence
The expert reminded the Court that the concept of ‘Good Death’ (su myrtu) is a central paradigm within Hindu religious traditions, without which, the soul is unable to liberate from mortal remains and proceed upon the intended transcendental ‘journey’ towards spiritual reincarnation.

The raison d’être of Hindu last rites (antyeshti sanskara) is to facilitate a ‘Good Death’. Full proper performance (orthopraxy) of the sacramental ritual framework is designed to liberate the soul and ultimately enable reincarnation. Accordingly, “it is commonly held that… death does not occur at the cessation of physiological functioning, but during the last rites.” This sacramental ritual framework encompasses a prolonged time period, including prior to cremation, the cremation itself and post-cremation rites (sraddha rituals extending for 1 lunar year).

A ‘Chief Mourner’ carries a sacred duty of immense responsibility towards the deceased, performing a ritual role without direct comparison in the Abrahamic religious traditions. A profound ritual nexus binds the Chief Mourner and deceased together throughout this last rites sacrament, as the Chief Mourner alone is eligible to perform the designated last rites the deceased requires to attain a ‘Good Death’. The Chief Mourner is no less than the deceased’s ritual conduit between life and afterlife, between ‘Good Death’ and ‘Bad Death’ (akal myrtu).
From antiquity to post-modernity, the uninterrupted Hindu religious tradition dictates that only one’s eldest son is eligible to act as Chief Mourner. Without question, last rites are not deemed as properly performed if undertaken by a person other one’s eldest son; nor can these sacramental duties be delegated nor shared with a third party.

Thus, full proper performance of the last rites sacrament is simultaneously a core religious duty for both father and son; without which, a father’s soul fails to attain liberation and a son fundamentally fails in his primary, sacred karmic role in life.

He confirmed that the Chief Mourner’s sacramental ritual duties are universally respected by all sects within Hindu religious traditions – and extensive research by one of the Secretary of State’s own expert Dr Shirley Firth confirms the same of Hindus living in the UK. :
He went on to confirm that the rituals described by the Claimant in his witness statement were indeed essential, universal features of the Hindu last rites sacrament and that his concerns were well founded. In particular the expert focused on those rituals for which the Chief Mourner is personally responsible as follows:
(1) The Chief Mourner must cleanse and anoint the deceased’s body with ritually pure oils, so that the remains are a fitting offering/‘sacrifice’ for the purpose of cremation (which is regarded as a ceremonial ritual fire). Once cleansed, only then are other mourners permitted a final audience (‘darshan’) with the deceased. This is typically done the day before the cremation.

(2) The Chief Mourner must perform/lead circumambulation of body at various times stages during the last rites (particularly during ‘pot breaking’ ritual).

(3) The Chief Mourner must lead the funeral procession and ‘give shoulder’ to the deceased by carrying (at least partly) the body/coffin (with assistance from male family members) to the crematorium.

(4) The Chief Mourner must make offerings of pinda rice balls (and money or food) on the body before and/or at the cremation ground (often en route).

(5) The Chief Mourner must perform a pot breaking ritual (kapala kriya). First circumambulating the deceased’s body holding a pot of water behind his head, the pot is then dropped to the ground proximately to the body’s head (in order to help release the deceased’s final ‘vital breath’ (synonymous with liberation of the soul).

(6) The Chief Mourner must ‘give light’ to the deceased’s cremation. In India this is done by lighting a wood pyre, in the UK the Chief Mourner customarily performs this vital function by pushing the coffin into the crematorium furnace and/or by activating the furnace. Thereafter the Chief Mourner (in particular) washes himself to cleanse the ‘ritual pollution’ caused during the course of cremation.

(7) Post-cremation the Chief Mourner must continue to observe a period (of varying length, according to sect) of ritual purity and a degree of social seclusion. Rituals continue to be performed on behalf of the deceased for at least 12-14 days after the cremation, however these are generally under the guidance of a trained ritual pandit and the Chief Mourner is not compelled to attend (although it is of course preferable).

(8) Many Hindu sects observe some manner of ceremonial ‘inheritance’ following cremation. In this instance the witness statements confirm how this will be done at the temple. The specifics of such a ritual vary significantly between different Hindu sects, nevertheless, the ‘turban’ ceremony described in the Claimant’s witness statement is entirely consistent with the characteristics of ‘inheritance’ rituals performed universally within Hindu religious traditions.

His unequivocal conclusion was that the Claimant’s role as Chief Mourner would be fundamentally compromised should he be compelled to attend under the physical restraint of handcuffs and/or physically restrained to security personnel.
– Firstly, there are obvious concerns that the Claimant may not be physically able to perform said rituals while handcuffed.

– Secondly, the Chief Mourner is obliged to maintain ritual purity throughout his involvement in the last rites. This entails not only keeping his body washed but also, more significantly, divesting all material and external attachments. For instance, many Hindu sects would expect Chief Mourners to wear no jewellery or foreign objects on their person, shave their head and maintain a simple, specific diet. Handcuffs or indeed any form of security restraint would constitute a foreign object for the purposes of ritual purity.

– Thirdly, the Claimant was entirely justified in his concern that being restrained to a third party (warder) at the time of performing the last rites would de facto make such party the ‘co-author’ of the rituals alongside the Chief Mourner. The Claimant’s objection was entirely justified – under no circumstances would last rites be deemed to be properly performed under such circumstances.

o Firstly, the sacred duties of the Chief Mourner are exclusive to him and the ceremony would be fatally compromised if requisite duties were shared and/or delegated.

o Secondly, it is unrealistic to imagine security personnel would comply with (if even aware of) the full rigours of ritual purity expected of a Chief Mourner – and their de facto ‘co-authorship’ of the rituals would fatally compromise the ritual purity of the entire ceremony. For example the security personnel will be required to remove shoes and cover heads during the rituals. They will also be required to observe inner and outer purity through not consuming meat or alcohol for example in the lead up to the commencement of the rituals.
He concluded by saying that “the stakes could be no higher. If the Claimant is not permitted to fulfill his ritual role as Chief Mourner without physical restraint (neither handcuffed nor attached to a third party) then he is entirely justified to fear his father’s last rites will not be fully properly performed. Such failure would prevent liberation of the deceased’s soul – and constitute a profound failure of the Claimant’s sacred duty of immense responsibility as Chief Mourner.”

The judgment
The judge reminded himself of the Williamson test the judge had no doubt that the Claimant satisfied the criteria for showing sincerity of religious beliefs and that those beliefs fell within a major world religion and therefore passed the relatively low Article 9 threshold. In the usual way the Secretary of State tried to place reliance on a last minute email from a Hindu Pandit based in Wormwood Scrubs (in itself an admission that the Claimant’s prison does not employ a Hindu chaplain) to show that somehow the Claimant’s Article 9 rights were not engaged. The author of the email acknowledged that the eldest son plays a major role but suggested that it was not necessary for the eldest son to play the role that the Claimant set out in his claim. His advice was that the eldest son would have to press the switch but that there was nothing in Hinduism which opposed the wearing of handcuffs whilst doing so. The learned judge correctly held that whatever the view of some members of the Hindu faith including the author of the email the Court was satisfied that it was of central importance of the Claimant’s beliefs that he performs the roles that he described.

The Defendants argued that there must be exceptions in circumstances where the eldest son is not available. True said the judge but that was not this case. The Claimant was available and it is central to his religious beliefs that he undertake his role faithfully as Chief Mourner.
The learned judge then addressed the question of the Claimant’s ability to perform the tasks whilst wearing a ‘closet chain’ a five foot length of chain with one handcuff at one end (for the detainee) and two handcuffs at the other end (to allow safe transfer between custody officers). In this respect the learned judge took the view that there was no reason to question or doubt the sincerity or strength of the Claimant’s religious beliefs requiring ritual purity which would be contaminated by his being compelled to wear foreign objects including handcuffs. Whether the ritual purity was compromised by the proximity of the escorts depended on how close they would be to the Claimant at the time.

The learned judge then went on to consider Article 8. Consistent with an unchallenged observation of Cranston J in Ghai [2009] EWHC 978 (Admin) at §141 the judge held that Article 8 was engaged. He went on to state that the freedom to mourn and participate in the funeral of a person, especially a parent, is integral to a person’s identity and therefore in principle any interference in the rites of mourning is a major one. Further, to appear in public wearing handcuffs and attached to someone wearing a chain is humiliating and whilst a serving prisoner in normal circumstances can be expected to be subjected to suffer a minor level of humiliation in the case of a funeral where the person is a Chief Mourner, more so in the context of the religious and cultural setting, the level of humiliation caused would be disproportionate. He described a funeral as being an occasion of special importance in one’s private life with potentially damaging consequences if one was not able to take part in it. That level of disproportionate interference was compounded where the individual and the deceased have strong religious beliefs.

In the learned judge’s view Articles 8 and 9 mutually enforced one another.
Working his way through the American Cynamid principles the learned judge considered the extent of interference with Articles 8 and 9 and balanced it with on the other hand strength of competing interests, namely the risk that the Claimant might abscond. The learned judge noted that the Defendants are generally better placed to assess such risk than the court but taking into account the reasons given in this case, the background and circumstances of the Claimant and a degree of common sense he could not understand why the Claimant was considered to pose a material risk of absconding given that whilst on bail for the principal offence the Claimant complied with all conditions and at all times complied with bail conditions; that he only has 90 days or so of his sentence left; that he has been making payments to discharge the confiscation order; that he was assessed as low risk of reoffending if released on temporary licence let alone with two escorts. Further the decision maker did not seem to take into account that the Claimant would be performing religious ceremonies at the time. However even assuming a risk of absconding, which the judge did, the risk came nowhere near justifying the serious interference with the Claimant’s Article 8 and 9 rights in this claim. The proposed restriction was therefore neither proportionate or reasonable.

In making their decision neither Defendant had taken into account and did not attempt to bring ‘cultural’ or ‘religious’ concepts into account when balancing the clear interference in the Claimant’s convention rights.

The Claimant was granted interim relief to attend his father’s funeral free from handcuffs and to be able to fully participate as Chief Mourner.

***

The Claimant was represented by Ramby de Mello and Tony Muman instructed by Stuart Luke of Bhatia Best Solicitors, Nottingham.

Caveat: the above summary of the Court’s judgment is provided for information only and should not be relied on for any other purpose. It is taken from counsel’s note of the ex tempore judgment as best counsel’s ageing hand was able to keep up.

Affluent people are likely to integrate better than poor people!

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This was but one of a number of startling submissions made by the Secretary of State to the Court of Appeal earlier this week in Secretary of State  v. MM and Others in defence of her controversial Financial Requirements contained in Appendix FM of the Immigration Rules.

In R (MM and Others) v. Secretary of State [2013] EWHC 1900 (Admin)  Mr Justice Blake found that in generality of cases the Financial Requirements contained in Appendix FM (in particular, the £18,600 minimum income requirement (more if there are children) which must be demonstrated by British citizens, those settled in the UK and those granted refugee or humanitarian leave who wish to sponsor their spouses (and children) to come to the UK) was likely to amount to a disproportionate interference with Article 8 if an applicant was earning above the national minimum wage (£13,400) and could show that the shortfall was made up of (i) savings (including those below £16,000), (ii) credible job offers and (iii) credible offers of third party support.

Blake J granted the Secretary of State permission to appeal in July 2013.  Following his judgment, the Secretary of State placed a stay on consideration of cases where applicants did not meet the financial threshold. Statistics out this week reveal that for the period up to 31.12.13 some 2,628 entry clearance applications and 386 in-country leave applications are on hold pending the appeal to the Court of Appeal. [to view the statistics on the government website, click here]

The appeal was finally heard on 4-5 March 2014 by what appeared to be a sympathetic Court of Appeal (Maurice Kay, Aitkens and Treacy LLJs), the judges taking Monday as a reading day to consider the voluminous materials and jurisprudence relied upon by both parties.  The hearing was attended by many members of the public most of who were directly affected by Appendix FM and who openly baulked at many of the submissions made by the Secretary of State in her defence of the Rules.

In argument the Secretary of State made a series of points.

First, she argued that Blake J had erred in law in substituting his own judgment, in place of the Secretary of State’s, on whether the Rules struck a proportionate balance between the interests of migrants and their sponsors on the one hand and the public interest in protecting welfare benefits and facilitating integration into UK society on the other, a fortiori where the Government had consulted widely on the level of the minimum financial threshold, including commissioning a study from the Migration Advisory Committee (MAC) and against a background of more than the usual level of Parliamentary scrutiny of the Rules.  In the Secretary of State’s view, Blake J had erred in his approach to the level of scrutiny required for the consideration of the Rules since these fell within an area of social and economic policy for which the Strasbourg Court has previously held demands a wide margin of appreciation.

A great deal of the argument in court was devoted to the intensity of review that must be conducted by the courts and the extent to which it was permissible to scrutinise the legitimacy of the government’s aims to determine whether they struck a fair and proportionate balance.  The Court appeared to accept that the financial threshold did amount to an interference with family life.  They were further interested in argument as to whether the Court was entitled to evaluate for itself the “necessity” of the interference with family life and more importantly whether the least intrusive alternatives to meeting the Government’s aims had been properly considered (SS (Nigeria) [2013] EWCA 550 (Civ) at [36] – [42], Quila v. Secretary of State [2011] UKSC 45 per Lord Wilson at [44] – [49]).

The Court also heard submissions on the MAC report, the body which proposed the £18,600 threshold, in particular, that MAC limited itself to consideration of the economic argument, shying away from social, political and legal considerations which it considered were for the Secretary of State.  MAC looked at the position in a number of other countries but did not consider the decision of the Court of Justice of the European Union’s decision in C-578/08 Chakroun v Minister van Buitenlandse Zaken [2010] ECR 1-1839 [2010] 3 CMLR 83 in which the Court considered that for states party to Directive 2003/86/EC, stable and regular resources should be interpreted by reference to the measure of income support levels.  MAC had considered it was not appropriate to take into account housing costs in the calculation of the £18,600 threshold, despite the fact that (unbeknown to it at the time) the Rules would then go on to inconsistently permit third parties to provide housing to migrants and their sponsors; their own evidence suggested that almost one third of applicants lived with family or friends rent free on arrival, a saving even on MAC’s calculation of some £6,000 per annum.  MAC considered that there was no case for taking into account the regional differences in the costs of rental accommodation, despite the fact that rent outside London is significantly cheaper.  Nor did MAC engage with the manner in which such applications must be evidenced.  Indeed, MAC had considered that there was a case for including the earnings of migrants.  These were all decisions reached by the Secretary of State alone.

For those who have read the Parliamentary debates on the new Rules, you will know that during the commons debate in June 2012 the Secretary of State made just one reference to the £18,600 threshold income, with many members of the House of Commons simply unclear what was being debated, on any view, hardly the “imprimatur of democratic approval” envisaged by the Lords in Huang [2007] UKHL 11 at [17].  Since then, the All Party Parliamentary Group, chaired by Baroness Hamwee, has criticised both the threshold and requirements of Appendix FM (for further details click here).  John Vine, the Independent Chief Inspector of Borders and Immigration has found that little and/or inconsistent consideration is given to Article 8 ECHR or the best interests of children in settlement applications made overseas (click here for further information) and both the House of Lords Secondary Legislation Committee (click  here) and the Parliamentary Human Rights Committee has criticised the level of Parliamentary scrutiny to the 9 July 2012 amendments to the Immigration Rules. (to read the letter to Theresa May click here)

In an unreported decision of the Upper Tribunal put before the Court of Appeal, the Tribunal having scrutinised (on the Secretary of State’s appeal) for itself Hansard and other Parliamentary material, found that the £18,600 threshold did not in fact have the “endorsement” that the Secretary of State contended for.  The Secretary of State belatedly sought permission to appeal but her application was refused by the Upper Tribunal (UTJ Grubb) approving the detailed and careful determination as both rational and sustainable: the Secretary of State has since (out of time and on the eve of the first day of this appeal) renewed her application for PTA citing the usual “lack of resources” as the reason for her delay.  Tony Muman represented the Appellant/Respondent before both the FtT and UT.

The Court will need to grapple with this evidence and it is likely to give further guidance on the intensity of review of Government policy in areas touching upon core and fundamental human rights.

Second, the Secretary of State argued that Blake J erred in finding that there was likely to be a disproportionate interference with Article 8 ECHR in the generality of cases where applicant’s could show earnings above the national minimum wage, in combination with other forms of finances (third party support, job offers, savings below £16,000 etc.) since such cases could be considered under the entry clearance instructions to ECOs in the exercise of discretion and the search for exceptional circumstances.

In response, the Court heard that Blake J had properly considered the provisions of the Rules by reference to the Government’s stated aims and found them wanting.  Where applicants are precluded from accessing benefits (see part 6A HC 395 and s. 115 Nationality Immigration and Asylum Act 2002) what was the point in requiring British citizens, those settled in the UK and refugees to leave the country to live with their partners and children for the sole reason that they did not meet the financial requirements, when any shortfall could be made up of a combination of funds from third party support, accepted as a legitimate source of income by the House of Lords in Mahad v. Secretary of State [2009] UKSC 16, job offers available to the migrant following entry or savings below £16,000 which were not held in cash sums held for 6 months?  Such rights touched on common law and fundamental right of British citizens to reside in the UK without let or hindrance.  The Court seemed particularly attentive to such arguments.  The Court was also referred to the excellent evidence from Sonel Mehta, founder of BritCits (to whose members we are also very grateful), a non-governmental organization comprising largely of British citizens, affected by the introduction of Appendix FM, who exhibited a number of entry clearance refusal letters.  Her evidence was that despite their extensive membership and very active website, they had not found a single ECO decision where Article 8 ECHR, the best interests of children or the exercise of discretion had been considered, still less resulted in a grant of entry clearance, chiming with the evidence of John Vine (above).  She cited evidence of the absurdity of decisions from ECOs where sponsors showed a £0.59 pence p/week shortfall in the income threshold being refused with no consideration of the exercise of discretion.  The Court will again need to grapple with this evidence and reach clear views on whether Blake J’s formulation at the five factors [see 124 (i)-(v) of his judgment was a step too far, or amounted to proper scrutiny of the whether less intrusive measures, requiring a Huang compliant assessment of the overall financial position of the sponsors family was in fact appropriate.

Third, the Secretary of State asserted that the best interests of (frequently British) children could be appropriately considered through the guidance issued to ECOs on the search for exceptional circumstances, despite conceding that the Rules had to be framed in a manner which gave proper and primary respect to those interests and against a backdrop of entry clearance decisions showing that no such consideration is given.

Fourth, the Secretary of State sought to uphold Blake J’s finding that the Rules were not discriminatory in effect to certain classes of applicant, in particular, refugees, women and nationals of certain countries (in particular Bangladesh and Pakistan).  The Court heard submissions on the fact that the Secretary of State had not given adequate consideration to the position of female sponsors who earned on average 14.9% less than their male counterparts and were therefore less likely to be able to meet the minimum income threshold, that young people and those living in certain deprived parts of the UK could not hope to reach the level set by the Rules and that refugees who married post-flight frequently suffered from mental ill-health and language difficulties and were unable to earn the levels demanded by the Rules.

In argument, none of the authorities from the Upper Tribunal was cited in support of the propositions relied upon by the Secretary of State.

Those sitting in court over during the hearing witnessed a sustained defence of Rules which have been widely criticized including by those within the Secretary of State’s own party.  The real victims of the Rules are those whose applications have been presently stayed pending this Court’s judgment and those who have been kept apart from loved ones for inordinate amounts of time as a result of falling foul of the Financial Requirements.  None will be comforted by the length of time it will take for the Court of Appeal to deliver their judgment, despite the promise that they would do so in a shorter period of time that it took Mr Justice Blake to do so; our best guess is a result from the Court in 2-3 months prolonging the obvious agony caused to thousands of people affected and separated by these pernicious requirements.  Whatever the outcome, there is more than a distinct possibility that the case will be taken to the Supreme Court.  As Maurice Kay LJ observed at the hearing, whenever the Rules fail to make express reference to Article 8, it is a recipe for litigation.

MM was represented by Manjit S. Gill QC, Tony Muman and Navtej Singh Ahluwalia.

Master AF was represented by Richard Drabble QC, Tony Muman assisted by Ineza Hussain.

To instruct Tony Muman or Ineza Hussain please contact the clerks.

Tony Muman listed in Chambers & Partners Bar Guide

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43templerow chambers are pleased to confirm that Immigration & Public Law Barrister Tony Muman is featured as a “notable practitioner” on the Midland Circuit in the Chambers & Partners UK Bar Guide. To discuss instructing Mr Muman please contact our clerking team.

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