Tag: direct access barrister birmingham

Immigration analysis: The Supreme Court’s decision on the minimum income requirement (MIR)

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Immigration analysis: The Supreme Court’s decision on the minimum income requirement (MIR) for partners of non-European Economic Area (EEA) nationals seeking leave to enter is considered by Tony Muman, barrister, at 43 Temple Row Chambers.

Do you earn enough—Article 8, section 55 and the minimum income requirement (R (on the application of MM (Lebanon)) v Secretary of State for the Home Department and other cases)

An informal event designed for conversation and networking, rather than a formal lecture, attendees will be provided with a written delegate pack containing Tony’s views on the judgment and how to use it to help your clients. There will be refreshments, and an opportunity to network with other Midlands immigration professionals.

The event will be held on Wednesday 8 March 2017 at 5.30pm. The event is completely free of charge, and the City Centre venue will be confirmed shortly.

Please indicate whether you can attend by emailing the clerk’s at clerks@43templerow.co.uk, and we look forward to seeing you.

A Barrister’s tips for giving evidence in the Family Court

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Following, Jonathan Bott’s successful lecture at Community Care Live in Birmingham last year, he has recently provided an article for Community Care Inform, the online resource for social work professionals entitled ‘A barristers tips for giving evidence in family cases’. The article is designed to assist social workers when giving evidence and a copy can be accessed here.

This article was published on Community Care Inform – an online resource for social work professionals, which provides guidance and tools, research and legal information to enable robust evidence-based practice and decision-making. © Community Care Inform, 2016.

24 Jan 2017: Supreme Court refuses Government’s Article 50 Appeal.

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The Supreme Court has dismissed the Government’s Appeal in R (on the application of Miller), AB Parties v Secretary of State for Exiting the European Union.

In what has been described as one of the most important constitutional cases for generations, Mr Tony Muman with the assistance of Mr Thomas Green, both of 43 Temple Row Chambers, represented the AB parties in this judicial review to determine the need for Parliamentary authority to give notice of withdrawal from the EU under Article 50(1) of the Treaty of the European Union.

The Supreme Court held that the Government cannot exercise prerogative powers to give notice pursuant to Article 50 without primary legislation been enacted by parliament. Fundamentally, the Court held that it is only Parliament that can pass laws which interfere with the rights of individuals which have been enshrined in law by Parliament.

The Government will now have to introduce legislation to be laid before Parliament. It is for Parliament, in light of the arguments made on behalf of the AB parties, to consider to what extent to protect the fundamental rights of EEA nationals and other residents in the UK before Article 50 is Triggered.

A copy of the Judgment can be viewed here and a copy of the Press Summary can be viewed here.

3 Nov 2016: The Claimants have WON the Brexit Judicial Review challenge.

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Full Article 50 High Court judgment available here.

Tony Muman of Counsel instructed on behalf of AB Parties with the assistance of Thomas Green.

Further details to follow.

Tony Muman instructed by Mr. Byndloss as Supreme Court grants Permission to Appeal against ‘Deport First Appeal Later’ provision.

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Supreme Court grants Permission to Appeal against ‘Deport First Appeal Later’ provision

The Supreme Court (Lords Kerr, Reed and Toulson) has today granted permission to appeal in R (Byndloss) v Secretary of State for the Home Department [2015] EWCA Civ 1020. The Court of Appeal judgment is at http://www.bailii.org/ew/cases/EWCA/Civ/2015/1020.html

The appeal concerns the correct interpretation of the new ‘deport first, appeal later’ rules under section 94B of the Nationality, Immigration and Asylum Act 2002.

Section 94B gives the Secretary of State the power to certify the human rights claim of a person liable to deportation where she considers that to do so would not be unlawful under section 6 of the Human Rights Act 1998 (public body not to act contrary to the European Convention on Human Rights). The effect of such a certification is that any appeal must be brought from outside the United Kingdom.

Section 94B affects persons whose deportation is said by the Secretary of State to be conducive to the public good. It is part of the overall drive to move appeal rights out of country; an approach expanded in the current Immigration Bill, to other human rights appeals.

The Home Secretary, during the second reading of the Bill, said ‘The 2014 Act shows that “deport first, appeal later” works when foreign criminals make human rights claims. Our manifesto committed us to extending that to all human rights claims. The Bill will now deliver on that commitment, allowing us to remove people with no right to be in the UK before they can appeal, provided that does not breach their human rights or cause serious irreversible harm.’

Mr Byndloss has eight children in the UK. Having had Indefinite Leave to Remain he is liable to deportation.  The Secretary of State certified his human rights claims, focusing initially only on the question of whether removal pending an appeal would cause ‘serious and irreversible harm’.

Those who have been dealing with such cases since section 94B came into force will be familiar with the ‘serious and irreversible test’. Home Office caseworkers have routinely been interpreting the legislation and guidance to remove would-be appellants where it was considered that removal would not breach article 3 ECHR, whilst effectively ignoring article 8 ECHR.

At the Court of Appeal, the Secretary of State conceded that that interpretation of the legislation is wrong. The Court confirmed that ‘Even if the Secretary of State is satisfied that removal pending determination of an appeal would not give rise to a real risk of serious irreversible harm, that is not a sufficient basis for certification.  She cannot certify in any case unless she considers…that removal pending determination of any appeal would not be unlawful under section 6 of the Human Rights Act.’ 

This was markedly different to the approach taken in the Secretary of State’s guidance to caseworkers to date. The Court of Appeal declared that her guidance on section 94B is ‘inaccurate and misleading in focusing as it does on the criterion of serious irreversible harm’ and will now have to be rewritten.

Despite this important ruling on the guidance, Mr Byndloss challenges the certification based on arguments as to procedural protections and the best interests of his children were either rejected on the facts or not confronted by the court, leading his judicial review claim to fail. In the meantime, a stay on his deportation has been granted.

Tony Muman is instructed for Mr Byndloss.

For all enquiries please contact the clerks.

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