Can a civil injunction stop me protesting?

Article by Tony Muman and Naomh Gibson

The United Kingdom has a proud history of protest movements, from the Suffragette marches of the early 1900’s, to the Northern Irish civil rights movement in the 1960’s, to the more recent anti-Iraq war protests in 2003 and last year’s People’s Vote march. Whether in protest against a rogue State (or a visiting President) or against unethical practices employed by private companies, the individual or collective right to hold actors to account through lawful protest is one of the most fundamental rights that we hold dear in a democratic society, and rightly should be cherished.

Everyone’s human right to protest is protected by the European Convention of Human Rights: freedom of thought, conscience and religion (Article 9), freedom of expression and speech (Article 10), and peaceful assembly and freedom of association (Article 11), often referred to as ‘Convention rights’. Our Human Rights Act 1998 enshrines in UK law most Convention rights and makes it unlawful for the government or any public authority to act contrary to them unless it can be proved that the interference is lawful. This often requires considering whether the interference was both necessary and proportionate, and balancing that need against the conduct of the protesting parties.

In what has been dubbed ‘the Birmingham School case’, useful guidance has given by the High Court on how this balancing act plays out for both named and unidentified protestors (also referred to as ‘Persons Unknown’). This article summarises the key principles in respect of both. The case received international coverage, some of which can be found here.

The defendants in this case were represented by the Halcyon Public Law team, who are experts in civil injunctions.

Ramby de Mello and Tony Muman acted for the First to Third Defendants, with the assistance of Muhammad Ul-Haq. Paul Diamond and Thomas Green acted for the Fifth Defendant.

If you are concerned about restrictions on your ability to lawfully protest, or would like further information about this case, please contact the Clerks.

‘The Birmingham School case’

In November 2019, the High Court heard over a five-day trial a test case for civil injunctions to restrict street protests and to prohibit online abuse of teachers at Anderton Park Infant and Junior School in Birmingham. Many of the protestors were parents who were opposed to the School’s decision to educate its pupils, their children, on “LGBT issues”. The School is maintained by the claimant local authority, Birmingham City Council, who applied for the injunctions against the five defendants.

A civil injunction may be granted where the Court is satisfied that an individual has engaged in, or threatens to engage in, conduct capable of causing nuisance and annoyance. If an injunction is granted, engaging in the behaviour prohibited by the injunction can result in the person restrained receiving a fine or at worst, a prison sentence for contempt of court. Before an injunction is made final, an interim injunction will usually be imposed before the final trial of the application is heard where there is a sufficiently real and imminent risk of misconduct before the final trial.

The local authority first brought the claim against four named defendants. Defendants 1-3 could be identified and were characterised in the claim as being the “ring-leaders” of the street protests. They each belonged to the Muslim faith and were opposed to what they saw as the School’s agenda on the basis that it amounted to unlawful discrimination on grounds of ethnicity and/or religion, contrary to the Equality Act 2010, and was a failure to comply with the requirement in the Education Act 1996 to have regard to parental wishes, in that there was a lack of any proper consultation. The second defendant had two children at the School and was concerned about what they were being taught, she said without her consent or consultation, and how the teaching of LGBT might cause confusion for her children given the direct conflict with the family’s religious beliefs.

The fourth defendant to the claim was named as “Persons Unknown”, the scope of which referred to any other protestor not specifically named (i.e. the whole world) with the ultimate intention of preventing anyone else from taking part in protests organised by the first to third defendants within the exclusion zone in ways that would be prohibited.

The fifth defendant was an online Christian activist who later asked to be joined to the proceedings to represent why the claimant’s proposed curtailment on freedom of speech using social media was unlawful and conflicted with his own religious beliefs.

Before the trial, Warby J heard submissions on whether the interim injunctions should continue against each of the named protestors and “Persons Unknown”. He concluded that the defendants’ application for discharge of the existing injunctions should be granted, on the grounds of the local authority’s failures to comply with the duty of full and frank disclosure owed by those who seek injunctions without giving notice to other parties. But he did agree on the local authority’s application to issue fresh interim injunctions against the defendants so that protection remained in place pending trial.

The first judgment dated 26 November 2019 can be read in full here.

Named Protestors>

The claimant made several allegations against each of the first three defendants about the way in which the regular protests outside the School amounted to nuisance and disruption, and how the online abuse of teachers on social media was unacceptable. Through the injunction the claimant sought to restrict the way in which the protests were carried on, including where the protests could take place identifying an exclusion zone around the School which defendants 1-3 were not permitted to enter, except for certain reasons. The injunction was not about restricting what the defendants could say or the subject matter of the protest.

Having heard the evidence Warby J found the allegations against the first three defendants proven and ordered that the interim injunctions against each of the three be made final. In summary, he found that that council had the relevant powers to bring the claim for an injunction, that its reasons for doing do were legitimate and lawful and did not amount to discriminatory treatment contrary to the Equality Act 2010, and that the first three defendants were responsible for the most extreme manifestations of the way in which the protests were carried out. He concluded that the restrictions sought by the council in the injunctions would have the effect of preventing the repeat of the unlawful behaviour and therefore would be a permissible interference with the defendants’ Convention Rights.

In the case of the first defendant, the sole excepted purpose is to enter a specified mosque, from a specified road. The injunction against the second defendant contains the same exception, and two more: taking her children to the School, or collecting them, or for any pre-arranged meeting at the School. In addition to a restriction on entering the exclusion zone, the defendants are ordered not to organise, engage in, or encourage any other person to engage in any protest against teaching at the School within the zone, including by distributing leaflets, and restrained from approaching, contacting or attempt to contacting any member of staff of the School, or any person who supports the local authority’s case.

An application for permission to appeal to the Court of Appeal is pending.

What about social media?

The claimant also sought to injunct the use of social media to offend or ‘abuse’ teachers. The local authority’s case was there was unacceptable abuse of teachers on social media via a closed WhatsApp parent’s group and the first defendant’s Twitter account. At trial it became apparent that the local authority and the teachers only came to know of the WhatsApp group through “leaks” from one or more group members.

The Court did not continue the injunction restraining abusive statements on social media and made no injunction against Mr Allman (the fifth defendant), who succeeded in resisting the imposition of any further restriction on his freedom of speech as an online blogger.  The learned Judge ruled that the local authority had failed to present a sufficiently compelling case that there was a pressing social need for a restriction on what was said via social media.

Whilst dealing comprehensively with the conduct of the named protestors, the judgment left open the more difficult question as to who should be included within the definition of “Persons Unknown”, and, if they could be made subject to an injunction, what sort of restrictions could be imposed on such individuals.

This novel attempt to restrain what is said via social media on the internet was a daunting challenge for the claimant local authority, which in the end, rightly, failed. Such applications raise complex points of law, including questions of jurisdiction, which despite being raised in this case for the first time remain unanswered.

Persons Unknown

At the interim hearing before trial, Warby J expressed serious reservation about the lawful inclusion of the fourth defendant (“Persons Unknown”) in the local authority’s case, because of the incredibly broad nature of such a class which would effectively result in an order against the entire world, including the Judge himself, and thus varied the fourth defendant to being “Persons Unknown seeking to express opinions about the teaching at the School”. The interim judgment dated 10 June 2019 can be read in full here.

Despite the soundings at the interim hearing, the claimant maintained its claim against the fourth defendant. Following trial, the learned Judge invited further submissions from the parties as to whether an injunction could properly be made final against “Persons Unknown”.

On 5 March 2020 a decision was handed down by the Court of Appeal in the case of Canada Goose (full decision available here).

Canada Goose is an international retail clothing company which sells luxury winter products manufactured using animal products including fur and/or down. In November 2017, Canada Goose opened a store on Regent Street in London which became the subject of demonstrations by animal rights activists such as Surge, PETA, and other activist groups, who largely organised online.

On the store’s opening morning, dozens of protesters gathered outside the shop holding posters with slogans reading “fur is murder”, “blood on your hands” and “is your vanity worth your suffering?” This continued into a two-year long protest with approximately three demonstrations a week, resulting in legal proceedings when Canada Goose attempted to obtain a final injunction against the “Persons Unknown” protestors.

The High Court declined to grant a final injunction against these unidentified protestors. This is because a basic norm of civil litigation is that a final injunction operates only between the parties to the proceedings, once that injunction has been ‘served’ on them. ‘Service’ refers to how a document is given to another party. If a document is not ‘served’ correctly then it cannot take effect, it will be as if the document did not exist or the other party had never heard of it. For example, unless a party explicitly gives you consent to send something to them by email or fax, you cannot electronically serve on them. Part 6 of the Civil Procedure Rules (usually referred to as ‘CPR’ or ‘the CPR’) outlines the basic requirements for service in civil proceedings (here).

If “Persons Unknown” are not identified, they cannot be added to the proceedings and further cannot be served upon by any of the required CPR 6 methods. A claimant who wants an interim injunction to take effect against “Persons Unknown” must take all reasonable steps to identify them and add these individuals as parties to the proceedings, and then serve on them in line with CPR 6.

The “Persons Unknown” defendant must be people who have not been identified but are capable of being identified and served with the proceedings, if necessary, by alternative service such as can reasonably be expected to bring the proceedings to their attention.

Canada Goose appealed to the Court of Appeal who dismissed their case, ruling that the description of the “Persons Unknown” respondents was too broad as, in its original form, it was capable of including protesters who might never even intend to visit the store. Moreover, both in the interim injunctions and in its proposed final form, the injunction was capable of affecting persons who might not carry out any unlawful activity as some of the prohibited acts would not be or might not be unlawful.

Notwithstanding this clarification of the relevant law, the claimant unperturbed still pressed the Court to extend its injunction against the fourth defendant. To assist the Court, defendants 1-3 and defendant 5 resisted the application on principle, arguing that the key document in the Claimant’s case which must set out the factual and legal basis for their claim, the Particulars of Claim, did not adequately define the target group; and that it was abusive to sue “Persons Unknown” when the individuals whom the claimant truly wished to sue were identifiable, as they did not wear disguise when protesting, and could have been identified and joined by name, had reasonable steps to do so been taken.

In his second judgment, Warby J refused to grant a final injunction against “Persons Unknown” and accordingly dismissed the claim against the fourth defendant. While there are very limited circumstances in which “Persons Unknown” can have a final injunction take effect against them, in line with Canada Goose, the learned Judge held that protester actions do not fall within exceptional category. This is because the facility to sue individuals anonymously as “Persons Unknown” is a significant departure from one of the fundamental tenants of civil litigation and must therefore be carefully restrained.

Further, it is another fundamental tenant of civil litigation that the claimant must ‘make the running’, i.e. prove their case as they have set it out in their pleadings, also known as statements of case. The claimant must do this on the balance of probabilities, by satisfying the Court their version of events is more likely than not.

In addition, a claimant cannot be allowed to claim there has been misconduct by “Persons Unknown” because this is a transient, ever-changing group of people and results in moving goalposts; unlawful acts by those outside of an activist movement assumed to be a part of the movement might result in the entire movement being restrained by an injunction.

The result of Canada Goose, as applied in the Birmingham School case, is that the claimant must tie their colours to the mast and identify specific individuals, and say clearly what those individuals have allegedly done which amounts to serious misconduct requiring an injunction.

The second judgment dated 8 April 2020 can be read in full here.

Conclusion

In this case, using its full resource, the local authority was able to demonstrate evidentially that the conduct of the first three defendants at their regular protests was unlawful and caused distress and harassment to teaching staff, pupils and local-residents. It was this behaviour (and not what was said or the subject-matter of the protest) that ultimately justified the Court’s interference with the defendants’ Convention Rights. That is not something lightly done, but here the need to curtail the illegality of the protests was the pressing need which allowed the Court to make final the injunctions preventing the first three defendants from protesting outside the School and in the manner in which they were doing do (use of amplification devices, speakers etc.)

The Court rejected the defences based on the Equality Act and the defendants’ religious convictions. This aspect of the case may well be the subject of further deliberation by the Court of Appeal.

Although the Court rejected the claim against the fourth defendant (“Persons Unknown”) predictably the restriction against the first three defendants will lead to the cessation of similar protestors by third parties in the exclusion zone. If not, the local authority will have to take steps to identify who the new protestors are and apply for identical injunctions against them.

The key therefore is to maintain good, lawful and structured protest in an organised and controlled manner. Specificity is needed both in respect of what is being protested about – which in turn affects how the protest manifests – and in the response to protest by claimants seeking to restrain this fundamental right through injunctive relief. Of course, some protest by its very nature is meant to be loud and disruptive. Feelings and emotions often run high, not least where the issues relate to parental choice and conviction of religion. But repetitive and concerted behaviour which is unlawful no matter how emotive the subject matter is likely to fall foul of any application for civil injunction, as shown in this case.

One feature of the School protests was the failure to prevent the wild rant of a third party who had travelled to Birmingham to attend the protests. Conversely though, the identity of the ranting individual was known to the claimant local authority and he should have been included by name to the case. This is an example of how the failure to do so in the hope that such persons can be caught by the catch-all “Persons Unknown” group is impermissible.

The second judgment has provided strong and welcome guidance for those seeking to resist draconian “Persons Unknown” blanket civil injunctions. Injunctions or Section 14 Orders (Public Order Act 1986) effectively banning groups from protesting in a wide locale should always be anxiously scrutinised to ensure compliance with the Canada Goose principles. Injunctions with excessive breadth are the kind of powers that public authorities like to wield but must now avoid. An individual with only a passing association with a protesting group may face being caught in the net of a section 14 Order, the effect of which would be an unacceptable curtailment of their individual Convention rights.

As to restrictions on what can and cannot be said on the internet using the platform of social media, the Court wisely rowed away from this issue, which survives for another day. There are strong defences available which raised untested and challenge principles of law.

The defendants in this case were represented by the Halcyon Public Law team, who are experts in civil injunctions.

Ramby de Mello and Tony Muman acted for the First to Third Defendants, with the assistance of Muhammad Ul-Haq. Paul Diamond and Thomas Green acted for the Fifth Defendant.

If you are concerned about restrictions on your ability to lawfully protest, or would like further information about this case, please contact the Clerks.

Is a handed-down judgment always final?

Article by Tony Muman and Naomh Gibson

It is common practice in civil litigation following a trial of the issues for the Court to formally reserve judgment and to later release confidentially to the parties and their legal representatives a draft and invite assistance in identifying any editorial corrections before it is formally published and made available to the public: Practice Direction 40E of the Civil Procedure Rules.

Publication of the judgment often follows a procedure referred to as ‘hand-down’, usually done at a short hearing at which the parties do not need to attend. The expectation is that between circulation of the draft judgment and its formal hand-down, the parties will have agreed all consequential matters and drafted an order for the Court’s approval. The sealed order usually follows the ‘hand-down’.

A useful example of the ‘hand-down’ process can be viewed on the Supreme Court’s website.

The header of most draft judgments will record in standard form:

“This is a judgment to which the Practice Direction supplementing CPR Part 40 applies. It will be handed down on **** at 10:30 in Court No ****. This draft is confidential to the parties and their legal representatives and accordingly neither the draft itself nor its substance may be disclosed to any other person or used in the public domain. The parties must take all reasonable steps to ensure that its confidentiality is preserved. No action is to be taken (other than internally) in response to the draft before judgment has been formally pronounced. A breach of any of these obligations may be treated as a contempt of court. The official version of the judgment will be available from the Courts Recording and Transcription Unit of the Royal Courts of Justice once it has been approved by the judge.

The court is likely to wish to hand down its judgment in an approved final form. Counsel should therefore submit any list of typing corrections and other obvious errors in writing (Nil returns are required) to the clerk to ****, via email at **** @justice.gov.uk, by 4:00pm on ****, so that changes can be incorporated, if the judge accepts them, in the handed down judgment.”

But what happens in the curious situation where the Court having reached a finding of fact in the draft trial judgment, circulated in accordance with the above practice, receives by return suggestions for amendments and in the exercise of its discretion removes from the final judgment said finding, to the discontent of a party who subsequently applies for reinstatement to the judgment the excised part complaining that the handed-down judgment is in different form to the draft.

In Birmingham City Council v Afsar and Ors [2020] EWHC 864 (QB) (here), Mr Justice Warby provided some illumination to this very issue.

Analytically, the learned Judge considered the claimant’s “reinstatement” application to be one of “waiver”. What the local authority was seeking to do was to waive confidentiality relating to that part of the (private) draft judgment which was omitted from the final (public) handed-down judgment. The claimant argued that the removed passage might be relevant to a possible appeal that it might want to bring and should not have been excised because it was “not really the sort of editorial correction that would normally be included in a return to a draft judgment”.

Unsurprisingly, the application was resisted on the following grounds:

(1) Until an order is sealed, the Judge has a discretion to alter a judgment, but this should not be done save in “exceptional circumstances”, or (perhaps an acceptable alternative) where there are “strong reasons”: In re Barrell Enterprises [1973] 1 WLR 19, 23 (Russell LJ), Compagnie Noga d’Importation et d’Exportation SA v Abacha (No 2) [2001] 3 All ER 513 [43] (Rix LJ).

(2) The exercise of the discretion should be even rarer after the delivery of a written reserved judgment, compared to an extempore judgment, or one that has remained in draft: Stewart v Engel (Permission to amend) [2000] 1 WLR 2268, 2276A (Sir Christopher Slade), Robinson v Fernsby [2003] EWCA Civ 1820 [98] (May LJ) and [113] (Mance LJ).

(3) Here, the claimant failed to show that the case is exceptional or that there are any strong reasons for granting its application. The judgment is complete and sufficient; there is no need for additional findings. Nothing turns on the draft finding of fact. It is not explained how it might be relevant to an appeal.

(4) A number of other factors count against the exercise of the discretion in the claimant’s favour. These included the facts that the draft was circulated in confidence, with the potential for sanctions in the event of disclosure, as the rubric shows. The claimant failed to raise any complaint when the judgment was delivered, and have delayed for months before making this application.

(5) There was an ulterior purpose to the application, which is an abuse.

(6) The contents of the finding in question should not be brought into Court even if the application is granted.

Warby J’s reasoning for dismissing the application overlapped with but were not the same as those relied upon by the defendants. Whilst noting the instructive statements of principle arising from each of the aforementioned authorities – including the reminder in Robinson v Fernsby at [86], that “[t]he judge … did not … alter a judgment that had been given” – he distinguished the applications in each of those cases to the very different application that he had to decide. In none of those cases was there an application such as the waiver application here: to vary or amend a judgment that had been handed down, after circulation of a draft and representations about the draft, and certainly not after the Court had made a final Order pursuant to the handed-down judgment.

He reminded himself of the main principles from Robinson v Fernsby:

(1) The introduction of the CPR did not affect the long-settled principle that a judge has power to recall, reconsider and alter an order made after he had given judgment at any time before the order is drawn up and sealed: [76], [78-82], [113], [120].

(2) The exercise of the jurisdiction generally requires exceptional circumstances or strong reasons, though there may be circumstances in which it must be exercised in the interests of justice: [83-86], [113], [120].

(3) Those criteria apply to the alteration of a draft judgment which has been circulated to the parties before being handed down: [96].

(4) The same criteria apply, with greater force, where the judgment is a formal written judgment in final form handed down after the parties have been given the opportunity to consider it and make representations on the draft; there are obvious reasons – including the desirability of finality – why the court should hesitate long and hard before making a material alteration to such a judgment: [80], [94].

(5) The question whether to exercise the jurisdiction can only depend on the circumstances of the particular case: [96].

(6) The decision in a particular case is an exercise of judicial discretion which will only be interfered with on appeal on the usual grounds for discharging a discretionary decision: [98].

The learned Judge rejected as “far too broad” the claimant’s submission that the Court was under a duty to reinstate any omitted passage which might be relied upon by the disadvantaged party in any future appeal. Whilst the interests of justice is always the driving factor, here as pointed out by the defendants there was no indication that the claimant intended to appeal, and it was difficult to see how the omitted part of the judgment would have assisted in an appeal in any event.

The claimant, correctly, did not suggest, and the Judge did not find, that the excise of that part of the draft judgment was wrong in principle. The learned Judge reminded himself that his decision to edit the draft judgment in the manner suggested was one which fell within the Court’s discretion and that he had removed a passage which he considered was not necessary to his decision and therefore better to be omitted.

Applying what he described as the “least stringent test”, the Judge considered that the claimant had failed to show exceptional circumstances or strong grounds as to why he should revoke his earlier decision.

Warby J however necessarily went further, placing reliance on the principle in R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (Guardian News and Media Ltd & ors intervening) [2010] EWCA Civ 158[2011] QB 218. The facts in Mohamed are immaterial to the issue although the principles are summarised as:

(1) A judge is not bound by the terms of a draft judgment that has been circulated in confidence. The primary purpose of the practice is to enable any typographical or similar errors to be notified to the court, but on rare occasions, and in exceptional circumstances, the court may properly be invited to reconsider part of the terms of its draft: [4].

(2) Draft judgments circulated in accordance with the standard practice are confidential as are the observations and submissions of the parties about the draft judgments: [11].

(3) The minimum requirement before wider circulation of the draft would be permissible is an application to the court for the confidentiality principle or understanding to be reviewed in the context of the individual case: [11].

(4) Tempting though it would be “to declare that the confidentiality principle as it applies to draft judgments should never be waived … adamantine rigidity of this kind would fail to allow for cases of high exceptionality”: [13].

On the basis therefore that the claimant’s application was for the waiver of confidentiality in part of the draft judgment; the application was made after the judgment had been handed down, and a final order had been made; the test to be satisfied is one of “high exceptionality”, or at least as stringent as the one identified in Robertson v Fernsby. That test was not satisfied in this case.

The defendants in this case were represented by the Halcyon Public Law team.
Ramby de Mello and Tony Muman (instructed by J.M. Wilson Solicitors) acted for the First to Third Defendants. Paul Diamond and Thomas Green acted for the Fifth Defendant.

For any enquiries please contact the Clerks.

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

 

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

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

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

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

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

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

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

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

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

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.

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

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.

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.

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.

43 Temple Row Barristers Appear in the Supreme Court to Challenge Minimum Income Visa Rules

43 Temple Row Barristers Appear in the Supreme Court to Challenge Minimum Income Visa Rules

 

Thursday 25 February 2016

Over the course of a three day hearing between 22-24 February 2016, a seven judge bench of the Supreme Court has considered the linked appeals in MM (Lebanon) and others v. Secretary of State for the Home Department and SS (Congo) v. Entry Clearance Officer, Nairobi.  A write up of the Court of Appeal’s judgment can be found here and the High Court here.

The appeals concerned the Home Office Minimum Income Rules which require a British citizen, a lawfully settled person or a refugee in the UK, to be earning an income of at least £18,600 per annum, rising to £22,400 with the first child and increasing by £2,400 per child thereafter, before being allowed to sponsor a non-EU national partner or spouse.  In order to demonstrate the £18,600 the Rules prevent the sponsor from relying on savings less than £16,000 or on promises of third party support or an offer of employment that the incoming spouse or partner may have secured.

It was argued that the £18,600 requirement was grossly excessive and unobtainable for the majority of the working population particularly given the restrictions on how it could be met.  Furthermore, the Appellants argued that the Minimum Income Rules disproportionally impacted those in low-income occupations, refugees, women and certain ethnic groups.  The Appellants submitted that the rules were inconsistent with the States’ statutory duty to have regard to the best interests of children and were incompatible with Article 8 of the European Convention on Human Rights (the right to respect for private and family life) and Article 14 (prohibition of discrimination) and that the rules set out by the Secretary of State amounted to significant breaches of individual’s rights which would in many cases last a lifetime.  The Home Office guidance on when to apply discretion in the favour of an applicant who did not meet the Minimum Income Rules was in itself unlawful because it imposed a series of thresholds and tests of exceptionality before it could be considered.

Both MM and SS are refugees.  Master AF is the nephew of MM, although they have a special father/son relationship.  Neither MM or SS are able to return to their home countries to enjoy a family life with their spouses because of a continuing risk to them there.  They argued in part that the Immigration Rules fail to draw this obvious and very important distinction between them and those who are able to enjoy family life elsewhere.  They also pointed out that the Minimum Income Rules were forcing British citizen sponsors out of the UK solely in order to live with their family members whose admission was otherwise barred as a result of not earning the required amounts.

The Supreme Court has reserved its decision and judgment is expected in a number of months.

Tony Muman appeared for the Appellants MM, Master AF and SS

Joseph Neville appeared with Mr Muman for the Appellants Master AF and SS

The pre-entry English requirement for partners and article 8

Tony Muman recently wrote an article for LexisNexis following the outcome of the Bibi case at the Supreme Court which can be viewed by clicking on the link below.

To instruct Tony Muman on any public law or immigration matter, please contact his clerks.

The pre-entry English requirement for partners and article 8

Supreme Court rules on pre-entry English language tests

43templerow

Supreme Court rules on pre-entry English language tests

On 18 November 2015 the Supreme Court handed down judgment in R (on the applications of Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 59. The cases concerned a challenge to the introduction in 2010 of an Immigration Rule. The Rule imposed a requirement that spouses or partners from certain non-EEA countries who wish to marry British Citizens or persons settled in the UK should first learn a certain level of English, and pass a test, before they join their spouses or partners in the United Kingdom.

In a long awaited decision the Supreme Court has not yet finally concluded what the result ought to be. The Supreme Court has decided to invite further submissions on whether it would be appropriate to give declaratory relief on how the Rule ought to be applied to reflect the Court’s concerns which are set out in the judgment.

Through-out the litigation, which started in 2010 in the Administrative Court, the appellants had alleged that the Rule was contrary to the right to respect for family life in the European Convention of Human Rights (Article 8). Although the Rule contains the possibility of an exemption in exceptional circumstances, the appellants had also made submissions at each stage of the litigation that the Secretary of State’s interpretation of ‘exceptional circumstances’, as set out in Home Office Guidance, was too narrow and showed that the Rule would be applied unlawfully in contravention of Article 8. The judicial review claims were dismissed by the High Court and by the Court of Appeal by a 2-1 majority decision.

In the Supreme Court, Lady Hale gave the first judgment, with which Lord Wilson agreed. She said that she would refuse the remedy of striking down the Rule or declaring it invalid because, as framed, it was capable of being applied compatibly with Article 8. But she went on to say that the operation of the Rule, in the light of the Guidance, was likely to be incompatible with Convention rights in a significant number of cases. She concluded that there was likely to be some benefit, both to individuals and to those administering the Rule, in declaring that the application of the Rule would be incompatible with Convention rights in certain types of cases such as where it would be impracticable without incurring unreasonable expense for a foreign spouse or partner to gain access to the necessary tuition or to take the test. Lord Hodge and Lord Hughes also recognised that the Guidance ought to be amended because it would lead in a number of cases to a breach of Article 8.

Lord Neuberger said that he saw considerable attraction in granting declaratory relief to reflect the concerns that the whole Court had about the application of the Guidance. He said that this was an important and sensitive topic, and it would be unfortunate if there was no formal record of the Supreme Court’s concerns. A final decision will however be made after considering further submissions from the parties. The appellants have therefore filed written submissions formally seeking declaratory relief in relation to the Guidance. The Secretary of State for the Home Department has yet to respond.

Whether or not the Court ultimately makes a declaration, the judgment already contains several important judicial statements, such as statements about the substantial interference that will be caused to family life in many cases, the limited value of a pre-entry language requirement in promoting integration, and the inadequacies of the Guidance. These statements should mean that, although the Rule itself has not been declared unlawful, more applications for entry clearance and appeals against refusals should now succeed on Article 8 grounds where the pre-entry English requirement has not been satisfied. The Secretary of State will also have to issue new and modified Guidance which properly reflects the court’s concerns.

 

The first appellant (Bibi) was represented by Manjit Singh Gill QC and Tony Muman, instructed by J M Wilson Solicitors.

The second appellant (Ali) was represented by Ramby De Mello and Abid Mahmood, instructed by Fountain Solicitors.

 

The judgment is available at

 

https://www.supremecourt.uk/cases/docs/uksc-2013-0266-judgment.pdf

Supreme Court give permission in landmark human rights case

The Supreme Court has now given permission to appeal the Court of Appeal’s decision in SSHD v SS (Congo) & Ors [2015] EWCA Civ 387. The court has directed that the appeal be heard on 22nd – 24th February 2016, alongside the case of MM (Lebanon).

The two cases deal with the government’s new Minimum Income Rules, which impose a minimum £18,600 income requirement before a non-EEA foreigner may join his or her partner in the UK. If the couple have a dependent child, this amount rises to £22,400, and increases further for every subsequent child. The income of the foreign partner on arrival in the UK is not taken into account, nor is any third party support, free accommodation, or savings the couple might have below the figure of £16,000.

Almost half the UK adult population do not meet these requirements, which are the highest in the world in relative terms, and the second highest in absolute terms. The impact on women, ethnic minorities, and those living in deprived areas is even worse, with a majority being deemed too poor to bring their foreign partner to the UK.

Because of the rules over 15,000 children, the vast majority British, are now living in enforced separation from one of their parents in what the Children’s Commissioner calls ‘Skype families‘. The Office for the Children’s Commissioner says:

“The Government is under a legal obligation to treat the best interests of children as a primary consideration when implementing rules and policies. The current family migration rules fall woefully short of this and children’s best interests are often reduced to a mere exception.
“In an ongoing attempt to reduce migration the Government has introduced rules which are now adversely impacting on British citizen families and children. This must surely be an unintended consequence but one that must now be urgently addressed.
“The result has been the separation of parents and children, heartache and misery. Some families cannot see how they can ever meet the rules and separation may be permanent.
The paper quotes testimony from parents, such as this mother of an 11 year old boy:
I recently had to go to his school because he went through a period of anger … I understand he’s coming up to teenage years, but… he had a few anger issues and [talked] about wanting to smash things and not really hurting himself but wanting to break and smash stuff. He did also mention not wanting to live any more and he did go through a period of “why am I even bothering any more?” The doctor talked about the situation and asked him why he thought he was having those feelings and he said to her, “it’s because of my dad, because I can’t see my dad”. The doctor says we need to give him the tools to cope with his feelings as she knows we can’t fix it.”

There are countless more tens of thousands of British and UK settled residents kept apart from their partners due to their financial circumstances.

The case of MM deals with whether the rules are so harsh that they represent an inherently disproportionate interference in the right to a family life under Article 8 ECHR, or alternatively that they are lawful because the Secretary of State or a tribunal can allow cases on a discretionary basis even where the rules are not met. The case of SS looks at the width of that second stage – Theresa May arguing that consequences such as those identified above by the Children’s Commissioner are simply not good enough to qualify as an exception.

The Minimum Income Rules are the linchpin of the government’s immigration policy. The decision of the Supreme Court is likely to be the most significant human rights cases it has decided in years: in legal terms the extent to which government policy can determine the outcome of assessments of proportionality in Article 8, and in human terms by the tens of thousands of people’s lives it will affect.

43templerow’s barristers Tony Muman and Joseph Neville represent MM, AF and SS, and a number of test cases linked to the appeals presently stayed at the Court of Appeal awaiting the outcome of the Supreme Court judgments.

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

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.

Tony Muman listed in Chambers & Partners Bar Guide

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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