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.

immigration

Zambrano Carers and Human Rights: HOME OFFICE POLICY UNLAWFUL

Article by Naomh Gibson

Introduction

On 30 January 2020 and having heard a number of test cases, Judge Neville of the First-tier Tribunal (IAC) at Taylor House ruled that a person meeting the requirements Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’) has a derivative right of residence notwithstanding that he or she has not yet made an application under the Immigration Rules and pursuant to Article 8 ECHR. The upshot is that the novel concept set out in Home Office policy that a Zambrano carer must first make an unsuccessful fee-paid human rights application before an application under the 2016 Regulations can be submitted is unlawful.

Judge Neville also held that the EU Treaties do not demand an applicant be entitled to a permanent right of residence after living continuously in the UK for a period of five years as Zambrano carers. It was held that a Zambrano right of residence is impermanent by its very nature, and that once the compulsion to follow the third country national (‘TCN’) falls away, there is no basis upon which the British citizen is deprived of his rights under the EU Treaties by the TCN’s removal.

This second issue is the subject of an on-going appeal to the Upper Tribunal. The Secretary of State elected not to appeal the finding on the first issue. The indication from senior sources is that the policy will now be subject to amendment giving effect to the FtT’s ruling.

Ramby de Mello and Tony Muman acted for the lead test appellants.

Background

It came to attention of David Tang & Co solicitors that in several of their appeal cases there was a recurring issue, summarised in the appeal as follows:

Where the Secretary of State accepts:

  1. That the appellant is the primary carer for a British citizen child; and
  2. That the child would not be able to remain in the United Kingdom or another EEA member state if the appellant were required to leave the United Kingdom for an indefinite period…

Is it in breach of the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom for an application for a residence card under Reg. 20 of the 2016 Regulations to be refused because the appellant has not yet made an application for leave to remain under the Immigration Rules (or otherwise pursuant to Article 8 ECHR) on the basis of the relationship with the British citizen child? (Issue 1)

Exceptionally, exercising its general case management powers, the FtT agreed to consider this issue discretely as a preliminary issue.

The FtT also agreed to decide on a second matter as a preliminary issue, namely:

Where an appellant has spent five years living continuously in the UK with a derivative right of residence, have they acquired a permanent right of residence akin to that set out at Reg. 15 of the 2016 Regulations? (Issue 2)

Issue 1

It was common ground that each appellant was not an exempt person as defined by Reg. 10(7A) of the 2016 Regulations and met each of the criteria at Reg. 10(5). However, the applications for derivative residence cards were refused by the Home Office, on the basis that there is significant overlap with the right to respect for private and family life which is protected by Article 8 ECHR, and so an appellant who wishes to remain in the UK on the basis of family life with a British citizen ought to first make an application for leave to remain under Appendix FM to the Immigration Rules.

The Secretary of State reasoned that a derivative right to reside is a right of last resort which only applies if a person has no other means to remain lawfully in the UK. In doing so, she sought to gain assistance from the Court of Appeal judgment in Patel v SSHD [2017] EWCA Civ 2028).

This would mean that a Zambrano application must be refused if the applicant:

  • has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available;
  • has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child.

Further, the Secretary of State also argued that someone holding leave to remain under domestic law would not benefit from a derivative right to reside. She sourced the above principles from Patel. The FtT rejected this contention and held that the Respondent’s interpretation ‘cannot survive the actual legal principles engaged nor, in any event, would her interpretation of the law provide a sound basis for the requirement imposed by the guidance’ [28].

The FtT agreed that Patel, properly read, offers no support for either proposition. The judge ruled that the Respondent’s guidance contained legal principles which were ‘unsupported by, and in some cases completely at odds with, previous authority’ [46].

This is because Zambrano is concerned with the circumstances in which a TCN will have a right of residence under EU law, and in particular Article 20 of the Treaty on the Functioning of the European Union (‘TFEU’):

  1. 1. Citizenship of the Union is hereby established. Every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
  2. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

    a) the right to move and reside freely within the territory of the member states; …

Therefore, the obligation and the jurisdiction to grant residence follows Art.20.There was thus a distinct separation between EU law, and other provisions such as the ECHR, to form ‘two sources of protection’ [32]. In the learned judge’s opinion, the correct approach to take in determining Issue 1 was as follows:-

  1. Is there a derivative right of residence as defined by Zambrano? If not;
  2. Would removal be contrary to the right for respect for the TCN’s family and private life afforded by Article 8 ECHR?

As such, the Respondent’s guidance (and their application of their guidance) erred in law as it is predicated on testing whether the TCN is being compelled to leave the EU, rather than testing what would happen if he or she were so compelled.

Issue 2

Some of the appellants argued that after living continuously in the UK for 5 years pursuant to a Zambrano right of residence, they had automatically acquired a right of permanent residence – contrary to the current regulations – on the basis of EU Treaties. This was a novel proposition which had not been directly explored in any previous authority.

This proposition was based on Article 21(1) TFEU, which provides:

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”

As per Lounes (Citizenship of the Union : Border checks : Judgment) [2017] EUECJ C165/16, [58], it was argued that it would be contrary to the underlying logic of gradual integration that informs Article 21(1) TFEU to hold that such citizens, who have acquired rights under that provision as a result of having exercised their freedom of movement, must forego those rights –– in particular the right to family life in the host Member State –– because they have sought, by becoming naturalised in that Member State, to become more deeply integrated in the society of that State.

It was submitted on behalf of the appellants that this ought to include the ability to build a family life with a TCN partner by the means of a derived right of residence to that spouse.

However, the FtT did not accept this part of the appellants’ case. While it was accepted that there was ‘some force’ in these arguments [57], there was no authority explicitly providing for the Directive to be applied ‘by analogy’ to Zambrano carers.

Ultimately, the appellants faced an insurmountable hurdle in that entitlement to a permanent right of residence by the TCN does nothing to fulfil the objectives of the TFEU; refusing to provide a right of permanent residence to a Zambrano carer after five years’ continuous residence as such does nothing to “[deprive a] Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status” nor “interfere, in particular, with a Union citizen’s freedom of movement”.

An example was given of a TCN who is the sole primary carer of a British citizen child who would be compelled to follow her outside the EU if she were removed. If this TCN was given leave in another Member State, then the Secretary of State could justifiably argue that the Zambrano right falls away as the UK would not be interfering with the child’s enjoyment of EU citizenship.

Conclusion

This is welcome clarification on the correct application of the Zambrano principle and the circumstances in which an appellant has a derivative right of residence. For those currently handling cases which engage these principles, please note that at the time of writing, the Home Office has yet to update their guidance.

The current document ‘Free movement rights: derivative rights of residence’ version 5.0 dated 2 May 2019 still requires to be updated (see here). Page 52 of 63 of the Guidance still erroneously states: Where a person wishes to remain in the UK on the basis of family life with a British citizen, they should first make an application for leave to remain under Appendix FM to the Immigration Rules, not for a derivative residence card on the basis of Zambrano.

Ramby de Mello and Tony Muman and appeared for the 1st-12th Appellants.

For any further enquiries please contact Tony and Ramby’s clerks on 0121 237 6035 or clerks@halcyonchambers.com