British Bill of Rights – a clampdown on human rights or restoring ‘common sense’?

The Secretary of State for Justice, Dominic Raab, has introduced a new ‘British Bill of Rights’ to Parliament. The government claim that the legislation will “end the abuse of the human rights framework and restore some common sense” to the UK’s justice system by rebalancing the relationship between the legislature and the courts.

This new Bill of Rights is designed to both overhaul and replace the 1998 Human Rights Act, which incorporated the rights contained in the European Convention on Human Rights into UK Law for the first time. At the time, the Human Rights Act was described as “bringing rights home”.

Critics of the government’s proposed Bill of Rights include the Law Society of England and Wales, the Law Society of Scotland, as well as NGOs such as Liberty and Amnesty International.

In this article, we will assess the pros and cons of this Bill of Rights, as well as look at why the government is seeking to introduce this legislation.

Background

Ever since the European Convention on Human Rights (ECHR) was enshrined into UK law with the introduction of the 1998 Human Rights Act under Tony Blair’s Labour government, the idea of a British Bill of Rights has been mooted by Conservatives and Eurosceptics alike. Indeed, it had been part of the Conservative Party’s 2010 manifesto, although these ideas were shelved after going into coalition government with the Liberal Democrats.

The effect of the 1998 Human Rights Act had three main consequences:

Rather than having to go to the European Court of Human Rights in Strasbourg if a person felt their human rights had been breached, it meant that justice could be sought in a British court.
Public bodies and institutions had to respect and protect human rights within the HRA.
Parliament must ensure that all new laws are compatible with the European Convention on Human Rights. This also applies to the courts, which must ensure that laws are interpreted in a way which is compatible with the ECHR.

The Human Rights Act has been credited for achieving justice for the 96 victims of the Hillsborough football disaster, the Mid Staffordshire NHS scandal, securing peace in Northern Ireland, as well as many more examples. Nevertheless, its critics have claimed that the Human Rights Act ‘protects terrorists’ and makes it too difficult to deport criminals. Criticism has taken on an especially political dynamic since Brexit. For instance, the prevention of the first deportation flight to Rwanda under the government’s Rwanda policy was decried by ECHR critics for allowing ‘anonymous judges in Strasbourg’ to influence the British legal system.

The idea of “taking back control” has therefore continued to be one of the key driving forces for proponents of a British Bill of Rights, something which has also been observed with the government’s proposed dismantling of the Northern Ireland Protocol.

What is the British Bill of Rights?

While the government have stated their continued commitment to the European Convention on Human Rights, the Bill will establish the UK Supreme Court as the ultimate judicial decision maker on human rights cases in the UK.

In effect, the new Bill of Rights means that the UK courts will no longer need to interpret British laws in a way which is compatible with the ECHR. Furthermore, they won’t have to comply with case law and rulings made in European courts when they make decisions.

The Law Society of England and Wales President, Stephanie Boyce described the new Bill of Rights as: “a lurch backwards for British justice.” She added that it would “create an acceptable class of human rights abuses in the United Kingdom – by introducing a bar on claims deemed not to cause ‘significant disadvantage’.

According to the government, the new Bill of Rights will:

1. Strengthen the rights for freedom of speech

2. Recognise the right to jury trial

3. Limit courts’ powers for certain rights, making it easier for the government to deport criminals

4. Reduce burdens on public authorities

5. Ensure that public protection is given due regard in interpretation of rights

6. Limit the Bill’s territorial jurisdiction

7. Implement a permission stage to ensure trivial stages do not undermine public confidence in human rights.

8. Recognise that responsibilities exist alongside rights

9. Strengthens domestic institutions and the primacy of UK law

10. Increases domestic oversight

11. Enhances Parliament’s role in responding to Strasbourg rulings

Many of these changes will have significant consequences for UK law for human rights in the UK. Clause 15 of the legislation is designed to prevent human rights cases which the government deems “trivial” from reaching court by introducing a permission stage. Claimants will have to show that they have suffered “significant disadvantage” before a claim can proceed. While it is open to interpretation, it certainly seems to place a higher bar on which human rights cases are received in court.

One of the main motivations behind the Bill appears to be an attempt to make the UK’s immigration system increasingly punitive. Government figures like Home Secretary, Priti Patel, have often expressed their frustration that it is too difficult for the government to deport convicted criminals due to the Human Rights Act. Article 8 of the Human Rights Act means that everyone in the UK has the ‘right to family life’, which is “the right to respect for your family and private life, your home and your correspondence”. This is clearly one of the main motivations behind the legislation, particularly in this post-Brexit environment.

Our thoughts

The timing of the announcement for the British Bill of Rights by the UK government appears to be a largely symbolic and political move, with many of the rights within the ECHR continuing to be enshrined. Nevertheless, it cannot be denied that the legislation represents a significant increase in the rights of the government over the individual and the courts. Furthermore, although the government claim the ECHR will continue to be adhered to, the courts will no longer be required to listen to the ECHR and can simply ignore their rulings. While the Human Rights Act of 1998 constrained those in power by adding another check to the authority of the executive, the proposed Bill of Rights gives the government a significant increase of power.

In addition, the Bill of Rights opens the door for further abuse by governments of the future by increasing the power of lawmakers over the courts, as well as allowing the government to decide for itself whether it feels human rights abuse is ‘genuine’ or not. Despite the government pledging its continued commitment to the European Convention on Human Rights, if this proves obstructive to its political aims then it would be unsurprising if it reneges on this commitment.

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Akinsanya v Secretary of State for the Home Department – What does the Home Secretary’s response mean for Zambrano applicants?

A person is considered a ‘Zambrano carer’, should they be a non-EEA national primary carer of a British citizen who would be unable to reside in the UK, if that primary carer were required to leave. Zambrano carers have been recognised as having a right to reside in the UK under EU law following the decision of Ruiz Zambrano v Office National de l’Emploi (C-34/09) [2012] QB 265.

Today’s article provides an update on the case of Akinsanya v Secretary of State for Home Department, which we also previously looked at in an article we published a few months ago. See here.

Following the UK leaving the EU, the Secretary of State drafted the provisions relating to Zambrano carers in the Appendix EU to the Immigration rules to exclude all those that already have leave to remain on another basis. For example, leave on family life grounds or parent of a settled child, which the majority of non-EEA national primary carers would be eligible for.

The benefit of proceeding with an application under the EU Settlement Scheme as a Zambrano carer as opposed to any other application is that there is no fee, and you could obtained settled status after 5 years, as apposed to an application under appendix FM, where you would pay substantial fees, follow strict requirements and face a 10 years wait to settlement.

R (on the application of Akinsanya) v Secretary of State for the Home Department [2021] EWHC 1535 (Admin)

In this case, held on 9th June 2021, the High Court held that a primary carer of a UK citizen child may have a derivative right to reside on Zambrano grounds, even where they are entitled to limited leave to remain on another basis.

This was an important decision, and parents waited eagerly for the Secretary of State to reconsider her guidance. If implemented as per the judgement, this would allow many parents a quick route to settlement and be afforded the enhanced protection that Appendix EU allows.

Home Office publishes policy response to Akinsanya decision

The Home Office published their much-anticipated policy response to the Court of Appeal’s decision in Akinsanya v Secretary of State for the Home Department on 13^th June 2022.

The Home Office has stated that:

‘the Home Secretary has carefully considered the Court of Appeal judgment and has decided that she no longer wishes that definition in Appendix EU to reflect the scope of the 2016 Regulations but wishes it to reflect the scope of those who, by the end of the transition period, had an EU law right to reside in the UK as a Zambrano primary carer, in line with the originally stated policy intention’.

This means that applicants will be eligible for EU Settlement Scheme only if they met the criteria of Zambrano primary carer and did not have any other leave to enter or remain in the UK at the end of the transition period and during the relevant period relied upon.

Applications for Zambrano carers who do meet the “no existing leave” rule can apply to the EU Settlement Scheme form 13^th June 2022 until 25^th July 2022 and they will be deemed as having reasonable grounds for missing the deadline.

Our comments

This policy response is of course disappointing news for many who awaited this guidance in the hope that there would be a huge change to the settlement rules.

For all those who meet the Zambrano requirements, it would be best to make an application promptly and before 25^th July 2022.

Finally, for all parents that have made a Zambrano application and no longer qualify, it would be prudent to make an application under the Immigration rules without delay.

Should you require further assistance then please do get in touch.

Have questions about this article? Get in touch today!

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Plans to shake up private rented sector announced

The Department for Levelling Up, Housing and Communities has announced a spate of planned reforms to private renting in its new White Paper, dubbed ‘a fairer private rented sector’. It claims that this will offer a “fairer deal” for the 13 million renters in the United Kingdom, as well as ‘fundamentally reforming the private rented sector and levelling up housing inequality in this country’.

But does it live up to those promises? Keep reading to find out.

Some of the major reforms included in the White Paper are plans to:

Ban no-fault evictions
An intention to apply the Decent Homes Standard to the private sector the first time
Remove arbitrary rent review clauses

It will also be illegal for landlords or agents to have blanket bans on renting to families with children or those who receive benefits and will make it easier for tenants to keep pets in their homes. The reforms are included in the Renters Reform Bill as announced in the 2022 Queen’s Speech and will be introduced in this current parliamentary session.

No fault evictions

No fault section 21 evictions will be outlawed, meaning that landlords will be unable to evict tenants without giving a reason. According to the White Paper, more than a fifth of renters who moved home in 2019 and 2020 did not move by choice. Research by the homeless charity Shelter also found that a private renter is served a no-fault eviction notice every seven minutes despite government promises to scrap it three years ago, a total of 230,000 people during that time.

This will rebalance the power between landlords and tenants, meaning that tenants will be less worried about raising problems in the property with their landlord and raising the level of accountability for landlords versus tenants. It will also essentially mean that tenancies will only end if the tenants decides to end it or if the landlord has valid grounds for possession.

Decent Homes Standard

For the first time, the Decent Homes Standard will also apply to the private rented sector. Currently, the Decent Homes Standard only applies to the social rented sector.

These proposals will mean that landlords will be forced to improve the condition of properties where the health of tenants is at risk. This will include damp, dirty and unfit homes, which is currently a fifth of privately rented properties. It also includes making homes free from health and safety hazards, as well as ensuring that landlords keep their homes in a good state of repair.

In order to meet the Decent Homes Standard, properties must meet the following criteria:

(1) it meets the current statutory minimum standard for housing

(2) it is in a reasonable state of repair

(3) it has reasonably modern facilities and services and

(4) it provides a reasonable degree of thermal comfort.

This is in line with the government’s objectives to halve the number of non-decent rented homes by 2030. Nevertheless, some within the property industry have pointed out how important it is to ensure that the decent homes standard does not lead to landlords exiting the market.

Rent review clauses

Increases to rent will only be allowed once per year. Rent-review clauses will also be removed and improve the ability of tenants to challenge excessive rent increases through the First Tier Tribunal.

Furthermore, the notice with which a landlord must give a tenant in terms of a rent increase will raise from one month to two months.

Furthermore, all changes to rent increases will have the potential to be challenged at the First-tier Tribunal if tenants consider the increase to be unjustified. This is possible because all rent increases will need to be undertaken via the Section 13 process. This is currently not the case, as it can currently be increased on an ad hoc basis.

Other reforms

Another major reform will mean that landlords or agents will be prevented from being able to have blanket bans on renting to families with children or those who receive benefits.

The reforms will also make it easier to tenants to keep pets, removing a landlord’s ability to impose a blanket ban on the practise. In 2020, only 7% of landlords advertised their property as being suitable for pets. Nevertheless, the Tenant Fees Act will be reformed so that landlords can request that their tenants buy pet insurance.

There will also be an ombudsman which all landlords must sign up to. This would ensure that disputes between landlords and tenants can be settled quickly, without going to court, which will be welcomed by many of those within both parties.

Finally, a new property portal will help landlords to better understand their obligations as a landlord and what is legally required of them.

Our comments

We welcome the reforms in this White Paper, many of which have been a long time coming and came to the forefront during the Covid pandemic when tenants were forced to spend more time in often substandard homes. The removal of no-fault evictions is a particularly major reform which should rebalance the relationship between renters and landlords.

While these reforms will be welcomed by private renters, until they are enacted many will remain about sceptical about whether or when they will take effect. The Employment Bill is one example of a White Paper which was previously announced and has since failed to come into effect. However, the fruition of this legislation would be a genuine example of the ‘levelling up’ which Prime Minister Boris Johnson has described as the “defining mission” of his government.

Have questions about this article? Get in touch today!

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Will the Rwanda policy overcome its initial legal barriers?

You may have seen our most recent article, where we looked in detail at the responses by both the Human Rights Watch and the UN High Commissioner for Refugees to the UK Government’s Rwanda scheme. However, the following article will analyse the latest events, where the Government’s attempt to deport asylum seekers on its inaugural flight to Rwanda fell at the first hurdle.

The first deportation flight to Rwanda was scheduled to take place on 14^th June 2022. A number of applications was made for the removal directions to be cancelled to the the European Court of Human Rights in Strasbourg. The applications were made on the basis of individual circumstances along with arguments in relation to legality of the UK-Rwanda partnership.

While the Supreme Court refused an application to appeal, paving the way for the flight, the European Court of Human Rights in Strasbourg suspended the removal directions of the asylum seekers, meaning the flight did not go ahead.

This article will take a look at the differing legal approaches taken towards the Rwanda policy, first by the UK Supreme Court and secondly by the European Court of Human Rights.

First, let’s analyse the decision by the UK Supreme Court.

R (NSK (Iraq)) v Secretary of State for the Home Department

The Applicant made an application to the Supreme Court for Permission to Appeal on the basis that the Court of Appeal had made an error in dismissing the Applicant’s appeal.

The Applicant stated that the Court of Appeal ‘erred in law in holding that the judge was entitled…to proceed on the assumption that the Government of Rwanda would comply with the assurances provided in the memorandum of understanding’.

The UK Supreme Court

The Supreme Court considered the application. They noted that the Court of Appeal judge did attach weight to the assurances given in the memorandum of understanding, however they were entitled to so.

The Supreme Court also stated that a matter for concern was that if the Appellant were to be removed to Rwanda, and the appellant were to succeed at the hearing proposed for July in his challenge to the lawfulness of his removal to Rwanda, he would then be returned to this country.

However, the Government Legal Department informed the Court that if the High Court were to make such an order, they would arrange for the Appellant’s return to the UK.

In view of the above, the Supreme Court refused the application for permission to appeal.

ECHR intervention

We will now examine the decision by the European Court of Human Rights, whose decision grounded the inaugural deportation flight to Rwanda.

The ECHR examined a case involving a 54 year old Iraqi asylum seeker who had crossed the English Channel in a boat (KN vs the United Kingdom). Five days after he had claimed asylum in the UK, citing danger to his life in Iraq, he was served with a notice of intent by the Home Office indicating that they were considering his claim inadmissible and relocating to Rwanda. A letter from the ECHR stated that he should not be removed on the flight which was due to leave for Rwanda on the 14^thof June.

KN, the Iraqi asylum seeker in question, was also described in a report by a doctor in his detention centre as a possible victim of torture.

The ECHR granted an urgent interim measure in the case of KN vs the United Kingdom. He was set to be the only person to be on board the flight to Rwanda after a series of individual legal challenges left him as the last one.

Of particular consideration for the ECHR was the fact that asylum seekers transferred to Rwanda wouldn’t have access to fair and efficient procedures for their determination of refugee status. The question of Rwanda’s human rights record and the lack of a legally enforceable mechanism to return the applicant to the UK in the face of successful domestic court challenges also motivated the ECHR decision.

According to a statement issued by the ECHR, the interim measure has been granted “until the domestic courts have had the opportunity to first consider those issues”.

The Home Secretary’s statement

The Home Secretary, Priti Patel made an oral statement on 15^th June 2022, following the cancelation of the first deportation flight. She stated that ‘The European Court of Human Rights did not rule that the policy or relocations were unlawful, but they prohibited the removal of three of those on last night’s flight.

The Home Secretary went on to state that ‘While this decision by the Strasbourg court to intervene was disappointing and surprising given the repeated and considered judgements to the contrary in our domestic courts, we remain committed to this policy.’

Our comments

It appears that the Supreme Court in their decisions have placed significant weight on assurances rather than specific details outlining how pragmatically the UK can ensure that they are complying with their duties under international law by sending asylum seekers to another country.

It is clear that the UK Government plans to continue with the Rwanda relocation program. We believe it could take well over a year for a substantive hearing at the European Court of Human Rights. Any attempts of removal would highly be likely be met with injunctions for the time being, and therefore despite the Home Secretary’s optimism, we believe further removals would be postponed in the short term.

While the government has discussed the possibility of withdrawing from the ECHR, this is likely not their preferred option.

The decision taken by the ECHR is a much welcomed outcome, as many had serious concerns as to whether the asylum seekers claims could be processed in compliance with their fundamental human rights, and in accordance with our international obligations.

Should you have any concerns relating to your asylum application, then please contact us and we will be able to advise you on the best steps moving forward.

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James Cook

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Potential future challenges on expulsion of asylum seekers to Rwanda?

The UK government signed the Asylum Partnership Arrangement with the Rwanda government on the 14^thof April 2022.

As part of the plan, the government is intending to relocate some asylum seekers to Rwanda on a one-way ticket. The relocation plan will target young single migrants who have arrived in the UK since 1st January 2022. Once transferred, Rwanda would take responsibility for those sent there. The Home Office intended to make its first transfer on 14^th June, however this was blocked at the last minute by the European Court of Human Rights. The UK Government have since maintained their position that they intend to continue with the policy.

Humans Rights Watch Concerns

The Humans Rights Watch has published a letter that has been sent to the Secretary of State for the Home Department expressing their serious concerns with the UK-Rwanda Asylum Partnership Arrangement and expulsions to Rwanda. Some of the concerns are as follows:

Asylum seekers will be processed under Rwanda’s asylum system. This means that the UK is seeking to shift their responsibilities onto another country and therefore acting against the purpose of the 1951 Refugee Convention
Rwanda cannot be considered as a safe third country for asylum seekers as there has been routine reports of serious human right violations.
Rwanda has reports of Arbitrary detention, ill-treatment, and torture in official and unofficial detention facilities are commonplace in Rwanda
HRW have concerned that there would be serious violations of free speech. Asylum seekers will be at risk of abuse if they speak up about their treatment or conditions in Rwanda.
The Rwandan judiciary’s lack of independence and failure to investigate abuse
Abuses against and risks for LGBT people

UN High Commissioner for Refugees (UNHCR)

The UN High Commissioner for Refugees (UNHCR) has published its analysis of the legality and appropriateness of the UK-Rwanda Asylum Partnership Arrangement and expulsions to Rwanda.

In particular, the UNHCR considered whether the arrangement met the requirements of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol Relating to the Status of Refugees.

The UNHCR concluded that asylum seekers and refugees claims should be processed in the state where they first arrive and therefore the current UK—Rwanda arrangement fails to meet the required standards and it seems to shift UK’s responsibility and lacks necessary safeguards.

Our comments

Both publications produced by the Humans Rights Watch and The UN High Commissioner for Refugees hold very valid points which need to be addressed by the United Kingdom. Asylum Seekers and Refugees are some of the most vulnerable in society and we must ensure that their cases are dealt with great care.

It appears that in light of the above, the Secretary of State may need to brace themselves for a legal challenge in the near future. This would suggest that it will not be as easy for the Government to proceed with the Rwanda policy as they might wish, something they claimed they anticipated when the policy was announced.

Have questions about this article? Get in touch today!

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Woman receives jail sentence for fraudulent £4m NHS claim

The NHS has been a highly respected public institution since its founding in 1948, symbolising the post-war consensus of the UK’s welfare state.. Such is the sanctity and esteem in which it is held in by the British population, that it has been described by some as the country’s new “national religion”.

Indeed, former Conservative Chancellor Nigel Lawson once said that “the NHS is the closest thing the English people have now to a religion’. As a result, a case in which someone tried to defraud the organisation is always likely to provoke the ire of the nation and the courts.

29-year-old Holly White had suffered from the spinal disease CES since her late teens. However, she knowingly exaggerated her injuries because of alleged NHS negligence in her pursuit of a £4m claim against North Bristol NHS Trust. Following her initial claim, the details were investigated on behalf of the trust by NHS Resolution, who brought forward contempt action against White. She has subsequently been jailed for 6 months for contempt of court.

Continue reading to find out more about the details of the case and why the judge decided that sending the woman to prison was the right decision.

Background

White’s initial £4m claim against the NHS was struck out in 2019 following the revelation of video surveillance by the Trust which showed that while White claimed that she could only walk around 10 to 15 steps without the use of an elbow crutch, owing to what she claimed was NHS negligence, this was contradicted by the video evidence.

The evidence which the Trust gathered over a period of 2 weeks showed Miss White walking normally without any assistance, driving for 40 miles without stopping and even driving for 18 miles to attend a party. She also walked around stores without any apparent limp, slowness or disability.

On reviewing the footage, Miss White’s consultant neurosurgeon, Mr Todd, described Miss White’s previous statements to him as “deliberately misleading”. He warned that “unfortunately this brings the whole of Miss White’s evidence into question”. He then went on to say:

“as a Doctor I rely on patients giving me accurate information. If I find there has been deliberate misrepresentation in respect of walking I now have to question how much of what I was told in respect of other symptoms can be relied upon.”

Following the revelation of the footage, in February 2019 White propose to the Trust to have the claim dismissed with no costs for either side, something which was refused by the Trust. The claim by White was subsequently struck out by the court, with White ordered to pay £45,000 in interim payments – unlikely to ever be repaid.

North Bristol NHS Trust vs White

The Trust issued a claim form in February 2020, which set out allegations of contempt of court against White. Permission was then granted for the claim against Miss White in June 2021, after being delayed by the Covid pandemic.

While White claimed that the delay should lead to a refusal of permission, the High Court judge disagreed and granted permission for the claim.

The court found that White had made false statements to a total of four experts between May 2018 and January 2019 who were reporting to the High Court on her physical condition. These false statements had an estimated value of £1m gross according to the court findings. The court also found that White continued to propagate lies about her state of mobility in order to increase the damages she might have been awarded by the Court.

The judgement

In considering whether the sentence should be suspended, the judge took into account a range of factors in accordance with sentencing guidelines. The powers granted in CPR rule 81 9 and the Contempt of Court Act 1981 gave the Court the power to impose imprisonment, either immediate or suspended, for a maximum of 2 years; a fine, either on its own or in combination with imprisonment; the confiscation of assets; and any other punishment permitted by law.

In particular, the judge found that the individual presented a risk to the public purse and public institutions owing to their clinical negligence claim against a taxpayer funded organisation (the NHS).
The judge also considered that the individual has a poor history of compliance with court orders and rules relating to statements of truth in her clinical negligence claim.
There was no past record of rehabilitation or indeed potential for rehabilitation in the interaction with state funded organisations in the judge’s view.
While the claimant did have a son, the judge argued that despite immediate custody having an adverse impact on her son, the impact would be ameliorated by the loving relationship between the son, his father and his grandmother.

The judge decided to send the defendant to prison immediately, stating that: “suspending the sentence will not get the message across to you sufficiently strongly that: defrauding the NHS, which is funded by the taxpayer is utterly unacceptable. Nor would it send out the right message to those currently suing NHS trusts or those who will do so in future.”

White was subsequently sentenced for 6 months, with entitlement to release after serving half of the sentence.

Commenting on the result, Helen Vernon, chief executive of NHS Resolution, said: ‘NHS Resolution does not take decisions lightly to commence committal proceedings, however, given the extent of the damages sought by the claimant in this case, it was felt this was appropriate action. This is a stark reminder to potential claimants in clinical negligence matters of the need to remain honest as to the extent of the damage and losses incurred.’

Our comments

This particular case is unlikely to find many supportive of the defendant (Miss White) as once the facts were laid out, the extent of the fraudulence involved was fairly clear cut. The fraudulence and persistent lying to both the court as well as medical professionals in the pursuit of a substantial sum left the judge with little choice in passing the 6-month prison sentence, which has the intended aim of acting as a deterrent to potential fraudsters.

This case demonstrates the lengths to which extreme litigation fraud can go. Although in most cases it does not lead to fraudsters being sentenced, the Court does frequently strike out, whole or part, the relevant claims and make wasted costs against the relevant persons/parties. Whenever such thing happens, it will be open to the victims of such acts or their legal representatives to apply for remedies immediately.

Of course, genuine claimants for personal injury compensation should not be put off by this case, something stressed by NHS Resolution following the outcome of the trial.

Have questions about this article? Get in touch today!

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James Cook

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Can Article 3 of the EHRC protect a HIV positive criminal from being deported? No, says the Upper Tribunal!

Written by Katherine Chan

A new ruling by the Upper Tribunal sheds light on how the courts balance the interest of public justice and the human right requirement.

Following the case of AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 (IAC), the law is not altered but it does reflect the approach which courts are likely to take in cases of this nature.

Article 3 of the European Convention on Human Rights (EHRC) was the main issue of concern in this case. Article 3 states that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Background

The appellant was born in Zimbabwe in 1987. In 2000, he left Zimbabwe and came to the UK to reunite with his mother who was already living there. Both were granted indefinite leave to remain in the UK in 2004. The appellant, who also has a wife and four children in the UK, then committed a string of offences from 2005 onwards – some of which were serious, including possession of a firearm and ammunition.

In 2012, while the appellant was in prison, he applied to the Secretary of State for the Home Department to revoke the order for deportation against him by reference to his rights under Article 8 of the Convention and his diagnosis of HIV. For his HIV treatment he had been taking a drug named Eviplera, which did not lead to significant side-effects as the previous drug did. Moreover, it was doubtful whether he could access the current treatment if he was deported back to Zimbabwe. Should he stop his treatment or be denied access to his treatment, his HIV viral load would rise which could result in death.

Issues for consideration

In considering this case, the Upper tribunal provided guidance on how the threshold of Article 3 health cases are met. Accordingly, two questions need to be answered.

The first question is whether the appellant can establish that he is a seriously ill person. This will generally require clear and cogent medical evidence from his physicians in the UK.

The second question is whether the appellant has adduced evidence that ‘substantial grounds have been shown for believing’ that as ‘a seriously ill person’, the appellant’s health would be at risk due to the absence of appropriate treatment in Zimbabwe or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering, or to a significant reduction in life expectancy’.

It is held that for the appellant to merely establish that his condition will worsen upon deportation or he would suffer from serious and detrimental effects is insufficient. What is required is the appellant has been suffering intensely. It would be particularly helpful if there are reports by reputable organisations, as well as medical practitioners and experts confirming the availability of treatment in the receiving state. Article 3 is only applicable after the threshold test has been met.

Decision of the Tribunal

Taking different evidence into consideration, the Upper Tribunal held that there is appropriate and accessible/affordable treatment in Zimbabwe. It is believed that the treatment generally available there will be sufficient, appropriate and accessible in practice for the treatment of the appellant’s HIV. Moreover, the appellant’s condition has been controlled despite his failure to attend appointment and not taking medication on several occasions.

Even though the appellant may have to pay for some testing and medication, that will be affordable to him given the sums involved are small (2 USD a month) and the support of his wife, her family and his own family in the UK. The appellant could also earn his own living in Zimbabwe as he was an “intelligent and resilient man” according to the Upper Tribunal.

Accordingly, the appeal was dismissed on human rights grounds (Article 3 ECHR). The appeal on Article 8 grounds was also finally dismissed by the Tribunal.

Our Comments

The decision shows that the English courts have continued to take a stringent approach to applying Article 3 ECHR.

The threshold is extremely high and any potential applicant must show that their removal will lead to a rapid and irreversible decline of their health.

Have questions about this article? Get in touch today!

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James Cook

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Is it sex-related harassment to call a man ‘bald’ at work?

Baldness is a fact of life for many men. While in some cultures it has been seen as a sign of wisdom, for many in the UK today it is a sensitive issue which sees thousands of men seek treatment for hair loss in an effort to retain a perceived sense of youth, virility, and attractiveness. To underline this point, it has been reported that on average 180,000 people travel to Turkey for hair loss treatment every year.

But while hair loss has been a sensitive topic for a long time (remember the combover?), seldom before has it been taken seriously as a form of discrimination in the workplace. Until now, that is.

In this article, we will take a look at why a man who was called ‘bald’ at work is in line to receive compensation for sex-related harassment as well as analysing the challenges employers may face when it comes to minimising such risks.

Finn v The British Bung Manufacturing Company Ltd and King

In the case of Finn v The British Bung Manufacturing Company Ltd and King, the claimant was called a “bald c***” by his factory supervisor, a slur which preceded threats of violence towards the claimant.

Mr Finn subsequently brought a claim under the Equality Act 2010, which prohibits acts of harassment within the workplace related to protected characteristics including age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.

Under the Equality Act, the definition of harassment is as such: “a person harasses another if they engage in unwanted conduct related to a relevant protected characteristic, and that conduct has the purpose or effect of either violating the other’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”.

The tribunal found that according to Mr King himself, it was his intention to threaten the claimant, Mr Finn, and to insult him.

But why did the tribunal decide it was sex-related harassment?

The decision of the tribunal in deciding that the claimant received sex-related harassment came down to a simple application of logic.

According to the tribunal, the claimant was called bald with the purpose of “violating [Finn’s] dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him,” and the references to the claimant’s baldness was therefore determined to be sex-based harassment, but not ‘sexual harassment’ as a number of media outlets mistakenly reported at the time.

The tribunal found that while there was no overt link between the word ‘bald’ and the protected characteristic of sex, because men are more likely than women to go bald this means that it qualifies as sex-related harassment. Finn now stands to receive compensation, which will be decided at a later date.

What can you do as an employer to minimise liability risks from employees?

Under the Equality Act 2010, anything done by an employee is also done by an employer, which means that an employer will also be liable for harassment by one of its employees.

It is therefore important to be well aware of discrimination laws and to prevent discrimination occurring in the workplace as an employer.

Types of discrimination

There are a number of forms discrimination can take in the workplace. For instance, these include:

Direct discrimination – when an employee is treated unfavourably based on a protected characteristic referred to in the list above
Indirect discrimination – this is where a policy is applied to everyone in a company, but disproportionately affects a protected characteristic in a negative way. Employers can overcome this by proving that the policy is justified for the business and could not be applied in a less discriminatory way. This is known as showing objective justification
Harassment – (the form of discrimination discussed in this article) occurs when an employee is intimidated, hurt or upset by one of their colleagues because of something which relates to a protected characteristic
Victimisation – this is when an employee suffers negative treatment because they made a discrimination complaint or helped someone else to make one
Discrimination arising from disability – when a person is treated unfavourably as a result of something which is related to their disability
Failure to make reasonable adjustments for a disabled employee – this is when a practise, policy or rule which is applied by an employer places a disabled employee at a substantial disadvantage compared to their colleagues and steps aren’t taken to avoid the disadvantage

As well as protecting employees, discrimination legislation also protects the following:

Job applicants
Contract workers, including agency workers
Police officers and applicants to join the police
Partners and those seeking partnership in a firm (including an LLP)
Barristers and trainee advocates

In the meantime, an employer also needs to have relevant policies to deal with harassment at workplace. Such policies have to be circulated to employees, regularly reviewed, updated and enforced against any breach. Employees also needs to be adequately trained. Unless these actions have been taken, it is unlikely that an employer will have a reasonable defence when facing such harassment claim.

As accusations of discrimination can be an unpleasant experience for all parties involved, not least the person discriminated against, it can often be best to avoid legal action and employment tribunals. The fallout of a discrimination accusation can be lengthy, with significant costs incurred.

Our thoughts

This case underlines how important it is for employers to take workplace discrimination seriously. However, the low bar which this case sets by linking baldness with sex-related harassment threatens to potentially trivialise discrimination which occurs in more serious situations.

While this could help more genuine victims of discrimination in the workplace, high profile cases which are ridiculed on social media such as this one threaten to give ammunition to the proponents of the view that discrimination laws are an example of “political correctness gone mad”.

For employers, it further underlines how important it is to have clear policies on bullying and harassment at work to avoid scenarios like this one. There is therefore a fine line between having a company culture which is open and collegiate and one in which “banter” crosses the line into discrimination.

It will be interesting to see what impact, if any, this case has on other discrimination claims in the future.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

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James Cook

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Samsung found liable for hosting apps which mimicked luxury Swatch brands

The South Korean technology giant, Samsung, ranked by Forbes in 2020 as the 8^th largest company in the world, has found itself on the receiving end of a decision by the UK’s High Court which determined the technology company to be held liable for trademark infringement.

In principle, this came down to the fact that a number of apps on the Samsung app store infringed trademarks owned by the Swatch group, a Swiss manufacturer of watches and jewellery which is perhaps best known for its eponymous Swatch line.

Swatch brought forward a trademark infringement against Samsung in relation to 30 apps which were made available on the Samsung App Store between October 2015 and February 2019, which Swatch claimed infringed 23 of their trademarks.

The case, Montres Breguet SA and others v Samsung Electronics Co Ltd and another [2022] EWHC 1127 (Ch), offers a lesson for app store developers regarding trademark infringement, namely that they could be found liable for apps created by third-party app developers on the app store.

The apps in question which were listed on the Samsung Galaxy App store would allow a Samsung smartwatch to replicate the look of a Swatch group watch, including world-renowned brands like Swatch, Omega and Tissot. These apps were downloaded in the European Union approximately 160,000 times in the UK and the European Union.

Keep reading to learn more about the case, and the consequences it has for UK and EU intellectual property and commercial law.

Montres Breguet SA and others v Samsung Electronics Co Ltd and another [2022] EWHC 1127 (Ch)

In this case, the High Court was asked to take into consideration whether each of the 30 apps in question infringed the trade marks of Swatch group, as well as the extent of said infringement by Samsung, the app store operator.

The judge found that Samsung should be held liable due to the level of control it held over the publishing process for Swatch apps, which incidentally had been developed by third party app developers. As a result, the court found that Samsung had indeed ‘used’ the trademarks, despite its protestations. The trade mark infringement which Swatch argued Samsung committed was Article 9 (2) of Regulation (EU) 2017/1001]

While Samsung’s defence claimed that they merely permitted third parties to offer apps to the public through the app store, and didn’t actually use the infringing Swatch signs, Swatch offered evidence that Samsung’s conduct was active which meant that it amounted to the term of ‘use’.

For instance, before appearing on the Samsung Galaxy App store, it was evidenced that Samsung actively reviewed and approved the apps for people to download and customize their Samsung watches. This therefore allowed the face of Samsung smartwatches to mimick those of luxury watch brands like Swatch, Omega and Tissot, to name but a few.

Referring to this, Judge Falk stated: “I do not accept Samsung’s arguments that app downloads were simply procured by customers for their own personal use, such that there was no use in the course of trade. As with the rest of the process, their provision to customers was orchestrated by Samsung.”

Samsung also dealt with customer complaints and provided customers with support in relation to the apps in question.

“In my view, there was active behaviour by Samsung in relation to the apps and control by it of their availability, and Samsung was using the apps, and the signs contained in them, in its own commercial communications,” the judge noted.

What can we learn from this judgement?

The judgement of this case tells us that going forward, courts are now perhaps more likely to find app store developers liable when it comes to apps developed by third parties.

In particular, the judgement makes a distinction between online marketplaces such as eBay compared to app store operators like Samsung which are actively involved in the app publishing process.

While online marketplaces such as eBay play a neutral role between the buyer and seller without playing an active role over the way they are advertised, in the case of an app store like the Samsung Galaxy App store, the products created by third party developers which are advertised and sold directly relate to the goods/products sold by the app store operator.

App store developers should make sure that there are processes in place to ensure that they can identify whether there are apps which are in danger of infringing trade marks that are featured on their app store.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

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James Cook

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Lisa’s Law client granted Spouse Visa despite making an application within the UK

We are pleased to have been successful in an appeal which has led to our client obtaining leave to remain on the basis that he has a partner settled in the UK. This is despite our client making an application within the UK and therefore not satisfying the eligibility requirement of making an application outside of the UK.

Background

But first, a bit of background to the case in question.

Our client is a Chinese national who initially came to the United Kingdom illegally in 2007. He married his wife, a British national, in 2018.

In 2020, our client sadly contracted a form of liver cancer. He underwent a medical trial to assess new medication and on 22^nd June 2021 underwent major surgery.

Later that year, our client made an application for leave to remain with his wife. The application was refused as the client failed to meet the eligibility requirement, that is to say making an application abroad. The Home Office further stated that there were no insurmountable obstacles for both he and his wife to continue their relationship in China and that there were no exceptional circumstances to render the refusal unjustifiably harsh.

We subsequently appealed the decision.

The Appeal

The appeal we submitted was heard by the First-tier Tribunal. The Secretary of State for the Home Department (SSHD) relied on their reasons given in the refusal of the application. They further added that the client can simply leave the clinical trial and return to China to make an application for entry clearance.

Our key arguments were as follows:

1. Although the SSHD’s responsibility of enforcing effective immigration control is in the public interest, similarly our client’s involvement in a clinical trial for the treatment of liver cancer was similarly on the interest of the public.

2. We argued that during his current medical state, should he be forced to make an application from abroad, it would result in him being away from his wife who he has relied on heavily since his health has deteriorated. We argued that this was a clear violation of his rights under the European Convention of Human Rights.

3. Any air travel would put our client at risk of COVID-19 infection which could cause terrible consequences given his current condition.

The case was reserved and after a few weeks, we received a decision allowing the appeal.

Our Comments

This was an appeal in which we were determined to see a successful outcome as we could see the severe effect that it would have on our client’s condition should he be forced to return to China.

The refusal letter by the Home Office had a lack of empathy and understanding when making a decision and we are both pleased and unsurprised that the Tribunal would not share their view.

We wish our client all the best for the future.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on [email protected].

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

James Cook

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