29 October 2018

Background

In July 1994, the defendant’s parents were granted a joint secure tenancy of a property by the claimant local authority. Following the death of the defendant’s father, the mother was recognised as the sole tenant by succession until her death in 2013. Subsequent to the death of his mother, the defendant applied for a discretionary tenancy. However, the claimant refused the application on the basis of the one succession rule in ss 87-88 of the Housing Act 1985 (HA 1985) (see [14] of the judgment), and advised the defendant that he was occupying the property without its permission.

In 2014, the claimant commenced possession proceedings. The defendant defended the claim on two grounds, namely, that: (i) the one succession rule was incompatible with arts 14 and 8 of the European Convention on Human Rights (the Convention) (ground 1); and (ii) the claimant’s decision not to grant a discretionary tenancy was unlawful, among other things, by reason of the claimant’s failure correctly to apply its own policy (ground 2). The district judge made a possession order, however, that order was overturned on appeal. In light of ground 1, the claim was then transferred to the High Court. In the High Court, the judge found for the defendant on ground 2. Notwithstanding, the defendant made an application seeking declaratory relief in relation to ground 1. He asked the court either to exercise its power under s 3 of the Human Rights Act 1998 (HRA 1998) to interpret HA 1985 ss 87-88 so as to allow his succession; or to declare under HRA 1998 s 4 that HA 1985 ss 87-88 were incompatible with the rights and fundamental freedoms in art 14 (prohibiting discrimination) in conjunction with art 8 (family life) of the Convention.

Application dismissed.

Issues and decisions

Whether the manner in which the one succession rule operated was incompatible with arts 14 and 8 of the Convention, having regard to the guidance given in Re an application by Siobhan McLaughlin for Judicial Review (Child Poverty Action Group and another intervening) ([2018] All ER (D) 144 (Aug))

The relevant personal characteristic alleged was that the defendant was the child of a widowed parent, rather than the child of a divorced parent, and he had been discriminated against on that basis (see [39] of the judgment).

Whether a person was widowed or divorced was capable of being a personal characteristic or status, for the purposes of falling within art 14 of the Convention. Whether a person who was a child of someone who was widowed or a child of someone who was divorced was more ‘peripheral or debateable’. However, it was capable of being so in appropriate circumstances (see [38] of the judgment). 

Arguably, having regard to R (on the application of Gangera) v Hounslow London Borough Council

([2003] All ER (D) 200 (Apr)), the defendant’s claim had to fail (see [45] of the judgment).

Given the need to approach the four-stage test holistically, consideration was given as to whether there was an objective justification for the difference of treatment complained of by the defendant (see [45] of the judgment).

The proper test to apply in considering the compatibility of the scheme for succession set out in HA 1985 s 87-88, and specifically the differential treatment of succession via death versus obtaining a sole tenancy via judicial assignment in the context of divorce, was whether it was ‘manifestly without reasonable foundation’ (see [48] of the judgment). 

The differential treatment was clearly not motivated only, or even primarily, by housing policy. By creating the exception in HA 1985 s 88(2), Parliament had clearly intended to address a different policy objective relating to the adjustment of property in matrimonial proceedings (see [62] of the judgment).

Accordingly, s 88(2) was objectively justified, and there was no unlawful discrimination engaging the defendant’s art 14 and art 8 rights under the Convention. For essentially the same reasons, there was no indirect unlawful discrimination on the basis of gender (see [63] of the judgment). 

Wandsworth London Borough Council v Michalak [2002] All ER (D) 56 (Mar) applied; R (on the application of Gangera) v Hounslow London Borough Council [2003] All ER (D) 200 (Apr) applied; Re an application by Siobhan McLaughlin for Judicial Review (Child Poverty Action Group and another intervening) [2018] All ER (D) 144 (Aug) applied; R (on the application of RJM (FC) v Secretary of State for Work and Pensions [2008] All ER (D) 220 (Oct) considered; Carson v United Kingdom (Application No 42184/05) [2010] ECHR 42184/05 considered; Humphreys v Revenue and Customs Comrs [2012] All ER (D) 124 (May) considered; R (on the application of SG) v Secretary of State for Work and Pensions (Child Poverty Action Group and Shelter Children’s Legal Service intervening) [2014] All ER (D) 203 (Feb) considered.

Sam Phillips (instructed by LB Haringey, Legal Services) for the claimant.

Toby Vanhegan and Hannah Gardiner (instructed by Burke Niazi Solicitors) for the defendant.

Ben Lask (instructed by Treasury Solicitor) for the interested party.

Paul Mclachlan - Barrister.

In possession proceedings brought by the claimant local authority where the one succession rule was at issue, it was held that section 88(2) of the Housing Act 1985 was objectively justified, and there was no unlawful discrimination engaging the defendant’s art 14 and art 8 rights under the European Convention on Human Rights. Accordingly, the Queen’s Bench Division dismissed the defendant’s application for declaratory relief.

Background

In early 2014, a disgruntled employee (S) of the appellant supermarket company (M) released a large amount of personal data relating to employees of M from a USB stick onto the internet. S was subsequently arrested, tried and sentenced to eight years’ imprisonment. Among other things, he was found to have committed an offence under s 55 of the Data Protection Act 1998 (DPA 1998). 

The respondent employees of M (the employees), who numbered 5,518 people, commenced proceedings against M for misuse of private information, breach of confidence and breach of statutory duty owed under DPA 1998 s 4(4). The judge held that M was vicariously liable to the employees for the acts of disclosure of their personal information by S.

M appealed.

Appeal dismissed.

Issues and decisions

(1) Whether the judge ought to have concluded that, on its proper interpretation and having regard to the nature and purposes of the statutory scheme, DPA 1998 excluded the application of vicarious liability. Further, whether  DPA 1998 excluded the application of causes of action for misuse of private information and breach of confidence and/or the imposition of vicarious liability for breaches of the same.

The question was whether, on the proper interpretation of DPA 1998, it was implicit that Parliament had intended to exclude the vicarious liability of an employer for misuse of private information by an employee and for breach of confidence by an employee (see [48] of the judgment).

First, if Parliament had intended such a substantial eradication of common law and equitable rights, it might have been expected to say so expressly. Second, M had made the concession that only vicarious liability at common law and in equity was intended to be excluded. That was an important concession. M’s acceptance that the causes of action at common law and in equity operated in parallel with DPA 1998 in respect of the primary liability of the wrongdoer for the wrongful processing of personal data, while at the same time contending that vicarious liability for the same causes of action had been excluded by DPA 1998 was, on the face of it, a difficult line to tread. Third, the difficulty of treading that line became insuperable on the facts of the present case because  DPA 1998 said nothing about the liability of an employer, who was not a data controller, for breaches of DPA 1998 by an employee who was a data controller (see [51], [53], [56], [57] of the judgment).

It was clear that the vicarious liability of an employer for misuse of private information by an employee and for breach of confidence by an employee had not been excluded by  DPA 1998 (see [48] of the judgment).

The concession that the causes of action for misuse of private information and breach of confidentiality were not excluded by DPA 1998 in respect of the wrongful processing of data within the ambit of DPA 1998, and the complete absence of any provision of DPA 1998 addressing the situation of an employer where an employee data controller breached the requirements of DPA 1998, led inevitably to the conclusion that the common law remedy of vicarious liability of the employer in such circumstances (if the common law requirements were otherwise satisfied) had not been expressly or impliedly excluded by DPA 1998 (see [60] of the judgment).

Norwich Pharmacal Co v Customs and Excise Comrs [1973] 2 All ER 943 considered; Campbell v MGN Ltd [2003] 1 WLR 740 considered; Majrowski v Guy’s and St Thomas’ NHS Trust [2006] 4 All ER 395 considered; R (on the application of Omar) v Secretary of State for Foreign and Commonwealth Affairs [2013] 3 All ER 95 considered; Vidal-Hall v Google Inc (The Information Commissioner intervening) [2016] 2 All ER 337 considered; Investment Trust Companies (in liquidation) v Revenue and Customs Commissioners [2017] All ER (D) 54 (Apr) considered.

(2) Whether the judge had erred in holding that the wrongful acts of S had occurred during the course of his employment by M and, accordingly, that M had been vicariously liable for those wrongful acts. Consideration was given to the fact that the tortious act in question had been carried out by S at his home, several weeks after he had obtained the relevant data.

The employees’ causes of action had been established when he had improperly downloaded their data onto his USB stick (see [66] of the judgment).

It was not the case that vicarious liability only applied if the employee had been ‘on the job’ when the tortious act had been committed. The tortious acts of S in sending the employees’ data to third parties had been within the field of activities assigned to him by M (see [72] of the judgment).

The court did not know of another case in which the motive of the employee committing the wrongdoing had been to harm his employer rather than to achieve some benefit for himself or to harm a third party. There was not an exception to the irrelevance of motive where the motive was, by causing harm to a third party, to cause financial or reputational damage to the employer (see [75], [76] of the judgment).

Bellman (a protected party by his litigation friend) v Northampton Recruitment Ltd [2018] All ER (D) 54 (Oct) applied; Lloyd v Grace, Smith & Co [1911-13] All ER Rep 51 considered; Warren v Henlys Ltd [1948] 2 All ER 935 considered; Credit Lyonnais Bank Nederland NV (now known as Generale Bank Nederland NV) v Export Credits Guarantee Department [1999] 1 All ER 929 considered; Lister v Hesley Hall Ltd [2001] 2 All ER 769 considered; Dubai Aluminium Co Ltd v Salaam (Livingstone, third parties) [2003] 1 All ER 97 considered; Mohamud v WM Morrison Supermarkets plc [2017] 1 All ER 15 considered.

Decision of Queen’s Bench Division [2017] All ER (D) 47 (Dec) affirmed.

Anya Proops QC and Rupert Paines (instructed by DWF LLP) for M.

Jonathan Barnes and Victoria Jolliffe (instructed by JMW Solicitors LLP) for the employees.

Toby Frost - Barrister.

The appeal of the appellant Morrisons supermarket company (M) failed, in a case where it had been found vicariously liable for the actions of an employee (S) who had disclosed confidential data relating to the claimant employees of M. The Court of Appeal, Civil Division, held that the Data Protection Act 1998 did not exclude the application of vicarious liability or the application of causes of action for misuse of private information and breach of confidence and/or the imposition of vicarious liability for breaches of the same. Further, the judge had not erred in holding that the wrongful acts of S had occurred during the course of his employment and, accordingly, that M had been vicariously liable for those wrongful acts.

Legislation

Section 117A of Pt 5A of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002), so far as material, provides: ‘(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts (a) breaches a person’s right to respect for private and family life under Article 8, and (b) as a result would be unlawful under section 6 of the Human Rights Act 1998. (2) In considering the public interest question, the court or tribunal must (in particular) have regard (a) in all cases, to the considerations listed in section 117B, and (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C. (3) In subsection (2), ‘the public interest question’ means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).’ 

Background 

Three appeals (concerning KO, IT and NS) were heard together, because they involved linked issues in respect of the treatment of ‘qualifying children’ and their parents, under the statutory regime in NIAA 2002 Pt 5A. The fourth appeal (AP) raised a related issue under para 276ADE(1)(iv) of the Immigration Rules, which concerned the requirements to be met by an applicant for leave to remain on the grounds of private life (see [7] of the judgment). 

Pursuant to NIAA 2002 s 117A, Pt 5A applied where a court or tribunal was required to determine whether a decision made under the Immigration Acts breached a person’s right to respect for private and family life, under art 8 of the European Convention on Human Rights and, accordingly, would be unlawful under s 6 of the Human Rights Act 1998 (HRA 1998). In that regard, the question was whether such an interference was justified under art 8(2) of the Convention (the public interest question). Section 117B listed a series of considerations, including that, among other things, in the case of a person who was not liable to deportation, the public interest did not require the person’s removal where the person had a genuine and subsisting parental relationship with a qualifying child, and it would not be reasonable to expect the child to leave the UK. A qualifying child was defined as being a person under the age of 18, who was a British citizen, or who had lived in the UK for a continuous period of seven years of more (s 117D(1)). 

Under s 117C, there were additional considerations concerning foreign criminals. In the case of a foreign criminal who had not been sentenced to a period of imprisonment of four years or more, the public interest required that person’s deportation unless exception 1 or 2 applied. Exception 2 applied where the foreign criminal had a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of the foreign criminal’s deportation on the partner or child would be unduly harsh. 

KO, who was a ‘foreign criminal’, as defined in s 117D(2), by virtue of his conviction for conspiracy to defraud, had entered the UK unlawfully and had no leave to enter of remain. He had a wife, a step-daughter, and four British children. A judge in the Upper Tribunal (Immigration and Asylum Chamber) (the UT) considered that, in applying the ‘unduly harsh’ test, it was necessary to take account of KO’s criminality. In that respect, the judge had differed from the view taken in MAB (USA) v Secretary of State for the Home Department[2015] UKUT 435 (MAB). The UT’s decision was upheld by the Court of Appeal, Civil Division.

IT was also a foreign criminal by reason of his conviction for drug offences, for which he had been sentenced to 42 months’ imprisonment. He had a wife and child in the UK, who were both British nationals. Following the dismissal of his appeal, he was deported to Jamaica. 

NS and another (AR), had both entered the UK as students in 2004. NS’s wife and elder child had entered as his dependants. NS had a second child, who was born in the UK in 2008. AR’s wife and child had entered as his dependents in 2004. The respondent Secretary of State refused NS’s, and AR’s, applications for Tier 1 (post study worker) visas, on the basis that they had been involved in a scam by which they had falsely claimed to have successfully completed postgraduate courses. Their appeals were dismissed. 

The appellant in the fourth appeal, AP, who was aged 19, came to the UK in 2006 with his parents as the dependant of his father who had been grated leave to enter as a student and had obtained further grants of leave. AP’s application for leave to remain under para 276ADE(1)(iv) of the Rules, on the basis that he had been living in the UK continuously for seven years, was refused on the basis that it was reasonable for him to accompany his parents to their country of origin. 

 His appeal against that decision succeeded before the First-tier Tribunal (Immigration and Asylum Chamber) (the FTT). However, the UT set aside that decision and dismissed AP’s appeal. The Court of Appeal later allowed AP’s appeal, having found that the FTT had failed to identify AP’s best interests or to recognise them as a primary consideration. The case was remitted to the UT for a fresh determination. 

The four appellants appealed to the Supreme Court. 

Appeals dismissed.

Issues and decisions

KO, IT and NS submitted that, in determining whether it was ‘reasonable to expect’ a child to leave the UK with a parent, under s 117B(6), or whether the effect of deportation of the parent on the child would be ‘unduly harsh’ (under s 117C(5)), the tribunal was concerned only with the position of the child, not with the immigration history and conduct of the parents, or any wider public interest factors in favour of removal. Consideration was given to MAB and to the guidance as to the meaning of ‘unduly harsh’ given by the UT in MK (Sierra Leone) v Secretary of State for the Home Department[2015] UKUT 223 (IAC).

The Secretary of State contended that both provisions required a balancing exercise, weighing any adverse impact on the child against the public interest in proceeding with removal or deportation of the parent. 

In respect of the fourth appeal, the issue concerned the seven-year criterion and the ‘reasonableness’ tests in para 276ADE(1)(vi), which provided that leave to remain, on the grounds of private life in the UK, should be granted to an applicant under the age of 18 years, who had lived continuously in the UK for at least seven years (discounting any period of imprisonment), and where it would not be reasonable to expect the applicant to leave the UK. The issue was the correct approach to determining when it would be unreasonable to expect a non-British child, who had been continuously resident in the UK for seven or more years, to leave the UK under para 276ADE(1)(iv) of the Immigration Rules.

The purpose of Pt 5A of NIAA 2002 was to produce a straightforward set of rules and, in particular, to narrow, rather than widen the residual area of discretionary judgment for the court to take account of public interest or other factors not directly reflected in the wording of the statute. It also presumed, in the absence of clear language to the contrary, that the provisions were intended to be consistent with the general principles relating to the ‘best interest’ of children, including the principle that ‘a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent’ (see [15] of the judgment). 

Paragraph 276ADE(1)(iv) was directed solely to the position of the child. It contained no requirement to consider the criminality or misconduct of a parent as a balancing factor. It was impossible to read it as importing such a requirement by implication (see [16] of the judgment). 

There was nothing in NIAA 2002, s 117B(6) to import a reference to the conduct of the parent. That sub-section set out a number of factors relating to those seeking leave to remain. Criminality was not one of them (see [17] of the judgment). 

However, it was inevitably relevant where the parents, apart from the relevant provision, were expected to be, since it would normally be reasonable for the child to be with them. To that extent, the record of the parents might become indirectly material if it led to their ceasing to have a right to remain in the UK, and having to leave. It was only if, even on that hypothesis, it would not be reasonable for the child to leave that the provision might give the parents a right to remain (see [18] of the judgment). 

The expression ‘unduly harsh’ in NIAA 2002 s 117C was clearly intended to introduce a higher hurdle than that of ‘reasonableness’ under s 117B(6), taking account of the public interest in the deportation of foreign criminals. ‘Unduly’ assumed that there was a ‘due’ level of ‘harshness’, that might be acceptable or justifiable in the relevant context and implied something going beyond that level. One was looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. It did not require a balancing of relative levels of severity of the parent’s offence (see [23] of the judgment).

In KO, it was not clear that the judge’s approach had been materially different from that of the President in MK, or the tribunal in MAB, which was the correct approach. The judge had adopted, with one qualification, the guidance in MAB as to the meaning of ‘unduly harsh’. While his alternative reasoning had applied too low a standard and seemed to have treated ‘unduly harsh’ as meaning no more than undesirable, it was difficult to fault the main reasoning. The judge’s approach had been consistent with that, in the end, adopted by the UT on the facts of MAB and, by contrast, with its response to the much more severe situation considered in MK. It followed that KO’s appeal would be dismissed (see [33]-[37] of the judgment).

Concerning IT, the Court of Appeal had erred in introducing a ‘compelling reasons’ test which was not found in the relevant sub-section. Accordingly, its reasoning could not stand. The FTT could not be criticised for not applying a test which was not in the relevant provision. Further, the Court of Appeal had been wrong to proceed on the basis that s 117C(2) required the nature of the offending to be taken into account (see [42] of the judgment).

However, the FTT had erred in law proceeding on the basis, unsupported by evidence, that IT’s child, as a British citizen, could not be expected to relocate outside the UK. For those reasons, IT’s appeal would be dismissed, and the Court of Appeal’s order for remittal to the UT would be confirmed (see [44], [45] of the judgment).

Concerning NS, the UT had not erred in its conclusion. It had correctly directed itself as to the working of s 117B(6). The parents’ conduct was relevant in that it meant that they had to leave the country. It was in that context that it had to be considered whether it was reasonable for the children to leave with them. Their best interests would have been for the whole family to remain in the UK. It was in that context that it had to be considered whether it was reasonable for the children to leave with them. Their best interests would have been for the whole family to remain in the UK. However, in a context where the parents had to leave, the natural expectation would be that the children would go with them, and there was nothing in the evidence reviewed by the judge to suggest that that would be other than reasonable. Accordingly, IT’s appeal would be dismissed (see [51], [52] of the judgment).

Concerning AP, it was unnecessary to say more about that case, which was to be remitted in any event to the FTT. The issues before the FTT were not limited. If it was not disposed of by agreement, as suggested by the Secretary of State, it would fall to be considered in accordance with the law, as stated in the present judgment, including the correct approach to para 276ADE(1)(iv). Accordingly, AP’s appeal would simply be dismissed and the order of the Court of Appeal, remitting the case to the FTT, would be confirmed (see [56] of the judgment).

R (on the application of MM (Lebanon)) v Secretary of State for the Home Department and other cases [2017] All ER (D) 172 (Feb) applied; MAB (USA) v Secretary of State for the Home Department [2015] UKUT 435 (IAC) approved; MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC) approved; Huang v Secretary of State for the Home Department; Kasmiri v Secretary of State for the Home Department [2007] 4 All ER 15 considered; NF (Ghana) v Secretary of State for the Home Department [2008] All ER (D) 409 (Jul) considered; Sanade v Secretary of State for the Home Department [2012] UKUT 00048 (IAC) considered; EV (Philippines) v Secretary of State for the Home Department [2014] All ER (D) 211 (Jun) considered; Zoumbas v Secretary of State for the Home Department [2014] 1 All ER 638 considered; R (on the application of MA (Pakistan)) and others v Upper Tribunal (Immigration and Asylum Chamber) and others [2016] All ER (D) 52 (Jul) considered; IT (Jamaica) v Secretary of State for the Home Department [2016] All ER (D) 07 (Sep) considered; Ali v Secretary of State for the Home Department [2017] 3 All ER 20 considered; R (on the application of Agyarko) v Secretary of State for the Home Department [2017] All ER (D) 168 (Feb) considered; Secretary of State for the Home Department v VM (Jamaica); VM (Jamaica) and others v Secretary of State for the Home Department [2017] All ER (D) 81 (Apr) considered.

Decisions of theCourt of Appeal, Civil Division, [2016] EWCA Civ 617, [2016] All ER (D) 52 (Jul), [2016] All ER (D) 07 (Sep) Affirmed In Part.

Ian Macdonald QC, Sonali Naik QC and Helen Foot (instructed by Freemans Solicitors) for KO.

Richard Drabble QC and Christian J Howells (instructed by NLS Solicitors) for IT.

Stephen Knafler QC and Charlotte Bayati (instructed by Polpitiya & Co) for NS and others.

Manjit Singh Gill QC, Anas Khan and Ripon Akther (instructed by Thompson & Co Solicitors (SW19)) for AP.

Lisa Giovannetti QC, Marcus Pilgerstorfer and Andrew Byass (instructed by the Government Legal Department) for the Secretary of State.

Carla Dougan-Bacchus - Barrister.

There was nothing in s 117B(6) of the Nationality, Immigration and Asylum Act 2002 to import a reference to the conduct of the parent when considering whether it would be reasonable for a child to leave the UK. However, the expression ‘unduly harsh’ in s 117C of the Act seemed clearly intended to introduce a higher hurdle than that of ‘reasonableness’ under s 117B(6), taking account of the public interest in the deportation of foreign criminals. The Supreme Court, in dismissing four immigration appeals, further ruled that para 276ADE(1)(iv) of the Immigration Rules, concerning applications, by persons under the age of 18, who had continuously lived in the UK for seven years, for leave to remain on the grounds of private life,  was directed solely to the position of the child and contained no requirement to consider the criminality or misconduct of a parent as a balancing factor.