3 December 2018

Background 

In July 2011, an inquiry relating to the press was established by a decision announced by the then Prime Minister (the PM). The inquiry was, as announced, to be split into two parts. Part 1 was concluded by a report published on 29 November 2012. In the House of Commons on that date, the PM stated that it was the government’s intention to go ahead with part 2 of the inquiry. However, in March 2018, the defendant Secretaries of State, following a consultation, announced their decision to terminate the inquiry. 

The claimants had been the victims of outrageous and unlawful treatment on the part of certain elements of the press, and core participants in part 1 of the inquiry. They issued judicial review proceedings, challenging the lawfulness of the decision to terminate the inquiry. The claimants sought to invoke the principles of legitimate expectation, relying on a meeting on 21 November 2012 between the PM, themselves and other victims of press misconduct. 

Application dismissed.

Issues and decisions

Whether the claimants’ legitimate expectation that there would be a part 2 of the inquiry had been breached.  

If a clear statement from the PM as to the intended implementation of part 2 was sought, it could, on one view, be found. It was in his statement to the House of Commons on 29 November 2012. However, the claimants did not rely on that as, of itself, generating a legitimate expectation which would be recognised and protected in law. The reason was not hard to see, given the authorities: the statement had been a statement of intent, made in an intensely political context and made not to a small or defined class, but in effect to the public at large (see [78], [102] of the judgment). 

However, that being so, it was an indication at the outset as to just how unsatisfactory it was then to assert the creation of a legitimate expectation by reason of what the PM had said at the prior meeting of 21 November 2012. It was true that the claimants could thereby claim that the relevant class had been relatively small: no more than 30 and significantly fewer if the core participant victims were selected as the relevant class. However, it was decidedly unattractive that no reliance was placed on the considered public statements made by the PM in the House of Commons on 29 November 2012 as creating a legitimate expectation, but reliance was placed on his statements made at a private meeting a few days earlier, on the self-same subject-matter, as creating a legitimate expectation. That was particularly so when the meeting had been designedly convened shortly before the anticipated publication of the part 1 report and the inevitable ensuing statement in the House of Commons: the natural inference was that any expectation engendered at the meeting would be subsumed into or superseded by the forthcoming Parliamentary statement. In any event, a host of other difficulties arose on the claimants’ case (see [79], [102] of the judgment). 

The first was that, as the transcript of the recording of the meeting showed, it had been expressly stated on behalf of the group attending that meeting that ‘what is said in this room stays in this room’. That being so, it was unacceptable that the claim was, in substance, formulated by reference to a breach of that assurance. Given that the doctrine of legitimate expectation was rooted in fairness (in the public law sense), it would be contrary to fairness to allow what was said in such a meeting, conducted on an agreed private basis, to be permitted to ground the claim. The court should not, as a matter of public law, lend itself for that purpose to deployment of, let alone enforcement of, statements made on a ‘what is said in this room stays in this room’ basis. To do so would be thoroughly counterproductive, and would tend to discourage frank and open discussion. If those in the room had been proposing to place reliance on what had been said, in the sense of a having a legitimate expectation in that regard, a privacy commitment of that kind should never have been made (see [80], [81], [102] of the judgment). 

That point of itself caused the court to hold against the claim. Any expectation engendered by what the PM had said in the meeting, conducted on the basis that it had been, could not be recognised or protected as a legitimate expectation for that reason alone (see [82], [102] of the judgment). 

In any event, there were further insuperable difficulties for this claim. No clear assurance that part 2 would go ahead had ever been given at the meeting and what had been said was, in any event, qualified. That being so, the claim had to fail on that footing as well. Further, no detrimental reliance on the statements made by the PM at the meeting was, in any event, shown (see [83], [89], [96], [102] of the judgment). 

There was absolutely no viable basis for the grounds of claim, based on principles of legitimate expectation in the way that they were, achieving the result which the claimants sought (see [101], [102] of the judgment). 

Helen Mountfield QC and Julian Milford (instructed by Payne Hicks Beach) for the claimants.

Nathalie Lieven QC and David Pievsky (instructed by Government Legal Department) for the Secretaries of State.

Karina Weller - Solicitor (NSW) (non-practising).

The court should not, as a matter of public law, lend itself to deployment or enforcement of statements made on a ‘what is said in this room stays in this room’ basis, such as comments by the then Prime Minister with respect to the announced, but terminated, part 2 of the Leveson inquiry relating to the press. The Divisional Court, in dismissing the claimants’ application for judicial review of the termination decision, further rejected their contention that their legitimate expectation that there would be a part 2 of the inquiry had been breached.

Background 

L and A, were Nigerian nationals subject to a deportation orders as foreign criminals and had, at all material times, been liable to be detained under para 2(3) of Sch 3 to the Immigration Act 1971 (IA 1971). Each was detained, but released on bail initially granted by the First-tier Tribunal (FTT). Each was eventually arrested and re-detained by the Secretary of State so that he could be interviewed at a detention centre by the Nigerian Immigration Service (NIS), for the purposes of obtaining an emergency travel document (ETD) to facilitate his removal to Nigeria. After some time, each was again released. They both claimed that the period of detention following his arrest for the purposes of an NIS interview, until his release, was unlawful. In the case of L, it was held by the judge that the period of detention (three days) was unlawful because, at the time of his arrest, L was still subject to the immigration bail ordered by the FTT and the Secretary of State had no power to vary or otherwise interfere with that bail or its terms as she purported to do. L was, in the circumstances, only awarded nominal damages. The Secretary of State appealed. A’s case was that he was arrested for the purposes of an NIS interview, not removed and eventually granted bail by the FTT. A appealed the legality of his detention on the same basis as L. 

Issues and decisions (L)

Whether L and A’s periods of detention were unlawful because  they were still subject to immigration bail ordered by the FTT.

Bail in the context of criminal proceedings was the release of a defendant from custody on the basis of a condition that he would appear in court when required (the primary condition of bail) and additional conditions as to residence, reporting etc designed to secure that he did surrender to custody in accordance with the terms of that primary condition (see [46] of the judgment). 

In the context of immigration bail, where there was an extant immigration appeal, the position was effectively the same (see [47] of the judgment). 

Where there was no pending immigration appeal (as in both the present cases), the primary condition could not be linked to a hearing. Unless it was to be of non-finite duration, when bail would end had to be linked to some other event (see [48] of the judgment). 

Under the suggested guidance, a standard primary condition for an appellant was to appear before an Immigration Officer as required by the UK Border Agency or an Immigration Officer (see [50] of the judgment). 

Although there were no express words in the Guidance saying that bail conditions were to cease on surrender, as a matter of necessary inference it followed that there was no sub-scenario of FTT bail of non-finite duration in a case where there was no pending appeal to the FTT. It followed, further, that, if and to the extent conditions of bail imposed by the FTT continued after surrender, they were to be treated in law as imposed by the immigration officer to whom the detained person surrendered and could be varied, if appropriate, by another Immigration Officer and that the Secretary of State was therefore entitled to discharge the conditions as she had done (see [27] of the judgment). 

In any event, the situation in the present case was covered by the case of R (on the application of AR (Pakistan)) v The Secretary of State for the Home Department (2017) (AR (Pakistan) and accordingly the form of grant of bail used by the FTT was one which would have expired when L surrendered himself to the immigration officer, with any conditions continuing as conditions of bail granted by the immigration officer. The FTT bail came to an end when L surrendered. The immigration officer to whom he surrendered then re-fixed bail on conditions reflecting the secondary conditions imposed by the FTT. That surrender and re-fixing took place first on a rolling basis and when L surrendered to his bail, it was not re-fixed but he was detained pursuant to the underlying statutory power to detain IA 1971 para 2(3) of Sch 3. Accordingly, the judge had erred in his interpretation of the relevant statutory provisions: and, on their proper construction, the bail granted by the FTT did not remain in force after surrender  (see [66], [67] of the judgment). 

Further, all of the fourcriteriainR v Secretary of State for the Home Office ex parte Hardial Singh had been satisfied. The purpose of L’s detention was to be interviewed by the Nigerian officials for the purpose of securing an ETD to effect his removal from the UK. Similarly a letter sent to L noted that the detention was ‘under the powers contained in IA 1971 Sch to effect removal from the United Kingdom’. It said that it was regarded as ‘imperative’ that he attend the NIS interview in order to obtain an ETD and progress his matter to removal (see [72], [73] of the judgment). 

On the same basis as L’s case failed so too had A’s case to fail. The form of grant of bail by the FTT had been that in the Guidance, and was the same as the form in AR (Pakistan). A had to surrender to his bail at an address, upon surrender, his FTT bail ended. He remained on immigration bail as fixed by immigration officers from time to time. He was therefore not on FTT bail when he was re-arrested  (see [93] of the judgment). 

R (on the application of AR (Pakistan)) v The Secretary of State for the Home Department (2017) [2017] EWCA Civ 204 applied; R v Secretary of State for the Home Office ex parte Hardial Singh [1987] Lexis Citation 1647 applied.

Decision of Jay J [2016] EWHC 1960 (Admin) affirmed.

Sonali Naik QC and Greg Ó Ceallaigh (instructed by Duncan Lewis) for Chibong Lucas and Richard Aboro.

Sarabjit Singh QC (instructed by Government Legal Department) for the Secretary of State in the case of Chibong Lucas.

Julie Anderson (instructed by Government Legal Department) for the Secretary of State in the case of Richard Aboro. 

Tara Psaila - Barrister.

The re-detention of foreign criminals subject to a deportation order and on immigration bail, for the purposes of their attending an interview with Nigerian officials at a detention centre to secure emergency travel documentation and thus facilitate their removal was lawful. The Court of Appeal, Civil Division accordingly allowed the Secretary of State’s appeal and dismissed A’s appeal. 

Background 

The defendant (HMT) decided to implement an extension of the provision of full indexation of the guaranteed minimum pension payable to all members of public service pension schemes (PSPS) who reached state pension age between December 2018 and April 2021 (the decision). Subsequently, the Chancellor of the Exchequer maintained his original agreement with the decision. 

The claimant company (BT) had a private sector pension scheme. Under the terms of section B of the BT pension scheme (the BTPS), BT said that it was obliged to mirror the decision to extend full indexation for section B members. It issued judicial review proceedings, contending that the decisions were made on the assumption that all the alternatives put forward by BT would interfere with section B members’ property rights. That was an error of law, as the option of amending the rules of the principal civil service pension scheme (the PCSPS workaround) would not have done so, but that option was never considered on that basis. 

Application dismissed.

Issues and decisions 

(1) Whether BT’s consultation submission had suggested the PCSPS workaround as a stand-alone option or whether it had been advanced together with the statutory override that would have permitted BT to amend the BTPS rules, which was said to be necessary, such that BT could not complain that the question had been in terms of whether to provide a legislative carve-out for BT. 

It was clear from the BT consultation submission considered as a whole that the statutory override had been put forward as a necessary element of BT’s alternative options, essentially for the reasons given by HMT. It had not been for HMT to seek to infer what BT’s fall-back options might be. If BT had wished to put forward alternative fall-back proposals, it had been for BT to identify them in its full and carefully drafted consultation submission. Amending the PCSPS as a stand-alone option had never been put forward, expressly or impliedly (see [118], [119] of the judgment). 

Accordingly, HMT could reasonably have understood that all of BT’s proposed options would require the statutory override and the need for legislation, and could reasonably have approached its decision-making on that basis.  The PCSPS workaround had been put forward by BT as a stand-alone option (without the necessity of the accompanying statutory override) for the first time in BT’s pre-action protocol letter, by which time the decision had already been taken (see [120] of the judgment). 

HMT had reasonably understood that all BT’s proposed options had involved the statutory override and the need to legislate. If so, then HMT could not be criticised for approaching the decision on that basis. Equally, in those circumstances, in so far as the decision had been based on the assumption that BTPS members’ property rights would be interfered with if BT’s proposed options had been adopted, including the option of amendment to the PCSPS, that could not be a ground of challenge or criticism, since it had been and was common ground that the statutory override would interfere with such rights (see [123] of the judgment). 

(2) Whether BT’s options had been rejected on policy grounds and the legal issues raised had merely been additional reasons for the decision. 

The policy reasons for refusing to implement the PCSPS workaround had been both separate from the concerns about interference with legal rights of BTPS members and had provided the central plank in HMT’s rejection of the PCSPS workaround.  The other points made, about interference with rights and acting outside the scope of HMT’s powers, had been additional (see [129] of the judgment).  

There had been very obvious policy issues facing the government, regardless of whether BTPS members’ property rights had been involved and they had been a free-standing basis for the decision reached.  Whether or not there had been a need to legislate, BT had been asking the government to craft a solution to suit its private interests.  If the government had done so, the consequence would be that section B members would not get the pension benefits which they would otherwise obtain.  The savings in pension payments which BT would achieve through crafting a solution to suit it would necessarily be matched by the loss to section B members of an equivalent amount in pension benefits.  That raised self-evident presentational and policy questions.  There had been a clear risk that the government would be seen as preferring the interests of BT over its section B members, a risk which would be liable to give rise to questions by section B scheme members, unions, Parliament, press and public (see [130] of the judgment).  

Those policy concerns had also been reflected in the consultation itself. That the questions obviously arose was borne out by the blatant nature of any BT crafted solution adopted.  The statutory override would specifically remove the existing prohibition on varying pension scheme rules to the detriment of scheme members without their consent (see [131], [132] of the judgment). 

BT’s contention that, if and in so far as, the decision had been based on policy considerations, it had been procedurally unfair, as it had not been provided with the opportunity to address such policy concerns, was unfounded.  The consultation had clearly raised policy issues and had invited responses to them (see [133] of the judgment).  

The decision had been made and was supportable on policy grounds.  There had been no development in oral argument of the suggestion that such a policy decision would be open to challenge and there would not be any merit in such a challenge (see [135] of the judgment).  

(3) Whether there had been legal power under the Superannuation Act 1972 (the SA 1972) to amend the PCSPS rules to provide indexation or whether that could only be done by the special, bespoke powers conferred by the SA 1972 ss 59/59A.

HMT’s case as to the applicable statutory regime was correct, largely for the reasons given by it. The SA 1972 had established a general power to establish PSPS and to make the rules by which they were governed. Although the powers conferred thereunder might be wide enough to amend PSPS rules to provide for pension increases, it said nothing about providing for increases, still less increases to allow for inflation. 

The SA 1972 ss 59 and 59A set out a detailed and self-contained regime for the indexation of official pensions. Therefore, the statutory scheme was for indexation increases to be specified under s 59(1), but for indexation of the guaranteed minimum pension element of the increase to be switched off under s 59(5), unless for any particular class of case there was a contrary direction under s 59A. Sections 59 and 59A contained detailed provisions as to how that scheme was to operate. To allow general powers under the SA 1972 to be used to specify indexation increases would be contrary to, and undermine, that carefully structured statutory regime and thereby conflict with it. The obvious intent of Parliament had been that it was the increases legislation, and that legislation only, that should be used for increases to official pensions to allow for inflation. 

The SA 1972 and the increases legislation were not overlapping provisions, still less, overlapping provisions contained in the same statute.  They were different statutes addressing different purposes.  The increases legislation addressed increases in official pensions to allow for inflation.  It applied across the board to all official pensions.  The SA 1972 addressed the establishment and government of individual PSPS.  Its focus was those schemes and their rules, not official pension indexation increases.   

The issue was not, as much of BT’s argument had assumed, whether the SA 1972 could ever be used to effect a pension increase for a PSPS, but rather whether it could be used to carry out, in whole or in part, the indexation increases provided for under the increases legislation, thereby cutting across and supplanting the ss 59/59A statutory regime.  The SA 1972 powers could not be so used (see [156]of the judgment). 

Seward v The Vera Cruz (owners) ,The Vera Cruz [1881-5] All ER Rep 216 considered; Cusack v Harrow London Borough Council [2013] 4 All ER 97 considered.

(4) Whether there was legal power under the SA 1972 to amend the PCSPS rules to provide indexation or whether that would be using statutory powers for a private, collateral purpose.

BT sought the exercise of the general powers relied upon under the SA 1972 in order to pay indexation on guaranteed minimum pension otherwise than by means of the increases legislation (were that to be permissible) or to amend the PCSPS to ensure that members of that scheme achieved indexation on guaranteed minimum pension, or its equivalent, in a manner which did not require an indexation uplift by means of the indexation legislation. That was to be done, not in the interests of civil service pensioners, but in the interests of BT in order to avoid it incurring a pension liability to its section B members. Civil service pensioners had no interest in pension indexation increases being effected in any way other than by the usual and conventional means under the SA 1972 ss 59 and 59A. That meant that, to comply with BT’s request, would entail using public powers conferred in relation to public service pension schemes in order to affect the provision of benefits under private pension schemes and to do so to serve the financial interests of BT – to save BT money, in short. That would appear to be a clear example of using statutory powers for a collateral purpose (see [163] of the judgment). 

Accordingly, it would not have been lawful to use general powers under the SA 1972 to meet BT’s request to amend the PCSPS scheme rules or (assuming other legal hurdles could be overcome) to provide for indexation of guaranteed minimum pension (see [167] of the judgment).  

Tower Hamlets London Borough Council v Chetnik Developments Ltd [1988] 1 All ER 961 applied; Dodd v Salisbury and Yeovil Rly Co (1859) 65 ER 867 considered; Porter v Magill, Weeks v Magill [2002] 1 All ER 465 considered.

(5) Whether the PCSPS workaround would have interfered with section B members’ property rights. 

It was probably unnecessary to decide the issue, as the consultation response had made it clear that the government had not wanted to pursue an option that would involve complicated and contentious legal issues. However, if necessary, section B members’ property rights were engaged in the present case (see [177] of the judgment). 

Whilst the statutory override was a more overt interference with that right than the PCSPS workaround, in that it enabled the right to be removed rather than circumvented, the aim and the practical end result was the same in both cases, as was the underlying right being interfered with. As HMT submitted, in those circumstances to draw sharp distinctions between them was to elevate form over substance, which the European Court of Human Rights generally deprecated (see [182] of the judgment). 

Even if it be the case, as BT had submitted, that the evidence had not borne out the existence of a substantive legitimate expectation as a matter of domestic law, that did not mean that there might not be a property right (see [184] of the judgment).

Public and Commercial Services Union and others v Minister for the Cabinet Office [2018] 1 All ER 142 applied; Stretch v United Kingdom (App No 44277/98) [2003] All ER (D) 306 (Jun) considered; Broniowski v Poland (Application 31443/96) (2004) 16 BHRC 573 considered; Kopecky v Slovakia (Application No 44912/98) [2004] ECHR 44912/98 considered.

Dinah Rose QC, Fraser Campbell and Celia Rooney (instructed by Freshfields Bruckhaus Deringer LLP) for BT.

Martin Chamberlain QC and Tim Johnston (instructed by the Government Legal Department) for HMT.

Jonathan Hilliard QC and Iain Steele (instructed by Allen & Overy LLP) for BT Pension Scheme Trustees Ltd, as interested party.

Karina Weller - Solicitor (NSW) (non-practising).

The decision to implement an extension of the provision of full indexation of the guaranteed minimum pension payable to all members of public service pension schemes who reached state pension age between December 2018 and April 2021 had not been arbitrary, disproportionate, irrational or inadequately reasoned. The Divisional Court, in dismissing BT’s application for judicial review, further rejected its contention that the option of amending the rules of the principal civil service pension scheme would not interfere with specified members’ property rights.

Background 

The appellant (F) was convicted of 20 offences, including multiple offences of raping an eight-year-old child. He was sentenced to an extended determinate sentence (EDS), pursuant to s 226A of the Criminal Justice Act 2003 (CJA 2003), in respect of ten counts of rape. 

An EDS comprised of two elements: (i) an appropriate custodial term; and (ii) a further period, for which the offender was to be subject to a licence (the extension period).   

F’s custodial term was fixed at 21 years, with an extension period of 4 years. The effect of CJA 2003 s 246A was that F would not be eligible to apply for release until he had served two-thirds of his custodial term, in contrast to other categories of prisoner who could apply for release at an earlier point in their custodial term, namely at the halfway point. 

F brought judicial review proceedings against the respondent (the Secretary of State), contending that CJA 2003 s 246A was discriminatory and in violation of art 14 of the European Convention on Human Rights (which prohibited discrimination on the grounds of sex, race, or ‘other status’), taken together with art 5 of the Convention (right to liberty). 

The Divisional Court dismissed F’s claim. However, it granted a certificate, permitting F to appeal directly to the Supreme Court. 

Appeal dismissed.

Issues and decisions

(1) Whether F, as a prisoner sentenced to an EDS, had been treated differently on the grounds of ‘other status’, within the meaning of art 14 of the Convention. It was accepted that the right to apply for early release fell within the ambit of art 5 of the Convention.

The court considered: (i) the decision of the (then) House of Lords in R (on the application of Clift) v Secretary of State for the Home Department; R (on the application of Hindawi and another) v Secretary of State for the Home Department [2007] 2 All ER 1 (Clift HL), which provided that a term of imprisonment could not amount to ‘other status’, within art 14 of the Convention; and (ii) the European Court of Human Rights’ (ECtHR’s) subsequent decision in Clift v United Kingdom (Application 7205/07)[2010] ECHR 7205/07 (Clift ECtHR), which held that art 14 had been engaged.

In order to establish that different treatment amounted to a violation of art 14 of the Convention, it was necessary to establish four elements. First, the circumstances had to fall within the ambit of a Convention right. Second, the difference in treatment had to have been on the ground of one of the characteristics listed in art 14 or ‘other status’. Third, the claimant and the person who had been treated differently had to be in analogous situations. Fourth, objective justification for the different treatment would be lacking (see [8] of the judgment).

In light of the decision in Clift ECtHR, the court should depart from the determination in Clift HL that different treatment, on the basis that a prisoner was serving imprisonment of 15 years or more, could not be said to be on the ground of ‘other status’ (see [70] of the judgment).

In the present case, F, as a prisoner sentenced to an EDS, had the required status to invoke art 14 of the Convention. Bearing in mind that the grounds within art 14 were to be given a generous meaning, considering the warning of the ECtHR that there was a need for careful scrutiny of differential early release schemes, lest they ran counter to the very purpose of art 5, and considering all of the case law, the difference in the treatment of extended determinate sentence prisoners in relation to early release was a difference within the scope of art 14, being on the ground of ‘other status’ (see [81], [184], [185], [212], [236], [237] of the judgment).

R (on the application of Clift) v Secretary of State for the Home Department; R (on the application of Hindawi) v Secretary of State for the Home Department [2007] 2 All ER 1 overruled; Clift v United Kingdom (Application 7205/07) [2010] ECHR 7205/07 adopted; Kjeldsen, Busk Madsen and Pedersen v Denmark (Applications 5095/71, 5920/72 and 5926/72) 1 EHRR 711 considered; R (on the application of Carson) v Secretary of State for Work and Pensions; R (on the application of Reynolds) v Same [2005] 4 All ER 545 considered; Budak v Turkey (App no 57345/00) [2006] ECHR 57345/00 considered; R (on the application of RJM (FC) v Secretary of State for Work and Pensions [2008] All ER (D) 220 (Oct) considered; R (on the application of Haney) v Secretary of State for Justice [2014] All ER (D) 114 (Dec) considered; Minter v United Kingdom [2017] 65 EHRR SE 6 considered; R v Docherty [2017] 4 All ER 263 considered.

(2) Whether EDS prisoners were in an analogous situation to either indeterminate sentence prisoners or other determinate sentence prisoners. If so, whether there was an objective justification for the difference in treatment between the categories of prisoner. 

EDS prisoners could not be said to be in an analogous situation to other prisoners. Rather than focusing entirely on the early release provisions, the various sentencing regimes had to be viewed as whole entities, each with its own particular, different, mix of ingredients, designed for a particular set of circumstances (see [155], [180], [195] of the judgment).

In general terms, the aim of the EDS provisions was legitimate (see [152] of the judgment).

Each sentence had to be considered as a whole. The sentencing judge imposed the sentence that complied with the statutory conditions prescribed by parliament and the sentencing guidelines, and that best met the characteristics of the offence and the offender. The early release provisions had to be seen as part of the chosen sentencing regime, and the question of whether there was an objective justification for the differential treatment of prisoners in relation to earlier release had to be considered in that wider context (see [154] of the judgment).

It followed that, although it was accepted that F had been treated differently on the grounds of ‘other status’ within art 14 of the Convention, there was an objective justification for the difference in treatment of EDS prisoners. Accordingly, there had been no breach of art 14, taken with art 5, of the Convention and the appeal had to fail (see [155]-[157], [201], [204] of the judgment).

R (on the application of Black) v Secretary of State for Justice [2009] 4 All ER 1 considered; R (on the application of Foley) v Parole Board for England and Wales [2012] All ER (D) 09 (Aug) considered; R (on the application of Massey) v Secretary of State for Justice [2013] All ER (D) 148 (Jul) considered; R (on the application of Bristow) v Secretary of State for Justice [2013] All ER (D) 198 (Oct) considered; A-G’s Reference (No 27/2013); R v Burinskas; R v Phillips [2014] All ER (D) 40 (Mar) considered; R (on the application of Whiston) v Secretary of State for Justice [2014] All ER (D) 29 (Jul) considered; R (on the application of Bristow) v Secretary of State for Justice and another [2015] All ER (D) 163 (Nov) considered; Mathieson v Secretary of State for Work and Pensions [2016] 1 All ER 779 considered; Brown v Parole Board for Scotland and others [2018] 1 All ER 909 considered.

Decision ofthe Divisional Court [2017] All ER (D) 141 (Feb) Affirmed On Other Grounds.

Hugh Southey QC and Jude Bunting (instructed by Michael Purdon Solicitor) for F.

James Eadie QC, Rosemary Davidson and Jason Pobjoy (instructed by the Government Legal Department) for the Secretary of State.

Carla Dougan-Bacchus - Barrister.

The appellant prisoner, who had been sentenced to an extended determinate sentence (EDS) for ten counts of rape, under s 226A of the Criminal Justice Act 2003, had been treated differently on the grounds of ‘other status’, within the meaning of art 14 of the European Convention on Human Rights. However, the Supreme Court, in dismissing the appellant’s appeal, ruled that the aim of the EDS provisions was legitimate and that there was an objective justification for the difference in treatment of EDS prisoners, who were eligible for parole at a later stage than other categories of prisoners serving determinate sentences. Accordingly, there had been no breach of art 14 (taken with art 5) of the Convention. In so ruling, the court departed from the decision in R (on the application of Clift) v Secretary of State for the Home Department; R (on the application of Hindawi and another) v Secretary of State for the Home Department[2007] 2 All ER 1, which had ruled  that a term of imprisonment could not amount to ‘other status’, within art 14 of the Convention.

The parties met in 1980 and formed a relationship. They did not marry. They had two children, one born in 1984 and the other born in 1986. In 1985, the parties bought a house (the first property) in joint names for £30,000 funded as to £6,000 by the claimant and as to the balance by an interest-only mortgage supported by an endowment policy. The defendant paid £100 per week towards the household expenses whilst they lived at the first property. The claimant paid the mortgage and other household bills out of their joint resources. In 1986, the parties jointly took out a loan of £2,000 to build an extension to the first property. The defendant was primarily responsible for building the extension, which increased the value of the property by around 50% of the purchase price. In 1993, the parties separated. Thereafter, the claimant assumed sole responsiblility for the outgoings on the first property. The defendant made no further contribution towards the acquisition of the first property and made very little contribution to the maintenance and support of the children. In October 1995, the first property was put on the market but failed to sell. The parties cashed in a joint life insurance policy and the proceeds were divided between them to enable the defendant to put down a deposit on a home of his own. In May 1996, the defendant bought a property in his sole name (the second property). He made all mortgage payments and met other expenses required to maintain that property. In October 2007, the claimant began proceedings in the county court claiming a declaration under s 14 of the Trusts of Land and Appointment of Trustees Act 1996. At trial, the claimant conceded that in 1993 when the couple separated, there was insufficient evidence to displace the presumption that their beneficial interests in the first property followed the legal title, so that they were then joint tenants in law and equity. However, she contended that the purchase of the second property, along with other events since the separation, was evidence that their intentions with respect to the beneficial interest in the first property had changed. The judge agreed and held that the claimant was entitled to 90% of the value of the first property. The defendant appealed to the Chancery Division. He contended that the judge had been wrong to infer or impute an intention that the parties’ beneficial interests should change after their separation and to quantify those in the way which he had considered fair. The deputy judge held that a change in intention could readily be inferred or imputed from the parties’ conduct and that, in the absence of any indication by words or conduct as to how their shares should be altered, the appropriate criterion was what he considered to be fair and just. Accordingly, the deputy judge upheld the judge’s findings that the first property should be divided as to 90% for the claimant and 10% for the defendant. The defendant appealed. The Court of Appeal allowed the defendant’s appeal and declared that the parties owned the first property as tenants in common in equal shares. The claimant appealed.   

The principal issue that fell to be determined was the correct approach to be taken to calculating the parties respective beneficial interests in the property. In determining the issues consideration was given to Stack v Dowden ([2007] 2 All ER 929) (Stack) and Oxley v Hiscock ([2004] All ER 703) (Oxley).

The appeal would be allowed. 

Per Lord Walker and Lady Hale (Lord Collins agreeing): At its simplest the principle in Stack  was that a common intention trust, for the cohabitant’s home to belong to them jointly in equity as well as on the proprietorship register, was the default option in joint names cases. In line with Stack, it was clear that in the case of the purchase of a house or flat in joint names for joint occupation by a married or unmarried couple, where both were responsible for any mortgage, there was no presumption of a resulting trust arising from their having contributed to the deposit, or indeed the rest of the purchase, in unequal shares. The presumption was that the parties intended a joint tenancy both in law and in equity. However, that presumption could be rebutted by evidence of a contrary intention, which might more readily be shown where the parties had not shared their financial resources. The search was primarily to ascertain the parties’ actual shared intentions, whether expressed or to be inferred from their conduct. However, there were at least two exceptions. The first was where the classic resulting trust presumption applied. That would be rare in a domestic context, but might perhaps arise where domestic partners were also business partners. The second, which would arise much more frequently, was where it was clear that the beneficial interests were to be shared, but it was impossible to divine a common intention as to the proportions in which they were to be shared. In those two situations, the court was driven to impute an intention to the parties which they might never have had. However, while the conceptual difference between inferring and imputing was clear, the difference in practice might not be so great. Accordingly, the following principles were applied in cases where a family home was bought in the joint names of a cohabiting couple who were both responsible for any mortgage, but without any express declaration of their beneficial interests. First, the starting point was that equity followed the law and that they were joint tenants in both law and in equity. Secondly, that presumption could be displaced by showing: (a) that the parties had had a different common intention at the time when they acquired the home; or (b) that they had later formed the common intention that their respective shares would change. Thirdly, their common intention was to be deduced objectively from their conduct. Fourthly, in those cases where it was clear either: (a) that the parties had not intended joint tenancy at the outset; or (b) had changed their original intention, but it was not possible to ascertain by direct evidence or by inference what their actual intention had been as to the shares in which they would own the property, applying Oxley, the answer was that each was entitled to that share which the court considered fair having regard to the whole course of dealing between them in relation to the property. The ‘whole course of dealing’ had to be given a broad meaning, enabling a similar range of factors to be taken into account as might be relevant to ascertaining the parties’ actual intentions. Fifthly, each case would turn on its own facts and, whilst financial contributions were relevant, there were many other factors which might enable the court to decide what shares were either intended, as in the third case, or fair, as in the second case (see [15], [25], [31], [51] of the judgment). 

In the instant case, where the parties had already shared the beneficial interest, and the question was what their interests had been and whether their interests had changed, the court would try to deduce what their actual intentions had been at the relevant time. The court could not impose a solution upon them which was contrary to what evidence showed that they had actually intended. However, if it could not deduce exactly what shares had been intended, it might have no alternative but to ask what their intentions as reasonable and just people would have been had they thought about it at the time. In the circumstances, there had been no need to impute an intention that the parties’ beneficial interests would change; the judge had made a finding that the intentions of the parties had in fact changed. At the outset, their intention had been to provide a home for themselves and their progeny. Thereafter their intentions had changed significantly. Around the time that the property had failed to sell, a new plan had been formed. The life insurance policy had been cashed in and the defendant had been able to buy a new home for himself. He would not have been able to do that had he still had to contribute towards the mortgage, endowment policy and other outgoings on the property. The logical inference was that the parties intended that the claimant’s interest in the property should crystallise then. Just as the defendant would have had the sole benefit of any capital gain in the second property, the claimant would have had the sole benefit of any capital gain in the first property. Insofar as the judge had not in so many words inferred that that was their intention, it was clearly the intention which reasonable people would have had had they thought about it at the time. It was an intention which the judge could and should have inferred from their conduct. A rough calculation on that basis produced a result so close to that which the judge produced that it would be wrong for an appellate court to interfere. Further, on that approach there was no scope for further accounting between the parties (see [47]-[50] of the judgment). 

The order of the judge would be restored (see [54] of the judgment).

Gissing v Gissing [1970] 2 All ER 780 applied; Oxley v Hiscock [2004] 3 All ER 703 applied; Stack v Dowden [2007] 2 All ER 929 applied; Pettitt v Pettitt [1969] 2 All ER 385 considered; Midland Bank plc v Cooke [1995] 4 All ER 562 considered.

Per Lord Kerr: Whilst it might well be that the outcome in many cases would be the same, whether one inferred an intention or imputed it, that did not mean that the process by which the result was arrived at was more or less the same. A markedly and obviously different mode of analysis would generally be required. The court had to anxiously examine the circumstances in order, where possible, to ascertain the parties’ intention but it should not be reluctant to recognise, when it was appropriate to do so, that inference of an intention was not possible and that imputation of an intention was the only course to follow. As soon as it was clear that inferring an intention was not possible, the focus of the court’s attention should be squarely on what was fair and that was an obviously different examination than was involved in deciding what the parties had actually intended (see [67], [72]-[75] of the judgment). 

In the instant case, it might indeed have been the defendant’s intention that his interest in the property should crystallise at the time when the life insurance policy was cashed in, but it was difficult to infer that it was actually what he had then intended. The bare facts of his departure from the family home and the acquisition of another property were a slender foundation on which to conclude that he had entirely abandoned whatever stake he had had in the previously shared property. On the other hand, it was eminently fair that the property should be divided in the shares decreed by the judge. Although it was impossible to infer that the parties had intended that their shares in the property be apportioned as the judge had considered they should be, such an intention had to be imputed to them (see [76]-[77] of the judgment). 

Oxley v Hiscock [2004] 3 All ER 703 applied; Stack v Dowden [2007] 2 All ER 929 applied.

Per Lord Wilson: It was established in Oxley that the court had to supply or impute a common intention as to the parties’ respective share, in circumstances in which there was, in fact, no common intention, on the basis of that which was shown to be fair (see [82]-[83] of the judgment). 

On the evidence that had been before the deputy judge, it had been more realistic to have concluded that inference of an intention on the part of the parties had been impossible. However, the court had been able to impute to the parties the intention that the property should be held on a basis which equated to the proportions as held by the deputy judge (see [89] of the judgment). 

Gissing v Gissing [1970] 2 All ER 780 applied; Oxley v Hiscock [2004] 3 All ER 703 applied; Stack v Dowden [2007] 2 All ER 929 applied; Pettitt v Pettitt [1969] 2 All ER 385 considered.

Per curiam: ‘To the extent that we recognise that a “common intention” trust is of central importance to “joint names” as well as “single names” cases, we are going some way to meet that hope. Nevertheless it is important to point out that the starting point for analysis is different in the two situations. That is so even though it may be necessary to enquire into the varied circumstances and reasons why a house or flat has been acquired in a single name or in joint names’ (see [16] of the judgment). 

Decision of Court of Appeal [2010] 3 All ER 423 Reversed.

Richard Power (instructed by AI Sampson & Co) for the claimant. 

Andrew Bailey (instructed by Francis Thatcher & Co) for the defendant.

Julia Snowden - Solicitor (non-practising).

The Supreme Court, in considering the unmarried parties shares in a property held in joint names who had separated 19 years earlier, held that, it could be inferred from the evidence that the parties had intended that the defendant’s share in the property had crystallised following their separation. Accordingly, he was entitled to a 10% share in the property. 

Background 

The Solicitors Disciplinary Tribunal (the SDT) made findings of dishonesty against the respondent solicitors, but went on to find that there were exceptional circumstances, in part because of issues as to the mental health of the solicitor in question, justifying the imposition of a lesser sanction than striking the solicitor off the roll. In each case, the sanction imposed was one of suspension, which was itself suspended. The appellant Solicitors Regulation Authority (the SRA) appealed each of those decisions, essentially on the grounds that there were no exceptional circumstances and the sanction imposed was unduly lenient. 

Appeal allowed.

Issues and decisions 

Whether the SDT had erred in principle or had made an evaluation which had been wrong in concluding that there had been exceptional circumstances justifying the imposition of a lesser sanction than striking off. 

The court should only interfere with the decision of the SDT to impose a lesser sanction than striking off because of the existence of exceptional circumstances if satisfied that, in reaching the particular decision, the SDT had committed an error of principle or its evaluation had been wrong in the sense of falling outside the bounds of what the SDT could properly and reasonably decide (see [56], [127] of the judgment). 

In all three cases, in concluding that there had been exceptional circumstances justifying a lesser sanction than striking off the roll, the SDT had both erred in principle and had been wrong, in the sense that it had made evaluative decisions which were outside the bounds of what it could properly and reasonably decide. The sanction imposed had, in each case, been unduly lenient and clearly inappropriate (see [100], [127] of the judgment). 

First, although it was well-established that what might amount to exceptional circumstances was in no sense prescribed, and depended upon the various factors and circumstances of each individual case, it was clear from the authorities that the most significant factor carrying most weight and which, therefore, had to be the primary focus in the evaluation was the nature and extent of the dishonesty. In other words, the exceptional circumstances had to relate in some way to the dishonesty. What could be considered in an evaluation of whether exceptional circumstances existed was not limited to the matters emphasised in the authorities, but could and would include matters of personal mitigation, including mental health issues and workplace pressures (see [101], [102], [127] of the judgment). 

Inevitably, an assessment of the nature and extent of the dishonesty, and the degree of culpability would involve an examination of the respondent’s mind set, including whether the respondent was suffering from mental health issues and the workplace environment, as part of the overall balancing exercise. However, where the SDT had concluded that, notwithstanding any mental health issues, or work or workplace related pressures, the respondent’s misconduct had been dishonest, the weight to be attached to those mental health and working environment issues in assessing the appropriate sanction would inevitably be less than was to be attached to other aspects of the dishonesty found, such as the length of time for which it had been perpetrated, whether it had been repeated and the harm which it had caused, all of which had to be of more significance. It was difficult to see how, in a case of dishonesty, as opposed to some lesser professional misconduct, the fact that the respondent had suffered from stress and depression (whether alone or in combination with extreme pressure from the working environment) could, without more, amount to exceptional circumstances (see [103], [127] of the judgment). 

Therefore, while the mental health and workplace environment issues in any given case would not be a ‘trump card’ in assessing whether there were exceptional circumstances, they could and should be considered as part of the balancing exercise required in the assessment or evaluation. The problem in the present cases was that the SDT had not engaged in that balancing exercise. While it was correct that, in all three judgments, the SDT had made findings as to the length of time of the dishonesty, its seriousness and the harm caused in earlier passages of the judgments, when the SDT had come, in each case, to its evaluation of whether there had been exceptional circumstances justifying a lesser sanction, it had not focussed on those critical questions of the nature and extent of the dishonesty, and degree of culpability and engage in the balancing exercise which the evaluation required between those critical questions on the one hand and matters such as personal mitigation, health issues and working conditions on the other. Had it done so, it should have concluded that, in none of the cases, could the dishonesty be said to be momentary. Further, in each case the dishonesty had not been isolated, but was repeated on a number of occasions. In each case, the dishonesty had caused harm, in two of the cases to the client and in the other to the Legal Aid Agency (see [104], [127] of the judgment). 

If the SDT had focused on the nature and extent of the dishonesty in determining whether there had been exceptional circumstances in each of the three cases, it could not have concluded that a lesser sanction than striking off was appropriate for serious repeated misconduct of the present kind, in two of the cases misleading the client and the firm and in the other assisting in the commission of a fraud and then, in effect, in its concealment. In cases of repeated dishonesty and misconduct of the kind, the lesser sanction of suspension (let alone suspended suspension) did not address the risk of harm to the public or the need to maintain the reputation of the profession which was the principal purpose of the sanction (see [105], [127] of the judgment). 

Second, mental health issues, specifically stress and depression suffered by the solicitor as a consequence of work conditions or other matters could not, without more, amount to exceptional circumstances, justifying a lesser sanction than striking off where the SDT had found dishonesty. By definition, in applying the relevant test, the SDT in the present cases had made findings as to the actual state of mind of the respondents, specifically that, despite any mental health issues, each of them had known the difference between honesty and dishonesty, and had known that what they had been doing was dishonest. In each case, the SDT had gone on to conclude that, applying the objective standard of ordinary decent people, the conduct had been dishonest (see [110], [127] of the judgment). 

The SDT having concluded that, notwithstanding mental health issues, each of the respondents was dishonest,  it had been contrary to principle for it then to conclude that those mental health issues could amount to exceptional circumstances. While in no sense belittling the stress and depression from which the respondents had suffered, it had in no sense been exceptional. The presence of such mental health issues could not, without more, amount to such exceptional circumstances. The effect of the contrary approach would be that exceptional circumstances would no longer be a narrow residual category of case, but much more the norm (see [112], [127] of the judgment). 

Third, pressure of work or extreme working conditions while obviously relevant, by way of mitigation, to the assessment which the SDT had to make in determining the appropriate sanction, could not either alone or in conjunction with stress or depression, amount to exceptional circumstances. Pressure of work or of working conditions could not ever justify dishonesty by a solicitor. It might be that pressure of work or an aggressive, uncaring workplace could excuse carelessness by a solicitor, a lapse of concentration or making a mistake, but dishonesty of any kind was a completely different and more serious matter, involving conscious and deliberate wrongdoing, whether it was stealing from the client account or telling lies to the client (as in two of the cases), or assisting in a fraud (as in the third). That point was not altered by the fact that, in at least one of the cases, the pressure on the respondent had been caused in large part by a culture in the firm which had been toxic and uncaring. That might provide an explanation for the dishonesty having occurred, but it could not excuse it and, therefore, could not amount to exceptional circumstances justifying a lesser sanction (see [113], [127] of the judgment). 

The appeals had to be allowed in all three cases, and the sanction imposed of suspended suspension had to be quashed and substituted by striking off the roll (see [124], [127] of the judgment). 

Bolton v Law Society [1994] 2 All ER 486 applied; R (on the application of Campbell) v General Medical Council [2005] 2 All ER 970 applied; Solicitors Regulation Authority v Sharma [2010] All ER (D) 143 (Nov) applied; R (on the application of Solicitors Regulation Authority) v Imran [2015] All ER (D) 361 (Jul) applied; Shaw v Solicitors Regulation Authority [2017] All ER (D) 80 (Aug) applied; Bawa-Garba v General Medical Council (British Medical Association and others intervening) [2018] All ER (D) 78 (Aug) applied; Burrowes v Law Society [2002] All ER (D) 231 (Dec) considered.

Chloe Carpenter and Heather Emmerson (instructed by the Solicitors Regulation Authority) for the SRA in the first and second cases.

Chloe Carpenter and Andrew Bullock (instructed by the Solicitors Regulation Authority) for the SRA in the third case.

Geoffrey Williams QC and Paul Bennett (instructed by Aaron & Partners LLP) for the respondent in the first case.

Gregory Treverton-Jones QC (instructed by Murdochs Solicitors) for the respondent in the second case.

Fenella Morris QC (instructed by Murdochs Solicitors) for the respondent in the third case.

Karina Weller - Solicitor (NSW) (non-practising).

In concluding that there had been exceptional circumstances, in part because of mental health issues, justifying a lesser sanction than striking off the roll for dishonesty, the Solicitors Disciplinary Tribunal had both erred in principle and had been wrong, in the sense that it had made evaluative decisions which were outside the bounds of what it could properly and reasonably decide. The Divisional Court, in allowing the Solicitors Regulation Authority’s appeal, held that the sanction of suspended suspension had to be quashed and substituted by striking off the roll, as it had been unduly lenient and clearly inappropriate.

Background

In 1997, the appellant Tanzanian national entered the UK on a student visa and had been resident since then, but as an overstayer since her leave to remain as a student, extended from time to time, expired in November 2009 and her appeal rights were exhausted in October 2010. The appellant received free board and lodging, and her father paid her a maintenance allowance. She sought leave to remain from the respondent Secretary of State outside the Immigration Rules, relying on her rights under art 8 of the European Convention on Human Rights (art 8), but that was refused in June 2013 and removal directions were set. The appellant appealed to the First-tier Tribunal (Immigration and Asylum Chamber) (the FTT), which dismissed her appeal concluding that her private life in the UK had been established at a time when her immigration status had been ‘precarious’ within the meaning of s 117B(5) of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002). That section provided that little weight should be given to a private life which a person had established at a time when their immigration status was ‘precarious’. Decisions were also made under NIAA 2002 s 117A(2)(a) and NIAA 2002 s 117(B)(3). She appealed to the Upper Tribunal (Immigration and Asylum Chamber), which found no error of law on the part of the FTT and dismissed her appeal. An appeal to the Court of Appeal, Civil Division, was also dismissed. The appellant appealed. 

Appeal allowed. 

Issues and decisions

(1) Whether the word ‘precarious’ in NIAA 2002 s 117B(5) depended on an evaluation of the overall circumstances of the case. 

The ordinary meaning of the word ‘precarious’ did not require, or that in its context Parliament had not intended the word to require, that its application to the facts of a case should depend upon a subtle evaluation of the overall circumstances (see [42] of the judgment). 

NIAA 2002 s 117B(5) fell within Pt 5A of the  Act, which had been inserted into it, with effect from 28 July 2014, by s 19 of the Immigration Act 2014. Part 5A was headed ‘Article 8 of the ECHR: Public Interest Considerations’ (see [20] of the judgment). 

NIAA 2002 ss 117A-117D had been intended to provide for a structured approach to the application of art 8 which produced in all cases a final result which was compatible with, and not in violation of, art 8. However, insofar as the legislation had been intended in all cases to produce a result compatible with the article, it was necessary to find within it provision for a degree, of limited flexibility (see [36] of the judgment).

It was obvious that Parliament had imported the word ‘precarious’ in NIAA 2002 s 117B(5) from the jurisprudence of the ECtHR, but in the subsection it had applied the word to circumstances different from those to which the ECtHR had applied it. In particular, Parliament had deliberately applied the subsection to consideration only of an applicant’s private life, rather than also of his family life. The different focus of the subsection had required Parliament to adjust the formulation adopted in the ECtHR. Instead of inquiry into whether the persistence of family life was precarious, the inquiry mandated by the subsection was whether the applicant’s immigration status was precarious. Further, because the focus was upon the applicant personally and because, perhaps unlike other family members, he or she should on any view be aware of the effect of his or her own immigration status, the subsection did not repeat the explicit need for awareness of its effect (see [37] of the judgment).

The bright-line interpretation of the word ‘precarious’ in NIAA 2002 s 117B(5), commended by the specialist tribunal with the maximum weight of its authority, was linguistically and teleological legitimate; and, was consistent with the way in which the ECtHR had expressed itself (see [43] of the judgment). 

Jeunesse v Netherlands (App no 12738/10) [2014] ECHR 12738/10 applied; R (on the application of Agyarko) v Secretary of State for the Home Department [2017] All ER (D) 168 (Feb) applied; Mitchell v United Kingdom (Application 44808/98) [2002] ECHR 44808/98 considered; Butt v Norway (App. No. 47017/09) [2012] ECHR 47017/09 considered; Patel v Secretary of State for the Home Department; Alam v Secretary of State for the Home Department [2013] All ER (D) 220 (Nov) considered; R (on the application of Nagre) v Secretary of State for the Home Department [2013] All ER (D) 15 (Apr) considered.

(2) Whether the FTT had been wrong to hold that, at the relevant time, the appellant’s immigration status had been ‘precarious’ within the meaning of NIAA 2002 s 117B(5). 

Everyone who, not being a UK citizen, was present in the UK and who had leave to reside there other than to do so indefinitely had a precarious immigration status for the purposes of NIAA 2002 s 117B(5) (see [44] of the judgment). 

It followed that the FTT, upheld on that point in both the successive appeals, had been correct to determine that the appellant’s private life in the UK, having been established when, at any rate predominantly, she had leave to reside in the UK as a student, had been established at a time when her immigration status had been precarious (see [45] of the judgment). 

The concept of a precarious immigration status under s 117B(5) did not include the situation of a person present in the UK unlawfully. In NIAA 2002 s 117B ss (4) and (5) Parliament had drawn a clear distinction between unlawful presence and a precarious immigration status. In relation to a person unlawfully present, ss (4) covered all the grounds which ss (5) would cover; and there was nothing to indicate that, notwithstanding the clear distinction, Parliament had intended ss (5) to overlap with ss (4) (see [46] of the judgment). 

AM (S.117B) [2015] UKUT 260 (IAC) applied; R (on the application of AR) v Chief Constable of Greater Manchester Police and another [2018] All ER (D) 166 (Jul) applied.

(3) Whether the decision of the FTT holding that the appellant was financially dependant on support from her father as required by NIAA 2002 s 117(B)(3) was correct. 

Financial independence in NIAA 2002 s 117B(3) meant an absence of financial dependence upon the state (see [55], [56] of the judgment). 

Accordingly, the FTT had erred in law in holding that NIAA 2002 s 117B(3) of the 2002 Act applied to the appeal and therefore that it had identified an aspect of the public interest negative to her claim. In the absence of the error in relation to NIAA 2002 s 117B(3), s 117A(2)(a) might properly have led him to uphold her claim (see [58] of the judgment). 

The appeal would be allowed and the court should set aside the judge’s order upon her initial appeal; but as the appeal was presently academic the initial appeal would not be remitted for fresh determination (see [3]-[8], [58] of the of the judgment). 

Decision of Court of Appeal Civil Division [2016] EWCA Civ 803 Reversed In Part.

Hugh Southey QC and David Sellwood (Instructed by Wilson Solicitors LLP) for the appellant. 

Andrew Byass (instructed by the Government Legal Department) for the Secretary of State.

Tara Psaila - Barrister.

Everyone who, not being a UK citizen, was present in the UK and who had leave to reside there other than to do so indefinitely had a ‘precarious’ immigration status for the purposes of s 117B (5) of the Nationality, Immigration and Asylum Act 2002. The Supreme Court, nevertheless, held that as the First Tier Tribunal (Immigration and Asylum Chamber) had erred in concluding that the appellant was not financially independent within the meaning of s 117B(3) of the 2002 Act, the appellant’s appeal would be allowed. 

Background

In 2009, the appellant was granted a Tier 4 sponsor licence. That enabled the appellant to assign Confirmations of Acceptance for Studies (CAS) to migrants which could then be used to obtain leave to enter or remain. In 2010, the appellant was given Highly Trusted Sponsor (HTS) status. Following an investigation, the appellant’s Tier 4 Sponsor licence was revoked by the respondent Secretary of State. The requirements for Tier 4 Sponsors and HTS status were set out in guidance provided by the respondent which had changed from time to time. In  2014, the guidance for Tier 4 sponsors (entitled ‘UK Visas & Immigration Tier 4 of the Points Based System Guidance for Sponsors’) was split into 3 ‘documents’, namely: ‘Document 1: Applying for or Renewing a Tier 4 Sponsor Licence and Highly Trusted Sponsor’; ‘Document 2: Assigning CAS and Sponsoring Students’; and ‘Document 3: Sponsors Duties and Compliance’. The three guidance documents expressly cross-referred to each other. It was clear that they were intended to be read together. The appellant’s application for judicial review of the decision was dismissed and the appellant appealed.  

Appeal dismissed. 

Issues and decisions

Whether the phrase ‘your duties’ in para 162(d) of Guidance Document 3 was limited to the three duties specifically referred to in s 2 of Guidance Document 3 (namely, ‘Record keeping duties’, ‘Reporting changes that affect your sponsor licence’ and ‘Reporting changes to student circumstances’).

The watchword for the sponsorship system was trust. The efficacy of the sponsorship system depended fundamentally on trust. That fundamental point was too often overlooked, or ignored, by claimants seeking to challenge the suspension or revocation of their sponsor licence. The respondent had to be able to trust those to whom Tier 4 (or Tier 2) sponsorship status was accorded. That was because those with a sponsor licence were given the power to assign CAS which could then be used by migrants to obtain visas and leave to enter or remain. However, with power came responsibility. A key responsibility was to identify which of the migrants applying for student visas had both the ability and intention to study, and which were merely trying to use study in the UK as an excuse to come to, live or work in the UK. 

Also, under the sponsorship system, the discretion accorded to the respondent to suspend or revoke Tier 4 (or Tier 2) sponsorship licences was very broad. That was necessarily so because the system depended on the respondent trusting those accorded HTS to carry out roles and responsibilities previously accorded to immigration officers (see [36] of the judgment). 

By contending that the phrase ‘your duties’ was limited to the three duties specifically referred to in s 2 of Guidance Document 3 ignored both the express wording of Guidance Document 3 and the themes running through the Guidance Documents 2 and 3 generally. Further, the Guidance Documents were just that,  namely guidance documents. As such, they had to be read sensibly, purposefully and holistically. They were not statutes or to be construed rigidly and myopically (see [38],[39] of the judgment).

Having regard to the correct construction of the document it was, therefore, every sponsor’s express duty, before granting a CAS, thoroughly to assess each student’s ‘intention and ability’ to undertake the course in question. The same basic duty was voiced in Document 2 (see [45] of the judgment). 

It was plain from the express wording of the Guidance Documents that Tier 4 sponsors had a basic duty properly to satisfy themselves that students to whom they were assigning CAS had both the ‘intention and ability’ to follow the course of study proposed. The trial judge had been correct in holding that it was for an admitting college to ensure that a student to whom a CAS would be or had been awarded had the capacity and intention to attend and successfully complete the course on which a place was granted (see [47]-[49] of the judgment).

R (on the application of Westech College) v Secretary of State for the Home Department [2011] All ER (D) 69 (Jun) applied; R (on the application of Alvi) v Secretary of State for the Home Department [2012] All ER (D) 173 (Jul) applied; R (on the application of New London College Ltd) v Secretary of State for the Home Department; R (on the application of West London Vocational Training College) v Secretary of State for the Home Department [2013] All ER (D) 211 (Jul) applied; London St. Andrew’s College v Secretary of State for the Home Department [2014] All ER (D) 236 (Dec) applied; R (on the application of Raj and Knoll Ltd) v Secretary of State for the Home Department [2016] All ER (D) 90 (Jul) applied.

Decision of Mc Gowan J  [2014] EWHC 4328 (Admin)  affirmed.

Paul Turner and Jay Gajjar (instructed by Law Lane Solicitors) for the appellant.

Rory Dunlop (instructed by Government Legal Department) for the respondent.

Tara Psaila - Barrister.

It was plain from the express wording of the Guidance Documents that Tier 4 sponsors had a basic duty properly to satisfy themselves that students to whom they were assigning Confirmations of Acceptance for Studies had both the ‘intention and ability’ to follow the course of study proposed. So the Court of Appeal, Civil Division, held in dismissing the appellant’s appeal against the revocation of his Tier 4 sponsors licence. 

Background 

The claimant journalist applied for press accreditation to attend the Labour Party conference in September 2017, applying as a press delegate of a magazine. He was subsequently informed that the application could not be processed, as it had not passed the necessary police security checks. As a result of the lack of accreditation, the claimant was unable to attend the conference, and claimed that he had suffered financial loss and reputational damage as a result of the decision to refuse him accreditation, for which he held both defendants legally responsible. Accordingly, the claimant sought judicial review of the defendants’ decision. 

Issues and decisions 

(1) Whether the decision to refuse accreditation had been procedurally unfair or unlawful, since it had been made on the basis of an unpublished policy. 

The operation of the National Accreditation Team’s (NAT) Political Conference Policing Group Accreditation Process  had had no material adverse effect on applicants for accreditation. Its sole and limited purpose had been its use by the second defendant (GMP) as a sifting process to decide whether the application should be looked at more closely by local police forces in the light of that force’s direct responsibility for safety and security of party conferences in its area, and in the light of its understanding of local conditions. It was plain from the evidence that neither the NAT, nor the GMP had refused applications and that all refusals of accreditation were made by host police forces: in the present case, the first defendant Sussex Police. As such, the NAT’s decisions in relation to applications for accreditation (including the claimant’s) had not been such as to attract the common law obligation of procedural fairness. A decision to refer the application for more detailed consideration had not been an adverse decision (see [31], [32] of the judgment). 

The claimant was on stronger ground in his complaint about the lack of published policy and procedural unfairness against Sussex Police. The difficulty with reliance on the National Accreditation Standard (NAS) was that it did not contain any criteria to be applied when assessing accreditation. Further, it appeared to require that a written record be made of reasons for refusal, which might have to be provided (either in full or in a sanitised version) to an applicant for accreditation. The operative policy had been, not only an unpublished policy, it appeared to have been a policy whose terms had been ignored in respects which were material to the claim (see [34], [36] of the judgment). 

Even taken at face value, the assessment of threat did not appear to have been related to the risk to the security of the conference. In any event, the reasons for refusal had not been recorded at the time and, therefore, no record had been available (sanitised or otherwise) which might have been provided to the claimant and which might have supported the Sussex Police’s case as to the decision-making process. Accordingly, Sussex Police had not demonstrated that it had had an operative policy for dealing with applications for accreditation which had been referred to it, nor any applicable criteria for assessing a particular risk to the security of the conference (see [41], [42] of the judgment). 

In view of the small number of those referred, the time that had been available for dealing with the application and the lack of a right of appeal against the decision, a process, by which the claimant had been provided with a gist of why his conduct had been thought to give rise to a risk to the security of the conference, would not have placed an undue burden on Sussex Police, or would not have been impractical or contrary to the public interest in the present case. The claimant had been deprived of a right to make representations about the decision that was to be made (see [45], [46] of the judgment). 

R v Secretary of State for the Home Department, ex p Doody [1993] 3 All ER 92 distinguished; Booth v Parole Board [2014] 1 All ER 369 applied.

(2) Whether Sussex Police and the GMP had applied the wrong test in making the decision. 

There was plainly a danger in reading statements of principle across from one case as applicable to different factual and legal situations in other cases; although plainly, establishing facts before making decisions and issues of proportionality were principles of wide application. Accordingly, there was no proper basis for applying an elevated threshold for refusing accreditation for someone to attend a four-day event, rather than those whose effect prevented an individual gaining any employment in the sector in which they worked. A rational and proportionate system of accreditation was founded on an assessment of risk to the safety of those present at a conference. In making such an assessment, the decision-maker was entitled to give considerable weight to safety considerations against the consequences of exclusion for the individual (see [55], [56] of the judgment). 

Although a free press was a fundamental safeguard of democracy, it did not, of itself, justify an elevated threshold for refusing accreditation to a journalist. Nevertheless, the fact that the applicant was an established journalist was likely to be an important factor in any assessment (see [57] of the judgment). 

R (on the application of A) v Chief Constable of C Constabulary [2014] All ER (D) 148 (Feb) considered.

(3) Whether the decision had been an infraction of the claimant’s rights under art 8 of the European Convention on Human Rights. 

The arguments advanced with respect to art 8 did not materially advance the claimant’s case. The GMP had been collating information that had already been available to Sussex Police for the proper purpose of referring the application for accreditation to Sussex Police for further consideration. In the hands of Sussex Police, the protections to which the claimant had been entitled would have been an established policy and an opportunity to respond to what the information appeared to reveal before a decision was made. Any damage to the claimant’s reputation had necessarily been confined, since the Labour Party had not been informed of the particular reasons for the refusal of accreditation (see [61] of the judgment). 

(4) Whether the decision had been in breach of the Data Protection Act 1998. 

The data protection way of putting the case did not advance the claimant’s position. The claimant’s case that the defendants had contravened the first data protection principle added nothing to his case under public law principles and the court was in no position to make findings that there had been breaches of the third and/or fourth data protection principles. The better course was to leave it to the claimant to institute separate private law proceedings, if so advised (see [63], [67] of the judgment). 

The claimant’s claim against the GMP failed, but his claim against Sussex Police succeeded in part. The claimant was entitled to a declaration against Sussex Police that the process by which he had been refused accreditation to the conference had been unlawful and that decision had to be quashed (see [68] of the judgment). 

Jude Bunting (instructed by Irvine Thanvi Natas) for the claimant.

Andrew Waters (instructed by Weightmans LLP) for Sussex Police. 

James Berry (instructed by Plexus Law) for GMP.

Karina Weller - Solicitor (NSW) (non-practising).

The process by which the claimant journalist had been refused press accreditation to attend the Labour Party conference in September 2017 by Sussex Police had been unlawful and that decision had to be quashed. However, the Divisional Court dismissed the claimant’s application for judicial review against the second defendant Chief Constable of Greater Manchester Police.