26 February 2018

Background

The respondent (B) had been in the UK since 1993. Between February 2002 and 11 March 2005, he had been detained under s 21 of the Anti-terrorism, Crime and Security Act 2001 (ACSA 2001). Using a false identity, he appealed against that decision to the Special Immigration Appeals Commission (SIAC). ACSA 2001 was subsequently repealed by the Prevention of Terrorism Act 2005 (PTA 2005) and, in March 2005, B was released from detention and made subject to a control order under PTA 2005.

In August, B was notified of the appellant Secretary of State’s decision to make a deportation order against him on national security grounds. He was arrested and detained under para 2(2) of Sch 3 to the Immigration Act 1971 (IA 1971) (Sch 3), pending the making of the deportation order.

B appealed to SIAC against that decision, again using a false identity. He contended that his removal to Algeria would be in breach of his rights under art 3 of the European Convention on Human Rights. The UK Government sought specific assurances from the Algerian Government that, if deported to Algeria, B would not be subject to treatment contrary to the Convention. The Algerian authorities confirmed that the details given of B’s identity were those of an individual present in Algeria. In 2007, SIAC directed B to provide specified particulars of his true identity and to consent to provide a non-invasive sample for DNA testing (the 2007 order). D consented to providing the DNA sample, but he refused to provide the particulars of his true identity.

In 2008, SIAC held that the Secretary of State’s case on the risk to national security had been made out. In 2010, it held that B was in contempt of the 2007 order and sentenced him to four months’ imprisonment. Following two failed appeals, B served the sentence and was released in April 2013. However, save for one night, throughout the period from 11 March 2005, B remained in, either prison, or hospital until his discharge to bail accommodation on 18 January 2011.

The power to grant immigration bail and to impose bail conditions was contained in IA 1971 Sch 2 paras 22 and 29; para 22 governed bail in general, and para 29 governed bail pending appeal. Section 3 of the Special Immigration Appeals Commission Act 1997 (SIACA 1997) extended the power to grant bail to SIAC (see [20] of the judgment).

Following B’s release from prison, SIAC set two sets of bail conditions in respect of him. In February 2014, it found that there was no reasonable prospect of removing B to Algeria and, accordingly, that the ordinary legal basis for his justified detention under the Immigration Acts had fallen away. Following that ruling, the Secretary of State did not authorise B’s further detention and his bail conditions were relaxed.

In July, in the light of B’s continuing contempt of court, SIAC struck out his appeal against the notice of deportation. It rejected B’s contention that, following its findings in February 2014, his detention could no longer lawfully be authorised (as it would be incompatible with Hardial Singh principles (see [24], [25] of the judgment)) and that, accordingly, SIAC had no longer had jurisdiction to grant him bail or to impose bail conditions.

A judge dismissed B’s judicial review challenge of the July 2014 decision concerning SIAC’s bail jurisdiction. The Court of Appeal, Civil Decision, allowing B’s appeal against the judge’s decision, held that bail could not be granted, under Sch 2 paras 22 and 29, where a person had been unlawfully detained, purportedly under Sch 3 para 2(2), or where a person, not currently in detention, could not lawfully be detained under that provision. Accordingly, the Court of Appeal held that SIAC had had no jurisdiction to impose bail conditions on B if his detention had been unlawful. In December 2016, SIAC allowed B’s appeal against the notice of intention to deport him.

The Secretary of State appealed on the issue of SIAC’s bail jurisdiction.

Appeal dismissed.

Issues and decisions

Whether, on the true construction of Sch 2 paras 22 and 29, there was a power to grant immigration bail to a person who could no longer be lawfully detained. The Secretary of State submitted that the court should adopt a purposive interpretation of the relevant legislation, contending that it was consistent with the purpose of the bail power for it to be construed so that bail was available regardless of whether the individual was lawfully detained or would hypothetically be lawfully detained.

Relying on R (on the application of Khadir) v Secretary of State for the Home Department[2005] 4 All ER, the Secretary of State submitted that the respective structures of the powers to grant temporary admission or release under Sch 2 para 21 and the power to grant bail under para 22 were similar and that, because both bail and temporary admission or temporary release were ameliorating possibilities of alternatives to detention, it was sensible for those powers to persist beyond the point at which actual detention could no longer continue.

It was common ground that being ‘detained’ was a condition precedent to the exercise of the power to grant bail conferred by paras 22 and 29.

On their true construction, paras 22 and 29 required a lawful power to detain as a pre-condition to a grant of bail. Bail might not be granted under those paragraphs where a person was unlawfully detained, purportedly under Sch 3 para 2(2) or where a person, not currently in detention, could not lawfully be detained.

As a matter of legal instinct, the proposition that the ability to exercise a lawful power to detain was a precondition to a power to grant bail seemed entirely sound. There was no reason to conclude that Parliament had to have intended to confer a power to grant bail where a person was unlawfully detained (see [45], [46], [48] of the judgment).

The court agreed with the conclusion of the Court of Appeal. In the present case, it was common ground that B could not have been lawfully be detained following the ruling of SIAC on 13 February 2014 that there had been no reasonable prospect of removing him to Algeria and that, accordingly, the ordinary legal basis for justified detention of B under the Immigration Acts had fallen away. Furthermore, it had not been suggested that the present case was one in which, on the application of Hardial Singh principles, a lawful power of detention had subsequently revived as a result of a change of circumstances. In the circumstances, in the absence of a power of lawful detention, there had been no power to grant bail to B pursuant to para 22.

There was a material difference between the wording of para 21, on the one hand, and paras 22 and 29 on the other. The distinction between a person ‘detained’ and a person ‘liable to be detained’ was clear and had to have been deliberate. Accordingly, Khadir provided no assistance to the Secretary of State in the present case. Further, there was little or no substance in the Secretary of State’s contentions concerning its submission that the interpretation of paras 22 and 29 favoured by the Court of Appeal would lead to impracticability in their application (see [33], [39],[41], [46], [55] of the judgment).

R (on the application of Khadir) v Secretary of State for the Home Department [2005] 4 All ER 114 distinguished; Khawaja v Secretary of State for the Home Department [1983] 1 All ER 765 considered; R v Governor of Durham Prison, ex p Singh [1984] 1 All ER 983 considered; Mahmod (Wasfi Suleman), Re [1994] Lexis Citation 3916 considered; Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1996] 4 All ER 256 considered; R v Secretary of State for the Home Department, ex p Simms [1999] 3 All ER 400 considered; R (on the application of Konan) v Secretary of State for the Home Department [2004] All ER (D) 151 (Jan) considered; R (on the application of Bashir) v Secretary of State for the Home Department [2007] All ER (D) 493 (Nov) considered; Stellato v Ministry of Justice [2010] All ER (D) 171 (Dec) considered; R (on the application of Lumba) v Secretary of State for the Home Department; R (on the application of Mighty) v same [2011] 4 All ER 1 considered; R (on the application of Kambadzi) v Secretary of State for the Home Department [2011] All ER (D) 244 (May) considered; R (on the application of KM) (by his mother and litigation friend) v Cambridgeshire County Council [2012] All ER (D) 254 (May) considered; R (on the application of Othman) v Special Immigration Appeals Commission [2012] All ER (D) 78 (Aug) considered; IR v UK [2014] 58 EHRR considered; R (on the application of Raza (Pakistan)) v Secretary of State for the Home Department [2016] All ER (D) 35 (Aug) considered; R (on the application of HY) v Secretary of State for the Home Department [2010] All ER (D) 32 (Apr) considered.

Decision ofCourt of Appeal, Civil Division, [2015] All ER (D) 35 (May) affirmed.

Stephanie Harrison QC and Anthony Vaughan (instructed by Birnberg Pierce) for B.

Robin Tam QC and Belinda McRae (instructed by the Government Legal Department) for the Secretary of State.

Michael Fordham QC and Laura Dubinsky (instructed by Allen & Overy LLP) for Bail for Immigration Detainees, as intervener.

Carla Dougan-Bacchus Barrister.

Where there was no lawful basis for the detention of an individual pending deportation, there was no power to grant bail and impose bail conditions in respect of that individual under paras 22 or 29 of Sch 2 to the Immigration Act 1971. The Supreme Court so ruled in dismissing the Secretary of State’s appeal against the decision of the Court of Appeal, Civil Division, that the Special Immigration Appeals Commission had had no jurisdiction to impose bail conditions on the respondent if his detention had been unlawful.

Background

The legal guardians of the appellant, a child, were both French, of Algerian origin, living in the UK. They had travelled to Algeria in order to become the legal guardians of the appellant under the kafalah system (the Islamic alternative to adoption).

The respondent entry clearance officer (ECO) refused to issue the appellant with an EEA family permit to enter the UK as a family member of an EEA national exercising free movement rights. The ECO concluded that the appellant was not a ‘family member’ within reg 7 of the Immigration (European Economic Area) Regulations 2006, SI 21006/1003 (the 2006 Regulations). The First-tier Tribunal (Immigration and Asylum Chamber) (the FTT) dismissed the appellant’s appeal. The Upper Tribunal (Immigration and Asylum Chamber) (the UT) allowed her appeal. It held that although she was not a family member within the meaning of reg 7 of the 2006 Regulations, she was an ‘extended family member’ within the meaning of reg 8 of the 2006 Regulations. The ECO appealed. The Court of Appeal, Civil Division [2015] EWCA Civ 1109 allowed the appeal.

That court held that the real question was not whether the appellant fell within the definition of ‘family member’ in reg 7 or the definition of ‘extended family member’ in reg 8, rather it was whether she was ‘direct descendant’ within the definition of ‘family member’ in art 2.2(c) of Council Directive (EC) 2004/38 (the Citizens Directive); or alternatively whether she fell within ‘any other family members, …, who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence …’ in art 3.2(a) of the Citizens Directive. The appellant appealed.

Issues and decisions

(1) Whether the court had jurisdiction to hear the appeal having regard to the decision in Sala v Secretary of State for the Home Department [2016] UKUT 411 (IAC), which had held that there was no statutory right of appeal against a refusal of a residence card to a person claiming to be an ‘extended family member’ under the 2006 Regulations.

In the more recent Court of Appeal, Civil Division decision of Khan v Secretary of State for the Home Department[2017] All ER (D) 67, the court held that a decision which ‘concerns’ an entitlement included a decision whether to grant such an entitlement. Further, even where there was a discretion, it had to be exercised in accordance with the correct legal principles: a litigant was entitled to a decision exercised in that way. Accordingly the decision in Sala had been overruled (see [37] of the judgment).

Despite the breadth of the discretion in cases under art 3.2 of the Citizens Directive, there was nevertheless a duty to facilitate entry, to make full enquiries and to justify refusal. There would, therefore be cases in which a refusal could not be justified. Such a person would be entitled to a family permit and, thereafter, to be treated as a ‘family member’. Jurisdiction could not depend upon fine judgments as to the proportionality of refusal (see [38] of the judgment).

The Court of Appeal’s decision in Khan was correct and Sala should be overruled (see [39] of the judgment).

Khan v Secretary of State for the Home Department (AIRE Centre intervening) [2017] All ER (D) 67 (Nov) applied.

(2) Whether it was necessary to refer questions to the Court of Justice of the European Union (CJEU).

The present court could not allow the appeal and restore the order of the UT on the basis that the appellant’s case should be considered under art 3.2(a) of the Citizens Directive, if in reality she fell within the definition of ‘family member’ in art 2.2(c) of the Citizen’s Directive. In that event, she enjoyed the automatic rights of entry and residence conferred by the Citizen’s Directive. What in the circumstances did ‘direct descendant’ mean ? (see [22] of the judgment).

It could not be considered an acte clair that a child in the appellant’s position was not to be regarded as a direct descendant of her guardians for the purpose of art 2.2(c) of the Citizens Directive. At the same time, such an interpretation could, in some cases, create opportunities for exploitation, abuse and trafficking in children. There was also concern that an automatic right of entry for ‘kefalah’ children might lead to some of them being placed in homes which domestically would have been rejected as unsuitable (see [28] of the judgment). Accordinlgy, it was necessary to make a reference to the Court of Justice of the Euroepean Union.

First, whether a child who had been in the permanent legal guardianship of a Union citizen or citizens, under ‘kefalah’ or some equivalent arrangement provided for in the law of his or her country of origin, was a ‘direct descendant’ within the meaning of art 2.2(c) of the Citizens Directive.

Secondly, whether other provisions in the Citizens Directive, in particular arts 27 and 35, could be interpreted so as to deny entry to such children if they had been the victims of exploitation, abuse or trafficking or were at risk of such.

Thirdly, whether a member state had been entitled to inquire, before recognising a child who was not the consanguineous descendant of the EEA national as a direct descendant under art 2.2(c), into whether the procedures for placing the child in the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of that child (see [33] of the judgment).

Rembert de Mello, Tony Muman, Katie Wilkinson and Jessica Smeaton (instructed by David Tang & Co) for the appellant.

Brian Kennelly QC and Benjamin Lask (instructed by the Government Legal Department) for the ECO.

Manjit Singh Gill QC, Navtej Singh Ahluwalia (instructed by Coram Children’s Legal Centre) for the Coram Children’s Legal Centre as Intervener.

Aidan O’Neill QC, David Chirico and Catherine Robinson (instructed by Herbert Smith Freehills LLP) for the The AIRE Centre as Intervener.

Tara Psaila Barrister.

Three questions would be referred to the Court of Justice of the European Union in respect of the status of a child who was under the permanent legal guardianship of a European Union citizen or citizens, under ‘kefalah’ having regard to the transposition of Parliament and Council Directive (EC) 2004/38 in to national law. The Supreme Court further determined that it had jurisdiction to hear the case.

Background

The appellant was the chair of the Chagos Refugees Group which represented Chagossians whose removal from the British Indian Overseas Territory (BIOT) and resettlement elsewhere had been procured by the UK government in the years 1971 to 1973. The circumstances had generated much national and international litigation. Following the last two court decisions, it remained prohibited, under the BIOT Constitution and Immigration Orders 2004, for Chagossians to return to BIOT. On 16 November 2016, the UK government announced its decision to maintain the ban on resettlement, after a study carried out by KPMG published on 31 January 2015. That decision was itself the subject of further judicial review proceedings.

The present appeal concerned the establishing for BIOT of ‘a marine reserve to be known as the Marine Protected Area’ by Proclamation No 1 of 2010. The creation of that marine protected area (MPA) was accompanied by a statement issued by the respondent Secretary of State for Foreign and Commonwealth Affairs, stating that it would include a ‘no-take’ marine reserve where commercial fishing would be banned. After the establishing of the MPA, and the accompanying announcement, the achievement of a no-take reserve or zone was in practice accomplished by allowing existing licences to expire and by not issuing any fresh licences to the known Chagossian-owned vessels or other vessels from outside BIOT for inshore or other fishing in the MPA.

On 2 December 2010, The Guardian published a document, which was subsequently published by The Telegraph on 4 February 2011. The document purported to be a communication or ‘cable’ sent on 15 May 2009 by the US embassy in London to departments of the US Federal Government in Washington, to elements in its military command structure and to its embassy in Port Louis, Mauritius (the cable). The cable was recorded as having been passed to The Telegraph (and had presumably also been passed to The Guardian) by Wikileaks. Its text purported to be a record, by a US political counsellor of conversation at a meeting on 12 May 2009 at the Foreign Office, London, with, among other people, R and Y, the Administrator for BIOT. It also purported to refer to some previous meetings and a subsequent conversation involving Y. Reliance was placed on passages in it, which it was submitted showed, or could be used to suggest, that R and Y, had and disclosed an improper motive in relation to the creation of the MPA. It was common ground that there had in fact been a meeting between US officials and R and Y at the Foreign Office on that date.

The appellant’s challenge had two limbs. One was that the decision to create the MPA had an improper ulterior motive, namely to make resettlement by the Chagossians impracticable (the improper purpose issue). The other was that the consultation preceding the decision to create the MPA had been flawed by a failure to disclose the arguable existence on the part of Mauritius of inshore fishing rights (the fishing rights issue).

The Administrative Court gave permission for R and Y to be cross-examined on the purported cable, acknowledging that it had to have been obtained unlawfully and in probability by committing an offence under US law. Before the court, objections were made to the use of the cable in R’s cross-examination. In relation to that objection, the court ruled that R could be questioned on an assumption that the cable was what it purported to be, and that it would be open to the appellant at the end of the hearing to invite the court to accept it as an accurate record of the meeting, and to rely on it evidentially. Various questions were put to R and answered on that basis, before the respondent asked for and obtained further time overnight to consider the position.

The other objection was that use of the cable would be contrary to the principle of inviolability of the US mission’s diplomatic archive in breach of arts 24 and 27(2) of the Vienna Convention on Diplomatic Relations 1961 (the Vienna Convention). That further objection was only made the subject of submissions on the third day. That led to the first ruling being effectively over-taken, by a further ruling that it would not be open to the appellant to invite the court to treat the cable as genuine or to find that it contained an accurate record of the meeting and that any further cross-examination should proceed on that basis, without any suggestion that the purported cable had been genuine. The appellant applied for, but was refused immediate permission to appeal that ruling. In those circumstances, he indicated that he had no further cross-examination of R, and on the next day conducted a cross-examination of Y, limited as directed by the court’s ruling.

The court rejected the appellant’s case both in so far as it was based on improper purpose and in so far as it was based on failure to disclose the arguable existence of Mauritian fishing rights. The Court of Appeal, Civil Division, reached the same overall conclusions, but after taking a different view of the admissibility of the purported cable. It held that, since the cable had already been disclosed to the world by a third party, admitting it in evidence would not have violated the US London mission’s diplomatic archive. The Court of Appeal therefore had to consider whether the exclusion of the cable from use before the Administrative Court would or could have made any difference to that court’s decision on the issue of improper purpose. It decided against the appellant on both that issue and the fishing rights issue. The Supreme Court gave permission to appeal on the issue of improper purpose and directed that the application for permission to appeal on the issue relating to the fishing rights issue be listed for hearing with the appeal to follow if permission was granted. The Secretary of State in turn challenged the correctness of the Court of Appeal’s conclusion that use of the cable would not have contravened art 24 and/or art 27(2) of the Vienna Convention.

Appeal dismissed (Lord Kerr and Lady Hale dissenting on the improper purpose issue).

Issues and decisions

(1) Whether the Court of Appeal had correctly concluded that use of the cable would not have contravened art 24 and/or 27(2) of the Vienna Convention.

Pursuant to arts 24 and 27(2) of the Vienna Convention, the archives and documents of the mission should be inviolable at any time and wherever they might be. In principle, therefore, inviolability of documents which were part of the mission archive under arts 24 and 27(2) extended to make it impermissible to use such documents or copies in a domestic court of the host country, at any event absent extraordinary circumstances and absent express waiver of the inviolability by the mission state. However, the application of that principle to any particular document was subject to two qualifications. First, the document had to constitute or remain part of the mission archive, and, second, its contents should not have become so widely disseminated in the public domain as to destroy any confidentiality or inviolability that could sensibly attach to it. Those two qualifications could sometimes, but certainly not always, coincide (see [20] of the judgment).

In the present case, once the cable had reached the State Department or any other addressee, it was, so far as appeared and in the form in which it had been there held, a document in the custody of the Federal Government of the United States or that other authority, and not part of the London Embassy archive. Bearing in mind the probability that the cable had been extracted from the State Department or some other unknown foreign location to which it had been remitted for information and use there, it was not therefore established, even as a matter of probability that the cable had remained part of the archive of the London mission, when it had been so extracted. On that simple basis, the cable had been available for use and admissible as evidence of its contents in the present proceedings (see [20] of the judgment).

Second, the cable had been put into the public domain by the Wikileaks publication and the newspaper articles which had followed, in circumstances for which the appellant had no responsibility. Consequently, the cable had lost its inviolability, for all purposes including its use in cross-examination or evidence in the present proceedings. Accordingly, the same conclusion would be reached as that of the Court of Appeal that since the cable had already been disclosed to the world by a third party, admitting it in evidence would not have violated the US London mission’s diplomatic archive (see [21] of the judgment).

Fayed v Al-Tajir [1987] 2 All ER 396 considered; Maclaine Watson and Co Ltd v International Tin Council [1989] 3 All ER 523 considered.

(2) Whether further cross-examination might have led to more material favourable to the appellant’s case of improper purpose on the part of R and/or Y; and whether admission of the cable in evidence to counterbalance the evidence of R and Y might have led the Administrative Court to accept that either or both had been, when advancing the proposal for an MPA, improperly motivated by the desire to prevent resettlement.

R’s evidence about the meeting on 12 May and Y’s own evidence gave a picture which was generally and substantially consistent with that presented by the cable. That too was how the Court of Appeal had evidently seen the position. Accordingly, it had not been shown that the Court of Appeal had erred in concluding that neither further cross-examination on the cable nor the cable itself, if admitted as evidence, would have led to any different outcome before the Administrative Court. Assuming that the test should be whether that could realistically have led to any different outcome, the answer would still be negative. Consequently, there was no basis on which the Supreme Court would be justified in reaching a different conclusion to that reached in the Court of Appeal (see [39], [42], [49] of the judgment).

(2) Whether the Court of Appeal had erred with regard to the fishing rights issue.

It had been open to Mauritius or anyone affected to raise an objection, in response to the consultation, to the failure to disclose the arguable existence on the part of Mauritius of inshore fishing. Mauritius notably had not responded at all. Others had made various points about the option of a no-take ban in territorial waters and/or the loss of alleged fishing rights. It would be wholly inappropriate to treat the consultation process as invalid, when the party to whom the alleged rights had belonged (Mauritius) had had full opportunity of asserting them in response to the consultation, and when others indirectly involved had actually taken advantage of the opportunity of raising them. Finally, there was also no reason to believe that the ultimate decision would or could have been any different, if the consultation had specifically drawn attention to the possible existence of such fishing rights (see [62] of the judgment).

Permission to appeal on the fishing rights issue would be granted but the appeal would be dismissed (see [63] of the judgment).

Carltona Ltd v Works Comrs [1943] 2 All ER 560 distinguished; Bushell v Secretary of State for the Environment [1980] 2 All ER 608 considered.

Decision ofCourt of Appeal, Civil Division [2015] 1 All ER 185 .

Nigel Pleming QC, Richard Wald, Stephen Kosmin and Professor Robert McCorquodale (instructed by Clifford Chance LLP) for the appellant.

Steven Kovats QC, Professor Malcolm Shaw QC and Penelope Nevill (instructed by the Government Legal Department) for the Secretary of State.

Neneh Munu Barrister.

In 2010, the respondent Secretary of State for Foreign and Commonwealth Affairs had established a ‘no take’ marine protected area in the British Indian Overseas Territory, which had brought to an end all commercial fishing, including that carried on by Chagossians as owners and crew of Mauritian registered fishing vessels. The appellant, the chair of the Chagos Refugees Group, had appealed against the decision by the Court of Appeal, Civil Division, that, among other things, the Secretary of State’s decision had not been motivated by the improper purpose of preventing future resettlement of the islands. In dismissing the appellant’s appeal, the Supreme Court held that there was no basis on which it would be justified in reaching a different conclusion to that reached by the Court of Appeal.

Background

The mother, who was originally of British nationality, had gone to live in Australia where she had met and married the father. With the father’s consent, in May 2015, the mother had taken their two children, to England. Discussions between the mother and the father had resulted in the father agreeing to an extension of the eight-week visit. In June, the father sent the mother an email agreeing that the mother and the children could stay in England for a year. On the basis of the extension, she gave notice to her Australian employer and looked for work in England.

In November, without telling the father, she applied for British citizenship for the children. In response to the father’s questions regarding her expected date of return, the mother wrote, in February 2016, stating that she did not know what her plans were but that she would not be returning in May. Following the mother’s confirmation of her intention to stay in England, the father applied in the UK, under the Hague Convention on the Civil Aspects of International Child Abduction (the Abduction Convention), for the return of the children to Australia.

The judge held that there was no concept of early wrongful retention (repudiatory retention) known to the law. He held that the application to the immigration authorities made on 4 November 2015 had not amounted to such a repudiatory retention, because although it had been concealed from the father, something had to be done to regularise the stay of the children once it was to last more than their six-month visas permitted.

The judge went on to examine the mother’s state of mind. He found that she had vacillated in what she had meant to do. He had seen her examined and cross-examined, and it was clear that he had believed her when she had said that as at both November 2015 and February 2016, she had not yet made up her mind. He directed himself that even though she given evidence that by the end of April 2016 she had resolved not to return, that could not be a date for repudiatory retention because it was too imprecise and thus inconsistent with the case authorities that retention had to be a definite occurrence rather than a continuing process.

On appeal, the Court of Appeal, Civil Division, set aside the judge’s finding that the mother’s intention to retain the children beyond June 2016 had arisen only by around April 2016. The Court of Appeal further held that the law did recognise a repudiatory retention. It proceeded to hold that the judge’s conclusion that in any event it had not arisen in the present case had been flawed; and it ordered that the case be remitted for further inquiry in that regard, particularly in relation to circumstances in November 2015.

The mother appealed against the Court of Appeal’s order. The father cross-appealed in relation to the finding as to habitual residence.

Appeal allowed (Lord Kerr and Lord Wilson dissenting).

Issues and decisions

(1) Whether summary return was still available under the Abduction Convention if, by the time of the act relied on as wrongful removal or retention, the child was habitually resident in the state where the application for return was made.

The entire scheme of the Abduction Convention was to provide a summary remedy which negated the pre-emptive force of wrongful removal or retention. The aim was also to defeat forum-shopping. The merits were left to be decided by the courts of the place of the child’s habitual residence. The preamble made that clear in almost the first words of the Convention. If, however, the child had by the time of the act relied on as wrongful become habitually resident in the requested state, then that state would be the appropriate place for the merits of any custody dispute to be resolved. If the requested state was the habitual residence of the child, there could be no place for a summary return to somewhere else, without a merits-based decision, still less for such to be mandatory. That would be so whether or not the removal or retention had been, judged by the law of the requested state, as the state of habitual residence, wrongful, for even if it was, it would remain open to either party to ask the courts of that state to review the future plans for the upbringing of the child. That understanding of the scheme of the Abduction Convention was reflected in the provisions of both The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children 1996 and Council Regulation (EC) 2201/2003 (see [21], [23], 24] of the judgment).

There was no basis in law for criticising the judge’s decision as to habitual residence. His remark that it was ‘arguable’ that the children had established habitual residence by the time of the November application to the immigration authorities could well be going too far, for at that stage they had been in the UK only since May, a period of about six months, but that remark did not alter the propriety of his decision as to June 2016, by which time more than a year’s residence had passed, during which the children had clearly become integrated parts of English life. By the time the children had been retained in the UK inconsistently with the father’s rights of custody they had become habitually resident here. That being so, the application under the Abduction Convention could not succeed (see [57], [58] of the judgment).

G (a minor) (Hague Convention: access), Re [1993] 2 FCR 485 considered; H (minors) (abduction: custody rights), Re; S (minors) (abduction: custody rights), Re [1991] 3 All ER 230 considered; E (children)(international abduction), Re [2011] 4 All ER 517 considered; C v M: C-376/14 PPU [2015] 1 FCR 496 considered; OL v PQ. Request for a preliminary ruling from the Monomeles Protodikeio Athinon. Reference for a preliminary ruling — Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility — International child abduction — Hague Convention of 25 October 1980 — Regulation (EC) No 2201/2003 — Article 11 — Application for return — Concept of ‘habitual residence’ of an infant — Child born, as agreed by her ECLI:EU:C:2017:436 considered.

(2) Whether, if the child had been removed from the home state by agreement with the left-behind parent for a limited period (and therefore the removal had not been wrongful), there could be a wrongful retention before the agreed period of absence expired.

The key to the concept of early wrongful retention, if it existed in law, would be that the travelling parent was thereafter denying, or repudiating, the rights of custody of the left-behind parent and, instead of honouring them, was insisting on unilaterally deciding where the child would live. In the absence of a better expression, the term ‘repudiatory retention’ would be used. There was no generally accepted international practice on the point, nor was there clear authority either way in the UK (see [38], [39] of the judgment).

The plain purpose of the Abduction Convention was to prevent the travelling parent from pre-empting the left-behind parent. The travelling parent who repudiated the temporary nature of the stay and set about making it indefinite, often putting down the child’s roots in the destination state with a view to making it impossible to move him home, was engaging in precisely such an act of pre-emption (see [44] of the judgment).

The principled answer to the question whether repudiatory retention was possible in law was that it was. The objections to it were insubstantial whereas the arguments against requiring the left-behind parent to do nothing when it was clear that the child would not be returned were convincing and conformed to the scheme of the Abduction Convention. The remaining question was what was needed to constitute such repudiatory retention. It would be unwise to attempt any exhaustive definition, but the question was whether the travelling parent had manifested a denial, or repudiation of the rights of the left-behind parent (see [50], [51] of the judgment).

The judge had significantly misdirected himself in relation to repudiatory retention. It was not the application for permission to stay which had been potentially significant. It was what had been said, in support of it, about the mother’s intentions. Although it had been said by her solicitors, if it showed that by that date she had determined that ‘the children’s centre of life is, and will be, in the UK’ indefinitely, then it would be capable of being an objectively identifiable manifestation, made to an official third party, of her repudiation of the father’s rights of custody, and of the fact that thereafter her retention of the children in the UK was not in accordance with the arrangement she had made with him, but in defiance of it (see [53] of the judgment).

The judge had found that the end of April 2016 could not be a date for repudiatory retention because it had been too imprecise and therefore inconsistent with the case authorities that retention had to be a definite occurrence rather than a continuing process. To the extent that he had relied on imprecision he had been, again, clearly wrong. There was nothing in those authorities which prevented a court from saying that retention had occurred not later than the end of April. However, what did prevent there from being a repudiatory retention in April was that the mother’s internal thinking could not by itself amount to such. If she had had such an intention in November, the application to the immigration authorities would have been capable of amounting to an objective manifestation of her repudiation, but the judge had believed her when she had said that she had not. It was open to him to believe her or not to believe her about that. It did not provide nearly sufficient basis for overturning his decision. His error about the potential significance of what had been said to the immigration authorities in November was not inconsistent with his yet believing the witness whom he had seen when she had said that she had not then (or until April) made up her mind to stay (see [52], [55] of the judgment).

The mother’s appeal against the Court of Appeal’s order would succeed, while the father’s cross-appeal in relation to the finding as to habitual residence would be dismissed (see [58] of the judgment).

H (minors) (abduction: custody rights), Re; S (minors) (abduction: custody rights), Re [1992] 1 FCR 45 considered; S (minors) (abduction: wrongful retention), Re [1994] 1 FCR 83 considered.

Decision ofCourt of Appeal, Civil Division [2018] 1 All ER 476 Reversed In Part.

Henry Setright QC and Michael Gration (instructed by Crosse & Crosse Solicitors LLP) for the appellant.

Charles Hale QC, Jacqueline Renton and Michael Edwards (instructed by Ellis Jones Solicitors LLP) for the respondent.

Christopher Hames QC and Mark Jarman (instructed by Stewarts Law LLP) for the intervener.

Neneh Munu Barrister.

The proceedings concerned the father’s application, under the Hague Convention on the Civil Aspects of International Child Abduction, for the return of his children to Australia. The Supreme Court held that the mother’s appeal against the Court of Appeal’s order would succeed, whilst the father’s cross-appeal in relation to the finding as to habitual residence would be dismissed. In arriving at its decision, the Supreme Court held that repudiatory retention in the context of child abduction under the Convention was possible in law.

Background

The appeal concerned the legality, under the European Convention on Human Rights, of licensing conditions imposed by the appellant Environment Agency restricting salmon-fishing in the Severn Estuary.

The respondent (M) had a leasehold interest in a ‘putcher rank’ fishery at Lydney on the north bank of the Severn Estuary. The putcher rank method of fishing involved the use of conical baskets to trap adult salmon as they attempted to return from open sea to their river of origin to spawn. M was granted a licence from the Environment Agency, under s 25 of the Salmon and Freshwater Fisheries Act 1975 (SFFA 1975). From 1 January 2011, the SFFA 1975 was amended to enable the Environment Agency to impose conditions limiting the number of fish taken (catch limitation conditions) where it was considered necessary for the protection of fishery. It considered that all the fisheries in the Severn Estuary exploited a mixed salmon stock, with fish destined to return to the rivers Severn, Wye, Usk, Rhymney, Taff and Ely, among others. The rivers Wye, Usk and the Severn Estuary were designated as Special Areas of Conservation (SAC) under European law and constituted the Severn Estuary European Marine Site.

In April 2012, the Environment Agency sent M a letter, informing him of a report by the University of Exeter (the Exeter report), which, it was said, provided clear evidence of the mixed stock nature of the catch in the Severn Estuary. In June, M was served with a notice, under SFFA 1975 limiting his annual catch to 30. A further reduction to 23 salmon per year was proposed for 2013, and 24 for the 2014 season. No compensation was paid to M in relation to the restrictions imposed between 2012 and 2014.

M brought judicial review proceedings to challenge the Environment Agency’s decisions to impose catch limitation conditions on the licences for 2012, 2013 and 2014. He contended that those conditions had made the putcher rank fishery wholly uneconomic and the lease worthless. M alleged irrationality and breach of his rights under art 1 of the First Protocol to the Convention (A1P1), which concerned the peaceful enjoyment of possessions. It was accepted that the right to fish granted to M was a ‘possession’ for those purposes.

The judge upheld M’s claims and concluded that the decisions to impose the catch conditions were irrational, because the Exeter Report did not provide a reasonable basis for the view that the putcher installations were having a material effect on the salmon fishery in the river Wye. He held further that the Environment Agency could not, under A1P1, have imposed those conditions, if otherwise lawful, without payment of compensation.

The Court of Appeal, Civil Division, allowed the Environment Agency’s appeal concerning the finding of irrationality. However, it agreed with the judge, to the extent that there had been an unlawful interference with the claimant’s rights under A1P1.

The Environment Agency appealed to the Supreme Court.

Appeal dismissed.

Issues and decisions

Whether: (i) the conditions imposed by the Environment Agency amounted to control or de facto expropriation under A1P1; (ii) if the former, whether the ‘fair balance’ (between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights) had required compensation to be paid; (iii) if the latter, whether there had been any exceptional circumstances justifying absence of compensation.

The general principles governing the interpretation of A1P1 were well established in European and domestic authorities. There were three distinct rules. The first was of a general nature and enunciated the principle of peaceful enjoyment of property. The second covered deprivation of possessions and made it subject to certain conditions. The third concerned the right of the state to control the use of property in accordance with the general interest.

Taking, or deprivation, of property normally required payment of compensation to avoid a breach of the article. Mere control of use did not, even if the control resulted in serious financial loss.

The European cases showed that the distinction between expropriation and control was neither clear-cut, nor crucial to the analysis. Special importance was to be attached to the protection of the environment. However, that did not detract from the need to draw a fair balance, nor from the potential relevance of compensation in that context (see [18], [20], [32], [33] of the judgment).

Against the background of the European case law, the judge’s analysis of the applicable legal principles in the present case could not be faulted. He had not found it necessary to categorise the measure as either expropriation or control. It had been enough that it had eliminated at least ‘95% of the benefit of the right’, thus making it ‘closer to deprivation than mere control’. That was clearly relevant to the fair balance. Yet the Environment Agency had given no consideration to the particular impact on M’s livelihood. The impact had been exacerbated because the method chosen had meant that, by far, the greatest impact had fallen on him, as compared to others whose use might have been only for leisure purposes. The judge might have gone further. He had thought that the lease might have retained ‘some small value’ if sold for leisure rather than commercial use. However, even that was doubtful given the strict limits in the lease on the power to assign.

It followed that the decision of the courts below would be upheld. However, the present case was exceptional on the facts, because of the severity and the disproportion (as compared to others) of the impact on M. As the Strasbourg cases showed, the national authorities had a wide margin of discretion in the imposition of necessary environmental controls, and A1P1 gave no general expectation of compensation for adverse effects. Further, where (unlike the present case) the authorities had given proper consideration to the issues of fair balance, the courts should give weight to their assessment (see [36], [37] of the judgment).

Sporrong and Lönnroth v Sweden (Applications 7151/75 and 7152/75) 5 EHRR 35 considered; 13/1988/157/211-213: Mellacher v Austria (1990) 12 EHRR 391 considered; Papamichalopoulos v Greece (Application 14556/89) [1993] ECHR 14556/89 considered; Back v Finland (Application no 37598/97) [2004] ECHR 37598/97 considered; R (on the application of Trailer and Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2004] All ER (D) 274 (Dec) considered; Hutten-Czapska v Poland (Application 35014/97) [2006] ECHR 35014/97 considered; AXA General Insurance Ltd v Lord Advocate (Scotland) [2011] All ER (D) 101 (Oct) considered; B (a child) (care order: proportionality: criterion for review), Re [2013] All ER (D) 103 (Jun) considered.

Decision of the Court of Appeal, Civil Division [2016] All ER (D) 137 (Jun) Affirmed.

Stephen Hockman QC and Mark Beard (instructed by Harrison Clark Rickerbys Inc Simon Jackson) for M.

James Maurici QC and Gwion Lewis (instructed by Environment Agency Legal Services) for the Environment Agency.

Carla Dougan-Bacchus Barrister.

The appeal concerned the legality, under the European Convention on Human Rights, of licensing conditions imposed by the appellant Environment Agency on the respondent, restricting salmon-fishing in the Severn Estuary. The Supreme Court, applying settled law to the facts, upheld the lower courts’ decisions, which held that the Environment Agency’s decision to impose such conditions on fishing licences granted to the respondent had breached his rights under art 1 of the First Protocol to the Convention. However, the court noted that the case was exceptional on the facts.

Background

Between 2003 and 2008, the driver of a black cab in London (Worboys) had committed a legion of sexual offences on women, including the respondents. The respondents brought proceedings against the appellant Metropolitan Police Commissioner (the MPS), under ss 7 and 8 of the Human Rights Act 1998 (the HRA 1998), for the alleged failure of the police to conduct effective investigations into Worboys’s crimes. The kernel of the respondents’ claims was that the police failures in the investigation of the crimes committed by Worboys had constituted a violation of their rights under art 3 of the European Convention on Human Rights (art 3).

The respondents succeeded in their claim before the judge (see [2014] All ER (D) 76 (Mar)) and he awarded them compensation (see [2015] 2 All ER 272). The Court of Appeal, Civil Division, dismissed the MPS’s appeal and the MPS appealed.

Appeal dismissed.

Issues and decisions

(1) (Lord Hughes dissenting on point) Whether the duty owed under the HRA 1998 was a systems or operational duty.

Serious failures which were purely operational would suffice to establish a claim that an investigation carried out pursuant to an art 3 duty had infringed that duty.

There was a duty on the part of state authorities to investigate where non-state agents were responsible for the infliction of harm. That could not be characterised as other than an operational duty. Therefore, the debate had to focus, not on the existence of such a duty, but on the circumstances in which it was animated.

The suggestion that, to give rise to a breach of art 3, deficiencies in investigation had to be part and parcel of a flawed approach of the system generally, could not be accepted. However, simple errors or isolated omissions would not give rise to a violation of art 3 at the supra-national and the national levels. Only conspicuous or substantial errors in investigation would qualify. To give rise to a breach of art 3, errors in investigation had to be egregious and significant.

It was incontestably clear that the positive obligation to conduct a proper inquiry into behaviour amounting to breach of art 3 might constitute a violation of the state’s duty under art 3 (see [20], [29], [58], [80], [85], [100], [151] of the judgment).

Calvelli v Italy (Application 32967/96) [2002] ECHR 32967/96 considered; MC v Bulgaria (Application 39272/98) (2003) 15 BHRC 627 considered; Secic v Croatia (Application no 40116/02) (2007) 23 BHRC 24 considered; Beganovic v Croatia (App no 46423/06) [2009] ECHR 46423/06 considered; Vasilyev v Russia (App. No. 32704/04) [2009] ECHR 32704/04 considered; O’Keeffe v Ireland (Application No. 35810/09) (2014) 35 BHRC 601 considered.

(2) Whether the clearest statement in consistent decisions of the European Court of Human Rights (the ECtHR) Grand Chamber to the effect that a positive duty was owed by the state to individuals who had suffered treatment contrary to art 3 at the hands of another individual was required before holding that the investigative duty of the state was animated.

ECtHR cases amounted to clear and constant case law, and they established that the state was obliged, under art 3, to conduct an effective investigation into crimes which involved serious violence to persons, whether that had been carried out by state agents or individual criminals. Further, in order that the protective right should be practical and effective, an individual who had suffered ill-treatment, contrary to art 3, had a right to claim compensation against the state where there had been a failure by state authorities to conduct a sufficient investigation into the crime.

The prospect of every complaint of burglary, car theft or fraud becoming the subject of an action under the HRA 1998 was not a serious possibility. The recognition that really serious operational failures by police in the investigation of offences could give rise to a breach of art 3 could not realistically be said to herald an avalanche of claims for every retrospectively detected error in police investigations of minor crime (see [48], [53], [100] of the judgment).

R (on the application of Ullah) v Special Adjudicator; Do v Secretary of State for the Home Department [2004] 3 All ER 785 applied; R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 All ER 929 approved; Assenov v Bulgaria (Application 24760/94) [1998] ECHR 24760/94 considered; Gafgen v Germany (Application 22978/05) (2010) 28 BHRC 463 considered; El-Masri v Former Yugoslav Republic of Macedonia (Application No 39630/09) (2012) 34 BHRC 313 considered.

(3) Whether the duty to investigate breaches of art 3 in relation to a particular individual arose only when it was alleged that the state authorities had been complicit in the breach.

That positive obligations were not solely confined to cases if ill-treatment by state agents could not be clearer. Statements to like effect appeared repeatedly in ECtHR jurisprudence. Therefore, the ECtHR had consistently held that it was not required that there be state involvement in the acts alleged to amount to a breach of art 3 (see [59], [60], [62], [100] of the judgment).

Beganovic v Croatia (App no 46423/06) [2009] ECHR 46423/06 considered; Vasilyev v Russia (App. No. 32704/04) [2009] ECHR 32704/04 considered; Milanovic v Serbia (App. No. 44614/07) [2010] ECHR 44614/07 considered; CAS v Romania (Application No 26692/05) [2012] ECHR 26692/05 considered.

(4) Whether there was a right to claim compensation against the state and whether the fact that a victim could obtain redress against an offender or make a claim under the Criminal Injuries Compensation Authority (the CICA) scheme affect consideration of the availability of a right to compensation under the HRA 1998.

Compensation was, by no means, automatically payable for breaches of the art 3 duty to investigate and prosecute crimes. However, it was well settled that the award of compensation for breach of a Convention right served a purpose which was distinctly different from that of an order for the payment of damages in a civil action. The award of compensation was geared principally to the upholding of standards concerning the discharge of the state’s duty to conduct proper investigations into criminal conduct which fell foul of art 3 (see [63]-[65], [100] of the judgment).

The catalogue of failures by the MPS had been considered to warrant the award of compensation to the respondents, irrespective of the fact that they had received damages from both Worboys and the CICA. There was no flaw in the judge’s decision to award that compensation, nor in the Court of Appeal’s decision to uphold that decision (see [65], [100] of the judgment).

R (on the application of Greenfield) v Secretary of State for the Home Department [2005] 2 All ER 240 applied; Van Colle v Chief Constable of Hertfordshire Police; Smith v Chief Constable of Sussex Police [2008] 3 All ER 977 applied.

(5) Whether it was relevant that UK courts had refused to recognise a common law duty of care on the police in relation to the manner in which officers prevented and investigated crime.

There were two reasons for rejecting the argument that the exemption from liability of the police at common law should be extended to claims advanced under the HRA 1998, so that the two systems should be in harmony. First, the bases of liability were different. In as much as it was considered that the common law duty should not be adapted to harmonise with the perceived duty arising under the Convention, so should the latter duty remain free from the influence of the pre-HRA 1998 domestic law. Alternatively, it required, at least, to be considered on its own merits, without the encumbrance of the corpus of jurisprudence under common law.

Second and more importantly, no assumption should be made that the policy reasons which underlay the conclusion that an exemption of police from liability at common law applied mutatis mutandi to liability for breach of Convention rights. The presence of the duty could not depend on the conception of whether it was fair, just or reasonable for it to exist.

Further, there was no reason to suppose that the existence of a right under art 3, to call to account egregious errors on the part of the police in the investigation of serious crime would do other than act as an incentive to avoid those errors and eliminate the making of such grievous mistakes. Nothing in the case law supported the notion that a charter had been created for the examination of every judgment or choice of strategy made (see [67]-[72], [100] of the judgment).

Van Colle v Chief Constable of Hertfordshire Police; Smith v Chief Constable of Sussex Police [2008] 3 All ER 977 considered; Michael v Chief Constable of South Wales Police [2015] 2 All ER 635 considered.

(6) Whether the government should be allowed to deploy its arguments in the ECtHR.

The difficulty with the argument that the question of whether a liability such as that contended for by the respondents arose was one on which the ECtHR should be invited to pronounce was that it failed to address the circumstance that the courts had to give effect to, or refuse to give effect to, Convention rights as a matter of domestic law. The HRA 1998 had introduced to the UK law the Convention by having made it part of national law so that the rights had become domestic rights. Because the rights were domestic, they had to be given effect according to the correct interpretation of the domestic statute.

Where there was no directly relevant ECtHR decision, UK courts had to determine the existence or otherwise of an alleged Convention right. Reticence by the UK courts to decide whether a Convention right had been violated would be an abnegation of the statutory obligation under the HRA 1998 s 6.

However, the ECtHR jurisprudence was clear and constant on the issue. Even if not, the suggestion that the court’s decision on whether the respondents enjoyed a right under the HRA 1998 to claim compensation against the appellant should be influenced, much less inhibited, by any perceived absence of authoritative guidance from the ECtHR would be rejected (see [75], [77]-[79], [100] of the judgment).

P (adoption: unmarried couple), Re [2008] 2 FLR 1084 applied; Moohan v Lord Advocate [2015] 2 All ER 361 applied; Keyu v Secretary of State for Foreign and Commonwealth Affairs [2016] 4 All ER 794 applied; R (on the application of Ullah) v Special Adjudicator; Do v Secretary of State for the Home Department [2004] 3 All ER 785 considered.

Decision of Court of Appeal, Civil Division, [2016] 3 All ER 986 affirmed.

Lord Pannick QC and Jeremy Johnson QC (instructed by Directorate of Legal Services) for the MPS.

Phillippa Kaufman QC and Ruth Brander (instructed by Birnberg Peirce Ltd) for the respondents.

Karen Steyn QC and Hannah Slarks (instructed by Liberty) for Liberty, as intervener.

James Eadie QC and David Pievsky (instructed by the Government Legal Department) for the Secretary of State, as intervener.

Karon Monaghan QC, Helen Law and Kirsten Sjøvoll (instructed by Deighton Pierce Glynn Ltd) for Rape Crisis England and Wales, the End Violence Against Women Coalition, Southall Black Sisters and the Nia Project, as interveners.

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

The respondent victims of John Worboys, the black cab rapist, were entitled to compensation from the appellant Metropolitan Police Commissioner, for breach of art 3 of the European Convention on Human Rights, given the significant errors by the police in each of the investigations into the crimes committed against them. The Supreme Court, in affirming the lower court decisions, considered the nature of the duty to investigate ill-treatment amounting to a violation of art 3.