Immigration Judicial Review Landlord And Tennant Police Practice


Immigration



Asylum claim - Nepalese police officer terrorised by Maoists - retirement not ground for finding failure to establish well-founded fear of persecution

Gurung v Secretary of State for the Home Department: CA (Lords Justice Ward, Jonathan Parker and Scott Baker): 17 December 2004



The applicant, a former police inspector in Nepal, had been engaged in counter-terrorist duties against Maoists. He fled Nepal, losing all pension rights, and had been granted leave to stay in the UK until April 2003. He and his wife had suffered attacks from Maoists and been threatened with death. An adjudicator held he had a well-founded fear of persecution when leaving Nepal but, whether under the Refugee Convention or the human rights legislation, having effectively retired from the police service, would return as a civilian after a cooling-off period and would no longer be at sufficient risk from Maoists in his home country. The Immigration Appeal Tribunal upheld the decision, stating that Nepal was attempting to maintain internal security. The applicant appealed.


Mark Mullins (instructed by Gillman-Smith Lee Solicitors, south London) for the applicant; Nicholas Moss (instructed by the Treasury Solicitor) for the home secretary.


Held, allowing the appeal and remitting the case for rehearing by the appeal tribunal, that the applicant's predicament resulted from his being singled out by insurgents for his anti-terrorist police activities; that there had been no assessment of how, should the applicant return, Maoists would know of his retirement; and that the evidence, in particular that of government inability to guarantee protection, did not justify the appeal tribunal's conclusion that the adjudicator had sufficient evidence to hold that the applicant had failed to establish a well-founded fear of persecution.



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Judicial Review



Adjudicator dismissing appeal against refusal of asylum by secretary of state - Immigration Appeal Tribunal refusing permission to appeal on point of law - judicial review of tribunal's refusal of permission not available following dismissal of statutory review claim

R (G) v Immigration Appeal Tribunal and another; R (M) v Immigration Appeal Tribunal and another: CA (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justice Sedley and Scott Baker): 16 December 2004


The applicants' asylum claims were refused by the secretary of state and their appeals to the adjudicator were dismissed. The Immigration Appeal Tribunal refused them permission to appeal and, on statutory review of those refusals under section 101 of the Nationality, Immigration and Asylum Act 2002, the judge dismissed their claims. Permission to apply for judicial review of the tribunal's refusal of permission on the same grounds as their statutory review claims was granted, but judicial review was refused. The applicants appealed.


Raza Husain (instructed by TRP Solicitors, Birmingham) for G; Michael Fordham (instructed by the Refugee Legal Centre, London) for M; Elisabeth Laing (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department.


Held, dismissing the appeals, that the provisions for statutory review of a refusal of permission to appeal from the adjudicator's decision to the Immigration Appeal Tribunal contained in the Nationality, Immigration and Asylum Act 2002 gave adequate and proportionate protection to the rights of asylum seekers; that it was not appropriate to grant judicial review of a decision which was subject to statutory review under section 101 of the 2002 Act; and that no discrimination contrary to article 14 of the European Convention on Human Rights was made out.



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Landlord And Tenant



Man living with tenant in homosexual relationship - tenant dying - man only entitled to succeed to tenancy if relationship of mutual lifetime commitment

Nutting v Southern Housing Group Ltd: ChD (Mr Justice Evans-Lombe): 21 December 2004


The defendant and R were in a homosexual relationship and lived together in a property held on an assured tenancy, with R being the sole tenant. On R's death, the claimant landlord commenced possession proceedings against the defendant. The defendant submitted that under section 17(1)(4) of the Housing Act 1988, he was entitled to succeed to the tenancy as a person who had lived with the tenant as his spouse. The judge held that the defendant was not entitled to succeed to the tenancy and allowed the claim. The defendant appealed.


Gavin Argent (instructed by Arscotts, Hove) for the defendant; Toby Vanhegan (instructed by Harris & Co, Crawley) for the claimant.


Held, dismissing the appeal, that to come within section 17(1)(4), it had to be shown that, at some point, the relationship had been one of mutual lifetime commitment, rather than simply one of convenience, companionship or the living together of lovers, which had been presented to the outside world openly and unequivocally; and that, on the evidence, the judge had been right to hold that the defendant had failed to demonstrate such a relationship.



Leasehold enfranchisement - service of enfranchisement notice - landlord's omission to particularise estate management requirements not invalidating counter-notice

7 Strathray Gardens Ltd v Pointstar Shipping & Finance Ltd: CA (Lords Justice Ward and Jacob and Lady Justice Arden): 15 December 2004


Paragraph 4 of the Leasehold Reform (Collective Enfranchisement)(Counter-notices) (England) Regulations 2002 required a counter-notice, given under section 21 (reversioner's counter-notice) of the Leasehold Reform, Housing and Urban Development Act 1993, to include a statement as to whether or not the specified premises were within an approved estate management scheme area within section 70 of that Act. The judge in the county court held that the omission of those requirements in a landlord's counter-notice invalidated the notice, thus entitling tenants to acquire the freehold interest in the premises on the terms contained in the tenants' notice. The landlord appealed.


Jonathan Gaunt QC (instructed by Glinert Davis, London) for the landlord; Anthony Radevsky (instructed by Wallace & Partners, London) for the tenants.


Held, allowing the appeal, that the statutory requirement to give a negative statement that the premises were not in an approved estate management scheme area could not have been intended to be mandatory with the sanction that its exclusion invalidated the landlord's counter-notice; and that, although it was not disputed that the landlord had omitted to comply with the statutory requirements and that its counter-notice should have contained such a negative statement, since the omission could not possibly have caused prejudice to the tenants, the judge's decision had to be reversed.



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Police



Anticipated breach of the peace - coaches travelling from London to anti-war demonstration stopped, searched and forcibly returned to London - stop and search lawful but forcible return unlawful

R (Laporte) v Chief Constable of Gloucestershire Constabulary: CA (Lord Woolf Chief Justice, Lords Justice Clarke and Rix): 8 December 2004


The claimant was a passenger on a coach travelling to an air base in Gloucestershire for an anti-war demonstration. The police had information that some passengers on three coaches were likely to breach the peace at the demonstration. They stopped the coaches before they reached their destination, searched the passengers and took preventative action by returning the coaches to London without stopping, a journey of two-and-a-half hours. The claimant sought judicial review of the police decisions. The Divisional Court held that the police had been justified in stopping the coaches from reaching the demonstration, but their actions in forcibly returning the coaches to London was unlawful. The Chief Constable appealed, and the claimant cross-appealed.


Michael Fordham (instructed by Bindman & Partners, London) for the claimant; Simon Freedland QC and Jeremy Johnson (instructed by the Force Solicitor, Gloucestershire Constabulary, Gloucester) for the defendant; Edward Faulks QC and Simon Readhead (instructed by the Force Solicitor, Thames Valley Police, Reading) for the Chief Constable of Thames Valley Police, an interested party; John Beggs and Amy Street (instructed by Director of Legal Services, Metropolitan Police) for the Metropolitan Police, an interested party; Jason Coppel (instructed by Liberty) for Liberty, intervening.


Held, dismissing the appeal and the cross-appeal, that the police were justified in preventing the coaches from proceeding to the base, reasonably apprehending an imminent breach of the peace, so as to enable others to take part in a lawful and peaceful assembly and protest; but that their actions in forcibly returning the coaches to London when there were less intrusive alternative courses of action were disproportionate and could not be justified at common law.



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Practice



Standard of proof - application for injunction under Protection from Harassment Act 1997 - civil standard of proof applying

Hipgrave and another v Jones: QBD (Mr Justice Tugendhat): 15 December 2004


The claimant sought an injunction under section 3 of the Protection from Harassment Act 1997 against three defendants. The claim succeeded in respect of nine out of eleven incidents relied on and the judge found that the defendants had harassed the claimant and granted an injunction in the claimant's favour. Two of the defendants appealed on the ground that an application for an injunction under the 1997 Act was akin to an application for an anti-social behaviour order under section 1 of the Crime and Disorder Act 1998, which had been held to be civil proceedings to which the criminal standard of proof applied.


Emily Davies (instructed by Solomon Levy, Luton) for the first defendant; Colin Challenger (instructed by Solomon Levy, Luton) for the second defendant; Michael Salter (instructed by Giffen Couch & Archer, Luton) for the claimant.


Held, dismissing the appeals, that there was a division between, on the one hand, crime and preventative measures under the 1998 Act taken to restrain defendants for the benefit of the community, and, on the other hand, the protection of the rights of individuals which civil proceedings under the 1997 Act were designed to ensure; that the application of the civil standard of proof to civil proceedings under section 3 of the 1997 Act would require the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them, or not proving them; and that, accordingly, the civil standard of proof was to be applied.



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