Immigration
Afghanistan - asylum seekers - Democratic Republic of Congo - fresh evidence - irrationality - judicial review - secretary of state's refusal to accept new evidence as grounding fresh claim
WM (Democratic Republic of Congo) v Secretary of State for the Home Department; Secretary of State for the Home Department v AR (Afghanistan): CA (Civ Div) (Lords Justice Buxton, Jonathan Parker, Moore-Bick): 9 November 2006
The cases were joined proceedings in relation to two failed asylum applications. New material had been presented to the secretary of state in relation to both applications which was said to ground 'fresh claims'.
In both cases, the secretary of state, pursuant to rule 353 of the Immigration Rules, had refused to accept the new evidence, and judicial review proceedings followed. Issues arose as to the proper role of the secretary of state and of the court in its supervisory capacity in relation to such decisions.
Held, there could be no appeal against a decision of the secretary of state as to the existence of a fresh claim - it could only be subject to judicial review (R v Secretary of State for the Home Department, ex parte Onibiyo [1996] 2 WLR 490, and Cakabay v Secretary of State for the Home Department (Cakabay No2) (1998) The Times, 13 July followed). However, although the decision remained that of the secretary of state, and the test was one of irrationality, a decision would be irrational if it was not taken on the basis of anxious scrutiny of the material, fully to ensure that the applicant had not been incorrectly exposed to persecution (Bugdaycay v Secretary of State for the Home Department [1987] NLJ Rep 199 followed).
In determining whether the evidence amounted to a fresh claim, the secretary of state had to decide whether there was a realistic prospect that an adjudicator would think that the applicant would be exposed to a real risk of persecution on return. The task for the court was to determine whether the secretary of state had asked himself that question, rather than substituting his own views as to whether the claim was a good one or should succeed. Furthermore, the court also had to determine whether the secretary of state had satisfied the requirement for anxious scrutiny.
The court could not, alternatively, take the short cut of making the decision itself, rather than reviewing how the secretary of state had taken his decision. For a court to adopt its own view of the merits of a case, because it was in a well-qualified position to do so, imported the language of an appeal rather than a review and, if Parliament had intended such an approach, it would have provided for an appeal. The decision-making power should remain with the secretary of state.
Furthermore, it was too simple to assume that by approaching the issue in that way - that is, by adopting the court's own view - it would lead to the same answer as a review informed by the need for anxious scrutiny (R (on the application of Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368 considered).
In these cases, there was a realistic prospect of success before the adjudicator. In one of the applications, while it could not be said that the secretary of state had not given the material anxious scrutiny, it did appear that he had asked himself the wrong question.
In the other application, the secretary of state had clearly failed to apply the necessary level of scrutiny. Accordingly, both cases had to be remitted to be reconsidered by him in light of the court's judgment.
Judgment accordingly.
Andrew Nicol QC, Margaret Phelan (instructed by Fisher Meredith) for the appellant WM; Shivani Jegarajah (instructed by Hammersmith & Fulham Community Law Centre) for the respondent AR; Parishil Patel (instructed by the Treasury Solicitor) for the secretary of state.
European Union
Employment - EU - social security - children - free movement of persons - rights of entry and residence - sickness insurance - child asserting right of free movement with assistance of parents - illegal employment
(1) W (China) (2) X (China) v Secretary of State for the Home Department: CA (Civ Div) (Lords Justice Buxton, Sedley, Dyson): 9 November 2006
Two Chinese citizens (W and X) appealed against the decision that the status of their four-year-old daughter (Q), who had been born in the Republic of Ireland, did not give them the right to enter and remain in the UK.
Q was a citizen of the Republic of Ireland and therefore of the EU. Her parents had brought her to the UK, where they claimed asylum. Their asylum claims were rejected.
W and X claimed that since Q could not assert her rights of free movement within the EU under article 18 of the EC Treaty (Nice) and Council Directive 90/364 without their assistance, they were entitled to bring her to the UK for that purpose and to remain in the UK, even though absent those considerations their presence in the UK would be illegal under English domestic law.
Held, the right of movement and residence of a citizen of the EU was subject to two pre-conditions under the directive: cover by sickness insurance in respect of all risks in the host state; and possession of resources sufficient to avoid becoming a burden on the social assistance system of the host state. To fulfil the requirements of the directive, all of Q, W and X had to demonstrate the possession of sickness insurance and sufficient resources to avoid becoming a burden on the social assistance system of the UK (Chen v Home Secretary (C-200/02) [2004] ECR I-9925 considered).
W and X were not covered by health insurance and that was fatal to their claim. W was paying social security contributions as an employee but that did not count as sickness insurance in the terms of the directive.
The fundamental reason for the insurance requirement, which was identified as the basis of the scheme of the directive in Chen, was to prevent the presence of the EU citizen placing a burden on the host state. Use of free state medical services, such as the National Health Service (NHS), exactly created such a burden. In any event, as citizens of a non-EU country, W and X would not be entitled to free care under the NHS. The secretary of state had not waived the requirement of insurance in this case.
Article 18 of the treaty stated in terms that the right to move and reside was subject to the limitations and conditions laid down in the directive, and the article 18 right of Q and the associated right of her custodians could only be lawfully asserted under the strictly limited conditions imposed by the directive. Accordingly, the right did not exist if Q did not have access to the relevant resources.
There was no suggestion that under article 18 the host state was obliged to take positive steps to make resources available to an entering EU citizen. W's employment in the UK was illegal, and employment that had no proper or lawful prospect of permanence could not be regarded as providing sufficient resources for the maintenance either of Q alone or of her and the appellants. It was not suggested that any other funds were available to the family.
Accordingly, Q was not in a position to exercise the right of residence secured by the directive because she did not have sufficient resources to prevent herself becoming a burden on the social assistance system of the host member state during her period of residence. Nor did W and X.
Appeal dismissed.
Manjit Gill QC, Ramby de Mello, Christa Fielden (instructed by the Central London Law Centre) for the appellants; Marie Demetriou (instructed by the Treasury Solicitor) for the respondent.
Employment
Health and safety at work - local government - personal injury - accidents - breach of statutory duty - employers' liabilities - fire services - machinery - safe equipment - safe systems of work - suitability of work equipment - adequate training in use of work equipment
John Joseph Pennington v (1) Surrey County Council (2) Surrey Fire & Rescue Service: CA (Civ Div) (Lords Justice Pill, Arden, Neuberger): 9 November 2006
S, a local authority and a fire and rescue service, appealed against a decision that it was liable in damages for personal injuries sustained by the respondent fireman (P) by reason of a breach of statutory duty under regulation 4 of the Provision and Use of Work Equipment Regulations 1998.
P had been injured when his finger had been caught in the moving part of a Holmatro 1040 power ram. P had been using the ram in an effort to straighten a lorry cab that had buckled in a road accident, trapping the driver who was critically injured. P had taken over the rescue attempt from another fire service, which had taken the decision to use that type of ram.
P had not been familiar with the 1040 ram as he had normally used a 1020 ram, which was substantially lighter. P maintained that his hand had slipped and he had been unable to see the pinch point.
The judge held that the 1040 ram was unsuitable within the meaning of regulation 4. The judge had also considered issues relevant to regulation 11 and negligence at common law but, despite being critical of the lack of specific training, he had not made any specific findings on those issues.
P had pleaded a failure to provide adequate training in the use of the 1040 ram. S maintained that it had done all that was reasonably practicable to ensure P's safety and to secure a safe work environment.
Held, the judge had erred in finding that the 1040 ram was an unsuitable piece of equipment for the relevant operation within the meaning of regulation 4 of the 1998 regulations. It was suitable when operated by properly trained and instructed personnel.
However, it was appropriate (Lord Justice Neuberger dissenting) to uphold the judgment on other grounds, namely negligence at common law owing to inadequate training, and breach of regulation 11(2)(d). A system of work that permitted a fire-fighter not trained or experienced to use the 1040 ram in the stressful and difficult situation that had arisen, was not a safe system of work. P's unfamiliarity with the ram he was required to use was causative of the accident. There was a breach of regulation 11(2)(d).
The power ram was 'machinery' within the meaning of regulation 11 and the pinch point constituted a dangerous part of the machinery. While fixed and other guards were not provided, or were claimed to not have been practicable, S should have provided instruction and training on the use of the 1040 ram. The absence of training and experience in handling the additional weight of the 1040 ram, when compared to the 1020 ram, had substantially increased the risk of the type of injury that had occurred.
Appeal dismissed.
L Johnson (instructed by Weightmans) for the appellants; K Awadalla (instructed by George Ide Phillips) for the respondent.
Civil Procedure
Breach of contract - consent orders - contempt of court - settlement - undertakings - contractual promise to other party - interpretation of undertaking to the court
Independiente Ltd & 14 ors v Music Trading On-line (HK) Ltd & ors; ChD (Mr Justice Underhill): 9 November 2006
The court was required to determine a preliminary issue as to whether any alleged breaches by the defendants (O) of undertakings to the court in consent orders were actionable by the claimants (X), by way of separate proceedings for breach of contract.
O had established a substantial retail business selling CDs and DVDs via the Internet. X claimed that O had infringed their copyrights in various recordings, and issued proceedings in both Ireland and the UK. Both proceedings were settled and the settlement agreement provided for O to pay various amounts in damages and costs to X.
Annexed to the agreement were draft consent orders by which O gave various undertakings to the court. The consent orders were made.
X issued these proceedings, claiming that O had undertaken to X that they would refrain from certain acts and that they had breached those undertakings, and sought damages based on breach of contract. O denied they had carried out any of the acts alleged, and in any event such acts did not constitute actionable breaches of the settlement agreement. X replied that the consent orders contained express terms of the binding agreement between the parties and, by giving the undertakings, O had assumed an obligation to the court and to X to observe the terms.
The issue was whether X was entitled to sue on the alleged breaches in these proceedings, or whether X's only remedy was an application for contempt of court in the earlier settled proceedings for breach of the undertakings given to the court. O contended that the only obligations expressly undertaken by them were undertakings to the court, which meant what they said, and if those undertakings were meant to be read as encompassing undertakings to X also, it would have been easy to have drafted the agreement to that effect.
Held, the words of the settlement agreement were the starting point for determining the instant issue. It was inconceivable that O would have been prepared to give undertakings to the court and not to give equivalent undertakings to X.
The undertakings involved a promise to refrain from certain acts. There was no rational basis for O to say that they made the promise to the court but not to X. The parties had reached an agreement, the commercial substance of which was that O promised not to carry out acts that X asked them not to carry out. It would be different if the provisions of the agreement, or the surrounding circumstances, gave reason to think that the parties themselves had provided for a distinction between an undertaking to the court and an undertaking to X.
There was no doubt that the terms of the consent orders derived from the settlement agreement, the express terms of which were clear. It was open to X to bring a claim for damages, based on the undertakings given by O and referred to in the settlement agreement.
Preliminary issue determined in favour of claimant.
Richard Spearman QC, Mark Vanhegan (instructed by Wiggin) for the claimants; Philip Roberts (instructed by Kirkpatrick & Lockhart Nicholson Graham) for the defendants.
Housing
Local government - good faith - intentional homelessness - local housing authorities' powers and duties - deliberately ceasing to occupy accommodation - act or omission in good faith of person unaware of any relevant fact
F v Birmingham City Council:CA (Civ Div) (Lords Justice May, Gage, Hallett): 2 November 2006
F appealed against a decision that the respondent local housing authority did not owe a duty to house her under section 193(2) of the Housing Act 1996 because she was intentionally homeless.
When F was 18 and had one small child, she had a council tenancy of a two-bedroom flat. Her housing benefit covered the rent of the flat. She had lived in the flat for only about two months when she moved to live with her partner's mother. She gave up the tenancy of the flat and moved to larger and more expensive privately rented accommodation.
F was unable to pay the continuing rent of the property, and a possession order was enforced against her. She became homeless and applied to the local authority for accommodation. The local authority considered that F had become homeless intentionally, and that conclusion was confirmed on review.
F submitted that the review decision failed to consider properly the application of section 191(2) of the Act because she had been told and thought that her housing benefit would cover in full the rent of the larger property, and that a letter from the local authority had failed fairly to alert F to a likely finding relating to any belief by F that housing benefit would or would not have covered the rent of the larger property.
Held, the core reason why F became homeless was because she voluntarily gave up the council tenancy of the flat that was suitable accommodation for her and which she could afford, in favour of larger premises that she could not afford, ignoring advice that in doing so she risked being intentionally homeless.
It was not reasonable for her to occupy the larger premises because they were larger than she needed, and she could not afford the rent. The question of intentional homelessness had to look at the events when F moved. On the facts as found, F had not been told nor did she think that housing benefit would cover the rent of the larger property. She had failed to consider whether she could afford to pay the rent for that property.
On that basis, section 191(2) did not arise for consideration because the review decision did not accept the facts on which it was suggested that section 191(2) applied. The highest that it could be put was that F did not know whether the housing benefit would cover the rent in full.
Her conduct could be characterised as wilful ignorance or shutting her eyes to the obvious, thus failing the good faith test (O'Connor v Kensington and Chelsea LBC [2004] EWCA Civ 394 applied). Since the prospect of future housing rested on little more than wishful thinking, it could not be said that there was any error in failing to invoke section 191(2) in F's favour (Aw-Aden v Birmingham City Council [2005] EWCA Civ 1834 applied).
Appeal dismissed.
Stephen Cottle (instructed by Eric Bowes & Co) for the appellant; Catherine Rowlands (instructed by the local authority solicitor) for the respondent.
Crime
Procedure - expert evidence - fresh evidence - murder - oppression - police interviews - admissions in interviews - oppressive tactics - false confessions - safety of conviction
R v Patrick Michael Nolan: CA (Crim Div) (Lords Justice Tuckey, Mr Justice Holman, Mr Justice Hodge): 9 November 2006
N appealed against a conviction for murder on a reference by the Criminal Cases Review Commission. In 1980, the victim was found dead in his bed. He had sustained many blows to his head.
N was 19 years old at the time and was one of around 6,000 people questioned about the death. He made confessions to the murder during a series of police interviews in a three-day period, and he signed a written statement. However, each morning during the period he was in custody, N retracted his statements from the previous day's interviews and asserted his innocence. He did not have a solicitor present during the interviews, despite being aware of his right to legal advice.
At trial, he made an unsuccessful application to have the admissions excluded on the basis that the confessions were false and were the result of undue pressure by the police, including oppressive behaviour and violence. N asserted that he had succumbed to interrogative pressure, that he had confessed to the murder to appease the police, and that he had fabricated certain information to be compliant with the investigating officers. He also claimed that police officers revealed some details of the offence so that his version fitted the crime pattern, and that he had been instructed to state that he had been drunk at the time of the offence to account for the gaps in his story.
The jury returned a unanimous guilty verdict following his trial in 1982. N submitted that his confessions should never have been admitted as they were obtained in breach of the judge's rules and would have breached current codes of conduct.
He argued that two independent expert forensic psychologists had concluded that he had been severely disadvantaged at the time of interview, as he had a functional literacy of an 11-year-old and would not have been able to understand the witness statement he proceeded to sign, that he viewed himself as intellectually inferior, and that he had emotional problems that, although not constituting a mental illness, caused him to be erratic, gullible, naive, easily manipulated, and unable to cope with stressful situations.
N contended that 25% of the interview period was unaccounted for in police notes, thus supporting his claim that oppressive tactics were used against him.
Held, the judge's summing up could not be faulted as he had highlighted that there were discrepancies between N's account of events and the offence itself.
However, N's retractions each morning were important as they demonstrated N at his strongest following a night's rest. The available records showed how he then succumbed to interrogative pressure during interviews throughout the course of a day. There was also an absence of salient information about the murder from N or any other evidence to link him to it. The expert evidence demonstrated that N had been vulnerable and compliant, and there was a strong possibility that he had succumbed to the pressure of the situation and had made false confessions.
Despite there having been two other cases involving the same police force in a similar time period, the court could not make assumptions that all officers in the same force behaved in the same manner. The courts at the time of the instant appeal were also more aware of the risk of false confessions than 20 years before, and safeguards had since been implemented under the Police and Criminal Evidence Act 1984 to protect vulnerable individuals.
However, even by 1982 standards, this case was a worrying one as N's interviews were not fully recorded and he had had no solicitor present. In the light of modern standards, there was no doubt that the conviction was unsafe. Furthermore, had the jury heard the expert evidence, there was no doubt that the verdict would have been affected and the court could not be sure they would have convicted N, despite the full and fair summing up by the judge on the dangers of confessions (R v Pendleton [2001] UKHL 66, [2002] 1 WLR 72 applied).
Appeal allowed.
P Joyce QC for the appellant; B Houlder QC, G Patterson for the Crown.
Tax
VAT - books - CDs - supply of goods - zero rating - CD book - principal and ancillary supply - mixed, single and separate supplies - continuity products - direct marketing
International Masters Publishers Ltd v Revenue & Customs: CA (Civ Div) (Lords Justice Pill, Rix, Arden): 8 November 2006
A publisher (P) appealed against the decision that a 'CD book' was not zero-rated. P was a direct marketing company that distributed a series entitled 'The Classic Composers', comprising 63 CD books and 156 cards, a display bookshelf, and a ring binder to hold the cards.
The CD books and cards were supplied over a 45-month or 15-month period at the customer's option. The CD book had a hard cover, which was larger than a normal CD case, and contained, as well as the CD, 12 pages describing the composer and the musical extracts on the CD.
The respondent commissioners accepted that the cards were zero-rated but took the view that the CD book was standard-rated. P claimed that the CD book was zero-rated as a book within schedule 8, group 3, item 1 of the Value Added Tax Act 1994, or that the CD was zero-rated under item 6 as an article supplied with a book.
The VAT and duties tribunal held that the supply of the CD book was a single supply, with the CD being the principal supply and the written material ancillary, so that the whole was standard-rated. The judge held that the tribunal had been entitled to reach the conclusion that it had in regard to the nature of the product.
P argued that the CD and book were two separate supplies and that the tribunal had failed properly to consider that issue, and should have concluded that the written materials were so much a major part of the product that they could not properly be regarded as ancillary to the CD.
Held, mixed supplies should in general not be split into separate supplies where there was a principal supply and an ancillary supply (Card Protection Plan Ltd v Customs and Excise Commissioners (C-349/96) [1999] ECR I-973 applied). The tribunal had dealt with the question of whether there was a single supply or two separate supplies.
The tribunal had applied the guidance in Card Protection and concluded that the CD book was to be regarded as a separate supply having two elements, and that the CD could not be enjoyed separately from the book. In those circumstances, the relative cost of the CD and the written material was by implication a factor of subsidiary importance. In Card Protection, the European Court of Justice did not specifically ask as a preliminary question whether there were two separate supplies.
In context, in finding that the book was subsidiary to the CD, the tribunal had rejected the subsidiary submission that the book could survive as a separate supply in its own right. There was no error of law.
Appeal dismissed.
John Walters QC (instructed by Royds) for the appellant; Nicola Shaw (instructed by the Revenue and Customs Solicitor) for the respondent.
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