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Court: Court of Appeal (Civil Division)

Automated facial recognition technology used by police breaches right to private life

The Queen (Bridges) v The Chief Constable of South Wales Police & others [2020] EWCA Civ 1058

This appeal concerns the lawfulness of the use of automated facial recognition technology (“AFR”) in a pilot project by the South Wales Police Force (“SWP”). AFR is a new technology used to assess whether two facial images depict the same person. The specific type of AFR at issue, known as AFR Locate, works by extracting […]

Court of Appeal upholds Secretary of State’s decision not to support resettlement of the Chagossians to the Chagos Islands

R (Horareu) & Anor v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010

The Divisional Court had dismissed claims for judicial review to quash the decision made by the Minister of State for Foreign and Commonwealth Affairs that the Government of the UK would not support resettlement of the Chagossians to the Chagos Islands, which are part of the British Indian Ocean Territory, but would provide a financial support package of approximately £40 million for Chagossians over a period of ten years. This appeal raised issues about whether the European Convention on Human Rights extends to the Chagos Island, and the intensity of the review carried out by the Divisional Court. It also addressed the implications of a recent opinion of the International Court of Justice and a consequential resolution of the General Assembly.

The Court of Appeal rejected the analysis of the Appellants concerning the scope of the Advisory Opinion and UN resolution and their relationship to the rights sought to be enforced by the Appellants and as to their impact upon the scope and effect of Article 1 and 56 ECHR. The reasons given by the Advisory Opinion and UN Resolution do not serve to engage the ECHR and do not enlarge the common law right of abode.

As to whether anxious scrutiny was applied by the Divisional Court and the Decision-maker, The Court of Appeal held that the adoption of a formal standard of “anxious scrutiny” would not have made any difference to the result in the Divisional Court or in the Court of Appeal. A finding that the standard of review is not technically one subject to “anxious scrutiny” does not mean that the Court will not look long and hard at the decision challenged in the case. In light of this, it was not necessary to consider whether the standard of anxious scrutiny applied to the decision maker as well as the Court.

Chris Packham refused permission to appeal on decision relating to construction of HS2

R (Packham) v Secretary of State for Transport [2020] EWCA Civ 1004

HS2 is a high-speed railway project designed to connect London, Birmingham, Manchester and Leeds, with intermediate stations linked to the existing national rail network. Its construction is envisaged in phases, under the High Speed Rail (London– West Midlands) Act 2017 giving the necessary powers for the construction and operation of each phase. These proceedings concern a challenge by the applicant, Christopher Packham, to the Government’s decision on 11 February 2020 to proceed with HS2. The grounds of challenge involve consideration of the Oakervee review report and climate change issues. Mr Packham seeks permission to appeal against the Divisional Court’s refusal to grant permission to apply for judicial review.

The applicant maintained two grounds of appeal. The first was that the Government erred in law by misunderstanding or ignoring local environmental concerns and failing to examine the environmental effects of HS2 as it ought to have done. The second was that the Government erred in law by failing to take account of the effect of the project on greenhouse gas emissions between now and 2050, in the light of the Government’s obligations under the Paris Agreement and the Climate Change Act 2008.

Held: the court upholds the Divisional Court’s decision and refused Mr Packham’s application for permission to appeal and the application for permission to apply for judicial review. The court rejected both of Mr Packham’s substantive grounds of appeal as unarguable.

Begum granted leave to enter the UK to participate in her appeal

Begum v Secretary of State for the Home Department [2020] EWCA Civ 918

The Court of Appeal (King, Singh and Flaux LJJ, also sitting as a Divisional Court) today handed down judgment in the next stage of Shamima Begum’s challenge to the deprivation of her British citizenship. 

There were two issues in the case: first, what should be the consequence of the finding reached at an earlier hearing by the Special Immigration Appeals Commission (SIAC) and Administrative Court that Ms Begum could not have a fair and effective appeal in her current circumstances; and second, whether SIAC had been wrong in its approach to the question of whether the Secretary of State complied with her policy because the deprivation decision had the direct and foreseeable consequence of exposing Ms Begum to a real risk of mistreatment which would constitute a breach of Article 2 or 3 ECHR (the right to life and the right not to be subjected to inhuman and degrading treatment).

On the first issue, the Court accepted the Secretary of State’s argument that it would be wrong to allow the deprivation appeal without there having been substantive consideration of the Secretary of State’s national security case, but agreed with Ms Begum that her appeal should not be stayed (or proceed without her participation) as had been suggested by SIAC, since that would compound the unfairness she faces. The Court therefore found that Ms Begum must be granted leave to enter the UK to participate in her appeal.

On the second issue, the Court found that SIAC had been wrong to approach this issue as a judicial review rather than a full merits appeal. SIAC is required to decide for itself whether a deprivation decision exposes an appellant to a direct and foreseeable risk of treatment contrary to Article 2 or 3, and not merely to decide whether the Secretary of State was entitled to conclude that the decision created no such risk. The Court ordered that this issue be remitted to SIAC.

Court of Appeal rules on UK non-contributory sickness benefit if claimant is resident in another EU member state

Konevod v Secretary of State for Work and Pensions [2020] EWCA Civ 809

This appeal concerns the application of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (“Regulation 883/2004”) to a claim for a UK non-contributory sickness benefit in circumstances where the claimant had formerly lived and worked in the United Kingdom but was resident in another EU Member State at the time when the claim was made.

Held: This appeal was dismissed:

(1) the UT was right to hold that the United Kingdom is not the competent Member State under Article 21;

(2) the UT was right to reject the argument that the close link between carer’s allowance and attendance allowance. They remain separate benefits with different conditions of entitlement and have to be claimed by, and are payable to, different people.