Home Office approach to age assessment in trafficking cases rejected
R (NS) v Secretary of State for the Home Department [2019] EWHC 861 (Admin)
The claimant challenges the defendant’s Competent Authority Conclusive Grounds decision that she is not a victim of trafficking. She argues that she was a child at the date of the alleged trafficking, which is key as the test for the identification of a child victim of trafficking differs to that applied to an adult. Held: […]
Court rejects judicial review of £1/hr rate for paid activity for detained persons in removal centres
Morita & Ors v Secretary of State for the Home Department [2019] EWHC 758 (Admin)
This matter concerned joined applications for permission to apply for judicial review of the respondent’s decision not to increase the rate paid for paid activities undertaken by detained persons in removal centres from £1 per hour, and not to modify the payment regime to provide more flexibility.
Evidence considered by the court included witness statements from detainees stating that the level of pay left them feeling exploited, and the reason they undertook the work was not merely to pass the time but because they needed the money.
Considering submissions based on R (DSD) v Parole Board [2018] 3 WLR 829, the court considered that the Morita Claim challenged the original DSO, and not the decision to maintain the decision. As it was stayed, the timing for that application was not in issue; however the court ruled that the Badmus Claim was brought out of time. Nonetheless, the court went on to consider whether the grounds the applicants advanced in support of their claim were arguable.
Among other grounds, the applicants argued that the flat rate of £1 per hour was contrary to the statutory purpose of the paid activity regime set out in the 2001 Rules, was irrational under the Wednesbury test for unreasonableness, and was discriminatory under ECHR, art 14 due to the differential treatment of prisoners and immigration detainees.
The court held that the flat rate was not contrary to the statutory purpose as it is not inhumane to set a fixed rate for paid activity that a detained person is not compelled to do, and paid activity is only one of a range of activities contemplated by the Rules to meet their “recreational and intellectual needs”. The court also determined that it is not part of the legislative purpose of the 2001 Rules to ensure that detained persons have the opportunity to earn money to meet their basic or other needs. The court rejected the ground of irrationality, stating that the rationale was clear from the Pay Review Report, and that the policy decision is within the broad discretion of the respondent, and as such the court should be slow to interfere. The court also determined that the difference in treatment between prisoners and immigration detainees is objectively and reasonably justified. This is because the purpose of the prison regime is to punish offenders and to address their offending, whereas the purpose of the removal centre regime is to provide immigration detainees secure and humane accommodation pending their removal from the UK, with the paid work being voluntary.
Therefore the court concluded that the grounds put forward were not arguable and as such it would not be appropriate to extend time for the Badmus Claim. It further concluded that it would in any case dismiss the application for permission to apply for judicial review.
Fracking planning guidance unlawful
Stephenson v Secretary of State for Housing And Communities And Local Government [2019] EWHC 519 (Admin)
The claimant brought an application for judicial review against the adoption by the defendant Secretary of State of part of planning guidance for local authorities, which stated that fracking was beneficial in terms of supporting the transition to a low carbon economy.Held: inter alia, the defendant unlawfully failed to take into account material considerations, namely scientific and technical evidence. The material from Talk Fracking, and in particular their scientific evidence as described in their consultation response, was never in fact considered relevant or taken into account. It clearly was obviously material on the basis that it was capable of having a direct bearing upon a key element of the evidence base for the proposed policy and its relationship to climate change effects.
Court finds obligations imposed on landlords by Government’s ‘right to rent’ scheme incompatible with ECHR
R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin)
This matter considered the lawfulness of the scheme established by the Immigration Act 2014, ss 20-37 under which landlords were obliged to take measures to ensure that they did not provide private accommodation to disqualified persons – ie. a person other than a British, EEA or Swiss national who needs but does not have leave to enter or remain in the UK.
The claimants argued that the scheme cast the net too wide with the effect of causing landlords to commit nationality and/or race discrimination against those who are perfectly entitled to rent with the result that they are less able to find homes than (white) British citizens.
The court acknowledged that the State is entitled to a large margin of appreciation in relation to the scheme. This is due to the necessity of a workable immigration system involving many strands which should not be interfered with individually for fear of damaging the Government’s overall strategy, and the reluctance of the ECtHR to interfere State control of immigration. However, the court considered that these factors need to be balanced against the particular abhorrence with which racial discrimination is regarded both domestically and in Strasbourg.
The court held that the defendant did not come close to justifying the scheme. This was because, due to the sensitivity of race as a ground of ECHR, art 14, only very weighty reasons could justify discrimination on this ground. Despite recognising discrimination as a risk of the scheme, the defendant failed to list it as an inherent cost or otherwise explain how it would be offset by other benefits. The defendant also did not have a system for evaluating the efficacy of the scheme.
Therefore the court issued a declaration of incompatibility under the Human Rights Act 1998, s 4 of the Immigration Act 2014, ss 20-37 with ECHR, art 14 in conjunction with art 8. It further held that any decision by the Secretary of State to implement the same scheme in Scotland, Wales or Northern Ireland without further evaluation would be irrational and would constitute a breach of the Equality Act 2010, s 149.
Challenge to Ofgem direction on collective switching trial fails
Npower v Gas and Electricity Markets Authority & Anor [2018] EWHC 3576 (Admin)
Ofgem had provided an adequate statement of reasons for its decisions, in particular in the context of the CMA’s market investigation and the introduction of a standard licence condition. It also rejected npower’s claims that Ofgem had been pursuing an improper purpose in directing the trial. Provided that it was being done in the context of addressing the lack of consumer engagement, it was not an improper purpose to wish to address this by achieving consumer switching.