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Court: Supreme Court

Supreme Court refers case to CJEU for advice on Principle VAT Directive meaning

Zipvit Ltd v Commissioners for Her Majesty’s Revenue and Customs [2020] UKSC 15

The case concerned whether Zipvit, a trader selling vitamins and minerals by mail order, is entitled when accounting for VAT on its sales to make deductions of input VAT (the tax paid by the trader on goods and services purchased in connection with its business, as opposed to output VAT, which is the tax charged to the consumer by the trader on its goods or services) in respect of the price of postal services supplied to it by Royal Mail.
Zipvit claimed that under the Principal VAT Directive (2006/112/EC), article 168(a) it is entitled to deduct as input VAT the VAT due in respect of supplies or a VAT element deemed by law to be included in the price paid to Royal Mail for each supply. HMRC contended that on the proper interpretation of the Directive: (a) there was no VAT due or paid for the purposes of the Directive; and/or (b) since Zipvit at no point held invoices which showed that VAT was due and its amount, in compliance with the Directive, article 226(9) and (10) Zipvit is not entitled to recover input tax.
The Supreme Court unanimously decided that the legal position under the Directive is not clear. It held that it is common ground that at this stage in the process of the UK’s withdrawal from the EU, in a case involving an issue of EU law which is unclear, the Supreme Court is obliged to refer that issue to the CJEU to obtain its advice on the point. Therefore, the Supreme Court made an order for a reference and set out the questions for the CJEU.

Sharing evidence with the US without death penalty assurances not unlawful

Elgizouli (AP) v Secretary of State for the Home Department [2020] UKSC 10

The appellant’s son is alleged to have been one of a group of terrorists operating in Syria, involved in the murder of US and British citizens. In 2015, the US made a mutual legal assistance request to the UK in relation to an investigation into the activities of that group. The Home Secretary requested an […]

Supreme Court rules that tribunals are not bound by National Referral Mechanism decisions in asylum-seeking case

MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9

MS’ application for asylum was rejected in August 2013 and the Secretary of State decided to remove MS from the UK. Appealing this decision to the FTT, on human rights grounds, the FTT had found that MS had been under compulsion and control but nonetheless dismissed the appeal. The UT then re-made the decision in view of errors of law by the FTT, finding in favour of MS. The UT observed that the decision of the National Referral Mechanism could only be challenged by judicial review proceedings, not through the immigration appeals system. However, the UT also held that if an NRM decision was perverse or otherwise contrary to some public law ground, the UT could make its own decision as to whether an individual was a victim of trafficking. Otherwise, the decision to remove him would be contrary to the European Convention on Action against Trafficking in Human Beings (‘ECAT’) and the European Convention on Human Rights (‘ECHR’).

The Respondent appealed to the Court of Appeal, which allowed the appeal. The UT had in effect treated the NRM decision as an immigration decision and had also been wrong to consider that the obligations under ECAT were also positive obligations under the ECHR, article 4 which prohibits slavery, servitude and forced labour.

The Appellant was granted leave to appeal to the Supreme Court. He later wished to withdraw from the proceedings, as his immigration problems had now been resolved. A preliminary issue therefore arose as to whether the Equality and Human Rights Commission which had applied to intervene in the proceedings, could take over the appeal.

The Supreme Court unanimously allowed the appeal. As to the preliminary issue, the EHRC was permitted to intervene and take over the appeal. On the principal issue, the Secretary of State conceded that, when determining an appeal as to whether a removal decision would infringe rights under the ECHR, a tribunal must determine the relevant factual issues for itself on the evidence before it, albeit giving due weight to a decision-making authority’s prior determination. It therefore became common ground that a tribunal is not bound by a decision of the NRM nor must it seek a public law ground for finding such a decision flawed.

Supreme Court rules that Rwandan national can claim damages for false imprisonment following detention

R (DN (Rwanda)) v Secretary of State for the Home Department [2020] UKSC 7

The appellant, DN, is a Rwandan national who was granted refugee status in the UK pursuant to the 1951 Refugee Convention. DN was subsequently convicted of a number of offences, the most serious of which occurred when he pleaded guilty to assisting unlawful entry of a non-EEA national in the UK. The Secretary of State for the Home Department used the powers under the Nationality, Immigration and Asylum Act 2002 to order the deportation of DN. DN’s attempt to assist unlawful immigration to a member state country was a serious offence by way of the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. The Secretary of State ordered DN’s deportation and detention pending deportation.

DN sought judicial review of the deportation order. Following a stay and the decision in EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630, which determined that the 2004 Order was unlawful, DN amended his judicial review proceedings to concentrate on the lawfulness of the detention. Following a further stay and the decision in R (Draga) v Secretary of State for the Home Department [2012] EWCA Civ 842, where the Court of Appeal ruled detention lawful even where based on an unlawful deportation order, the Court of Appeal dismissed DN’s substantive appeal.

The Supreme Court unanimously allowed the appeal and confirmed that DN was entitled to pursue a claim for damages for false imprisonment. The Court relied on Lord Dyson’s judgment in Lumba that here is no difference between a detention that is unlawful because there was no statutory power to detain and a detention that is unlawful because the decision to detain was made in breach of a rule of public law. As in Lumba, there was no statutory power to detain DN. The 2004 Order upon which the decision to deport was based was ruled unlawful in EN (Serbia). As detention was for the express purpose of facilitating deportation, without a lawful deportation order the occasion for detention simply did not arise.

Supreme Court rules that housing benefit entitlement should be calculated without deduction where Convention rights are at stake

RR (AP) v Secretary of State for Work and Pensions [2019] UKSC 52

This case considered the effect of the Supreme Court’s decision in R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58 upon the decision-makers in the housing benefit system and the First-tier Tribunal and the Upper Tribunal hearing appeals from local authority decisions – in claims relating to periods before the regulations governing the removal of the spare room subsidy, otherwise known as the “bedroom tax” were amended. The question for the Court was whether the regulations should apply in their original form or whether the housing benefit should be calculated without making the percentage deduction in cases where to do so would breach the Convention rights of the claimants in the way determined in the Carmichael and Rutherford cases.
The Supreme Court allowed the appeal. It made the same order as the UT made in Carmichael that (1) the appeal against the local authority’s decision of 5 March 2013 is allowed; and (2) that RR’s housing benefit entitlement was to be recalculated without making the under-occupancy deduction of 14%. The reason for doing so was the same as that which the UT gave, namely that if the deduction was applied, there would be a clear breach of RR’s Convention rights, contrary to the Human Rights Act 1998, section 6(1).