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Matrix Judgments & Commentary

Matrix’s Legal Support Service produce summaries of cases that Matrix members are involved in, which you can find below. You can browse these through the search function on the right.

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 […]

Election Petition does not automatically abate if Parliament dissolved before proceedings are concluded

Greene v Forbes [2020] EWHC 676 (QB)

The petition, alleging electoral fraud, was brought by the defeated Brexit Party candidate against the successful Labour Party candidate in the Peterborough By-Election on 6 June 2019. The Petitioner had sought but not yet obtained special leave to withdraw the petition (which would have rendered him liable for the respondent’s costs) when Parliament was dissolved on 5 November 2011. He then sought to argue that two nineteenth century cases caused the petition to “drop” so that the court had no jurisdiction even to order him to pay the respondent’s costs. The court did not accept that the two historic cases meant that a Parliamentary petition under the Representation of the People Act 1983 abated upon dissolution. The Petitioner’s application to withdraw (paying the respondent’s costs) was however allowed.

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.

Government’s policy to not include an ‘unspecified gender’ option on passports found to be lawful

R (Elan- Cave) v SSHD [2020] EWCA Civ 363

This case is an appeal against a dismissal of a previous claim for judicial review. The Appellant submits that the refusal of the Government to allow the Appellant to apply for or be issued with a passport with an “X” marker in the gender field, indicating gender “unspecified”, is unlawful.

Held: appeal dismissed. The current policy of HMPO not to permit the Appellant to apply for and be issued with a passport with an “X” marker, does not at present amount to an unlawful breach of the Appellant’s Article 8 private life rights.

There is a respectable argument that we are approaching a time when the consensus within the Council of Europe’s Member States will be such that there will be a positive obligation on the State to recognise the position of non-binary including intersex individuals if and when that time comes.  It follows that when the time comes, notwithstanding that there is a wide margin of appreciation as to how such a positive obligation is affected, the State will then have to take steps towards implementing that obligation.