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Court of Appeal grants permission to intervene in EU Charter case involving rights of the child

Barrister Arfan Khan successfully appears in the Court of Appeal for the Appellant intervener LB. This was an intervention by the Appellant LB in the appeal of MB v Secretary of State for the Home Department [2013] EWCA Civ 1701. For the MB case click on this link: MB case.

In the MB appeal it was argued that Article 18 of the EU Charter, in relation to refugee status and asylum, grants rights which are fundamental and wider or deeper than those granted by the European Convention on Human Rights, particularly Article 3.

In LB, the rights of the child under Article 24 of the EU Charter were engaged which states:

“ 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests”.

In LB, the Court below had held that a deportation order, deporting the father of five children from the UK, was in accordance with Article 8 of the ECHR, given his precarious immigration history and criminal record. In the LB proceedings at first instance, Article 24 of the EU Charter had not been mentioned in argument.

By way of intervention in the MB appeal dated 4/6/2014, the intervener, LB, contended that the EU Charter has direct effect, so that the rights of children under Article 24 of the EU Charter, have enhanced importance in the balancing exercise under Article 8 of the ECHR.

The LB intervention contended that directly enforceable rights under Article 24 of the EU Charter, in particular the best interests of the child under Article 24 (3), are not expressly reflected in the Human Rights Act 1998, and weigh heavily in the balancing exercise under Article 8 of the ECHR.

LB thus sought permission to intervene in the MB appeal. Underhill LJ granted LB permission to intervene in the MB appeal on the basis that the Court of Appeal may be assisted by knowing that a similar issue to Article 18 of the EU Charter may arise in relation to Article 24 of the EU Charter. Following the LB intervention, the MB appeal settled.