Category Archives: Public Law – Court of Appeal

High Court dismisses the cross appeal of the Solicitors Regulation Authority seeking suspension or strike off of a solicitor

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High Court dismisses the cross appeal of the Solicitors Regulation Authority seeking suspension or strike off of a solicitor

Arfan Khan successfully appeared for a solicitor against a cross appeal in which the Solicitors Regulation Authority were legally represented by leading and junior counsel.

The SRA sought a suspension or strike off following findings of the Solicitors Disciplinary Tribunal that the solicitor had behaved inappropriately towards an applicant who had applied for the position of paralegal. It imposed a fine of £20,000.

In a detailed extempore judgment, Mr Justice Jay dismissed the cross appeal by the SRA, holding that the sanction of a fine could not be reversed. The judge also dismissed the solicitors appeal against liability and sanction.

The judge assessed the Appellant’s costs of the cross appeal and made a consequential cost order.

Arfan Khan did not appear in the SDT proceedings below.

 

ARFAN KHAN SUCCESSFUL IN ESTABLISHING THE CORRECT TEST IN INDEFINITE LEAVE APPEAL

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Leave to remain: R (Akinola) v Upper Tribunal (Secretary of State for the Home Department interested party) [2021] EWCA Civ 1308 (Court of Appeal: Lord Justice Philips, Lord Justice Stuart Smith and Sir Stephen Richards)

The Court of Appeal has delivered a guidance decision in three cases on the interpretation and effect of s.3C of the Immigration Act 1971 in indefinite leave to remain cases.

The requirement that an applicant satisfy the 10 years lawful residence before applying for indefinite leave to remain is contained in Rule 276B of the Immigration Rules.

The purpose of s.3C leave is to protect the immigration status of those with existing leave pending the determination of a variation application or appeal in respect of that decision. It is framed to prevent an abuse of the system by permitting one application for variation. It provides that leave is extended during any period where:

“(a) the application for variation is neither decided nor withdrawn,

(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or

(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act)” (emphasis added in italics).

The appeals concerned the effect of section 3C on (i) an appeal out of time for which an extension of time is granted, and (ii) a withdrawal and/or reconsideration of a refusal decision.

The principal question in dispute was whether leave revived with future effect or retroactively, so as to run continuously from the time when it otherwise expired at the end of the period in section 3C(2)(b) (§ 48).

On appeal to the Court of Appeal, the SSHD introduced a new policy based on the reasoning of the Upper Tribunal in R (Ramshini) v Secretary of State for the Home Department dated 31 July 2019 (JR/2156/2019). In Ramshini, relying upon the Court of Appeal decision in R (Erdogan) v Secretary of State for the Home Department [2004] EWCA Civ 1087, the Upper Tribunal held that an appeal is instituted under s.104 of the Nationality Immigration and Asylum Act 2002 when permission to appeal is granted out of time. As a result, in so far as material, the new policy of the SSHD (v.10) provided that s.3C leave revived prospectively from the date permission to appeal was granted, as opposed to retrospectively.

The Court of Appeal held that it was common ground that an out of time appeal for which an extension of time is granted engages section 3C (2) (c) as a pending appeal and results in a revival of s.3C leave (§ 48). It held that the linguistic considerations pre Ramshini, which sought to avoid the retroactive application of s.3C to out of time appeals, were not sufficient to cause it to challenge the common ground that section 3C (2) (c) can apply to an out of time appeal for which an extension of time is granted.

On Akinola’s challenge to the analysis of the Upper Tribunal’s decision in Ramshini, the Court of Appeal held that section 3C had retroactive effect from the date the Appellant’s notice is filed under rule 19 and 20 of the 2014 Rules, and not from the date that the Court extends time for appeal, as held in Ramshini (and adopted in the new policy of the SSHD). The Court of Appeal held that Ramshini was wrongly decided in so far as it relied on the decision in Erdagon: 

“[47]. The Secretary of State now accepts the approach in Ramshini and has changed her section 3C guidance to reflect it in the current version 10.0. Accordingly Ms Giovanetti QC, on behalf of the Secretary of State, accepted before us that an appeal out of time for which an extension of time is granted does cause leave to revive by virtue of section 3C(2)(c) but submitted that it does so only with future effect from the date when the extension of time is granted. On the other hand Mr Khan and Mr Hawkin, for Ms Akinola and Mr Alam respectively, took the approach in Ramshini one step further, submitting that when section 3C(2)(c) is engaged by an appeal out of time for which an extension of time is granted, it extends the section 3C leave with retroactive effect so as to make that leave continuous from the end of the period in section 3C(2)(b) when it otherwise expired. As a subsidiary challenge to the analysis in Ramshini, Mr Khan argued further that where an extension is granted for an appeal out of time, the appeal is instituted when the notice of appeal is filed, not when the extension of time is granted, and that it is therefore pending for the purposes of section 3C(2)(c) from the time when the notice of appeal is filed.

[48]. It is therefore common ground that an out-of-time appeal for which an extension of time is granted engages section 3C(2)(c) as a pending appeal and results in a revival of the section 3C leave. The principal question in dispute is whether that leave revives only with future effect or does so with retroactive effect so as to run continuously from the time when it otherwise expired at the end of the period in section 3C(2)(b).  I have found that a difficult question. There are substantial pointers in each of the two directions canvassed in argument before us, but also in the direction of the position as widely understood prior to Ramshini…

[59]. The UT in Ramshini, citing R (Erdogan) v Secretary of State for the Home Department [2004] EWCA Civ 1087, held that an appeal is instituted at the point when the FTT grants permission to appeal out of time, i.e. when the FTT decides to extend time for appealing. The Secretary of State has again accepted that position. Mr Khan submitted, however, that the decision in Erdogan is distinguishable and that on proper analysis an out-of-time appeal is instituted when the notice of appeal is filed, even though the existence of a valid appeal from that date will depend on the later grant of an extension of time.

[63]. Given the different wording of the primary legislation and the rules in force at the time, and the extent to which Newman J’s reasoning was based on such wording, the judgment in Erdogan case appears to me to be distinguishable and to provide no real assistance in determining when an appeal out of time is instituted in accordance with the legislative regime that governs the present cases. In distinguishing Erdogan on a different issue in R (Secretary of State for the Home Department) v Immigration Appeal Tribunal [2004] EWHC 3161 (Admin), Collins J noted at [44] that “the Rules did not at that stage provide for an appeal to exist in circumstances where there was an application to the Tribunal out of time”. 

[64]. Accordingly, the UT in Ramshini was in my judgment wrong to rely on Erdogan on this issue and wrong to reach the conclusion it did on the issue.  In my judgment, for the reasons given above, where an extension of time is granted for an appeal out of time, the date when the appeal is instituted and becomes a pending appeal within section 3C(2)(c) is the date when the notice of appeal was filed, not the date when the extension of time was granted. That involves the acceptance of an element of retroactivity, in that where the grant of an extension of time post-dates the filing of the notice of appeal it causes leave to revive from the earlier date when the notice of appeal was filed.  In this case, however, it seems to me to be the clear result of the relevant legislative provisions”.

Whilst the Court refused permission to appeal in Akinola, and dismissed the other two appeals, the Court of Appeal certified Akinola as a case which can be cited in other cases under Practice Direction para 6.1.

ARFAN KHAN appeared for Akinola instructed by DCK Solicitors.

The judgment can viewed here:

https://www.bailii.org/ew/cases/EWCA/Civ/2021/1308.html

 

 

 

 

 

Court of Appeal grants permission to appeal

Commercial and Chancery litigation, Court of Appeal Barrister, Professional misconduct - Legal test, Public Law - Court of Appeal, , ,

The Court of Appeal (Civil Division) has granted permission to appeal on the papers in a second appeal in Okpara v General Medical Council [2019] EWHC 2624 (Admin). The appeal raises an important point of principle regarding whether sexual misconduct appeals fall within a category where an appeal court can more readily assess whether a particular sanction is appropriate and thus attach less weight to the expertise of a tribunal.

Arfan Khan acted for the successful Appellant.

 

 

Arfan Khan successfully leads novel appeal in the Court of Appeal

Commercial and Chancery, Court of Appeal, Court of Appeal Barrister, Public Law - Court of Appeal

Court of Appeal – Second appeal

Fowler v Secretary of State for Work & Pensions (2019) EWCA (Court of Appeal)

This was a second appeal to the Court of Appeal against a decision of the Upper Tribunal. The appeal raised an important point of law regarding the nature and scope of the First Tier Tribunal’s jurisdiction to reduce Industrial Injuries Disability Benefit (IIDB) on appeal under s.12 of the Social Security Act 1998.

The First Tier Tribunal reduced the Appellant’s industrial injuries benefit to 5% when, based on medical evidence, the Respondent confirmed that the degree of the Appellant’s disablement was 36%. The Respondent stood by that assessment in its mandatory reconsideration decision. Nevertheless, the FTT reduced the IIDB exercising its inquisitorial jurisdiction. Based on authority, it was said that the FTT possessed jurisdiction under s.12 8 (a) of the Social Security Act 1998.

The Upper Tribunal Judge Hemingway upheld the FTT. He concluded that the issue for appeal was the correctness or otherwise of the assessment generally, rather than whether or not either the 36% percentage was correct, or too low.

The Appellant appealed to the Court of Appeal. Lord Justice Newey granted permission to appeal on the basis that there was point of general public importance regarding the jurisdiction of the FTT in respect to which the Appellant had real prospects of success.

The matter came before the Court of Appeal who adjourned the appeal for the Appellant to be represented by Counsel. Arfan Khan was then instructed to lead the appeal, and produced a Replacement Skeleton. This identified a novel statutory scheme, not applied or considered in any of the cases in this area. It contended that the issue of jurisdiction fell to be determined through the statutory scheme by looking at the substance of the appeal, and that the inquisitorial jurisdiction of the tribunal did not extend to looking at issues which are not raised through this jurisdictional gateway. The authorities relied upon by the Respondent were not on point. But could be read consistently with the statutory scheme.

The Respondent filed a Supplemental Skeleton argument on 15/11/2019 (Friday), which was met by a Reply skeleton from the Appellant on 16/11/2019 (Saturday). The Respondent proceeded to compromise the appeal by signing a consent order on the morning of the appeal hearing. It did so by agreeing, amongst other matters, to pay the Appellant’s IIDB for the relevant period at 36%, and the Appellant’s costs to be assessed if not agreed.

Lady Justice Rafferty, Lady Justice King and Lord Justice Richards approved the consent order at an oral hearing. As a result, the appeal was withdrawn. But in response from some probing questions from the Court of Appeal bench, the Respondent agreed to place a notice on its website to the effect that, the decision of M R Hemingway Judge of the Upper Tribunal in Fowler v Secretary of State for Work & Pensions, is not to be relied upon as persuasive authority in future cases.  

State Immunity and EU law intervention in the Court of Appeal

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State Immunity and EU law intervention in the Court of Appeal

Arfan Khan, a leading Barrister, successfully led for the intervener, 4A law, in a landmark Court of Appeal case on State Immunity. The case is known as the Benkarbouch v Libya and Sudan, 4A law & others intervening [2015] EWCA Civ 33. It is reported in the press: see http://www.bbc.co.uk/news/uk-31149298. The full judgement is available at http://www.bailii.org/ew/cases/EWCA/Civ/2015/33.html

The intervention raised novel submissions adverse to the position of the UK government, the State of Libya, and Sudan. The intervention was opposed by the Secretary of State for the Foreign and Commonwealth office. Ellias LJ, and the Master of the Rolls, granted 4A law permission to intervene. As a result, 4A law became a party to the appeal, and received credit for assisting the Court in arriving at its decision.

The intervention relied on extensive state practice, including authorities not previously referred to in the proceedings, including Mohamdia v People’s Democratic Republic of Algeria [2013] ICR 1, as applied by the Irish Employment Appeal Tribunal, Case C-555/07 Kucukdeveci v Swedex [2010] IRLR 346,  and Curra v. Bundesrepublic Deutschland, 12 July 2012 (Third Chamber).

Amongst other arguments, the intervention in summary submitted that the State Immunity Act 1974, s 4 (2) (b) and 16 1 (a), could not be read down, and should be set aside in order to give effect to directly enforceable rights under EU law. The intervention submitted that there was no rule of customary international law preventing low level employment claims, falling with the material scope of EU law, from being brought, and that the European Convention on State Immunity (ECSI) did not assist. The intervention contended that the present case should not be confused with the decision of Lord Mance in R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2014] AC 271, as the disapplication in the present case was in accordance with EU law.

The Court of Appeal (Lord Dyson, Master of the Rolls, Lady Justice Arden, and Lord Justice Lloyd Jones), held that “the court is required, pursuant to section 2(1) European Communities Act 1972, to disapply sections 4(2)(b) and 16(1)(a) SIA, in their application to those parts of the claims which fall within the scope of EU law”, and granted a declaration of incompatibility.

Lady Justice Arden distinguished the decision of Lord Mance in Chester holding that “Unlike the position in Chester, the scope of the disapplication in this case is clear”. The right to an effective remedy under Article 47 was a general principle of EU law, with the result that Article 47 had horizontal direct effect.

The Court held that contracting states are not required to apply the rules set out in ECSI to matters concerning privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts. The Court held that the authorities were inconsistent with view that international law requires immunity in all employment claims by the service staff of a mission.

Click here for the judgement:

Benkharbouche judgment

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