Category Archives: Uncategorized

Claimant seeks permission to appeal against the decision of Mostyn J in a naturalisation case

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Claimant seeks permission to appeal against the decision of Mostyn J in a naturalisation case

The Claimant was an indirect participant in war crimes during the civil war in Sierra Leone. He alleged that he was forced to train soldiers under or a “do or die” option in Sierra Leone. The soldiers in turn participated in war crimes. He was also a member of the AFRC, and an associate of Johny Paul Koroma, the former President of Sierra Leone, who was indicted, but never convicted of war crimes. The Claimant was granted asylum on the basis that there was a reasonable likelihood that he would face persecution if returned to Sierra Leone. He was granted indefinite leave to remain in the UK.

The Claimant applied for naturalisation under s.6 of the British Nationality Act 1981 in 2011, and in 2019. His second application was refused on 14/4/2021 by the Secretary of State for the Home Department (“the SSHD”). He commenced judicial review against that decision on the basis that there was a failure to allow an opportunity to address relevant matters of good character. The proceedings were withdrawn by consent which directed the SSHD to reconsider the decision. On 8/4/2022, the SSHD refused the Claimant’s application for naturalisation again.

The Claimant applied for judicial review on the basis that there was an error of law in that the decision maker did not consider the following in the exercise of her discretion and referred to in the published policy: (a) mitigation, duress and other defences, including the superior orders defence; (b) the degree to which the Claimant had distanced himself from his past membership or associations in Sierra Leone; and (c) the degree to which he was personally and directly involved in war crimes in Sierra Leone.

Permission for judicial review was granted by Mr Simon Tinkler (sitting as a Deputy High Court Judge) on all these grounds following a contested permission hearing at which the SSHD was represented by counsel.

The Claimant contended that the lawfulness of a decision under s.6 could be reviewed through a common law proportionality test following decisions of the UKSC.

Mostyn J appears to have accepted that the common law has proceeded based on an intersection between proportionality and reasonableness. The concept of disproportionate, and therefore, unlawful treatment, is easy to understand where the state is removing or limiting a right of the subject. He appears to have accepted that it is perfectly logical for the Claimant to argue that the measure of depriving him of a passport because of things he did nearly a quarter of a century ago is disproportionate.

However, Mr Justice Mostyn rejected the Claimant’s submission that the lawfulness of a decision under s.6 of the British Nationality Act 1981 could be reviewed with reference to a common law proportionality test. In holding so, he appears to have declined to follow the reasoning of the UKSC decisions in Pham [2015] 1 WLR 1591, Kennedy [2015] 1 AC 455, and Bank Mellet [2014] AC 700. The judge appears to have held that applying a proportionality analysis adopts a merit-based approach which steps into the shoes of the decision maker applying the decision of Mr Justice Jay in Begum v SSHD [2023] Appeal No SC/163/2019, and the UKSC decision in R (Keyu) v SSHD [2015] UKSC 69 (referred to in Begum).

Mostyn J does not appear to have ruled on the Claimant’s submission that the case of Begum is distinguishable, or wrongly decided considering higher authority. Nor did he make a ruling on other material submissions which undermine his reasoning.

The Claimant intends to seek permission to appeal from the Court of Appeal against the decision of Mostyn J.

Arfan Khan represented the Claimant and is instructed on appeal by Graceland Solicitors.

The judgment of Mostyn J can be accessed through the following link:

Mr Justice Mostyn – approved Judgment – Sandy v SSHD – CO-1813-2022 – 27 March 2023 Rev 1

 

High Court delivers judgment in misrepresentation and breach of contract appeal

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Mrs Justice Hill delivered judgment on appeal involving a misrepresentation and breach of contract claim involving facial rejuvenation services. Permission to appeal was granted by Soole J. The judge dismissed the appeal and refused to admit fresh evidence.

The judgment can be accessed here.

Arfan Khan appeared for the Appellant following the grant of permission to appeal and did not appear 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

 

 

 

 

 

Employment Appeal Tribunal orders all contested grounds of appeal to proceed to a full hearing

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Employment Appeal Tribunal orders all contested Grounds of Appeal to proceed to a full hearing

At a one-day in person contested hearing in the Employment Appeal Tribunal (“the EAT”), HHJ Auerbach ordered all Grounds of Appeal to proceed to a full hearing. The appeal has a complex contested history. It involves claims of sex and race discrimination, victimisation, and harassment.

Arfan Khan led for the Appellant.

The judge ordered a transcript of judgment to be produced. That approved judgment can be accessed through the following link:

Approved Employment Appeal Tribunal Judgment

 

 

Chancery Division rules on the test for setting aside summary judgment and copyright infringement

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Phonographic Performance Ltd v Ambibola Balgun t/a Mama Africa [2018] EWHC 1327 (Ch)
Copyright infringement – Summary Judgment set aside test

The Claimant claimed that the Defendant had played sound recordings, which infringed copyright in relation to two songs, contrary to s.16 of the Copyright & Patents Act 1988 (“the CPDA”). The Claimant obtained summary judgment on its claim in the absence of the Defendant who was acting as a litigant in person. Following enforcement, the Defendant applied to set aside summary judgment. The Master refused to set it aside using CPR 39.3 (5) as a guide.

The Defendant appealed contending that

1. The Master’s approach to the principles applicable to setting aside an order for summary judgment obtained in the absence of a party was wrong, in that he had applied the test for setting aside judgment after a trial, which was not the right approach. The defence had real prospects of success because the defendant had authorised the playing of music in the restaurant, but he had not authorised the infringement of copyright.

2. He had no control over whether independent DJ’s played music infringing the copyright;

3. There were other reasons why this matter ought to go to trial, including the fact that it was inappropriate to conduct a mini trial at the summary judgment. (§ para 9 of the Judgment).

Miss Penelope Reed QC sitting as a Judge of the High Court Chancery Division held:

1. There was some force in the first argument, and it ought to be easier to set aside summary judgment orders in appropriate circumstances (§ para 13).

2. The Court should take into account other rules of the CPR which provide that judgments can be set aside such as judgments in default under CPR r 13 (§ para 14).

3. It was not inappropriate to take into account considerations set out in CPR r 39.3 (5). However, the Judge held that those considerations ought not to be too rigidly applied in circumstances where there has been no trial (§ para 14). There may be other relevant considerations, including whether there are other reasons why the matter ought to be tried (§ para 15).

4. The Master had used CPR r 39.3 (5) as a guide. Whilst another Judge may have taken a different view on the issue of whether the Appellant acted promptly, the Master could not be criticised for finding that the application had been made late. The Master had not erred (§ para 18).It is the authorisation of the playing of music in public which is relevant within the meaning of s.16 of the CPD 1988, and not the authorisation of specific songs which infringe copyright (§ para 28).

5. Amstrad could be distinguished on the basis that there was no control over use to which their equipment was put, whereas the Appellant had complete control over the playing of music in his premises (§ para 28).

6. DJ’s did not exceed the nature of the authority conferred upon them. Therefore, the Master’s decision was not at odds with the law of agency (§ 29).

7. There were no real prospect of success at trial and permission ought to be refused (§ para 30).

The Judgment can be accessed here:

http://www.bailii.org/ew/cases/EWHC/Ch/2018/1327.html

Judgment: Phonographic Performance Ltd

Arfan Khan argued the case on behalf of the Defendant, instructed by DCK Solicitors. He did not appear below.

State Immunity
Court of Appeal

State Immunity: Supreme Court Judgment in Benkharbouche

Supreme Court, Supreme Court barrister, Uncategorized

Supreme Court judgment: Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Secretary of State for Foreign and Commonwealth Affairs and another v Janah [2017] UKSC 62; [2017] All ER (D) 84 (Oct); [2017] WLR (D) 691, SC 

Supreme Court of the United Kingdom

Lord Sumption (with whom Lord Neuberger, Lady Hale, Lord Clarke and Lord Wilson agree), dismissed the appeal of the Secretary of State for the Foreign and Commonwealth Office and affirmed an order of the Court of Appeal. In summary, the Supreme Court held:

(1). To determine customary international law, complete state uniformity is not required, but substantial uniformity is. This was evident from Brownlie’s Principles of Public International Law, 8th ed (2012), 24, which accords with all the authorities (§ 31).

(2). It is necessary to establish that there is a widespread, representative and consistent practice of states on the point in question, which is accepted by them on the footing that it is a legal obligation (opinio juris) (§ 31).

(3). It is necessary to ask what is the relevant rule of international law by reference to which Article 6 must be interpreted (§ 33). The law requires the Court to measure sections 4 (2) (b) and 16 1 (a) against the requirements of customary international law, something that cannot be done without deciding what those requirements are (§ 35). The SSFCO’s argument that article 6 of the Human Rights Convention is satisfied if the rule of the forum state “reflects” generally recognised principles  of international law, and that it was not necessary to show that international law requires a state to be immune, was misconceived. The distinction between “reflects ” and “requires” was a purely semantic one. (§ para 33-34).

(4). There was no rule of customary international depriving the employment tribunal of its jurisdiction to hear employment claims of a non-sovereign nature. Article 6 was engaged through a refusal to exercise that jurisdiction. The jurisdictional issue raised by Lord Millett in Holland v Lampen-Wolfe and by Lord Bingham and Lord Hoffmann in Jones v Saudi Arabia did not arise. (§ 75).

(5). There is no international consensus sufficient to found a rule of customary international law corresponding to section 16 1 (a) of the State Immunity Act 1978  (§ 73).

(6).Section 4 (2) (b) of the State Immunity Act 1978 is not justified by any binding principle of international law (§ 67).

(7). The rule of customary international law is that a state is entitled to immunity only in respect of acts done in the exercise of sovereign authority (§37).

(8). The State Immunity Act 1978 can be regarded as giving effect to customary international law only so far as it distinguishes between exercises of sovereign authority and acts of a private law character, and requires immunity to be conferred on the former but not the latter (§ 63). There is no basis in customary international law for the application of state immunity in an employment context to acts of a private law character (§ 63).

(9). It is evident from a history of state immunity that there has probably never been a sufficient international consensus in favour of the absolute doctrine of immunity to warrant treating it as a rule of customary international law (§ 52). The only consensus that there has ever been about the scope of that immunity is the consensus in favour of the restrictive doctrine (§ 52).

(10). In so far as sections 4(2)(b) and 16(1)(a) conferred immunity, they were incompatible with art 6 of the Human Rights Convention, and art 47 of the Charter of Fundamental Rights of the European Union (§ 76).

(11). Section 4 (2) (b) unquestionably discriminates on grounds of nationality.  The denial of access to justice is unjustifiable whether discriminatory or not (§ 77).

(12). The scope of article 47 of the Charter is not identical to that of article 6 of the Human Rights Convention (§ 78).

(13). In so far as claims fell within the material scope of EU law, the relevant provisions were disapplied (§ 78-79).

Arfan Khan was instructed as lead Counsel for 4A Law Public Interest Lawyers Ltd, and successfully upheld the Court of Appeal judgment through written submissions on the above points following the grant of permission to intervene by the Supreme Court. Permission to intervene was opposed.

The official Supreme Court judgment can be viewed through the following link in full: https://www.supremecourt.uk/cases/docs/uksc-2015-0063-judgment.pdf. It is the only authoritative source and should be read in full. The relevant parties and their legal representatives are recorded at page 2 of the judgment.

 

State Immunity
State Immunity/Supreme Court judgment

Arfan Khan successfully leads complex appeal in the Court of Appeal

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Arfan Khan, instructed by a London law firm at short notice, successfully led a complex appeal in the Court of Appeal. The appeal involved a history of protracted litigation since 2011. Directions were given for a contested on notice appeal hearing. Arfan Khan was instructed on behalf of the Appellant as lead Counsel after the directions hearing, and served a skeleton argument, containing a substantial legal challenge to the legality of a policy, including practice and procedure. After service of the skeleton, the Respondent compromised the appeal, and agreed to pay the Appellant’s costs.

Arfan Khan wins Leading Chancery Barrister of the Year Award

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Arfan Khan wins Leading Chancery Barrister of the Year award in the ACQ Global Awards. ACQ awards are awarded and judged on a number of criteria including, professionalism, experience, value for money & responsiveness.

Here is the link to the awards. http://awards.acq5.com/1/

ACQ (CHANCERY) (2)