Latest Cases

European Union – Freedom of movement. The Court of Justice of the European Union ruled that both art 35 of Directive 2004/38 and art 1 of Protocol No 20 had to be interpreted as not permitting a member state to require, in pursuit of an objective of general prevention, family members of a Union citizen who were not nationals of a member state and who held a valid residence card, issued under art 10 of Directive 2004/38 by the authorities of another member state, to be in possession, pursuant to national law, of an entry permit, such as the European Economic Area family permit, in order to be able to enter its territory. 

Immigration – Detention. The claimant time-served foreign national offender issued judicial review proceedings, seeking damages to reflect his unlawful detention in prison, rather than in an immigration removal centre. The Administrative Court, in dismissing the application, held that it had been unlawful for the Secretary of State to operate a blanket policy, providing criteria for detention in prison, which had ignored the circumstances of any particular case. However, R (on the application of Krasniqi) v Secretary of State for the Home Department ([2011] All ER (D) 145 (Dec)) precluded a finding of breach of art 5 of the European Convention on Human Rights. 

Divorce – Financial provision. On the wife's application for enforcement of a maintenance agreement, the judge had made orders regarding the payment of interim periodical payments and arrears of maintenance. He subsequently re-characterised that order as a 'scheduled court directed part payment of the outstanding lump sum' and ordered that the husband be allowed only to make payment to his solicitor if he paid a corresponding sum on each occasion to the wife. The Court of Appeal, Civil Division, allowed the husband's appeal on the ground that the judge had not had the jurisdiction to have made the orders that he had. 

Parent and child – Specific issue order – Contact. Court of Session: Refusing an appeal by a father who, because of concerns that he would not be able to afford the costs of post-relocation contact, in an appeal against a later interlocutor asked the court to recall a sheriff's interlocutor granting a relocation order allowing the mother of his five-year-old daughter to relocate to the USA with her, the court held that the interlocutor granting the relocation order was a final one, reviewing that interlocutor only arose if the need to do so was consequential on the setting aside of the later interlocutor, and there was no basis for setting aside the later interlocutor. 

Family proceedings – Orders in family proceedings. The proceedings concerned the father's appeal against findings of fact made by the judge, which were potentially relevant to certain applications before him. In broad terms, the judge found that the incidents relied upon against the father by the mother and her daughter from a previous relationship, M, had occurred as alleged. The Court of Appeal, Civil Division, held, inter alia, that the judge had been aware that concerns had been expressed about M's behaviour. He would have factored that into his assessment of her evidence, and had had the advantage of having seen and heard her give evidence and be tested upon it. In those circumstances, it was not possible to go behind his assessment of M as a witness. 

Damages – Assessment. A compromise made on liability and causation in a claim by the claimant against the defendant hospital in respect of the 'catastrophic' consequences of an operation carried out in the defendant's hospital with the intention of ameliorating his loud snoring. In order to decided the appropriate basis of the award of damages, the Queen's Bench Division held that on the evidence there was no change of significant chance of long term improvement in the claimant's condition. 

Immigration – Leave to remain. The claimant South African national sought judicial review of the defendant's Secretary of State's decision refusing him leave to remain in the United Kingdom as a family member. The Administrative Court, in dismissing the application, held that transitional provisions brought into force Appendix FM of the Immigration Rules in relation to the claimant's application. Further, the Secretary of State had not imposed too stringent a requirement, namely, that it had to be literally impossible for the family life of the claimant and his partner to continue in South Africa, and the decision would have inevitably been the same in any event. 

Immigration – Asylum seeker. The claimant Albanian national sought judicial review of the defendant Secretary of State's decisions to certify his human rights claim as clearly unfounded and to detain him pending removal. The Administrative Court, in dismissing the application, held that, despite interference with the claimant's family life, the Secretary of State's decision to certify that the claimant's human rights claim had been clearly unfounded had been rational and lawful. Further, it had been lawful for detention to be maintained, in particular, when family proceedings had been contemplated. 

Immigration – Leave to remain. The claimant Iraqi national sought judicial review of decisions of the defendant Secretary of State, refusing her leave to remain in the United Kingdom. The Upper Tribunal (Immigration and Asylum Chamber), in allowing the application, held that the Secretary of State's decision-making was unlawful, as she had erred in applying the new Immigration Rules and it was simply not possible rationally to conclude that the decision would have been the same in any event. Further, s 117B of the Nationality, Immigration and Asylum Act 2002 offered some mild support for the claimant, rather than the Secretary of State. 

Child – Protection. The claimant convicted sex offender sought judicial review of the legality of arrangements made by the police for the retention and disclosure of information and data relating to him. The Administrative Court, in dismissing the application, held that the claimant's rights under art 8 of the European Convention on Human Rights were engaged, but the schemes were in accordance with the law because they were not arbitrary or disproportionate and could be justified. Further, the schemes gave full effect to X (South Yorkshire) v Secretary of State for the Home Department ([2012] All ER (D) 232 (Oct)).