15 Jun 2022
Judgments from the UK Supreme Court
Judgment has been given this morning by the Supreme Court of the United Kingdom in the following cases:
SC is a Jamaican national, now aged 29. He arrived in the United Kingdom on 26 December 2001, at the age of 10, to join his mother who had left Jamaica in 1999. In December 2002, SC’s mother applied for asylum on the basis of her sexuality. Following a successful appeal, SC and his mother were granted indefinite leave to remain as refugees on 9 October 2003. Between 2007 and 2012, SC was convicted for a number of criminal offences, including robbery, common assault, possession of a bladed article, offences relating to the police, courts or prisons and driving offences. His most recent conviction was in June 2012, for which he was sentenced to a period of two years’ detention in a young offenders’ institution. On 11 September 2012, the Secretary of State for the Home Department ("SSHD") notified SC of his liability to deportation as a foreign criminal and, on 3 October 2012, of the SSHD’s intention to cease his refugee status. On 22 January 2013, after receiving written representations, the SSHD decided to no longer recognise SC as a refugee and, on 20 March 2013, the SSHD informed SC of her decision to make an order for his deportation under section 32(5) of the U.K Borders Act 2007 Act. SC lodged an appeal against the latter decision with the First-tier Tribunal, appealing on asylum and human rights grounds, relying on articles 2, 3 and 8 of the European Convention on Human Rights ("ECHR"). On 6 March 2015, the First-tier Tribunal allowed SC’s appeal and, on 21 October 2015, following an appeal by the SSHD, this decision was upheld by the Upper Tribunal. However, on 20 December 2017, the Court of Appeal set aside the decisions of both Tribunals, remitting SC’s appeal from the SSHD’s decision to be heard afresh by the First-tier Tribunal. SC now appeals against the Court of Appeal’s decision to the Supreme Court. The issues are: The appeal raises the following issues: A. Does a decision under paragraph 339O of the Immigration Rules as to whether a person can reasonably be expected to stay in part of their country of origin import a value judgment including consideration of that person’s criminal conduct in the UK? B. If the answer to A is No, did FTT Judge Kamara err in law in holding that A could not reasonably be expected to stay in a different part of Jamaica? C. Did FTT Judge Kamara err in law in her assessment of section s117C(4)(b)-(c) of the NIAA 2002 and Para. 399A(b)-(c) of the Immigration Rules in holding that A is socially and culturally integrated in the UK and there would be very significant obstacles to his integration in Jamaica. D. Did FTT Judge Kamara err in law in embarking on a freestanding assessment of Article 8, applying the wrong test and failing to give sufficient weight to the public interest in A’s deportation. More information is available on our website: UKSC 2020/0138 --
AIC has held an arbitral award against FAAN for over USD 48 million since 2010. FAAN’s challenge to that award is pending before the Nigerian Supreme Court. AIC applied to the English courts for permission to enforce the award without notice to FAAN and obtained a preliminary order in its favour. On FAAN’s subsequent application, the judge set aside the preliminary order and adjourned AIC’s application to enforce the award on the condition that FAAN provide security for approximately USD 24 million by a certain date. When that deadline and further extended deadlines were not met, the judge made an order granting AIC permission to enforce the award. Before that order could be sealed and perfected, FAAN’s efforts to provide the security culminated in the issue of a bank guarantee and it applied to the judge for reconsideration of her order, which had not yet been sealed. The judge allowed FAAN’s application, rescinded AIC’s right to enforce the award and granted FAAN relief from sanctions. The Court of Appeal allowed AIC’s appeal and reinstated the order, allowing it to enforce the award. The issues are: A. Whether the execution of the Court of Appeal’s judgment and order should be stayed pending the resolution of this application for permission to appeal and, if permission is granted, pending the appeal. B. In the proposed appeal: (i) What is the correct approach to an application to reconsider an order after it has been made, but before it has been sealed, More information is available on our website: UKSC 2020/0206 --
The First Appellant, M, is the mother of six children including C, D, E, and F. Following longstanding concerns related to both sexual abuse by their elder brother A and neglect, in March 2020 the local authority issued proceedings seeking to take C, D, and E into its care and place them in three separate foster homes. It also sought that M’s newly born child F (daughter of the Second Appellant F3) be removed for adoption. Following two hearings, Judge McPhee found that E had been sexually assaulted by her brother, A, and that M and F3 had both failed to protect the children from sexual abuse and delayed reporting the assault. Judge McPhee ultimately concluded that it would not be safe for C, D, and E to remain in the care of M and F3 and therefore made the care orders sought. A final decision in respect of F was postponed. The First Appellant appealed to the Court of Appeal, which by a two to one majority decision dismissed the appeal. The issue is: When an appellate court reviews a first instance decision concerning the proportionality of orders made under the courts’ obligations under the Human Rights Act 1998, is it necessary for the appellate court to undertake its own proportionality assessment of that decision? More information is available on our website: UKSC 2021/0196 and UKSC 2021/0215 |
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PRESS SUMMARIES
SC (Jamaica) (Appellant) v Secretary of State for the Home Department (Respondent)
[2022] UKSC 15
On appeal from [2017] EWCA Civ 2112
Justices: Lord Reed (President), Lord Lloyd-Jones, Lady Arden, Lord Hamblen, Lord Stephens
Background to the Appeal
SC is a Jamaican national, born in 1991. He came to the UK in December 2001 and has lived here since then. SC’s mother is a lesbian who was persecuted by gang members in Jamaica, at whose hands both SC and his mother suffered violence, harassment and assault. SC and his mother were granted indefinite leave to remain in the UK as refugees in October 2003. SC committed several criminal offences between 2005 and 2012. In June 2012, SC was convicted of assault causing actual bodily harm for which he was sentenced to two years in a young offender’s institution. As a result, SC is a foreign criminal who qualifies for automatic deportation under the UK Borders Act 2007.
There is a real risk to SC of inhuman or degrading treatment, contrary to article 3 of the European Convention on Human Rights (“ECHR”) in urban but not rural parts of Jamaica. So, SC’s deportation to Jamaica by the Secretary of State for the Home Department (“SSHD”) would be unlawful unless SC “can reasonably be expected to stay” in the rural areas of Jamaica. This is known as “internal relocation”.
In allowing an appeal from a deportation order made by the SSHD, the First-tier Tribunal Judge held that SC could not reasonably be expected to stay in a rural part of Jamaica. The SSHD appealed unsuccessfully to the Upper Tribunal. The SSHD then appealed to the Court of Appeal, which set aside the decisions of both Tribunals, and remitted the determination of SC’s appeal against the SSHD’s deportation order to the First-tier Tribunal for a fresh hearing. SC sought permission to appeal to the Supreme Court, which was granted in May 2021.
The first issue is whether SC’s criminal conduct is a factor relevant to determining if he could reasonably be expected to stay in a rural area of Jamaica, based on a value judgment of what is “due” to him as a criminal.
The second issue, which arises if SC’s criminal conduct is not relevant to internal relocation, is whether the First-tier Tribunal Judge erred in holding that SC could not reasonably be expected to stay in a rural area of Jamaica.
The third issue is whether the First-tier Tribunal Judge erred in her assessment of sections 117C(4)(b)-(c) of the Nationality, Immigration and Asylum Act 2003 and para 399A(b)-(c) of the Immigration Rules in finding that SC is socially and culturally integrated in the UK and there would be very significant obstacles to his integration in Jamaica.
The fourth issue is whether the First-tier Tribunal Judge erred in law in embarking on a freestanding assessment of article 8 ECHR applying the wrong test and failing to give sufficient weight to the public interest in SC’s deportation.
Judgment
The Supreme Court unanimously allows the appeal. Lord Stephens gives the judgment, with which Lord Reed, Lord Lloyd Jones, Lady Arden and Lord Hamblen agree.
Reasons for the Judgment
In respect of the first issue, the Court finds that the correct approach to the question of internal relocation is a holistic assessment involving specific reference to the individual’s personal circumstances, including past persecution, psychological and health conditions, family and social situation and survival capacities. It should not take into account what is “due” to the person as a criminal [95-97]. The Court allows this ground of appeal.
In respect of the second issue, the Court finds that the First-tier Tribunal Judge did not err in holding that SC could not reasonably be expected to stay in a rural area of Jamaica, since this was the logical consequence of her findings, based on medical evidence, that SC was in need of long-term psychological treatment. The First-tier Tribunal Judge also relied on her findings that SC had no family or personal connections anywhere in Jamaica, and no familiarity with anywhere outside of Kingston [101]. The Court allows this ground of appeal.
In respect of the third issue, the Court finds that the First-tier Tribunal Judge did not err in relation to SC’s social and cultural integration in the UK, as this is a fact-sensitive determination [106]. Furthermore, the First-tier Tribunal Judge did not err in relation to the “very significant obstacles” to SC’s integration in Jamaica, having considered in “meticulous detail” SC’s history of mental illness and trauma, and need for long-term psychological care [107]. The Court allows this ground of appeal.
In respect of the fourth issue, the Court finds no error of law by the First-tier Tribunal Judge on the basis that she is an “expert tribunal judge” who “in substance directed herself in accordance with the applicable statutory test” [112]. The Court allows this ground of appeal [114].
References in square brackets are to paragraphs in the judgment
NOTE:
This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: Decided cases - The Supreme Court
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Press Summary
15 June 2022
AIC Ltd (Respondent) v Federal Airports Authority of Nigeria (Appellant)
[2022] UKSC 16
On appeal from: [2020] EWCA Civ 1585
Justices: Lord Hodge (Deputy President), Lord Briggs, Lord Sales, Lord Hamblen, Lord Leggatt
Background to the Appeal
The appeal concerns the court’s discretion to reconsider a judgment and order after it has been given but before the formal order has been sealed by the court.
The Respondent, AIC Ltd (“AIC”), was the successful claimant in a Nigeria-based arbitration with the Appellant, the Federal Airport Authority of Nigeria (“FAAN”). FAAN was ordered to pay US$48.13m to AIC, plus interest at 18% per annum (“the Award”). FAAN continues to challenge the Award in the Nigerian courts (“the Nigerian Proceedings”).
AIC sought permission from the High Court to enforce the Award in England and Wales. This was initially granted, however the High Court set this order aside and adjourned the claim pending developments in the Nigerian Proceedings. This was on the condition, however, that FAAN provide security of around US$24m by way of a bank guarantee (“the Guarantee”).
Despite FAAN being granted an extension, the Guarantee was not provided on time. The High Court judge (“the judge”) gave an oral judgment and made an order permitting AIC to enforce the Award (“the Enforcement Order”). However, the Enforcement Order was not sealed immediately.
FAAN obtained the Guarantee later the same day, provided it to AIC and applied to the judge to re-open the judgment and set aside the Enforcement Order. The judge set aside the Enforcement Order and retrospectively extended time for the provision of the Guarantee.
The Court of Appeal allowed AIC’s appeal against the judge’s revised decision and reinstated the Enforcement Order. As a result, AIC had both an unlimited right to enforce the Award and the benefit of the Guarantee as an asset against which to enforce. AIC accordingly called on the Guarantee, which was paid in full by FAAN’s bank.
FAAN appealed to the Supreme Court, pursuant to which further enforcement of the Award was stayed pending the appeal’s outcome.
Judgment
The Supreme Court unanimously allows FAAN’s appeal, although only in part. Lord Briggs and Lord Sales give the judgment, with which the other members of the court agree.
Reasons for the Judgment
The present case is governed by the Civil Procedure Rules (“CPR”), the overriding objective of which is to “deal with cases justly and at proportionate cost” (“the overriding objective”). The judge said that the application of this objective in the context of deciding whether to re-consider an order not yet sealed was a question of balance. The Court of Appeal disagreed, ruling that a two-stage analysis was required: (1) whether it was right to entertain the application to re-consider at all; and, if it was, (2) consider the application on its merits [3-4].
The Supreme Court considers that both the judge and the Court of Appeal were only partly right [5]. Previous caselaw shows that the task of a judge faced with an application to reconsider a judgment and/or order prior to sealing is to do justice in accordance with the overriding objective. The principle of finality in litigation is an important general principle of justice; moreover as defined in the CPR the overriding objective includes the need to enforce compliance with rules, practice directions and orders, which emphasises the importance of the finality principle [30]. This principle holds that parties should not ordinarily be able to raise new arguments after an order has been made which it should have raised at the relevant hearing [31].
Therefore, when determining an application to reconsider a final judgment and/or order before the order has been sealed, a judge should not start from evenly-balanced scales as the judge did but should give great weight to the finality principle. However, although it will often be a useful mental discipline for a judge to ask whether the application should be entertained at all, there is no rule of law or practice that such an application must always be addressed by a two-stage process as held by the Court of Appeal. The finality principle is better reflected by recognition that it will always be a weighty matter in the balance against making a different order, rather than always requiring a two-stage process of analysis [32-34].
The Supreme Court accordingly rejects the Court of Appeal’s two-stage approach, but also finds that the judge did not give the finality principle the central importance which it deserved [44-45]. It therefore falls to the Supreme Court to re-exercise the discretion afresh as to whether to re-open the High Court’s judgment and Enforcement Order [49]. In doing so the Supreme Court also assesses whether FAAN satisfies the test to be granted relief from sanctions, despite its failure to comply with the timetable set by the High Court for provision of the Guarantee [50-55].
The Supreme Court concludes that FAAN’s appeal should succeed, but only in part. The Enforcement Order as re-made by the Court of Appeal should be set aside, and AIC’s application for leave to enforce the Award should be adjourned to await the outcome of the Nigerian Proceedings. AIC should however be entitled to retain the proceeds of the enforcement of the Guarantee in the meantime [58].
Two large factors weigh in the scales against the re-opening of the Enforcement Order: (1) the finality principle and (2) FAAN’s delay in providing the Guarantee for which no good reason has been provided [59, 61]. Nonetheless, the fact that the Guarantee was provided to AIC was an important change in circumstances. Being provided after the Enforcement Order was made meant that the Guarantee had become available to AIC as a partial means of enforcement of the Award immediately, rather than as a form of security for its possible future enforcement (if it survived challenge in the Nigerian Proceedings) as the court had intended. AIC had therefore got the benefit of both the Enforcement Order as well as the Guarantee against which the Award could be enforced in part. In the circumstances, the judge’s view that justice demanded that this windfall received by AIC should be undone commanded real respect [62-63].
Although not clear cut, the Supreme Court is persuaded on balance that AIC should not retain the right to enforce the Award, pending the outcome of the Nigerian Proceedings, beyond the significant degree of enforcement which it has already achieved by calling on the Guarantee [64]. The Supreme Court therefore sets aside the Enforcement Order and confirms the judge’s extension of time for the provision of the Guarantee.
References in square brackets are to paragraphs in the judgment
NOTE:
This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: Decided cases - The Supreme Court
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In the matter of H-W (Children)
In the matter of H-W (Children) (No 2)
[2022] UKSC 17
On appeal from: [2021] EWCA Civ 1451
Justices: Lord Hodge (Deputy President), Lord Kitchin, Lord Burrows, Lord Hughes, Dame Siobhan Keegan
Background to the Appeal
These appeals concern care orders made in relation to three children, who are referred to as C, D and E to preserve their anonymity. C, D and E are now aged 14, 11 and nine respectively. The appellants are the children’s mother, M, and her partner, F3. In addition to C, D and E, M has three other children. The eldest are A, aged 22, and B, aged 19, both of whom are independent and live outside the family unit. M also has a young child with F3 who is referred to as F. The other children in the family unit have different fathers. C and D’s father is referred to as F1, whilst E’s father is F2. C, D and E live at home with their mother and F3, who acts as their stepfather. F also lives in the family home [1], [10].
The local authority began its involvement with the family when M herself was a child. She suffered from sexual abuse at the hands of E’s father, F2. Aside from F2 and issues of sexual risk, there has also been local authority involvement with the family over many years due to issues of neglect. Court proceedings for the removal of C, D and E from the family home were first attempted in March 2012. This was precipitated by F2 being found in the family home. At that time, the children were not removed from the family home, although A (who was then a child) was made the subject of a care order. An injunction was also made against F2 to prevent him from visiting the family home. In October 2019, the family’s case was closed by social services on the basis that the family had made considerable progress and the children were happy [7]-[10].
The current proceedings were triggered by the conduct of A. He is a troubled young man and M was expected by social services to prevent A from staying in the family home and being unsupervised around the children. Nevertheless, A visited the house for short periods. When A was staying at the house on 19 November 2019, he sexually abused E whilst M and F3 were distracted. This was not reported to social services until 21 November 2019. In March 2020, court proceedings were issued by the local authority seeking care orders, and removal from the home, not only of C, D and E, but also of F. The local authority’s case against M and F3 was that they had failed to protect E and the other children from A and failed to notify the social services when he abused E in the home. The local authority’s initial application for an emergency protection order to remove C, D and E was refused. However, a non-molestation order was also made against A which (among other things) prevented him from coming to the family home [1], [11]-[13].
The proceedings came to court for hearing before the judge. The judge made certain factual findings in relation to A’s assault on E in November 2019 at the threshold criteria stage. Thereafter, a welfare hearing took place. On 26 July 2021, the judge decided that care orders should be made for C, D and E but that the case of F should be adjourned [14]-[16]. The Court of Appeal upheld the judge’s decision by a majority (Peter Jackson LJ dissenting) [28]-[32].
M and F3 appealed. Their grounds of appeal were refined by the Supreme Court into two questions concerning the making of the care orders for C, D and E. First, in order to decide whether those orders were proportionate, was it necessary for the judge as a matter of law to assess the likelihood that if left in M’s care, (a) the children would suffer sexual harm; (b) the consequences of such harm arising; (c) the possibility of reducing or mitigating the risk of such harm; and (d) the comparative welfare advantages and disadvantages of the options presented. Second, whether the judge erred in law by failing to make any or any proper assessment of those matters [3].
Judgment
The Supreme Court unanimously allows M and F3’s appeals and remits the cases for rehearing. This means that a different judge will make a fresh decision on the ultimate outcome for C, D and E. Dame Siobhan Keegan gives the judgment with which all the other members of the Court agree.
Reasons for the Judgment
Legal principles
Applications for a care order such as the present will require the judge to perform three stages of analysis. First, find the relevant primary facts. Second, determine whether the legal threshold for the making of a care order has been crossed under the Children Act 1989. Third, if that threshold has been crossed, decide the proper order to make. Where the judge is considering whether to make a care order in a case such as this, the judge must have regard to the matters set out in Section 1(3) of the Children Act 1989 (which are commonly referred to as the ‘welfare checklist’). These include, among other matters, any harm which the child has suffered or is at risk of suffering and the consideration of the range of powers available to the Court [39]-[40]. The Court’s ability to make a care order is an intrusive power which engages article 8 of the European Convention on Human Rights (the right to private and family life). Accordingly, the Court may only make a care order if it is necessary and proportionate to do so. When deciding whether a care order is necessary and proportionate, the judge must evaluate all the available options for the child or children concerned [45]-[47]. Where there is an appeal from a care order, the function of an appellate court is to review the judge’s findings and to intervene only if they are wrong or if the process of the judge’s reasoning was inadequate (as the Supreme Court held in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911). As explained by the majority in In re B, an appellate court is not required to conduct a fresh evaluation of whether a care order is necessary and proportionate [48]-[50].
This case
The appellants, M and F3, argued that the decision of the judge to make the orders in relation to C, D and E was wrong because the judge failed to consider other less interventionist options which would mitigate the risk of sexual harm. The local authority accepted that the judge had not specifically considered the range of powers available to the Court (as required under the welfare checklist). However, the local authority contended that the judge’s decision read as whole confirmed that the judge had considered all possible options [33]-[37].
The present case does not involve any challenge to the judge’s findings of primary fact. Nor is there any challenge to the judge’s conclusion that the legal threshold for the making of a care order has been crossed. Instead, M and F3’s appeals concern whether the judge erred in the third stage of his analysis - namely in finding that the care orders were necessary and proportionate [41]-[42]. The real issue is not whether the judge reached a conclusion that was wrong, but the adequacy of the judge’s process of reasoning in reaching his conclusion [51].
The first issue before the Court was whether it was necessary for the judge as a matter of law to assess matters (a) to (d) set out above. The Court has no hesitation in concluding that the judge was required to assess all four of those matters. Their pertinence is an inevitable consequence of a holistic evaluation in a case of this nature and specifically flow from consideration of the welfare checklist [52]-[56]. The second issue before the Court concerns whether the judge erred in law by failing to make any proper assessment of those matters. There is no valid argument in relation to matters (a) to (b) (namely, whether the children would suffer sexual harm the consequences of such harm arising). This appeal boils down to matters (c) and (d), which concern mitigations and options. The judge’s treatment of the facts and evidence was thorough. However, the judge did not mention the efficacy of the injunction against F2 and the non-molestation order made against A. Moreover, his decision was insufficiently founded on the necessary analysis. Indeed, one looks in vain for the critical side-by-side analysis of the available options and for the evaluative, holistic assessment which the law requires of a judge in such proceedings such [56]-[61].
The process adopted by the judge was therefore flawed as it did not adequately assess the prospects of various options to mitigate the risk of sexual harm. An adjudicating court will need to scrutinise a revised plan and be satisfied as to any mitigations which might address the identified risks. This court is not equipped to conduct that exercise. It would be inappropriate for the Supreme Court as an appellate court to conduct a fresh proportionality assessment. Instead, the only realistic course is to remit the case for rehearing [62]-[65].
References in square brackets are to paragraphs in the judgment
NOTE:
This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: Decided cases - The Supreme Court
ENDS
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