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Scottish Referendum – implications for immigration law

Administrator 1 : September 16, 2014 3:22 pm : Blog, Featured, Legal Profession & Courts

How could immigration law be affected by an independent Scotland?

Immigration law could be significantly changed in an independent Scotland. The UK government has a published intention to reduce net migration whereas the Scottish Government has indicated that Scotland would need to increase skilled migration. This could potentially lead to an independent Scotland adopting a more liberal and significantly different immigration policy from the rest of the UK.

What are your key concerns as the referendum draws near?

There is still a great deal of uncertainty about how immigration in an independent Scotland would work. The White Paper does not contain much in the way of detail about this and therefore it is difficult to advise clients on the long term implications for them. We are advising clients that, in the event of a Yes vote, they will not be affected during the period between the referendum and the date Scotland becomes independent. However, it is difficult to advise them beyond this point.

Do you think there are any issues that haven’t received enough attention or consideration?

The White Paper only contains a brief outline of the proposed immigration system and indicates that an independent Scotland would adopt a points-based approach similar to the UK system. A lot more detail on the proposed system is required, particularly for businesses who are considering relocating to Scotland as they have concerns about how they will be able to recruit skilled employees under a new immigration system. More details are necessary to allow businesses to consider their long-term plans.

What would a Yes vote mean in practice for lawyers in your field?

Potentially a Yes vote would require immigration lawyers to adapt to a significantly different set of immigration rules and requirements. For those lawyers advising businesses they may need to provide advice in both jurisdictions which will present new challenges.

What would a Yes vote mean in practice for clients in your field?

A Yes vote would be significant for clients if it led to a different immigration system. The White Paper confirms that those with a UK visa at the date of independence would continue to be able to live in Scotland until the end of their visa. However, at that stage they would need to either leave Scotland or apply for a Scottish visa. If someone who was based in Scotland decided to move to England they would likely be treated as making an entry clearance application which in some cases involves stricter criteria. Individuals will need a significant amount of information in order to decide their long term futures.

A Yes vote would also have an implication for businesses who operate throughout the UK as if different immigration rules are in place it may be beneficial to base migrant workers in one location rather than in both Scotland and the rest of the UK. Equally businesses may find that it is easier to recruit skilled workers to one particular jurisdiction.

Any other thoughts?

Immigration law is an area which is already subject to regular changes. The system has become increasingly complex and difficult to navigate. Therefore, regardless of the outcome of the independence vote we believe that clients would benefit from a simplified system which would better respond to the needs of UK businesses.

By Stuart McWilliams, associate in the immigration team at Morton Fraser (Interviewed by Nicola Lave).

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

 

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Scottish Referendum – implications for employment law

Administrator 1 : September 16, 2014 12:01 pm : Blog, Featured, Legal Profession & Courts


How could employment law be affected by an independent Scotland?

Aside from the need to monitor and assess changes in legislation and update and advise clients accordingly, which is routine for solicitors, there may be the need for other business-related advice, depending on how clients react to a Yes vote. One key issue for employment lawyers would be the status of Scotland within or outwith Europe. A good deal of modern employment law (equalities, working time, paid leave) is driven by the decisions of the Court of Justice of the European Union (CJEU).

In terms of the White Paper, the following are of note:

  • the laws in place immediately before independence would remain in place on independence
  • priorities include greater female participation on company and public boards, including consulting on a target for representation
  • consultation would be carried out in relation to greater employee representation on company boards
  • the establishment of a Fair Work Commission to guarantee that the minimum wage will rise at the very least with inflation
  • the creation of a Convention on Employment and Labour Relations to transform the relationship between government, employers and employees
  • the abolishment of legislation allowing shares for rights
  • encouraging wider trade union participation, the theory being in the recognition of the positive role that can be played by collective bargaining in improving labour market conditions
  • other key issues will be the living wage, zero-hours contracts and access to employment tribunals
  • restoring a 90-day consultation period for redundancies affecting 100 or more employees

It is important to remember that these are the aims of the SNP. The white paper goes into little further detail or substance in relation to the measures proposed.

What cross-border issues, laws, regulators, courts etc currently affect your practice area?

Most employment law is UK wide, apart from differences in the procedure for employment tribunals. As outlined above, the biggest external driver is EU law and the jurisprudence of the CJEU. The role of ACAS is important, especially with tribunals having mandatory pre-claim conciliation.

What are your key concerns as the referendum draws near?

The biggest issue for clients and advisers alike is to have reasonable notice of change so as to understand and prepare for change.

What would a Yes vote mean in practice for lawyers in your field?

Nothing will change overnight. Employment law constantly changes. I’m sure we’d be adept at dealing with any changes. The key would be working with clients sooner to anticipate and plan for change, albeit not too soon so as to act and advise on presumptions.

What would a Yes vote mean in practice for clients in your field?

As noted above there may be a greater focus on employee relations, representation on boards and equalities issues. Although some of these issues (such as board representation) are being mooted elsewhere, the status of the white paper would suggest that the SNP would be keen to press on with these plans and deliver change on independence sooner, rather than later.

Any other thoughts?

Having witnessed first-hand Scotland’s biggest cultural and sporting event change and improve Glasgow for the better – and showcase Scotland to the Commonwealth if not the world – it will be fascinating to witness the political process and outcome that has the scope to change our professional and personal lives substantially.


By Bruce Caldow, employment partner at Harper Macleod (Interviewed by Nicola Laver).

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL

 

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Maternity leave: a fair deal for returning mothers?

Administrator 1 : September 2, 2014 9:49 am : Blog, Human Rights

Six out of ten mothers think their careers were “derailed” and they faced open discrimination after becoming pregnant, new research by Slater & Gordon has revealed.

What laws are already in place to protect mothers returning to the workplace?

A mother who returns to work at the end of, or within her ordinary maternity leave period (the first 26 weeks), has the right to return to the same job that she was employed in before her absence. She has the right to return on the same terms and conditions of employment, or terms that are no less favourable.

A mother returning to work from additional maternity leave again has the right to return to the same job unless there is some reason, other than redundancy, why it is not reasonably practicable for her employer to allow her back to that job. She is then entitled to return to a different job that is both suitable and appropriate in the circumstances and on no less favourable terms. This covers, for example, a business reorganisation in the interim.

If a redundancy situation arises during the maternity leave period, the employee is entitled to be offered a suitable alternative vacancy (if one is available) again on terms and conditions that are not substantially less favourable than she had before. This is a key right which gives women on maternity leave priority over other workers who are also at risk of redundancy.

In general it is unlawful for an employer to dismiss or otherwise treat a female employee unfavourably during her pregnancy and maternity leave period because of her pregnancy or because of a pregnancy-related illness. It is also unlawful for an employer to dismiss or otherwise treat a female employee unfavourably because she is exercising, or has exercised, her right to take maternity leave.

Why do you think these laws are failing to protect mothers from discrimination?

There are likely to be a multitude of factors at play including:

  • mothers not understanding what their legal entitlements and rights are;
  • in some cases employers not understanding, or not implementing, their legal obligations – the classic example would be the failure to prioritise mothers on maternity leave for suitable alternative vacancies that may arise if there is a redundancy situation;
  • mothers being fearful that if they challenge discriminatory behaviour it will only get worse for them, they will lose their job or it will have a long-lasting impact on their whole future career;
  • financial pressures – maternity leave can be a financial struggle and therefore mothers are focusing on their immediate financial needs when they return to work and their need for a secure regular income;
  • employment tribunal fees – can mothers who are on reduced or no pay on maternity leave, or who are paying expensive childcare on their return to work, financially afford to bring a claim?
  • emotional pressures – becoming a new parent can be an exciting but daunting and life changing experience and some mothers may not wish to take on added pressures of challenging their employers at a particularly vulnerable stage in their own life.

Discrimination cases can sometimes be difficult cases to win, as not all discrimination is obvious and overt. It can be a significant task to amass the evidence needed to convince an employment tribunal that the unfavourable treatment that occurred was because of pregnancy or maternity. This can be even more so when the unfavourable treatment is potentially affecting a mother’s career development long after she returned from maternity leave.

What are the current trends in maternity discrimination cases?

Our research focusing on working mothers showed that:

  • one in four mothers who have returned to work believe they have been discriminated against, either before or after the birth of their child;
  • nearly half of working mothers felt having children halted their career progression;
  • 42% or mothers felt that younger and childless people were prioritised in the workplace;
  • one in four have been made to feel they’re no longer required in their current workplace;
  • 25% have been pressured to leave their position or reduce their role.

Similarly our research focused on employers found that:

  • 40% said they were wary of hiring women of childbearing age;
  • more than 40% said they would think twice before hiring a mother for a senior role;
  • almost a third of managers claimed women are not as good at their jobs when they come back from maternity leave because of family distractions;
  • a third of managers admitted they would hire a man in his 20s or 30s over a woman of the same age for fear of maternity leave.

Are the numbers of discrimination claims decreasing as sexist attitudes are broken down?

To the contrary, pregnancy and maternity discrimination seems to remain rife and it appears to have a significant long-term impact on working mothers’ future career progression.

Statistically the numbers of pregnancy or maternity discrimination claims resulting in formal employment tribunal proceedings being brought may be decreasing. But this has to be set in the context of all employment tribunal claim numbers dropping significantly because of the impact of employment tribunal fees. Indeed, given the financial pressures faced by women on maternity leave, the barrier placed by tribunal fees on their ability to bring proceedings is likely to be even greater. If claim numbers are falling then, given the findings of our research, it is more likely that this is a result of factors such as the introduction of employment tribunal fees rather than us having yet cracked the problem of discriminatory attitudes to working mothers.

How can the government combat maternity discrimination?

The government could try and combat maternity discrimination by:

  • reducing or removing employment tribunal fees, at least in pregnancy and maternity discrimination cases;
  • providing all mothers with an advice pack about their pregnancy and maternity rights and protections or require their employers to do so;
  • extending the express protection against unfavourable treatment on grounds of pregnancy/maternity/pregnancy-related sickness so it lasts longer than the existing “protected period” –this would cover the time when a mother is pregnant or on maternity leave as well as the period after her return to work.

We also have to be hopeful that the recent extension of flexible working requests to all workers, and the concept of shared maternity leave and pay being introduced by the government will help with a cultural shift towards fathers being seen as equal care givers. In turn it is hoped this will change the outdated views of some employers.

How does the issue relate to fathers returning to work after paternity leave?

In our research, employers seemed most comfortable hiring men in their 20s or 30s. The thought they may be fathers and take paternity leave therefore does not seem to have the same impact on employer attitudes as women taking maternity leave. Currently the right to take paternity leave is far more limited when compared with maternity leave rights. As set out above, the government is intending in 2015 to introduce a concept of shared parental leave.

What are your predictions for the future?

It was reported recently it will take another 60 years for the gender pay gap to be closed and for women to earn the same as men. I would hope it will not take that long to change these endemic attitudes to working mothers. In truth I suspect we all personally see many dedicated fathers and partners who contribute equally to caring for their families. If we can speed up the pace of that cultural shift by changing workplaces and giving fathers the access to equal parental rights at work then I believe we are making the right progress.

Rachel Harfield is a senior employment lawyer at Slater & Gordon LLP (Interviewed by Rachel Moloney).

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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Threat from Syria – will recent proposals help combat terrorism?

Administrator 1 : September 1, 2014 11:34 am : Blog, Criminal, Featured

By Dan Bunting

When the Prevention of Terrorism Act 1974 was passed against a backdrop of an IRA bombing campaign in the mainland UK, it was limited in time for a year (although would be re-passed annually until made permanent), and was passed among a genuine concern that the powers it gave were too wide-reaching. Roy Jenkins, taking the Bill through the House of Commons as Home Secretary, said “The powers… are Draconian. In combination they are unprecedented in peacetime”. One wonders what he and other legislators from 40 years ago would make of our discussions today.

Since 2000 we have had the Terrorism Act 2000, Anti-Terrorism Crime and Security Act 2001, Prevention of Terrorism Act 2005, Terrorism Act 2006 and the Counter-Terrorism Act 2008. And that’s just the statutes with “terrorism” in the title (not counting the Terrorism (Northern Ireland) Act 2006 and the Terrorist Asset-Freezing (Temporary Provisions) Act 2010). There are a whole host of actions that these criminalise, both here and abroad, that make the 1974 Act look positively benign.

But, while some ask if this is all too much, others, it would seem, want more laws. Boris Johnson popped up this week to give us the benefits of his thoughts on the law as it relates to terror suspects. In what seemed quite a populist announcement, he proposed a reversal of the burden of proof.

It is surprising to hear a Tory, particularly one who seemed to be a bit of an old-school liberal, calling for more legislation, especially such extreme measures as reversing the burden of proof. He suggests that any persons who travel to Syria should be “automatically presumed to be terrorists unless they had notified the authorities in advance” and they can prove otherwise.

This would expose individuals to a potential life sentence (depending on how the offence is charged) unless they can prove they are innocent. On a side note, this is unlikely to survive a challenge under the Art 6 ECHR in the domestic courts. Cynically, it could be said that the politicians are aware of this, but it will be more grist to the euro-sceptic mill.

But it wasn’t just “BoJo”. On 29 August 2014, David Cameron said: “It is becoming clear that there are some gaps in our armoury and we need to strengthen them. We need to do more to stop people travelling, to stop those who do go from returning and to deal decisively with those who are already here”.

If it ain’t broke, don’t fix it, or so the saying goes. Is the Prime Minister right here? Is there anything to say that the current web of anti-terrorism legislation that we have is inadequate? It is hard to see how. It could certainly benefit (as could the rest of the criminal law) from a considered overhaul with a view to make it coherent, consistent and sensible, but this is not what he is calling for here.

Certainly in relation to people who are in the UK, it is hard to see what other forms of criminalisation of domestic activity is needed. In relation to further travel restrictions (there are already some in place), we have yet to see any concrete proposals, and it may be that this is pre-election puff that fades away. Or, perhaps more likely, a watered down version makes it in to a Bill.

Most of Parliament still has (at the moment at least) enough respect for international law to mean that stripping British born people of their nationality is not viable. At the moment, the Home Secretary can strip a naturalised British resident of their citizenship if their presence in the UK is “not conducive to the public good”, but not if this renders them stateless. This has been extended under s 66 Immigration Act 2014 (not yet in force) to any naturalised Britain, provided that she has “reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory”.

This was controversial when passed, and it is to be expected that any attempt to widen it (as was proposed by David Davies) is bound to fail. Tony Blair proposed confiscation of passports in 2005, and it still hasn’t happened. Again, this may be down to legal problems that this would present.

Nobody can deny the threat that is presented by terrorism is a real one. There is a real concern, however, as to whether all the matters that we have seen, and are proposed, are effective at combating terrorism. This is before you consider the potential costs on civil liberties and community relations. It remains to be seen whether any of what has been floated makes it on to the Parliamentary table.

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Domestic abuse: how to tackle non-violent control

Administrator 1 : August 29, 2014 10:21 am : Blog, Criminal

Those who abuse their partners through coercive and controlling behaviour, such as depriving them of money, could face prison under a proposed new offence. The government is seeking views on whether a specific, non-violent domestic abuse offence will help tackle the problem by making police take the crime more seriously and showing perpetrators and victims of abuse that such behaviour is wrong. Comments on the proposal are requested by 15 October 2014.

What is the rationale behind the proposed creation of this new offence?

There is currently no offence of domestic violence. The government definition is very good after having been updated in March 2013 and includes emotional abuse and coercive control.

However, the police do not yet have the tools in the form of legislation to bring charges. The criminal law does not currently legislate against emotional abuse and coercive control. The only possible way to charge someone with domestic violence would be under common assault legislation, which requires a psychiatric injury rather than a psychological injury and is difficult to prove. The harassment and stalking legislation could be used in theory. However, it rarely is.

I have been part of the campaign group for this as I am also a director at Paladin, the National Stalking Advocacy Service which, along with Women’s Aid and the Sara Charlton Charitable Foundation, has been lobbying the government. I see clients everyday who tell me that emotional abuse and coercive control is worse than physical violence as the effects last far longer, and it is the psychological abuse which breaks down their confidence and makes it difficult to leave a relationship once it becomes violent.

Clients report incidents to the police and are told, “Come back when he hits you”, which is unacceptable. Two women a week are murdered due to domestic violence, and domestic violence costs the UK over £23bn per year and is witnessed by over 750,000 children.

Have there been difficulties in charging abusive partners under existing legislation?

The only case I am aware of is the Justin Lee Collins case, where the TV comedian was sentenced to 140 hours of unpaid work after being found guilty of harassing his former partner and “causing fear of violence”.

There are, however, several examples of cases thrown out by judges due to the fact that the parties were still in a relationship at the time of the abuse and therefore it could not be considered harassment. This means the behaviour would be classed as harassment or stalking only after separation, but not during the relationship, which is nonsensical and puts victims at risk.

It is essential that emotional abuse is specifically outlawed as it sends a strong message to perpetrators and also to victims – many of whom still think it is something that they have to put up with, especially when they are dismissed by the police. Once victims have lost confidence in the police they are far less likely to report abuse, even when it becomes physically violent.

I have clients who are timed when they go to the shop; have pictures taken of them whilst naked and then threatened with exposure on the internet if they don’t do what they are told (revenge porn); have trackers placed on their phones and cars; have become isolated from friends and family; have been forced to steal sanitary products because their abuser has taken all of their money; have been told what to wear; who to speak to; made to sleep on the floor; locked outside the house for hours in the snow; made to eat meals from a dog bowl on the floor. None of this can be prosecuted under current legislation.

What is being proposed?

The proposal is to create a specific offence of emotional abuse or coercive control. This would be based on the stalking and harassment legislation and require ‘a course of conduct’ of at least two offences. This would then get to the essence of domestic violence, which is that it is never an isolated incident but a pattern of behaviour. One of the current problems in prosecuting physical offences is that they are treated as individual acts, which masks the cumulative effect on the victim of the intimate terrorism that is domestic violence.

Are there any other jurisdictions that criminalise non-violent abuse? How has this worked in practice?

The US government criminalised domestic violence in the Violence Against Women Act 1994, which over the following 10 years led to a 67% reduction in domestic violence and an increase in reporting. However, this deals only with physical abuse, not emotional.

However, several countries, including France, Spain, Sweden, Portugal, Canada and Tasmania, have legislation which makes emotional abuse or coercive control a criminal offence.

Do you envisage any issues with the latest proposals?

The only issue I can see with the proposals is that it needs to go hand-in-hand with training for the police, CPS and judiciary – many of whom still have outdated views regarding domestic abuse. The stalking legislation is still massively under-used and it is therefore essential that training is provided.

Some have expressed the opinion that the proposals will criminalise arguments and that criminal law has no place in the home. This is old-fashioned, dangerous thinking that has allowed domestic violence and child abuse to flourish. There would need to be at least two incidents before the CPS would be able to prosecute – this would demonstrate the course of conduct, as in cases of stalking – and it would need to be objectively clear that the perpetrator ought to have known that their actions would cause distress or intimidation.

As for issues around evidence, it is the same as for stalking cases or sexual offences. Increasingly, it is easier to secure evidence as a woman may be being bombarded with abuse via text or social media, trackers can be found, verbal abuse can be recorded by phones, bank statements may show transfers of her money as soon as it is received, etc.

Rachel Horman is a solicitor and head of the domestic violence and forced marriage division of the family department at Watson Ramsbottom. She is an advanced Resolution accredited specialist in the areas of domestic violence and forced marriage, areas in which she has specialised for over 15 years, and sits on two All Party Parliamentary Groups for Stalking and Harassment and Domestic Violence. She also joined the board of Paladin, the National Stalking Advocacy service, in 2014. (Interviewed by Jane Crinnion.)

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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Are surrogates and parents losing out due to a lack of global surrogacy laws?

Administrator 1 : August 28, 2014 11:53 am : Blog, Family

A Thai surrogate mother, C, gave birth to twins on behalf of Australian nationals D and WF in an arrangement where C was paid £9,000. When one of the twins, G, was born with Down’s syndrome, C alleged that D and WF abandoned the baby boy, taking only the healthy sister back to Australia. D and WF deny this.

How has this recent story ignited the debate on international surrogacy?

It has raised questions over the morality of surrogacy in third world destinations and the legal status of all involved. This has sparked a debate about whether there should be an international treaty on surrogacy in order to ensure that children conceived in this way are protected by a proper legal framework and that parents and surrogates know where they stand from the outset.

What are the key concerns and challenges surrounding international surrogacy?

On the legal side the concerns are that each destination applies its own rules leading to conflicts on issues such as who the parents of children conceived through surrogacy are. On the ethical side there are concerns that surrogates from overseas are being exploited by a culture of “baby buying” in order to escape poverty. The challenge for parents is to navigate the different systems of law and ensure that they are as protected as far as possible in each applicable destination. This often involves two separate legal processes in the foreign destination and in the UK.

There is also a distinct lack of regulation in destinations such as Thailand and India, so parents can be faced with challenges when it comes to ensuring their fertility treatment is dealt with responsibly. For instance in the UK, everyone is subject to adequate screening and testing. In terms of commerciality we advise parents to ensure, as far as possible that:

• their surrogate is doing this for the right reason (ie because she is keen to help a family and not because she has no other choice)

• she is fully informed before going ahead

• she has entered into the arrangement of her own will

• has her own family, and ideally

• she has had psychological screening and counselling before having been approved as a surrogate

How are the rules governing international surrogacy currently structured?

In the UK there aren’t specific rules surrounding surrogacy. As such, the laws as they exist are a poor fit leading to post-birth court processes in order to resolve the position. On a global level there is no harmonisation, with each destination having its own rules ranging from prohibiting surrogacy altogether, to having no established regulation or rules either supporting or preventing surrogacy. This leaves parents who wish to travel abroad for surrogacy open to many pitfalls (including conflicting rules about their status as parents and whether they can get a passport for their child to travel home on). Internationally there is currently no structure.

Are there greater calls for clarity in the global approach to surrogacy?

Yes, and cases like that of G have highlighted further the need to have a clear framework in place, especially to protect children born this way. Although situations like the recent Thai surrogacy case are rare, there is a desperate need for a structure so potential parents can ascertain whether they will be afforded the legal protection they need before they choose a surrogacy destination. There is no doubt this will be challenging to design, given the wide legal, moral and ethical disparity that exists globally about the issue of surrogacy. However, countries that are amenable to surrogacy and its safe practice could sign up to an international treaty which would enable parents to have a clear idea from the outset about which destinations are regulated and ‘tested’ before going ahead.

What are the potential areas that could be reformed?

A uniform and internationally recognised set of rules that govern who the parents of children conceived through surrogacy are, and a process through which parents and surrogates can establish this are both areas of potential reform. Fertility treatment and the associated regulation of this is another area which differs globally – the UK has strict rules about issues such as testing, egg and sperm donor identifiability and the number of embryos which are transferred. Parents and surrogates travelling abroad for treatment are often not protected by the level of regulation which exists in the UK. A global system of rules could therefore be favourable.

Nicola Scott from Natalie Gamble Associates, a UK firm specialising in fertility and parenting law, Interviewed by Jo Edwards.

The views expressed by our legal analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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Victims’ right to review – could it affect the criminal justice system?

Administrator 1 : August 28, 2014 10:55 am : Blog, Criminal, Legal Profession & Courts

Several criminals have been found guilty after victims of crime successfully appealed against the CPS’ original decisions not to bring charges. What has been the effect of the introduction of the “right to review scheme”? And could it affect the criminal justice system?

What have been the consequences of the introduction of the CPS’ right to review scheme?

According to the BBC, 146 suspects have so far been charged with offences after their alleged victims appealed against decisions not to prosecute, including 80 cases of violence and 27 involving alleged sexual offences.

This is the consequence of what is known as the “right to review scheme” brought in by the CPS last year, which (in the words of the CPS) “makes it easier for victims to seek a review of its decision not to bring charges or to terminate all proceedings”.

The scheme follows from a ruling by the Court of Appeal in R v Killick that considered the right of a victim of crime to seek a review of a CPS decision not to prosecute. In that case, the court held that victims have a right to seek a review and should not have to rely on judicial review. The court also held that the right to review needed clearer procedure and guidance as to time limits.

The concern for defence lawyers and those specialising in criminal appeals is that we are living through another “rebalancing” of our criminal justice system in favour of the rights of victims and moving away from the rights and protections afforded to defendants.

How does the scheme operate?

Victims can request a review of decisions not to charge, to discontinue or otherwise terminate all proceedings. A revised victims’ code came into effect at the end of last year. On a request for review, the earlier decision is checked by a prosecutor who has not been involved with the case before and an explanation of the decision is then sent to that person. Apparently this will be completed within ten days of receipt of the request for review.

What can be drawn from the increased number of reviews?

According to the BBC, in the period after the introduction of the scheme in June 2013 and this March, some 1,186 appeals were lodged, of which 162 were upheld. This represented a success rate of almost 14%. Alison Saunders said it was “reassuring” so few cases had been overturned but the figures strike me as being rather high. Before drawing any conclusions, we really need to better understand the reasons why those cases are being overturned.

Are there wider concerns around the charging decisions from the CPS?

As the scheme settles down, a concern I have is that this is tokenism. It is about paying lip service to the concerns of victims, and, at worst, cruelly raising their expectations. I’m mindful of victim impact statements and the recent furore over the judge who apparently stated such statements made by bereaved families made “no difference”.

How can lawyers assist clients in navigating the review system?

By making sure that they are realistic – don’t have inflated expectations.

Glyn Maddocks, is a consultant at South Wales firm Gabb & Co, who has worked on wrongful conviction cases for over 20 years. He is the founding Trustee and Board Chair of the new Centre for Criminal Appeals. Interviewed by Jon Robins.

The views expressed by our legal analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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What’s in store for family migrants after the Court of Appeal decision in MM?

Administrator 1 : August 19, 2014 1:01 pm : Blog, Headline

By Kathryn Denyer

Since 28 July the Home Office has resumed processing applications that were on hold pending the Court of Appeal decision in MM. In that case, the Court of Appeal held the minimum income threshold and associated documentary requirements set out in Appendix FM and Appendix FM-SE to the Immigration Rules to be lawful.

It is no coincidence that processing re-commenced on this date, which was also when s 19 of the Immigration Act 2014 came into effect. Section 19 sets out into primary legislation the public interest considerations that a court or tribunal must take into account when considering whether a decision under the Immigration Acts breaches the right to respect for private and family life under Art 8 of the European Convention on Human Rights.

The public interest considerations include that:

  • the maintenance of effective immigration controls is in the public interest;
  • it is in the public interest, particularly in the interests of the UK’s economic well-being, for migrants to speak English and be financially independent;
  • little weight should be given to a private life or relationship formed with a British citizen or settled person if it was established at a time when the migrant is in the UK unlawfully;
  • little weight should be given to a private life if it is established at a time when the migrant’s immigration status is precarious (which is defined in guidance to include having limited leave, having leave that was obtained fraudulently and during any period after notification of liability to deportation or administrative removal);
  • it is not in the public interest for a migrant who is not liable to deportation to be removed from the UK when they have a genuine and subsisting parental relationship with a child who is a British citizen or who has lived in the UK continuously for at least seven years, and it is not reasonable to expect that child to leave the UK.

The Immigration Rules have also been amended to “clarify” that the rules for family members under Appendix FM have been framed to reflect public interest considerations.

The public interest considerations will now have to be taken into account in any appeal against a decision to refuse leave in all of the cases that were previously held pending the MM decision.

Although the claimants in MM may seek leave to appeal to the Supreme Court, continuing the legal challenge would be a lengthy process.

The relevant primary legislation has also now moved on and will need to be considered by the judiciary. Appeals against refusal decisions in the previously held cases will take time to proceed through the tribunal and higher courts, leaving the future uncertain for affected families in the meantime and burdening them with the costs of litigation.

Irrespective of their legality, the very onerous financial requirements of Appendix FM and Appendix FM-SE are far less acceptable to the British public than other measures introduced by the current government in an effort to reduce net migration to the “tens of thousands”. Political campaigning against the current family immigration rules has been persistent and has attracted favourable media attention. Political pressure also continues to be applied to individual MPs.

Interestingly, David Cameron announced in a speech on 18 August 2014 that from this October, all government policies must pass a “family test” and that all policies that fail to support family life will not go ahead. It remains to be seen what, if any, effect this will have on the development of family immigration policy.

As the first partners and children who were granted leave go on to make extension applications in 2015, and indefinite leave applications in 2017, some will fall foul of the minimum financial threshold, perhaps because of diminished earnings due to caring for a child or other family member, or due to injury or illness. These people will either be forced to leave the UK, or be expected to remain under the “precarious” immigration status of temporary migrant for ten years instead of five. Those who are eligible to be sponsoring partners but who cannot meet the minimum financial threshold will also continue to form family relationships abroad with partners who are non-EEA nationals, or in the UK with non-EEA nationals who have limited leave status. It therefore seems likely that the political pressure against the requirement will increase over time rather than abating. Perhaps a future government (or even the current one) will consider the minimum financial threshold too politically expensive to maintain.

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Victims of trafficking empowered to seek compensation

Administrator 1 : August 13, 2014 7:38 am : Blog, Criminal, Human Rights

Hounga v Allen and another

The employee had been allegedly trafficked from Nigeria to the UK by the employer to work illegally as an au pair. The Court of Appeal, Civil Division, set aside an award of compensation granted in the employee’s favour for unlawful discrimination in relation to her dismissal by the employer, having held that the illegality of the contract of employment had formed a material part of the employee’s complaint and that to uphold it would be to condone the illegality. The employee appealed.

The Supreme Court, allowing the appeal, held that it would be a breach of the UK’s international obligations under the Council of Europe Convention on Action against Trafficking in Human Beings for its law to cause the employee’s complaint to be defeated by the defence of illegality. The case was remitted to the tribunal in respect of a complaint in relation to pre-dismissal harassment.

What key issues did the case raise?

The case focused on two key questions:

  1. To what extent does participation in illegality prevent a party from recovering against a defendant or respondent?
  2. What effect do the UK’s international obligations have on the rights of victims of human trafficking before the UK courts and tribunals?

To what extent did the Supreme Court clarify the law in this area?

The court unanimously held that the defendant could not take advantage of the illegality defence, and that the appellant’s race discrimination complaint could proceed, notwithstanding that she was illegally employed. The reason was that there was no “inextricable link” between the illegality and the claim – the illegal employment did no more than provide the context in which the discrimination occurred.

The majority (by way of Lord Wilson’s judgment) held that the illegality defence is founded upon public policy. A court faced with an illegality defence should consider the public policy as to whether the illegality defence should apply on the particular facts of the case. It should then consider the public policy implications of preventing the claimant bringing their claim on the particular facts of the case. In effect, tribunals and courts should carry out a balancing exercise in respect of public policy. Public policy should be considered in the context of the integrity of the legal system and the court condoning any illegality.

In respect of the law on human trafficking, this was the first judgment by the Supreme Court to consider trafficking and will accordingly be highly influential. By a majority, the court held that the illegality defence could not succeed as victims of human trafficking must have a right to compensation for discrimination in accordance with the UK’s international obligations regarding trafficking, in particular the Council of Europe Convention on Trafficking.

Are there any potential legal loopholes or grey areas remaining?

It seems likely that cases involving the illegality defence will continue to turn on the facts. The facts in Hounga were extreme. The defendant trafficked the appellant, who was a child, and subjected her to serious physical abuse – the appellant was a victim of serious crime.

Apart from the “inextricable link” test and the balancing of public policy, the majority judgment also raises other factors such as the degree of culpability. It is unclear how much tribunals and courts will bring these factors into account.

It should be noted that the minority judgment (of Lord Hughes), while agreeing that there was no inextricable link, took a different approach in general terms on illegality. There was no consideration of a balance of public policy considerations. Lord Hughes’ judgment concentrated on a claimant’s conduct. Although only a minority judgment, it remains to be seen if it will have any influence.

The law on human trafficking is fast developing. For instance, both judgments expressly referenced the current draft of the Modern Slavery Bill. It is unclear as to the extent to which our current law provides protection to victims and the extent to which they need to rely on international obligations.

What are the difficulties for lawyers in complex cases such as this?

There remain considerable, although not insurmountable, difficulties in cases for victims of trafficking. Victims are usually vulnerable with little knowledge of the English language, culture and legal process. In Hounga the victim had excellent support from various statutory and non-governmental organisations. This is not always available.

Further, the courts and tribunals, with some notable exceptions, are not accustomed to these claims. Our legal system can be inflexible in dealing with child litigants.

Although the UK is required to provide legal aid to victims of trafficking under its international obligations and legislation expressly provides for this, victims often experience unusual difficulty in accessing legal aid.

The question of how race discrimination affects such claims has been considered by the Court of Appeal in Onu v Akwiwu; Taiwo v Olaigbe – an application for permission to appeal is currently before the Supreme Court.

It should be noted that it took six years and the involvement of the Supreme Court before a child victim of human trafficking (who had learning difficulties) was permitted to bring a claim against the trafficker who had seriously abused her. The reasons for this were complex –however, the risk is that the current preoccupation with immigration is overshadowing the key legal issues in trafficking cases.

What should lawyers take from the case and be advising clients as a consequence?

Lord Wilson’s judgment is worth reading in detail on the exact approach in illegality cases. The effect on the law on illegality should extend well beyond human trafficking and, indeed, employment law.

In respect of the law on human trafficking we have Supreme Court authority that an individual victim can rely on the UK’s international obligations. This includes but is by no means limited to race discrimination – there are many other claims brought by victims against traffickers and the state. This case is relevant to all cases relating to trafficking including criminal, housing, immigration and public law.

Are there any discernible trends in this area and what are your predictions for future development?

Human trafficking law and practice has developed greatly since 2009 when the claimant was first recognised as a victim and the case was issued at the employment tribunal.

Many successful claims have since been brought for victims in the employment tribunal and considerable compensation obtained. However, there have been difficulties in respect of the scope of race discrimination law.

It is extremely likely that we will see considerable further developments. Lawyers will seek to establish that courts and tribunals must take the UK’s international obligations into account when considering all cases involving victims of human trafficking. The fact that the UK’s international anti-trafficking obligations are directly enforceable will also assist victims in holding the state to account where it fails its obligations.

The Supreme Court also relied on the drafting of the Modern Slavery Bill in reaching its conclusions. The Modern Slavery Bill has been criticised for making very little if any provision for victims and concentrating on the criminal process. There is likely to be pressure for further legislation – and caselaw – to protect the rights of victims.

By Juliette Nash, solicitor at the Anti Trafficking and Labour Exploitation Unit (Interviewed by Kate Beaumont).

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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Abolishing prison sentences for drug users: sensible or a step too far?

Administrator 1 : August 11, 2014 5:00 pm : Blog, Criminal

By Merry Neal

Nick Clegg announced last week that a pledge to abolish prison sentences for the possession of drugs for personal use will form part of the Liberal Democrat’s manifesto for the next election. The manifesto commitment would include a promise to move the drug policy lead from the Home Office to the Department of Health, and would seek to divert users into treatment for their addiction, community sentences, or to civil penalties that do not attract a criminal record. The plans would even extend to the possession of Class A substances such as heroin and crack cocaine. This is a controversial proposal, but does it have merit?

Let’s get straight to the point. The war on drugs is not working. The use and abuse of illegal drugs is still endemic in our society. For years now politicians have told us that drug addicts are criminals –  but that is not the whole picture. Drugs act as a catalyst in dragging otherwise law-abiding individuals into a life of crime. What starts as a drug habit tumbles into hopelessness, poverty, theft, prostitution and robbery.

By incarcerating people for possession, the state exacerbates the problem. It puts these vulnerable individuals in close quarters with hardened criminals who can exploit them; it burdens them with a criminal record which will make creating a new life away from drugs all the more difficult.

Prison sentences for possession do not cure the root cause of the offence: the addiction. This is obvious to many, and yet it is a bold statement coming from a politician. One only has to think of the sacking of David Nutt back in 2009 to remind ourselves of the reluctance of the government to engage in the drug reform debate.

The safe political rhetoric is that “tough on crime” equates to more prison sentences. But this well-worn line is no longer standing up to scrutiny, if indeed it ever did. The recidivist rate for those who have served jail time is still unacceptably high for all offences and demonstrates how rarely prison truly rehabilitates. Prison is unlikely to cure an individual of drug addiction. It is a sad fact that drugs will always find their way into prisons, and even if an individual gets clean inside, he is likely to fall back into old patterns upon release.

Each prison sentence costs the taxpayer dearly. Our prison system is still shamefully overcrowded. These are facts, and they cannot be ignored. By aiming to tackle the addiction itself, the state could prevent more serious crime being committed further down the line, whilst reserving the expensive prison spaces for the dealers and the smugglers.

The proposal as set out by Clegg is not perfect. There may be a rare case where a prison sentence is the appropriate sentence, in which case the restriction of judicial discretion in sentencing may not be desirable. A change in policy could be effected however that made allowance for the exceptional case.

There is also an argument that it will be easier for a drug dealer to recruit “runners” if he is able to assure them that a prison sentence could not result. Yet this somewhat misses the point: after all, drug dealers are not currently struggling to recruit runners. The potential punishment is not at the forefront of the runners’ minds: they are already caught in the trap. What matters is developing an overarching drugs policy that helps more people out of that trap for good, and stops them falling into it in the first place.

Currently the vast majority of people caught in possession of an illegal drug are not jailed. The courts make ample use of the various other measures they have available to them when sentencing, including drug rehabilitation programmes. But Mr Clegg’s proposal is symbolic, representing a recognition that drug abuse is as a health issue rather than a legal one, and could be more effectively tackled in that arena. The calls from a rethink of drugs policy have never been louder. Set against a background of drug decriminalisation in several countries, high profile individuals such as Richard Branson and Russell Brand have added their voices to the call for change.

Predictably, Mr Clegg has been accused of going “soft” on drugs. But drug policy should not be about “hard” or “soft” – it should be about effectiveness. Sending drug users to prison for possession is not generally helping them or the wider society. It is common sense to seek alternate mechanisms to tackle the scourge of drug addiction.

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