Review of significant caselaw

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Held: Reclaiming motion refused. (1) On a fair reading of S's decision letter, she had demonstrated that she had been aware of the facts and circumstances of the art.8 claim and that she was not satisfied that the factual basis therefor had changed since it had been considered by J, and she had not erred in aligning her reaction thereto with that of J; it had been implicit in J's approach, and thus in S's approach in her letter of 2 July 2013, that it was recognised that refusal of B's application might result in B and X being separated, however, in the particular circumstances, the weight of the countervailing considerations relevant to the legitimate aim of immigration control was such that there were no realistic prospects of success of persuading a new immigration judge to reach a different decision. (2) The finding that there were no insurmountable obstacles to B's removal and X's relocation to Pakistan had not been treated by S as a determinative factor, accordingly, she had been correct in stating that she was entitled to regard it as a material factor; that B's relationship with X had been formed at a time when he was present in the UK illegally and thus in the most precarious of circumstances was highly relevant, it was evident that S was well aware of what was involved in the circumstances of the B's case, including the implications of his marriage to a British citizen, his lengthy history of unsuccessful immigration applications, and the absence of any new factual evidence to support the art.8 claim, and she had not just been entitled but duty bound to have regard to the interests of the state, and none of B's criticisms undermined the lawfulness of the S's decision.

Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931
The appellant secretary of state appealed against a decision ([2014] EWHC 3061 (QB)) that the respondent Moroccan national (F) had been unlawfully detained pending his removal. F sought asylum in the UK in 2001. He lied about his name and nationality, and gave a false story to support his claim. He was granted indefinite leave to remain. He was prosecuted for offences in 2004, 2005 and 2006. He visited Norway in 2006 and unsuccessfully applied for asylum there. He was expelled in September 2009 after the authorities discovered that he was a Moroccan citizen. He then returned to the UK, whereupon he was detained. He wished to return to Morocco, and an application to the Moroccan authorities for an emergency travel document was submitted. The Moroccan authorities took two years to provide it, despite every effort being made by the secretary of state to chase the matter. F was eventually released on bail in July 2011 before being removed. The judge below observed that a period of detention of 12 months or more would always require anxious scrutiny, and went on to hold that F's detention had become unlawful in November 2010. It was common ground that the first and fourth Hardial Singh principles had been met: the secretary of state had used the power to detain F for the purpose of removal, and had acted with reasonable diligence and expedition to effect removal. What was in issue was the application of the second and third principles, namely whether the period of detention was reasonable in all the circumstances, and whether it had become apparent that the secretary of state would not be able to effect deportation within a reasonable period.
The secretary of state argued that the judge had (1) misapplied the Hardial Singh principles, in that he had downgraded the paramount importance of the risk of absconding and had made it dependent on the risk of committing further offences. As a result, he had wrongly assessed the reasonable period; (2) failed to make an objective assessment of the facts as they appeared to those acting for the secretary of state at the time, but had applied his own subjective views with the benefit of hindsight.
Held: Appeal dismissed. (1) It was self-evident that the risk of absconding was of critical and paramount importance in the assessment of the lawfulness of detention. However, a very careful assessment of that risk had to be made in each case, as the magnitude of the risk would vary according to the circumstances. The risk would be greater where, as in the instant case, the person had a clear track record of dishonesty and a knowledge of how to navigate through immigration controls, or where he refused voluntary repatriation that was immediately available to him. The risk of absconding was not a factor that invariably trumped other factors, particularly the length of detention; however, it could be a factor of the highest or paramount importance that might justify a very long period of detention. The risk of absconding was distinct from the risk of committing further offences, and was not dependent on that further risk. The risk of reoffending required its own distinct assessment (see paras 44-46 of judgment). (2) The judge had carefully weighed the risk of absconding. He had been entitled to conclude that the risk of absconding had lessened by November 2010, on the basis that F's wish to return to Morocco had become more genuine and determined by that point. The judge could be criticised for observing that a period of detention of 12 months or more would always require anxious scrutiny. Proper scrutiny was always required when a person was detained: it was not dependent on a particular period of detention having elapsed. The judge had been entitled to conclude that by November 2010, when a period of 14 months had elapsed, the period of detention was no longer reasonable. The judge's assessment had been an objective one, based entirely on the information available to the secretary of state in November 2010. He had been entitled to conclude, applying the Hardial Singh principles, that in November 2010 the risk of absconding did not provide a sufficient justification for F's continued detention (paras 47-54). (3) The decisions in Saleh v Secretary of State for the Home Department [2013] EWCA Civ 1378 and R. (on the application of NAB) v Secretary of State for the Home Department [2010] EWHC 3137 (Admin) discouraged any attempt to fix a temporal yardstick or tariff in determining whether a period of detention was reasonable. Despite that, attempts had been made on F's behalf to show that justifiable periods of detention could be ascertained by a careful study of other decisions. There were no tariffs or guideline periods to be derived from case law, and lawyers should not waste time and resources attempting to persuade the courts otherwise. Each deprivation of liberty pending deportation required proper scrutiny of all the facts by the secretary of state in accordance with Hardial Singh principles, which were the sole guidelines, Saleh considered and NAB approved (see paras 37-41 of judgment).
R. (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57; [2015] 1 W.L.R. 3820; [2015] E.L.R. 455
The appellant (T) appealed against a decision ([2014] EWCA Civ 1216, [2014] H.R.L.R. 26) that the legislation which prevented her from obtaining a student loan was not incompatible with her human rights. To qualify for a loan, a student had to (a) be resident in England when the academic year began; (b) have been lawfully ordinarily resident in the UK for the three years before then; and (c) be settled in the UK on that day. T was a national of Zambia, born in 1995. She came to this country with her parents in 2001. Her father had a student visa and she and her mother came with him, lawfully, as his dependants. Her father left the UK in 2003, but she and her mother stayed on after their visas had expired. She had been educated here and had done very well. She did not meet criterion (b) because her residence had not been "lawful". She did not meet criterion (c) because "settlement" for the purposes of the immigration legislation was defined in terms of indefinite leave to remain, which she did not currently have. The issue was whether criteria (b) and (c) breached T's right to education under ECHR Protocol 1 art.2 or unjustifiably discriminated against her in the enjoyment of that right, in breach of art.14.

Held: Appeal allowed in part. (Lords Sumption and Reed dissenting) (1) The application of the "lawful ordinary residence" criterion was compatible with T's Convention rights, there being ample justification for the rule. There were strong public policy reasons for insisting that any period of ordinary residence required before a person became entitled to public services be lawful ordinary residence. Further, if the requirement were to be relaxed for people in T's position, it would also have to be relaxed for all the other categories of persons eligible for student loans to whom the requirement of three years' ordinary residence applied; they were just as likely as T to be the victims of their parents' decisions rather than their own. The administrative burden involved in making the moral judgments required would be intolerable (see paras 45-46 of judgment). (2) As to justification for the "settlement" criterion, the test was fourfold. One issue was whether the secretary of state was justified in adopting a "bright line" rule which enabled those administering the scheme quickly and easily to identify those who qualified. The settlement rule was a good rule of thumb for identifying those who definitely should be eligible for student loans. They were the people with the right to stay and work here for as long as they pleased. But there were also people such as T who had lived here for many years and could not in reality be removed unless they committed a serious crime. T had pointed to the criteria currently used in the Immigration Rules for the grant of leave to remain on grounds of private life. Paragraph 276ADE (1) included a person who was under 18 and had lived continuously in the UK for at least seven years and a person who was aged 18 or above and under 25 and had spent at least half his life living continuously in the UK. To that might be added an exceptional cases discretion. Given the comparatively small numbers involved, it had not been shown that that would be administratively impracticable. There was also the issue of the fair balance to be struck between the effect on the person whose rights had been infringed and the interests of the community. The impact on T and others in her position was clearly very severe: T would be deprived, through no fault of her own, of higher education at the time in her life when her primary and secondary education had led her reasonably to expect that she would go with her peers to university. It was important to keep up the momentum of one's studies, to maintain the habits and skills learned at A level and in many cases to retain the knowledge gained there. Those young people would also find it hard to understand why they were allowed access to all the public services, including cash welfare benefits, but not this one benefit, which was a repayable loan. There was also the harm to the community. Some might be lost to higher education forever. Others would not join the productive higher-skilled workforce until much later than they otherwise would have done. The overall benefits to the exchequer and the economy would be reduced. Those harms to both the individuals concerned and the community as a whole could not be outweighed by the administrative benefits of this particular bright-line rule, which could be achieved in other ways. Any short-term savings to the public purse by denying these students finance, by way of loans, were just that, as most of them would eventually qualify for loans, and in the meantime the benefit their enhanced qualifications would bring to the exchequer and the economy would be lost. In the circumstances, the application of the settlement rule to T could not be justified and was incompatible with her Convention rights. She was entitled to a declaration to that effect. Such a declaration would leave it open to the secretary of state to devise a more carefully tailored criterion which would avoid breaching the Convention rights of other applicants (paras 33, 36, 38-42, 49).

The Grand Chamber of the European Court of Human Rights in Jeunesse v the Netherlands (application no. 12738/10), the European Court of Human Rights held, by a majority, that there had been a violation of art. 8 of the ECHR. The case related to the refusal by the authorities to allow a Surinamese woman married to a Netherlands national, with whom she had three children, to reside in the Netherlands on the basis of her family life in the country. The Court took into consideration that, apart from Ms Jeunesse, all members of her family were Dutch nationals entitled to enjoy family life with each other in the Netherlands, that Ms Jeunesse had been living in the Netherlands for more than 16 years (and the Netherlands authorities had been aware of this), that she had no criminal record and that settling in Suriname would entail a degree of hardship for the family. The Court further considered that the Netherlands authorities had not paid enough attention to the impact on Ms Jeunesse’s children of the authorities’ decision to refuse her request for a residence permit. Indeed, the authorities had failed to take account of and assess evidence on the practicality, feasibility and proportionality of the refusal at issue in order to give effective protection and sufficient weight to the best interests of the children. The Court concluded that a fair balance had not been struck between the personal interests of Ms Jeunesse and her family in maintaining their family life in the Netherlands and the public order interests of the Government in controlling immigration.

Medical Law
Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] 2 W.L.R. 768; [2015] 2 All E.R. 1031; 2015 S.L.T. 189 ; S.C.L.R. 315; [2015] P.I.Q.R. P13; [2015] Med. L.R. 149; (2015) 143 B.M.L.R. 47

Here the Supreme Court held that the analysis of the law by the majority in Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] A.C. 871 was unsatisfactory. This was driven by a human rights analysis of the nature of informed consent to medical treatment. An adult person of sound mind was entitled to decide which, if any, of the available forms of treatment to undergo, and her consent had to be obtained before treatment interfering with her bodily integrity was undertaken. Doctors were under a duty to take reasonable care to ensure that patients were aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.

In this case the appellant (M) appealed against a decision ([2013] CSIH 3, 2013 S.C. 245) upholding the dismissal of her claim in negligence brought against the respondent health board in relation to her antenatal care. M had been treated by a consultant obstetrician (C) during her pregnancy because she was diabetic, and was therefore likely to have a large baby. The risk of shoulder dystocia occurring was 9 to 10 per cent, but C did not inform M of the risk because, in her estimation, the risk of a grave problem for the baby arising as a result of shoulder dystocia was very small. During the delivery, shoulder dystocia occurred and the baby was deprived of oxygen due to occlusion of the umbilical cord. He was born with severe disabilities. It was M's case that she should have been advised about the risk of shoulder dystocia, and of the alternative possibility of delivery by caesarean section. The Court of Session rejected that argument, following the approach in Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] A.C. 871, namely that the question of whether a doctor's omission to advise a patient of risks involved in treatment amounted to a breach of duty of care should be decided primarily on the basis of expert medical evidence, applying the Bolam test. It also concluded that, even if M had been advised about the risk of serious harm to her baby as a consequence of shoulder dystocia, she would not have opted for a caesarean.
Held: Appeal allowed. (1) Lord Scarman's dissenting judgment in Sidaway took as a starting point the patient's basic human right to make his own decision. He held that if a patient suffered damage as a result of an undisclosed risk which would have been disclosed by a doctor exercising reasonable care to respect the patient's right to decide whether to incur the risk, and the patient would have avoided the injury if the risk had been disclosed, then the patient would have a cause of action based in negligence. In England and Wales, lower courts had tacitly ceased to apply the Bolam test in relation to the advice given by doctors to their patients, and had effectively adopted Lord Scarman's approach, Pearce v United Bristol Healthcare NHS Trust [1999] E.C.C. 167 approved, Wyatt v Curtis [2003] EWCA Civ 1779 considered. In Chester v Afshar [2004] UKHL 41, [2005] 1 A.C. 134, Lord Walker observed that during the time which had elapsed since Sidaway , the importance of personal autonomy had been more widely recognised, and that, in making a decision which might have a profound effect on her health and wellbeing, a patient was entitled to information and advice about possible alternative or variant treatments, Chester applied. Recent guidance issued by the Department of Health and the General Medical Council had treated Chester as the leading authority. It had become increasingly clear that the paradigm of the doctor-patient relationship implicit in the speeches in Sidaway had ceased to reflect the reality and complexity of the way in which healthcare services were provided, or the way in which the providers and recipients of such services viewed their relationship. Under the stimulus of the Human Rights Act 1998 the courts had become increasingly conscious of the extent to which the common law reflected fundamental values, including the value of self-determination. The analysis of the law by the majority in Sidaway was unsatisfactory, in so far as it treated the doctor's duty to advise the patient of the risks of proposed treatment as falling within the scope of the Bolam test, subject to two qualifications of that general principle, neither of which was fundamentally consistent with that test. There was no reason to perpetuate the application of the Bolam test in that context any longer. An adult person of sound mind was entitled to decide which, if any, of the available forms of treatment to undergo, and her consent had to be obtained before treatment interfering with her bodily integrity was undertaken. The doctor was under a duty to take reasonable care to ensure that the patient was aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality was whether, in the circumstances, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor was or should reasonably be aware that the particular patient would be likely to attach significance to it (see paras 39-87 of judgment). (2) There was no doubt that it was incumbent on C to advise M of the substantial risk of shoulder dystocia if a vaginal delivery were attempted, and to discuss with her the alternative of a caesarean section. The Court of Session had erred in focusing upon the consequent risk that the baby might suffer a grave injury, which was relatively small (para.94). (3) There was a compelling reason for concluding that the Court of Session had failed to consider relevant evidence in relation to causation, Thomas v Thomas [1947] A.C. 484 considered. The only conclusion available was that, had C advised M of the risk of shoulder dystocia and discussed with her dispassionately the potential consequences, and the alternative of an elective caesarean, M would probably have opted for the caesarean. It was not in dispute that the baby would then have been born unharmed (paras 96-104).
Property and Planning

Carroll v Scottish Borders Council [2015] CSIH 73
An objector (C) reclaimed against a decision of the Lord Ordinary refusing her appeal against the decision of a local review body (L) of the local planning authority (S) to grant planning permission to an interested party (F) for the erection of two wind turbines (W) (Carroll v Scottish Borders Council [2014] CSOH 6, 2014 S.C.L.R. 532). Planning permission for W had been refused on 15 September 2010, 7 March 2011 and 21 March 2013 on the basis that it was contrary to the development plan. F sought review of the last decision and on 21 March 2013, L found that it was consistent with the development plan. C appealed, and on 17 January 2014, the Lord Ordinary found inter alia that L's decision had been within the powers of the Town and Country Planning (Scotland) Act 1997. C submitted that (1) the Lord Ordinary had failed to applied an intense level of review and to subject L's decision to a more rigorous examination given inter alia that L was not impartial, there was no requirement for planning expertise for election to L, that L's decision overturned that of a planning officer with planning expertise and also affected fundamental rights, the scale of W, the sensitivity of the sight and its planning history, and the Lord Ordinary had erred in not doing so, and further, he had erred in his interpretation of the 1997 Act in relation to L's powers of review and had not had regard to EU law; (2) the Lord Ordinary had failed to find that S's technical guidance note (T), which indicated that there was no scope for medium or large wind turbines in the area, was a material consideration, and to assess whether it would have made a difference to the decision; (3) L had made no findings on cumulative impacts, had failed to address residential amenity, had failed to interpret and apply the policy in the local development plan regarding economic benefit and had failed to properly address the issue of proportionality, and the Lord Ordinary had erred in his treatment thereof; (4) C had not been given a reasonable opportunity to make representations and L had not carried out a site visit; there had been breach of natural justice, and the Lord Ordinary had erred in his treatment thereof; (5) L had failed to provide adequate and proper reasons and thus had failed to comply its duty under s.43A(12)(a) of the 1997 Act and the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2008 reg.21(2)(a)(viii); L's decision was de novo , therefore, it should have contained findings on visual impact, economic benefits and reasons for conclusions, L had failed to comply with the statutory requirements, the standard of reasons in its decision letter was so inadequate as to raise a real and substantial doubt as to what its reasons were and the material considerations taken into account in reaching it, those multiple errors and failures were not trivial and L's decision ought to be quashed.
Held: Reclaiming motion refused. (1) There was nothing to suggest that the Lord Ordinary had fallen into error of law; he had not suggested that a lower level of scrutiny or consideration, or a lesser requirement for reasons, was appropriate for L than for a reporter, he was correct in observing that it was necessary to consider the statutory context in which L operated and that it was entitled to take account of the reasoning in the report on handling, which could form part of L's reasons, and that it was unnecessary for L to restate aspects of the decision of the appointed person which it accepted. (2) L had taken a de novo approach to the material before it, it had carried out a full substantive and procedural review, its decision complied with the requirements of the 1997 Act and the 2008 Regulations, and the procedures as a whole complied with the requirements of Directive 2011/92. (3) There was no suggestion that the provisions of the 1997 Act or the 2008 Regulations were incompatible with Convention or EU law, moreover, there was neither anything in the application to the court nor in the grounds of appeal in the reclaiming motion, which suggested that C sought a declarator of incompatibility or any equivalent thereto such there was no devolution issue properly before the court. (4) T had not amounted to supplementary guidance in terms of s.22 of the 1997 Act and had not been of itself a material consideration, in any event, the material consideration was not T but the significance of high sensitivity for W in the area, which had been considered elsewhere, particularly in an independent landscape assessment which L had specified as one of the material considerations which it had taken into account, and the Lord Ordinary had been correct to consider whether a different outcome would have resulted had T been taken into account and to conclude that it would not. (5) There had been no error in the Lord Ordinary's approach to cumulative impacts and the court was in complete agreement with his treatment of the issue of residential amenity; it could not be said that the informed reader was left in any real or substantial doubt as to what L's reasons for its decision regarding residential amenity had been, it was clear that L had carried out the required balancing exercises in relation to residential amenity, economic benefit, proportionality, it had stated the reasons for reaching its conclusions thereon, there was sufficient material before L to provide a justification therefor, and no error of law could be detected in the Lord Ordinary's approach. (6) There had been no breach of natural justice; L had written to C advising her that she could make further written representations, L had agreed with the appointed person's findings on visual matters and a site visit would have made no difference to its decision. (7) Where L agreed with the reasoning of the appointed person and accepted his findings in fact, no purpose would be served by requiring L to repeat them, it would be sufficient for L make clear that it accepted and adopted the findings and reasoning on a particular issue. It could not be said that the informed reader would be left with a real and substantial doubt as to what the reasons for the decision were, it was tolerably clear that having carried out the necessary balancing exercise, L found that the balance favoured the granting of permission. (8) The Lord Ordinary had not fallen into any error of law, and L's decision letter was sufficient in its own terms and by reference to other material to satisfy the court that its decision was within the powers of the 1997 Act and complied with the relevant statutory requirements.

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