Public Interest Litigation Update:

27th August 2015

 

Welcome to the PILS Project's Public Interest Litigation Update. The Update provides you with information on current public interest cases, judgments, news and events.
 
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N.I Judicial Review - Anti-Poverty strategy
 
  • Court finds Northern Ireland Executive breached its statutory duty
     
The Committee on the Administration of Justice (CAJ) and Brian Gormally’s Application [2015] NIQB 59
 
On 30th June the High Court found that the Northern Ireland Executive had failed in its statutory duty to adopt a strategy to tackle poverty, social exclusion and patterns of deprivation on the basis of objective need (‘the anti-poverty strategy’).  The requirement to adopt an anti-poverty strategy was inserted into section 28E of the Northern Ireland Act 1998 by virtue of the Northern Ireland (Saint Andrew’s Agreement) Act 2006.
 
The Court ruled that no such strategy had been adopted by the Executive.  Mr Justice Treacy rejected the Executive’s argument that their ‘Lifetime Opportunities’ document, along with other policies and initiatives, satisfied the section 28E duty,
 
While it is clear that there are many current programmes and interventions which in fact deal with the same issues that section 28E seeks to address, that section creates a duty to have an overarching strategy, and it is this long range plan which doesn’t exist and is incapable of being made to exist by the combination of programmes and interventions.’
 
The applicant, The Committee of the Administration of Justice (CAJ), received financial support from PILS to bring this case.  Read CAJ’s press release here.  Click here for an article from The Belfast Telegraph. 

 

Immigration
 
  • Supreme Court overturns immigration-related student loan ban
R (Tigere) v Secretary of State for Business (2015) UKSC 57
 
On 29th July the UK Supreme Court ruled that British-educated teenagers who are lawful residents in the UK, but have a ‘limited’ or ‘discretionary’ immigration status, will be able to apply for student loans.
 
The case was brought by a Zambian student who arrived in the UK when she was 6 years of age.  She was educated in primary and secondary schools in York and was offered a place at Northumbria University.  When she applied for a student loan, she was informed that her immigration status of ‘discretionary leave to remain’ meant that she was ineligible. 
 
By a slim majority, the Supreme Court found that the blanket exclusionary rule preventing anyone, except UK citizens or those with ‘indefinite leave to remain’ in the UK, from applying for student loans was disproportionate and could not be justified. 
 
The legal charity, Just for Kids Law, intervened in the case.  Their press release can be read here
 
UK Human Rights Blog also provided commentary

 

Legal Aid
 
  • Another successful challenge of LASPO                               
IS (by the Official Solicitor as Litigation Friend) v The Director of Legal Aid Casework and Anor (2015) EWHC 1965 (Admin)
 
On 15th July the High Court of England and Wales ruled that the Legal Aid Agency’s (LAA) operation of the Exceptional Case Funding (‘ECF’) scheme was unlawful.
 
ECF was introduced under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) and was to act as a ‘safety net’ to mitigate the significant cuts to legal aid.  An ECF application is made where a case falls outside the scope of legal aid but the client or conducting solicitor believes there is a requirement to provide funding because failure to do so would breach the Human Rights Act.
 
The case was brought by the Official Solicitor for England and Wales on behalf of a blind Nigerian national referred to as ‘IS’ who was initially refused exceptional funding to apply to the Home Office to clarify his immigration position.
 
While an earlier court decision had already established that IS was properly entitled to ECF, the Official Solicitor pursued a wider public interest claim out of concern for other vulnerable litigants denied ECF.
 
The Court held that there were various deficiencies with the operation of the ECF system, including the complexity of the application procedure and the nature of the LAA’s decision making.  The Court stated that significant changes were needed to the operation of the scheme.
 
Coverage from the Law Gazette can be found here.  An article from The Guardian can be read here.

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Housing
 
  • Supreme Court clarifies meaning of ‘vulnerability’ in homelessness applications
Hotak and others (Appellants) v London Borough of Southwark and another (Respondents) (2015) UKSC 30
 
Under s.188 of the Housing Act 1996 local authorities have a duty to provide accommodation for applicants who are homeless and in priority need.  Priority need includes persons who are ‘vulnerable’.  
 
In May the Supreme Court considered the cases of three appellants who had applied as homeless to their local authorities.  Their applications had been rejected because they were deemed not to be ‘vulnerable’. 
 
The first appellant had learning difficulties and lived with his brother.  The second appellant suffered physical and mental health problems and lived with his wife and son.  The third appellant claimed to have physical and mental health issues and used heroin.
 
The Court dismissed the appeals of the first and third appellants.  However, it allowed the appeal of the second appellant because the wrong comparator had been used by the local authority to assess whether or not the applicant was ‘vulnerable’.  The Court stated that the comparison used to assess an applicant’s vulnerability should be with ‘an ordinary person who was made homeless’ rather than ‘someone who was actually homeless’.
 
The Court also held that family support should be taken into account when assessing vulnerability where that support will be provided on a consistent and predictable basis. 
 
This judgment has been welcomed by homeless charities such as Crisis who intervened in the case.  Click here for their press release.  Commentary from the housing blog Nearly Legal can be read here

 
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Article 8 ECHR
 
  • Local teenager loses Supreme Court case over PSNI’s use of riot photographs.
In the matter of an application by JR38 for Judicial Review (Northern Ireland) (2015) UKSC 42
 
The UK Supreme Court has held that the publication of photographs of a minor (14 years old at the time of publication) suspected of involvement in criminal activities did not constitute a breach of his right to respect for his private life under Article 8 of the European Convention on Human Rights (ECHR).
 
The minor, known as ‘JR38’, was involved in rioting in Derry/Londonderry in July 2010.  CCTV images of him were subsequently published in two newspapers as part of a police campaign (‘Operation Exposure’) designed to identify people involved. 
 
The Supreme Court held that the publication did interfere with the minor’s Article 8 rights, however, the interference was justified on the basis that it was necessary for the administration of justice.  The interference was not excessive in the circumstances. 
 
 UK Human Rights Blog’s article can be read here.  

 
Abortion
 
  • NI woman loses NHS abortion challenge
A (A Child) & Anor, R (On the Application Of) v Secretary of State for Health [2015] EWCA Civ 771
 
On 22nd July the Court of Appeal of England and Wales upheld a High Court ruling that women from Northern Ireland are not entitled to free NHS abortions. 
 
The test case was brought by a mother and her teenage daughter referred to as ‘A’.  A was 15 when she became pregnant and travelled to Manchester to have an abortion.  The termination was paid for by her mother at the cost of £600 plus travel costs.
 
The High Court had ruled that the health secretary was entitled to adopt a residence-based system so that women resident in NI are not entitled to NHS abortion services in England, even though they are UK citizens.  This was accepted by the Court of Appeal with Lord Justice Elias stating,
‘It is not irrational to take the view that English taxpayers should not have to bear the cost of providing abortion services to women from Northern Ireland.’
 
The Court of Appeal declared that A had no right under Article 8 ECHR to a state-funded abortion, and there was no breach of anti-discrimination laws under Article 14 ECHR.  The Court also refused permission to appeal to the Supreme Court. 
 
Click here for an article from The BBC.

 

Pro Bono
 
 
The PILS Project has a register of legal practitioners who are interested in undertaking pro bono work with the PILS Project.  Opportunities range from writing an initial opinion to involvement in a test case, contributing to publications on public interest cases/issues and delivering training and talks to NGOs and legal practitioners. If you would like to join the register and find out more about opportunities to do pro bono work, please email dervla@pilsni.org to request an application form.
 

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