Case Previews: Shahid v Scottish Ministers (Scotland), R (Ali & Anor) v Secretary of State for the Home Department, Mirga v Secretary of State for Work and Pensions and another case, and Mandalia v Secretary of State for the Home Department
27 Thursday Aug 2015
Shahid v Scottish Ministers (Scotland), heard 18 February 2015.
The appellant, a prisoner serving a life sentence of 25 years, was removed from general association with other prisoners for a continuous period of four years and eight months from his remand before trial until 13 August 2010. The decision to segregate him was made under the relevant prison rules on the ground that it was necessary in order to maintain good order or discipline in the prison, and to protect him and other prisoners, and the rules required renewals of authorisation by the Prison Governor within time limits which were not always adhered to in the appellant’s case. The appellant challenged the lawfulness of his segregation in proceedings for judicial review issued on 20 October 2009.
The Court of Appeal held that the segregation was not illegal because of failures to comply with time limits set out in the Prisons and Young Offenders Institution (Scotland) Rules 2006 and that there had been no breach of the appellant’s rights under the ECHR, arts 3 & 8.
The Supreme Court must now decide whether the Court of Appeal was correct to rule the segregation was lawful.
R (Ali & Anor) v Secretary of State for the Home Department, heard 25-26 February 2015.
The appellants are British citizens. Their husbands want to stay with them here, but are required to pass a test in English before coming to Britain. It would not be feasible for them to do so. The wives claim that this requirement breaches their right to a private and family life under the ECHR, Art 8. The Court of Appeal agreed with Mr Justice Beatson that it did not, because the interference was proportionate to the aims of improving immigrants’ job prospects and ability to access health services.
The Supreme Court must decide whether the requirement to pass a test in English did breach the appellants’ rights under the ECHR, art 8.
Mirga v Secretary of State for Work and Pensions; Samin v Westminster City Council, heard 9-10 March 2015.
The appellants are Polish and Austrian nationals who had their applications for income support and housing assistance refused because they were either considered “a person from abroad” who was not habitually resident in the UK or not a “qualified person” within the meaning of the relevant legislation.
The Supreme Court must determine whether an EU citizen enjoys a right of residence if he or she cannot be removed from a host state except in breach of fundamental rights; whether the social security authorities awarding benefit were able to determine whether an EU citizen has such a right to reside; and whether the social security authorities were obliged to consider whether it was proportionate to refuse income support to the appellants in their individual cases.
Mandalia v Secretary of State for the Home Department, heard 7 May 2015.
The appellant entered the UK from India on a student visa in 2009. When he applied for further leave to remain as a student in February 2012 he was required by the relevant Immigration Rules to accompany his application with bank statements covering a 28-day period that demonstrated a minimum continuous balance of £5,400. However, he made a mistake and provided statements covering only a 22-day period from 29 December 2011 to 19 January 2012. He complained that the Home Office did not apply its “evidential flexibility” policy to him that would have had given him a chance to correct his mistake before his application was refused and a decision to remove him was made.
The Appellant’s case failed because an enquiry in relation to the availability of additional bank statements would have been “complete speculation” on the part of the Home Office. Davis LJ opined at para 102 that it made “no real difference” that in the appellant’s case the failure was to supply statements covering the necessary 28-day period and that the supplied statements did demonstrate a sufficiency of funds. The Court of Appeal held that whilst the Upper Tribunal misunderstood the scope of his appeal, remitting his case served no purpose because the only outcome would be dismissal.
The Supreme Court must decide whether the Home Secretary was required to apply her “Evidential Flexibility” Policy in the appellant’s case to allow him the opportunity to correct an error in his application for leave to remain before refusing it.