In November we issued a claim for permission to apply for judicial review of the Home Office’s delay in processing the application for settled status of an EU citizen facing pending criminal charges.
In the second in our series of Q&As on PILC legal cases, we outline the basis for the challenge and explore the wider issues raised by this case.
What’s the issue?
Our client, F, is a Polish citizen who has lived in the UK since 2006. He applied for settled status in September 2020 but has not yet received a decision on his application.
F has been told that his application has been stayed (a legal term meaning ‘put on hold’) because he is facing criminal charges. The Home Office say F will not receive a decision on his settled status application until there is an outcome in the criminal proceedings.
Why is this a problem?
The criminal charges F faces are highly unlikely to result in a custodial sentence or deportation action. Having lived in the UK for fifteen years, he meets the criteria for settled status.
F suffers from mental health difficulties and alcohol-addiction issues after experiencing significant trauma. These challenges have made it difficult for him to work and have contributed towards him becoming homeless in the past. They have also had a bearing on his contact with the criminal justice system.
Yet F is being prevented from regularising his immigration status. As a result he has been unable to claim welfare benefits or secure housing assistance.
The Home Office’s policy has effected trapped F in destitution.
What are the legal grounds of our challenge?
We are arguing that the Home Office policy which has caused F’s application to be put on hold is unlawful.
Previous versions of the policy directed Home Office caseworkers to consider whether it was ‘reasonable and proportionate’ to delay decisions on applications in cases where applicants face pending criminal charges. However, this discretion has been removed in recent versions and it is now mandatory for applications such as F’s to be delayed, even where delay will cause serious harm.
We say that inflexibility of the current version of the policy is unlawful, and that it breaches the United Kingdom’s obligations under the Withdrawal Agreement.
We are also arguing that the Home Office has failed to consider F’s application for settled status in a reasonable time frame. The standard time frame for considering EU Settlement Scheme applications (EUSS) is five working days or no longer than a month. Yet F has been waiting for more than a year.
Moreover, in view of the nature of the criminal charges and the length of time the criminal proceedings are taking, we believe it is unreasonable for the Home Office to pause consideration of F’s application. Finally, we are also arguing that the delay has directly resulted in the hardship to F, which amounts to a violation of his rights under Article 3 and Article 8 of the European Convention on Human Rights.
Are other people experiencing the same issues?
Our partner organisations report that other vulnerable EU citizens are experiencing long delays (of over six months and in some cases well over a year) in the processing of their EUSS applications.
These delays are causing uncertainty about people’s rights and entitlements. Some applicants are struggling to access benefits they should be entitled to. Others have not been able to obtain valid certificates of application that would allow them to continue to prove their right to work pending a decision.
A significant number of those left in limbo have disabilities or other complex needs. In some cases support organisations and even MPs have written to the Home Office asking for decisions to be expedited—usually to no avail. (Both individuals and support organisations report difficulties contacting the Home Office.)
Many (though not all) of those experiencing EUSS delays have had their cases put on hold either because they have a criminal record or because they are facing criminal charges. The charges or convictions concerned frequently relate to low-level offences linked to poverty and addiction.
Applicants report distress and anxiety as a result of the delays. At least one has been denied the opportunity to study at university because they could not prove their eligibility for student finance.
What wider issues does this challenge raise?
The Home Office’s policy of staying EUSS applications where there is a pending prosecution benefits nobody.
As PILC solicitor Ellen Fotheringham puts it: ‘Our client, who has lived in the UK for over 15 years, is on the verge of street homelessness as a result of this policy. It is clear that despite countless warnings no lessons have been learned by this government from the Windrush Scandal, with EU citizens now being exposed to the same devastating uncertainty about their rights.’
There is another an important principle at play in this case: a person’s right to remain should not depend on whether they have been charged with or convicted of a criminal offence.
Over 11 million people in the UK have a criminal record. There is a strong link between poverty (and other forms of structural injustice) and having a criminal conviction. Those who are racialised as non-white and those from a migrant background are disproportionately likely to have a criminal record despite people from such groups not being more likely to commit crime.
Stopping people from regularising their immigration status due to a pending prosecution is just one instance of a trend through which rights that should be universal (such as a person’s right to live in the country they call home) are increasingly being differentiated. This means some people are accorded those rights unconditionally, while others (usually members of marginalised groups) may be denied them in certain circumstances.
Today sees the launch of the Domestic Abuse and Housing Forum (DAHF), created by PILC in response to the increasing obstacles domestic abuse survivors face when seeking housing support from local authorities.
In our latest blog, legal caseworker Isabella Mulholland explains what the forum will do and why it’s needed.
For the last three years, I’ve been working with domestic abuse survivors to support them to access safe housing. Before coming to PILC as a legal caseworker, I was a homelessness advocate worker in a winter night shelter. In both roles I’ve been struck by the multiple barriers survivors must overcome in order to assert their basic right to a safe and suitable home.
When survivors flee, they are at their most vulnerable. Yet when they seek help from local authorities at this crucial time, housing officers routinely provide inaccurate information about their rights and options. This deliberate (and often unlawful) gatekeeping is a systemic problem across local authorities and spans both homelessness and longer-term accommodation provision.
The Domestic Abuse Act 2021 contains a number of provisions that may help survivors (we wrote a briefing about the act earlier this year), but it will not address the deep-rooted culture of disbelief and gatekeeping that exists in local authorities. It will also do nothing to support those with no recourse to public funds (NRPF), who remain barred from access to local authority housing.
Moreover, lawyers are often unaware of the daily obstacles survivors face when trying to access housing support, while frontline workers often struggle to find legal advice or representation. The few lawyers working in the area are inundated with cases.
We hope the new Domestic Abuse and Housing Forum (DAHF) will help tackle some of these issues. Through the forum we want to create a network of frontline DV workers, homelessness advice workers, housing and public lawyers and campaigners who will support one another to tackle local authority gatekeeping in cases of domestic abuse.
DAHF will allow domestic abuse advocates and other frontliners to access second-tier legal advice on their cases and refer their clients for formal legal representation. It will also be a space where updates and resources can be shared.
Quarterly meetings will see DV workers, campaigners and lawyers come together to discuss, and hopefully tackle, the systemic barriers facing survivors who need support from their local authority.
DAHF will only be as strong as its membership. For the forum to be successful, it will need the right mix of frontline workers and campaigners supporting survivors and lawyers who can take on legal cases.
That’s why we’re asking our friends and partners to share information about DAHF as widely as possible, particularly among housing and public lawyers, and in advice and legal aid ‘deserts’. In many parts of the country there are no housing legal aid providers, and we hope the new forum will help frontliners in those areas access robust legal support.
Domestic abuse survivors should not have to face constant barriers when seeking a safe home. We hope that by pooling our resources, we will be better able to tackle the unjust practices that currently prevail across many local authorities.
We will be providing updates on the activities of the forum throughout 2022. To join DAHF or for more information, please email firstname.lastname@example.org
The Judicial Review and Courts Bill has been slowly making its way through Parliament since July. In our latest blog, senior solicitor Paul Heron looks at the first two clauses in the bill and explains why they should be of concern to lawyers and social-justice campaigners.
(You can read the government’s Explanatory Note about the bill here, and check what stage the bill is at here.)
Judicial review is the legal procedure by which the courts examine the lawfulness of a decision made, or action taken, by a public body. It is a key tool used by PILC and other public-interest lawyers to challenge injustice and human rights abuses on behalf of clients.
When undertaken strategically, judicial review may not only help an individual claimant—it can also have a wider social impact. A successful judicial-review claim can result in a public body being forced to change an unlawful law, policy or practice. Other public bodies may also have to change their rules in line with the court’s judgment.
Judicial review can expose, and curb, the sexist, racist and anti-working class nature of UK law and policy. For example, PILC has assisted campaigners to use judicial review to good effect in challenging the selling-off of community assets to the highest bidder (Mohinder Pal v London Borough of Ealing  EWHC 2154 (Admin))
Unfortunately, judicial review is an expensive course of action. Legal aid for such challenges, though available, has been limited in recent years.The Legal Aid Agency is increasingly reluctant to fund challenges to cuts in services or administrative-law decisions that may be viewed as having a ‘political’ dimension.
What’s wrong with the new bill?
We’re particularly concerned about the first two clauses of the Judicial Review and Courts Bill, which deal specifically with Judicial Review.
Clause 1 seeks to amend the Senior Courts Act 1981 (SCA) to revise the effect of a Quashing Order. Currently, when the High Court such an order, its effect is immediate, and the decision that has been ruled unlawful is treated as if it had always been invalid. A Quashing Order is not only an effective tool for the Court; it also offers clients a clear sense of justice and opens the door for potential damages in relation to the actions of the public body concerned.
The government clearly intends to water down the impact of a Quashing Order. First, the bill would give the courts power to delay the effect of an order until a future date. This would allow an unlawful decision, policy or practice to be treated as if it were still valid until that date.
Second, the bill would create the presumption that a Quashing Order would not have any retrospective effect. This could shield the government from accountability for subjecting people to unlawful policy or practices.
It’s worth considering the practical implications of such an amendment. In the case of Gunars Gureckis and others v Secretary of State for the Home Department  EWHC 3298 (Admin), brought by PILC, the High Court quashed policy guidance from the Home Office that had led to the detention and deportation of homeless EU citizens. The policy was immediately suspended, and the Home Office was forced to stop detaining EU nationals who were sleeping rough. The quashing of the policy meant that those affected could secure compensation for unlawful detention or removal.
The changes proposed in Clause 1 could have prevented the policy being deemed unlawful retrospectively. It might also have stopped those affected from obtaining financial redress.
‘Cart’ judicial-review claims are currently a last resort in immigration and social security cases, and often involve fundamental aspects of human rights law. In immigration cases, issues relating to torture and the permanent separation of families are frequently at play. Access to justice in these areas has already been badly hit badly by cuts to legal aid.
The proposed reform would close another door in the face of people who have been trying, often for years, to assert their fundamental rights.
The Judicial Review and Courts Bill is now at the Committee stage. There is still time to make fundamental changes, which could include removing Clauses 1 and 2. Unfortunately, given their significant majority, it is likely that the government will be able to force the bill through with both clauses intact.
As when Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) introduced cuts in funding for legal aid, the measures contained in this bill will disproportionately affect the poorest in society. Now, as then, there is an urgent need for lawyers to join with grassroots groups and the trade-union movement in opposition to a retrograde piece of legislation. The legal community’s failure to build such alliances around LASPO had severe consequences. We must not make the same mistake again.
As politicians and protestors gather in Glasgow for the UN climate change conference, PILC senior solicitor Paul Heron blogs about the role strategic litigation should play within the mass movement required to tackle the climate emergency.
Paris was the first time an agreement had been reached on reducing carbon emissions. But the targets set there were not nearly ambitious enough. Major polluting industries like aviation and shipping were excluded from the legal agreement, which also lacked any clear mechanism for holding failing parties to account.
Above all, the Paris Agreement reflected the blind faith of many of its signatories in the free market and its mechanisms. The failure of COP21 is ultimately a failure of neoliberal economics—and a failure to appreciate that action against climate change needs to involve economic and social change on a systemic scale.
In Siberia and the Russian Far East, even bigger fires raged over a vast area, with smoke detected as far north as the North Pole. In Madagascar, a major drought left 1.1 million people without food, with aid agencies calling the disaster the first famine caused solely by climate change.
Estimates of the number of people likely to be displaced as a result of climate change vary dramatically. The most cited figure suggests that by 2050, 143 million people will have been forced to migrate as a result of failed harvests, droughts and flooding. Another study estimates that by 2100 some two billion people may be climate refugees.
The IPCC is not alone in calling for immediate and decisive action from governments. In June 2021 the United Nations’ World Meteorological Organisation called 2021 ‘a make-or-break year for climate action’, noting that ‘the window to prevent the worst impacts of climate change—which include ever more frequent more intense droughts, floods and storms—is closing rapidly.’
In 2020, the concentration of carbon dioxide in the atmosphere reached 417 parts per million, a level not seen since the Pliocene era three to five million years ago, when global temperatures were between 1.8 to 3.6 degrees higher than today. Internationally 2020 tied with 2016 as the warmest year on record—and in Europe it was the hottest year ever. The time to act was yesterday, yet world leaders tied to the global neo-liberal model are incapable of acting.
A systemic failure
A key reason why intergovernmental efforts to address climate change continue to fail is that their principal strategies are rooted in the current economic system. The solutions so far offered through COP primarily involve emissions-trading schemes, or carbon offsetting.
Such schemes are grounded in a profit-driven system that ties corporate interests to climate solutions. Corporations are centrally motivated by profit, not by dealing with climate change—and it is no secret that 100 companies are responsible for 71% of global emissions causing global warming. Yet the market is effectively being trusted to solve environmental problems. There is no evidence that such an approach works, but plenty of evidence that it is failing.
The idea that natural resources—land, air, forests, water—can and should be turned into commodities encapsulates is wrong with the neoliberal economic model.
Can law and strategic litigation save the planet?
Lawyers have a role in holding power to account around climate change. Organisations such as Client Earth and Plan B are increasingly bringing legal challenges, with varying degrees of success. But individual casework, even where undertaken strategically to raise awareness or stop a piece of legislation in its tracks, is likely to achieve only temporary success.
It is our view that litigation as a strategy of resistance needs to be embedded within the environmental movement. For one thing, and as Michael Ratner of the Center for Constitutional Rights has pointed out: ‘[W]ithout pressure from social movements its harder to win in courts.’
Litigation is one tactic among others that campaigners can draw on. It has an important part to play but should always be subordinate to the broader interests and strategy of the movement.
Building an alternative
The COP has faced many protests over the years, with the Copenhagen and Paris versions seeing protest on a global scale. COP26 represents a huge opportunity to galvanise the new mass movement against climate change that has emerged since 2019.
Young people, poor countries and the working class will bear the brunt of emissions-related climate change. Marginalised communities, trade unions and people from the Global South must therefore be central to the new environmental alliance. Since time is not on our side, the work of building such a movement needs to be done now—with lawyers playing a modest but strategic role.
 Michael Ratner (2021) Moving the Bar: my life as a radical lawyer, New York: OR Books, p. 141
At the beginning of October PILC issued a claim for permission to apply for judicial review of Southwark council’s housing allocations policy.
In the first in a new series of Q&As on PILC legal cases, we outline the basis for the challenge as well as exploring the wider implications of our client’s case.
What’s the issue?
Our client, Milton, lives with his wife, son and daughter in a privately rented studio apartment in Southwark. They are severely overcrowded and have endured extremely cramped housing conditions for almost five years.
The family applied to join Southwark’s housing register in April 2018. However, Southwark has refused to prioritise the family’s application for housing. The council claims that the family’s overcrowding is the result of a ‘deliberate act’.
Why is this a problem?
Priority on the housing register is determined by band. Southwark’s housing allocation policy awards the highest band (Band 1) to applicants who, like Milton and his family, are statutorily overcrowded.
This policy is in line with the council’s obligations under Part VI of the Housing Act 1996, which states that ‘reasonable preference’ must be given to people living in overcrowded housing.
However, there is an exception in Southwark’s housing allocation policy for people who have caused their overcrowding by a ‘deliberate act’, who are to be deprioritised.
Southwark accept that Milton and his family are statutorily overcrowded. But they claim this is the result of a ‘deliberate act’ on their part. In making this decision they have relied on an unpublished policy which appears to state that anyone who moves into accommodation that becomes overcrowded at the point at which they move in should be considered to have caused that overcrowding by a ‘deliberate act’.
However, Milton and his family had no choice but to move into their current accommodation. As Milton explains with the help of his daughter Rebecca: ‘I had to move to this flat. When we looked at other places the agencies asked us for many months’ rent in advance. I couldn’t rent a bigger house because it was too expensive.’
How has overcrowding affected Milton and his family?
Being overcrowded is affecting the whole family’s mental health, as well as making it difficult for the children to study.
As Milton explains: ‘My children cannot study in this environment. During the pandemic they had to take classes online at the same time. They found it difficult to listen and concentrate in class because they were in the same room.’
‘We do not have any privacy, either: we have to go to the bathroom to change.’
What are the grounds for our legal challenge?
PILC is arguing that Milton and his family had no choice but to move into their current accommodation and therefore should not be penalised and deprioritised.
The legal grounds for our challenge are that:
It was irrational for Southwark to conclude that the family’s statutory overcrowding was caused by a ‘deliberate act’ (and, in particular, it was irrational to conclude that at the time Milton moved into the current accommodation he had the option of instead moving into suitable alternative accommodation which was not statutorily overcrowded)
Given that Milton was not able to afford alternative accommodation that was not statutorily overcrowded, his decision to move into statutorily overcrowded accommodation was not a “deliberate act” within the meaning of paragraph 6.2 of Southwark’s Housing Allocation Scheme
Southwark’s Housing Allocations Scheme does not explain the criteria used when considering whether an applicant has committed a ‘deliberate act’
This is not the first time Southwark has blamed low-income families for their overcrowding. In December 2020, another family successfully challenged a ‘deliberate act’ decision.
Such cases raise broader issues relating to the chronic shortage of decent housing for low-income families in London, and the ‘social cleansing’ of migrant communities and communities of colour from central areas of the city.
It is now incredibly difficult for low-income Londoners to access secure, long term social housing. Families find themselves stuck for years in temporary accommodation that is either too small for their needs or miles away from children’s schools or parent’s workplaces. In the private rented sector levels of overcrowding have almost doubled in the last ten years due to a combination of rent rises and benefit cuts.
As Sam Tippet, a PILC paralegal working on the case, explains: ‘This case is a clear example of how Southwark continues to penalise working-class families. Milton’s family have spent almost five years living in accommodation so severely overcrowded they are legally homeless. Like so many others, they are being punished for earning too little money to live safely in London.’
‘Southwark continues to have too little housing stock for social tenants. This is the result of the longstanding failure of local and national government to resource adequate accommodation for people on low incomes. Even if successful, our legal challenge will not resolve this problem. There is an urgent need both to increase the provision of social housing and introduce rent controls to ensure private tenants can afford a decent home.’
Councils are also using ‘gatekeeping’ tactics to deter low-income and homeless households from accessing support to which they are legally entitled. There is an established culture of disbelief in housing offices, with families routinely being accused of fraud or of causing their own housing problems. Such issues disproportionately affect migrant communities and communities of colour, who are more likely than other groups to be homeless and live in poor housing.
As Izzy Koksal from Housing Action Southwark and Lambeth (HASL)—the local housing campaign group that Milton is part of—puts it: ‘We are all too familiar with these cruel and insulting decisions from the council, which blame migrant families and families of colour for living in overcrowded housing. We have successfully overturned many of them with the help of PILC. Our members will continue to campaign for an end to the use of ‘deliberate act’ and this culture of blame and refusal.’
In our latest blog, Saskia O’Hara looks at the campaigning history of CND and appeals for information about the officers who spied on the organisation.
CND is a mass peaceful democratic movement which has weaved itself into public consciousness and become part of the fabric of UK society. From the Cuban missile crisis and the Vietnam War to the surge in re-armament under Ronald Reagan and beyond, it has consistently opposed the use of nuclear weapons over more than fifty years. CND’s iconic symbol is recognised across the globe.
CND’s political importance is reflected in the group having been a prominent target of the Special Demonstration Squad (SDS) of the Metropolitan Police during the 1980s. Next year, Tranche 2 of the Under Cover Policing Inquiry will look at SDS deployments in the years 1983-1992, when CND was at the height of its campaigning influence.
Initial disclosure shows the extent to which CND was infiltrated to be far greater than previously thought. CND will also feature in Tranche 6 of the Inquiry, which covers spying by the security services. Much about the activities of the undercover officers who infiltrated CND is still not unknown.
Fighting for unilateral nuclear disarmament
CND was born out of an article in the New Statesman which called for unilateral nuclear disarmament. The article provoked such a positive response that the magazine’s editor suggested the need for a mass movement against nuclear weapons. This call was heeded and CND was born in February 1958. A meeting attended by 5000 people resolved that Britain must:
a) Renounce unconditionally the use or production of nuclear weapons and refuse to allow their use by others in her defence.
b) Use her utmost endeavour to bring about negotiations at all levels for agreement to end the armaments race and to lead to a general disarmament convention.
c) Invite the co-operation of other nations, particularly non-nuclear powers, in her renunciation of nuclear weapons.
In the 1980s—the period which the UCPI will focus on—CND held some of the biggest demonstrations in British history. In 1983 it organised an anti-nuclear protest in London that was attended by over 200,000 people. As Joan Ruddock, then-chair of the CND, put it: “The demonstration put paid to the notion that the peace movement is on its last legs.”
In the same year CND mobilised an estimated 80,000 people to form a human chain stretching 14 miles (22.5 kilometres) across Berkshire’s ‘nuclear valley’.
Despite the large numbers involved, Special Branch reports on these demonstrations repeatedly emphasise the low risk of public disorder. Of the protest against nuclear missiles in London, police files state that “the vast majority of the 200,000 or so persons attending this event were pacifists with no overt leanings to extremist, subversive or political groups [sic].”
If Special Branch recognised the majority of CND’s members as ‘pacifists’, on what grounds was the organisation infiltrated? This is the first of many questions the Inquiry will need to answer.
Did you know ‘Timothy Spence’ or ‘John Kerry’?
In granting Core Participant status to CND, the UCPI has identified two undercover police officers who targeted the group. Between 1981 and 1984, ‘Timothy Spence’ (HN88) is understood to have infiltrated CND in east London. (This officer is also believed to have infiltrated the Stoke Newington and Hackney Defence Campaign and the Hackney Campaign against the Police Bill)
Undercover officer ‘John Kerry’ (HN65) also infiltrated CND between 1980 to 1984—we suspect in the national office.
Little is publicly known about these officers as we await further disclosure from the Inquiry.
We would therefore urgently like to hear from CND members from that period who may have been in contact with—or indeed who know anything about—‘Timothy Spence’ or ‘John Kerry’.
In addition to these two officers, we believe a number of other police spies attended meetings and involved themselves in CND as part of their overall cover. It would appear that multiple officers used CND to ‘build up their profile’ as they sought to target other progressive campaigning organisations.
If you have any information relating to the activities of ‘Timothy Spence’ or ‘John Kerry’, please contact email@example.com so that this information can be brought before the Inquiry.