[2023] UKUT 00293 (IAC)

We agree with Mr Terrell that, properly understood, section 7(1)(b) enables a litigant to rely on Convention rights to defend proceedings brought against him or her, rather than as a means to prosecute alleged breaches.

Section 7(1)(a) is capable, in principle, of enabling a litigant positively to advance a free-standing human rights-based submissions against a public authority. But reliance on subsection (1)(a) is restricted to the “appropriate court or tribunal”, defined in subsection (2) to mean “such court or tribunal as may be determined in accordance with rules…” While CPR7.11 makes provision for bringing section 7(1)(a) claims before the courts, the only tribunals upon whom section 7(1)(a) jurisdiction has been conferred by rules are the Special Immigration Appeals Commission and the Proscribed Organisations Appeals Commission. No provision has been made for the First-tier Tribunal. Section 7(1)(a) cannot assist the appellant.

Mr Toal sought to resist Mr Terrell’s reliance on A on the basis that Lord Hope was not giving an exhaustive account of all proceedings in which section 7(1)(b) applies. He was not addressing the situation, such as the proceedings before the First-tier Tribunal, in which there are existing proceedings within which a litigant seeks to rely on Convention rights which are not proceedings brought by a public authority. For example, in Manchester City Council v Pinnock [2011] 2 AC 104 at para. 80, the Supreme Court held that section 7(1)(b) confers the necessary jurisdiction on county court judges when it is necessary for them to deal with a defence in possession proceedings which relies on an alleged breach of ECHR rights. Similarly, in Re V (A child) (Care Proceedings: Human Rights Claims) (Practice Note) [2004] 1 WLR 1433 at para. 8(4), the Court of Appeal held:

“…any allegation made in care proceedings pursuant to HRA 1998 section 6(1) that a local authority has acted in a way which is incompatible with a Convention right, including any allegation which involves a breach of a party’s rights under either Article 6 or 8 of the Convention can and should be dealt with in the care proceedings by the court hearing those proceedings under HRA section 7(1)(b).”

Mr Toal also relied on Somerville v Scottish Ministers [2007] UKHL 44, in which Lord Mance said, at para. 175, that section 7(1)(b) may be relied upon:

“…in the development or application of common law principles.”

We are not persuaded by Mr Toal’s submissions. In A,Lord Hope summarised the distinction between section 7(1)(a) and (b) in a comprehensive manner, applicable to all cases. Nothing in the authorities relied upon by Mr Toal requires or permits a different interpretation.

In Manchester City Council, the context was the ability of a defendant to possession proceedings to rely on human rights-based arguments under section 7(1)(b) as a means to defend the proceedings, and resist possession. Section 7(1)(b) was thus used as a shield.

In Re V, the Court of Appeal endorsed long-established authority that a parent, in seeking to resist care proceedings commenced by the local authority in respect of their child, could rely on section 7(1)(b) to contend that the local authority had failed to respect the parents’ ECHR rights (see, e.g., paras 37, 47, 111). In our judgment, section 7(1)(b) performs the role of a shield and not a sword in those circumstances, for it provides a means for a parent facing the removal of their child by an emanation of the State to attempt to resist a care order being made, on Convention grounds. Moreover, the context of family proceedings and the best interests of the child were plainly central to that approach. In contrast to the non-engagement of Article 8 by a decision to refuse EUSS proceedings, the conduct of a local authority prosecuting care proceedings may be highly relevant to the central issues in those proceedings. ECHR issues would be embedded within the overall final analysis and would overlap with the substantive issues under consideration. Adjourning any human rights aspects of the proceedings to be heard by the High Court in circumstances when an appropriately authorised Family Court judge would be available to deal with the issues (as had been suggested at one stage in the history of the litigation in Re V) would be anathema to good case management and could elongate the proceedings, leading to delay and uncertainty for all involved, including the children at the heart of the case.

Somerville does not assist Mr Toal’s submission. Nothing in Lord Mance’s partially dissenting opinion was inconsistent with the approach Lord Hope would later take when delivering the majority judgment in A. Mr Toal’s submissions overlook two vital features of Lord Mance’s opinion. First, at para. 172, Lord Mance expressly rejected the submission that section 7(1)(b) may be relied upon in circumstances in which a free-standing claim under section 7(1)(a) could be pursued. If that were so, “it would often make it a matter of chance, or choice for a claimant, whether the time limit [in section 7(5)] applied”. The appellant remains free to pursue a section 7(1)(a) claim before the appropriate court should he choose to do so. Secondly, in his summary of section 7(1) at para. 175, Lord Mance underlined the very distinction which Mr Toal contends his dissenting judgment eroded:

“Section 7(1)(a) and consequently section 7(5) apply to claims brought for breach of Convention rights, by whatever procedure they are pursued and whether or not they are pursued alone or in conjunction with other claims… Section 7(1)(b) enables reliance on Convention rights in situations not within section 7(1)(a), as where a Convention right is relied upon in defence in civil or criminal proceedings brought by a public authority or in the development or application of common law principles.”

Mr Toal relied on Lord Mance’s reference to “the development or application of common law principles” to demonstrate that section 7(1)(b) was not an exclusively defensive provision. Section 7(1)(b) has a broader sphere of application, he submitted. We disagree. Nothing in Mr Toal’s submissions demonstrates how considering non-removal human rights arguments in an EUSS appeal furthered the development or application of common law principles. Still less did Mr Toal indicate which common law principles would have been developed or applied by the judge by acceding to his submissions. Nor did Mr Toal address how the First-tier Tribunal, which is not a superior court of record, could have contributed to the development or application of those principles.

It follows that Lord Hope’s summary of section 7(1) in A was comprehensive. Section 7(1)(b) does not permit an appellant to advance a free-standing Article 8 claim in proceedings before the First-tier Tribunal. It is a shield for a litigant to “rely” on, not a sword with which to prosecute alleged breaches of the Convention. No question of an unlawful or ultra vires implied repeal of the Human Rights Act by the 2020 Regulations arises: the Regulations are entirely consistent with the Act. The judge did not err by declining to entertain the appellant’s free-standing Article 8 submissions. She rightly confined her analysis to the grounds of appeal under the 2020 Regulations. Her summary of the jurisdictional position was entirely correct.

Of course, it remains open to the appellant make a human rights claim to the Secretary of State based on his prospective removal should he wish to do so, as the judge observed.

There was no challenge to judge’s decision to dismiss the appeal on EUSS grounds. This appeal is dismissed.