ANSWERING MIXED LAW PROBLEMS

Problem Scenario

Lorenzo came to the UK from Italy 4 years ago with his son Matteo, who is now 6. He was attracted to the idea of living in the town of Faldinock following an ‘Education without Borders’ school staff recruitment campaign that was run by the local authority. This included the following proclamation: ‘Our promise to you is this: in all that we do, Faldinock will always work to enhance cultural diversity. This is reflected in our current policies and will be in any future policies we implement. It is at the core of our mission.’

For most of his time in Faldinock Lorenzo has worked as a part time teaching assistant in a primary school. Due to local authority budget cuts, he lost his job three months ago. Since then he has been applying for similar jobs in and around Faldinock. He recently applied for a teaching assistant role at Rumstonbury primary school - a local authority maintained school - but was rejected without being offered an interview. He received a letter from Alex Howley, the Chair of the Board of Governors, in which it was stated ‘Our school prides itself in actively promoting the employment of people born and bred in the Faldinock area’.

At the time he lost his job Lorenzo applied for financial support under the Living Standards (EU) Regulations 2018, which fully implement EU Directive 1189/2018 on Living Standards in the European Union. These Regulations apply to all current and former public sector workers, and allow for the allocation of discretionary financial awards during periods of unemployment. In Faldinock such applications are processed by a single designated official of the Discretionary Awards Panel of the local authority. The designated official dealing with Lorenzo’s application decided to award only a third of the amount to which Lorenzo had been advised he was entitled. The reasons given for this decision included: (a) that Lorenzo is an EU rather than a UK national, and (b) that Lorenzo had failed to submit his application in the format prescribed by the Discretionary Awards Panel. Lorenzo noted from the letter he received that Alex Howley was the designated official that made this decision.

Lorenzo made an application to appeal this decision to the Social Entitlement Chamber of the First-tier Tribunal. However, the judge has rejected his claim as baseless due to the discretionary nature of the financial award. The judge also declared EU Directive 1189/2018 invalid in the UK due to the principle of subsidiarity.

A few weeks ago Lorenzo received a police caution after shoplifting a pair of school shoes for his son in a moment of desperation. The UK Home Office has now informed him that as he is no longer a worker, and he is a security risk, he has no right to be in the UK and it intends to deport him. Lorenzo does not want to leave Faldinock because Matteo is settled at school and they have no family or other support in Italy.

Notes: The people, places, Regulations and local authority structures in this scenario are fictitious. Also, Brexit has had no legal effect meaning that EU law still applies as before. You do not need to consider any criminal law matters arising from the scenario.

Introduction

The following issues should be discussed in this answer:

1.      Lorenzo right to work in the UK

2.      Lozenzo’s rights as a worker even though he was working a part time

3.      Rights of son Matteo, aged 6

4.      Refusal of the teaching assistant role at Rumstonbury primary school on the grounds it is discriminatory

5.      Allocation of discretionary financial awards during periods of unemployment using EU law

6.      Allocation of discretionary financial awards during periods of unemployment using Public law

7.      Alex Howley the decision maker and bias

8.      The appeal to Social Entitlement Chamber of the First-tier Tribunal

a.       The claim as baseless due to the discretionary nature of the financial award;

b.      The judge also declared EU Directive 1189/2018 invalid in the UK due to the principle of subsidiarity.

9.      Lorenzo proposed deportation

Lorenzo’s right as a Citizen

The right to free movement for Lorenzo (who is an EU citizen, because he is a Italian national) can be understood as containing two core aspects. Firstly, there is a general right for citizens to live and remain within another Member State as a result of Article 21 of the Treaty of the European Union (“TFEU”), as in Case 360/90 Micheletti [1992] ECR I–4239. Secondly, exercise hisright to free movement as a citizen as in Case 224/98 D'Hoop v Office national de l'emploi [2002] ER I-6191. Because he is supporting himself he can remain in London as long as she wants there is no restriction on him. In any event it is also important to emphasise that regardless of the Article 45 rights, the Court of Justice (CJ) has actively developed the concept of citizenship under Article 21 which allows EU citizens to take advantage of EU law even though they may not be classifiable as being a ‘worker’ (Bidar [2005]).

Lorenzo’s right as a worker

Lorenzo has the right to gain access to the employment market within that host state or to establish herself within the UK under Article 45 TFEU and finally to be free from discrimination (Article 18 TFEU) as a result of his decision to exercise her right to free movement. Only Lorenzo as an EU citizen is entitled to benefit from Article 45 and rights are afforded to ‘workers’ or those who are seeking work in a host State for a reasonable period of time. Lorenzo is also permitted to stay in the UK as a job seeking worker In R v Immigration Appeal Tribunal, ex parte Antonissen the court held individual seeking employment in a host Member State is to be allowed a sufficient period in which to determine the likelihood of gaining employment. An individual who is able to demonstrate that he has a genuine chance of being engaged in remunerative employment would not be required to leave at the end of the six month period. Although he has been unsuccessful in finding teaching work his attempts will trigger the Treaties, and he will be given extensive rights of free movement.

Matteo family member rights

Matteo will have the right to come to the UK because under Article 2(2)(c) 2004/38 of Directive 2004/38 he is a family member (dependant) of EU citizen and is permitted to join his father as a dependant.

Refusal of the teaching assistant role

He recently applied for a teaching assistant role at Rumstonbury primary school but was rejected without being offered an interview. He received a letter from Alex Howley, which stated ‘Our school prides itself in actively promoting the employment of people born and bred in the Faldinock area’. Alex Howley Chair of the Board of Governors of a local authority maintained school has made proclamations that is akin to British jobs should be for British nationals. Alex Howley cannot do this is as it is a breach of the Free movement rules. Securing the free movement of persons within the Union is one of the central aims of the Treaties and one of the four essential freedoms of the EU internal market. The purpose of conferring free movement rights on workers was originally economic: to ensure that the economically active were able to move throughout the Union to locations where their labour was in demand. However, the free movement provisions are not confined to the single market objectives of the Treaty. Article 18 TFEU establishes the principle of non-discrimination on grounds of nationality: it guarantees the right of the individual worker to be free from discrimination on account of nationality and seeks to raise the EU national’s standard of living and quality of life by securing work and residency in another Member State. It is understandable that Member States might be concerned about employing non-nationals in sensitive fields. There might be questions about security and loyalty to the State that could arise if non-nationals were employed. The Treaty provisions recognise this concern by allowing sensitive positions to be reserved for nationals. Article 45(4) makes this express: it allows Member States to only deny or restrict access to employment in the ‘public service’ on grounds of a worker’s nationality. Thus political posts and other sensitive public service posts may be restricted to nationals. There is no reason here for Alex Howley denying Lorenzo the post on the grounds of his nationality.

Allocation of discretionary financial awards

At the time he lost his job Lorenzo applied for financial support under the Living Standards (EU) Regulations 2018, which fully implement EU Directive 1189/2018 on Living Standards in the European Union. These Regulations apply to all current and former public sector workers, and allow for the allocation of discretionary financial awards during periods of unemployment. In Faldinock such applications are processed by a single designated official of the Discretionary Awards Panel of the local authority. The designated official dealing with Lorenzo’s application decided to award only a third of the amount to which Lorenzo had been advised he was entitled. The reasons given for this decision included: (a) that Lorenzo is an EU rather than a UK national, and (b) that Lorenzo had failed to submit his application in the format prescribed by the Discretionary Awards Panel.

EU law – Direct effect

In order to analyse and apply the assumed Directive and UK Regulation to the advisable parties it is important to understand the applicability of EU law in the UK. The treaties of EU Law do not explicitly mention EU law applicability in Member States. Article 288 of TFEU states: “A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.” However there is a difference in applying directives in comparison to regulations. EU law is enforceable in Member States through the principle of ‘direct effect’.  The case of Van Gend Loos 26/62 set the foundation for EU law enforceability in member states. The European Communities Act 1972 accepts EU law enforceability in the UK. Below is an in-depth analysis of advice to Lorenzo in relation to their rights and obligations under the Van Gend Loos principles.

The reasons given for this decision to only award Lorenzo one third is: (a) that Lorenzo is an EU rather than a UK national, and (b) that Lorenzo had failed to submit his application in the format prescribed by the Discretionary Awards Panel. Both of the reasons are considerations that do not appear in the directive. The directive applies to all current and former public sector workers, and allow for the allocation of discretionary financial awards during periods of unemployment. Lorenzo can challenge the decision and ask for direct effect of the directive. The principle that directives can be directly effective if the conditions for direct effect are satisfied was established in Van Duyn v Home Office (Case 41/74) [1974] ECR 1337). The directive must be “sufficiently clear and exact to be capable of being applied directly” by the national courts.The CJ has consistently held that directives cannot be horizontally directly effective. A person cannot rely on rights conferred directly by a directive against another individual, but only against the state. While Treaty articles and regulations and decisions can confer rights and impose obligations on individuals, directives can only confer rights on individuals. As the decision is processed by a single designated official of the Discretionary Awards Panel of the local authority this is vertical relationship (public authority and individual) and direct effect can be used.

Judicial Review

The reasons given for this decision to only award Lorenzo one third is: (a) that Lorenzo is an EU rather than a UK national, and (b) that Lorenzo had failed to submit his application in the format prescribed by the Discretionary Awards Panel. A claim for judicial review can be brought under s.31 of the Supreme Court Act 1981. The procedure is found in the Civil Procedure Rules, part 54. The procedure for making an application for JR has two stages: An application for permission (previously called ‘leave’) must be made to the Administrative Court. Here an applicant will only be granted permission if they have standing (‘sufficient interest’) in the matter before them and the application is made within time (3 months). Both standing and time limits will be considered in more detail below. In the main hearing applicants must have grounds to challenge the decision.

Public Body

Here the decision maker is the Discretionary Awards Panel. In Faldinock such applications are processed by a single designated official of the Discretionary Awards Panel of the local authority. Thus the decision will be reviewable, by way of judicial review. As a general rule, only ‘public law decisions’ made by a public body are amenable to judicial review. The courts have developed different approaches towards identifying what a ‘public body’ is. Historically, the courts looked at the source of the body’s power when deciding whether it would be subject to judicial review. If the body was created by or exercised power pursuant to statute, it would normally be considered amenable to judicial review.

Time Limit

The time limit for a judicial review application is short. CPR part 54.5(4) states: ‘a claim must be filed promptly and no later than 3 months’. Time cannot be extended by agreement between the parties but can be extended by the Court pursuant to its general power under CPR Part 31. The Courts can refuse permission on the grounds of delay unless there is a good reason for extending the period. See R v Dairy Produce Quota Tribunal ex p Carswell [1990] 2 C 438 (HL).

Standing

Even if the body and the decision are amenable to judicial review, not every citizen can make an application. As indicated above, a necessary precondition for bringing a judicial review application is that the particular applicant has standing or locus standi to apply for judicial review. The existence of the standing requirement means that in effect some applicants will obtain the assistance of the courts in enforcing their rights whereas others will not. Section 31(3) of the Supreme Court Act 1981 (Part 54 CPR) stipulates that: No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with the rules of court; Furthermore, it provides that:…the court shall not grant leave unless it considers that applicant has sufficient interest in the matter to which the application relates.

The ‘sufficient interest’ test has been interpreted in different ways by the courts, but the leading decision is that given by the House of Lords in IRC v National Federation of Self-Employed and Small Businesses [1982] AC 617 (the ‘Fleet Street Casuals’ case). The case lacks a clear and consistent ratio but a series of principles can be taken from the various opinions of the Law lords. The House took the view that standing was not just a preliminary issue and, further, that the merits of the case and issues of standing should be considered together. A two stage process has since developed:

1.      At the initial permission stage (previously known as application for leave), the test is designed to turn away hopeless or meddlesome applicants. The courts will check there is a prima facie case and look at the applicant’s relationship to it. However, there is no consideration of the substantive merits.

2.      When the matter comes to be argued at the main hearing (stage 2), standing can be reconsidered if the respondent feels there is not sufficient interest (i.e. if it is unclear). At this stage the Courts will consider in more detail whether the applicant can show a strong enough case on the merits, judged in relation to his own concern with it.

Lorenzo will satisfy the standing criteria because where an individual is directly affected by a decision, that individual will clearly have sufficient interest; see R v Secretary of State for Home Department ex p Venables [1998] AC 407 (HL).

Grounds

Irrelevant considerations

A decision will often be challenged on the basis of several different review principles, and it may be that the court upholds more than one such argument. Thus, for example, where a decision is based on an irrelevant consideration this could constitute both illegality as well as irrationality. Illegality is, however, a broad notion, which is not limited to a bare examination by the court of whether a power exists. For example, a decision-maker may have acted within the power conferred but, in coming to its decision, did not take into account a material consideration. This would render the decision illegal as a result. In exercising discretion, a decision-maker must have regard to relevant matters and must disregard irrelevant matters. Often a statute will give some indication as to the nature of relevant or irrelevant considerations when conferring discretionary power upon a decision-maker. For example, a statute may state that all interested parties must be consulted. Where the statute provides no guidance, the task of identifying relevant/irrelevant considerations is more difficult. This will then require the courts to construe the statute, i.e. through the process of statutory interpretation.

In R v Somerset County Council ex p Fewings [1995] 3 All ER 20, a decision to ban stag hunting was found to be unlawful. Simon Brown LJ in the Court of Appeal discussed three kinds of considerations, which may present themselves to the decision-maker when exercising discretion. These are: (a) factors which a decision-maker must take into account (‘mandatory’ factors); (b) factors which he must not take into account (‘prohibitory’ factors); (c) factors which the decision-maker may have regard to, if he or she thinks it right to do so. Decisions which fail to take into account factors in the first category and which do take into account factors in the second category, will clearly be unlawful. Within the third category there is a degree of discretion in exercising the power and so failure to take these factors into account may not always be unlawful. Sometimes, however, it is clear that the decision maker has considered issues of only marginal or in fact no relevance to the matter. In R v Secretary of State for the Home Department ex p Venables and others [1998] AC 407 is the leading decision in this area and demonstrates some of the problems that the courts have in deciding issues relating to relevant and irrelevant considerations.

Fettering discretion

If given discretion, decision-makers must exercise that discretion and not ‘fetter’ themselves. In R v Secretary of State for the Home Department ex p Fire Brigades Union [1995] 1 AC 513 it was held that the Home Secretary had fettered his discretion by refusing to consider whether to bring the statutory criminal injuries compensation scheme (enacted in 1988) into force. The House of Lords held that the statutory power to set a date for the implementation of the 1988 Act imposed a continuing obligation or discretion on the Secretary of State to consider bringing it into force. He could not, therefore, bind himself not to exercise that discretion by introducing an inconsistent ‘tariff’ scheme, which is what he had done using prerogative powers. Decision-makers often adopt policies in relation to the exercise of their discretionary power. There is nothing objectionable about the adoption of a policy per se. However, the courts will not allow a decision-maker to ‘bind’ or ‘fetter’ its discretion by adopting a rigid or blanket policy, so that the outcome of a particular case is decided in advance or without proper consideration. In R v Secretary for the Environment ex p Brent LBC [1983] 3 All ER 321 the court stated that: ‘The Minister is entitled to have in mind his policy. To this extent the reference to keeping an open mind does not mean an empty mind. His mind must be kept ajar’.

Bias

Lorenzo noted from the letter he received that Alex Howley was the designated official that made this decision. The general principle is the decision may be biased because a person had a view formed in advance because of their membership in different bodies involved in the decision-making process. Alex Howley was the person responsible for the allocation of the job and allocation of the discretionary fund who seemed to be applying his own arbitrary policy which discriminated on nationality. In Hannam v Bradford City Council [1970] 2 All ER the claimant, a school teacher, was dismissed by school governors. A council’s committee approved the dismissal. The claimant sought judicial review of this decision arguing that some of the governors were also members of the committee and had therefore an opinion formed in advance when they approved the dismissal. The Court quashed the decision taking into consideration that three out of ten members of the committee (including the chairman) were also governors. Accordingly, the decision was biased and the governors were subsequently disqualified.  As stated by Sachs LJ: “No man can be judge of his own cause. The governors did not, on donning their sub-committee hats, cease to be an integral part of the body whose action was being impugned, and it made no difference that they did not personally attend the governors’ meeting”. This type of indirect bias is also part of the broader category of appearance of bias: Lorenzo may conclude, after observing the presence of individuals in different bodies involved for the decision, that the entire decision-making process is biased.

Appeal

Lorenzo made an application to appeal this decision to the Social Entitlement Chamber of the First-tier Tribunal. However, the judge has rejected his claim as baseless due to the discretionary nature of the financial award. This is can be challenged either through Judicial review as outlined above or through preliminary reference to the CJ because it is not clear that the directive has intended to apply a discriminatory policy i.e. “(a) that Lorenzo is an EU rather than a UK national” to be able to get access to the fund. This is likely to be held to be an onerous interpretation of the Directive. The judge also declared EU Directive 1189/2018 invalid in the UK due to the principle of subsidiarity. The judge at Social Entitlement Chamber of the First-tier Tribunal has no power to be holding Directives of the EU invalid. This again can be challenged either through judicial review as outlined above or through preliminary reference to the CJ.

The doctrine of Parliamentary supremacy holds that the Parliament is the supreme legislature. Nevertheless, the European Court of Justice (“ECJ”) has asserted the Supremacy of EU law over and above national law. In Van Gend Loos 26/62 the ECJ sated obita that the UK had limited its Sovereignty in certain areas, when signing the Treaty which allowed them to enter the EU.  The court in Costa v ENEL stated that the EC Treaty “carries with it a clear limitation of sovereign rights".  The crucial issue of whether EU regulations take precedence over UK’s was explored by a court in Internationale Handelgesellschaft v EVCF.  There has been a different conception of the issue between the UK and the EU. The ECJ predicated that 'The Law borne from the treaty cannot have the courts opposing it with rules of national law of any nature whatsoever...'. In the Costa case, the ECJ said that national laws could be pre-empted either prior or subsequent to the enactment of community legislation, which has been enacted in the European Communities Act (“ECA”) 1972.

Criminal offences and deportation

The UK under Article 45(3) TFEU lists circumstances in which Member States may restrict the right of freedom of movement of persons. Entry to, and residence in, the territory of a Member State may be limited on the grounds of ‘public policy, public security and public health’. It is likely that they are opposing Brian’s entry on grounds of policy.  Lorenzo has received a police caution for shoplifting a pair of school shoes for his son in a moment of desperation. He has not been previously cautioned. He has now been warned that she faces deportation. Article 27(2) of Directive 2004/38 confirms the decision in Bonsignore by stating that past criminal convictions alone cannot justify deportation on public policy or public security grounds. In Bouchereau, the CJ held that criminal convictions are not in themselves sufficient to justify deportation/exclusion unless ‘the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy’. This will be the case where the individual concerned shows ‘a propensity to act in the same way in the future’. It will have to be demonstrated that the Lorenzo’s personal conduct constitutes a present threat of re-offending, for the public policy derogation to be effective. Additionally, the existence of criminal convictions cannot be considered a sole basis to justify deportation.

Deportation and procedural safeguards

There are procedural safeguards that will enable Lorenzo to assert his legal rights and challenge decisions to deny them rights of entry and residence under the Treaties. Directive 2004/38 provides a number of procedural safeguards. Article 28(1) requires a Member State considering expulsion on grounds of policy or security to take into account factors such as length of residence, social and cultural integration, state of health and family situation. Article 28(2) requires serious grounds before an EU citizen with permanent residence may be excluded. Article 28(3) only allows exclusion of an EU citizen who has resided in the host State over for 10 years, on grounds of imperative state security. Article 30 requires that states make full disclosure of the reasons for exclusion and do so in comprehensible form. This allows for effective exercise of the right to appeal and is based on CJ case law (Rutili). Article 31 provides for access to judicial or administrative remedies to allow appeal against any decision on grounds of public policy, public security or public health. Lorenzo does not want to leave Faldinock because Matteo is settled at school and they have no family or other support in Italy and these will be relevant factors that the court will consider when considering a deportation order.