Mark Henderson

Mark Henderson is a public lawyer specialising in human rights, asylum, immigration, social welfare, EU, and media law. His work covers a wide range of judicial review and appeals up to the House of Lords and Strasbourg. He also acts in civil claims involving false imprisonment/ assault, professional negligence and defamation, and in homelessness appeals. He advises solicitors on public funding and regulatory matters and has represented solicitors at hearings of the Legal Services Commission's dispute resolution panels. He does a range of business immigration work.

Recent caseload:

Ongoing cases include a major test case on transfer of asylum seekers to other EU states under the Dublin Regulation (Saeedi). Hundreds of other judicial reviews have been stayed by the High Court to await the test case: its significance is such that UNHCR, Amnesty International, and the AIRE Centre have intervened. They are supporting the claimant's application for a reference to the Court of Justice of the European Union. That will have major implications throughout the EU, and for the application of EU fundamental rights in the UK.

He is also acting in a series of cases arising from the first attempt for decades to effect deportations to Iraq (other than Kurdistan). The rejection of the deportees by the Iraqi authorities - they were sent back on the UK's charter flight - attracted considerable public and parliamentary concern. The first case (Ahmed) broke new ground in judicial review proceedings with the extensive disclosure that was ordered at successive hearings about UK-Iraqi negotiations and the orders that were made for cross-examination of Home Office and FCO officials following that disclosure. The High Court has now confirmed in two cases that the UK is unlikely to be able to conduct further such deportations in the near or medium terms, and ruled the continuing detention of each claimant unlawful.

He acted in the successful judicial review of the Government's policy of preventing Gurkha veterans from settling in the UK (Limbu). It was also notable for the unprecedented disclosure that the claimants achieved of the inter-departmental and international negotiations about the policy. The claimants returned to the Court exceptionally six months after the judgment due to the Government's failure to change its policy in accordance with the judgment. The case caused great public concern, and following a Government defeat in the House of Commons, the Prime Minister conceded equal treatment with other foreign veterans. Mark was part of the delegation that was presented with the 2009 Liberty/Justice Human Rights Award on behalf of the Gurkha Justice Campaign.

Mark acted for Liberty in RB (Algeria) in the House of Lords, arguing that the Special Advocate procedure in terrorism cases in SIAC violated Articles 3 and 6 and common law constitutional principles, and challenging reliance on diplomatic assurances.

Other recent House of Lords cases include a judicial review testing the exclusion of former unaccompanied minors from the Home Office's 'family amnesty' under which tens of thousands have been permitted to stay in the UK (Rudi). The case raised cutting edge issues about the relationship between Article 14 and the common law principle of equality.

The House of Lords finally allowed the Home Secretary's appeal in Nasseri after Mark won one of the few declarations of incompatibility to have been granted under the Human Rights Act and the only one in asylum law, the High Court having declared that a key plank of the Government's legislative scheme violated Article 3. The House of Lords' judgment contains important discussion on the approach to declarations of incompatibility and the courts' role in HRA cases generally. Proceedings are now pending in Strasbourg about the compatibility of the statutory scheme.

Mark was counsel in the Zimbabwean test case litigation over three years in the AIT, High Court, and Court of Appeal. This ended in victory in December 2008 when the Home Secretary confirmed that she would not appeal the Tribunal's new Country Guidance that anyone not aligned to Mugabe's Zanu-PF qualified for asylum (RN). Thousands of previously refused claimants who had been in limbo since 2005 (as the Home Secretary had been required to suspend removals to Zimbabwe during the litigation) became entitled to asylum.

Other cases include a variety of claims arising from unlawful detention which have resulted in substantial damages and significant concessions related to the rights of detainees, including access to legal advice and to the Administrative Court for those facing removal, and effective intervention for those claiming to be children in age dispute cases. His work with families and children also includes cases relying on duties of the Home Secretary and courts towards children arising from recent legislation and the UN Convention on the Rights of the Child, and acting for a 10 year old child who attempted suicide in detention in a case which attracted national attention to the detention of children.

As well as the application in the UK of the EU Charter of Fundamental Rights, EU law cases have included challenging the compatibility with EU law of the UK's worker registration scheme for accession nationals in the context of homelessness appeal proceedings cases raising the interpretation of the right to permanent residence under the Citizens Directive.

Media work has included a ground-breaking judicial review challenge to Ofcom's decision that a radio interview in which broadcaster Jon Gaunt called a politician a Nazi breached the Broadcasting Code. It is the first such challenge against Ofcom on freedom of speech grounds to be granted permission by the High Court, a decision which received national coverage, and Libery has intervened. He has also acted in Contempt of Court applications (including contested applications) seeking anonymity for parties and witnesses and in defamation proceedings.


What the directories say:

He is identified by Chambers & Partners and the Legal 500 as a leading junior in immigration.

Chambers and Partners 2010 Edition described him as a "hugely passionate public lawyer who specialises in human rights, asylum, immigration and EU law". The 2007 Edition stated that "Henderson was described as "a master of tactics and strategy"". The 2004 Edition stated that "Mark Henderson is "incredibly bright and extremely busy"".

The Legal 500 2009 edition described him as an "expert in this field".

Publications, appointments, etc:

He is the author of the Best Practice Guide to Asylum and Human Rights Appeals. The last hard copy edition was supplied to all practitioners in the field by the Immigration Law Practitioners Association (ILPA) and the Immigration Services Commissioner, and a new online edition is published by the EIN. He is co-author of Blackstone's Guide to the Asylum and Immigration Act 2004, OUP, 2004 and Convener of the Editorial Committee of the Directory of Experts (ILPA and EIN).

He is a member of ILPA's Executive Committee since 2000 where he has responsibility for Access to Justice. That covers ILPA's work on issues such as the creation of the Immigration and Asylum Chambers of the Upper and First Tier Tribunals and policy and procedures on judicial review. He has represented ILPA on various bodies including stakeholders groups of the Administrative Court and tribunals, on a working group of the Civil Procedure Rules Committee on the Practice Direction for judicial review challenges to removal, in bilateral meetings with government on court and tribunal policy, and on the statutory Advisory Panel on Country Information. He has drafted numerous submissions to courts, tribunals and government on related policy issues.

He has also held appointments as consultant to the Immigration Services Commissioner and assessor for the Bar Council's Immigration Accreditation Panel. He is a member of the Administrative Law Bar Association. He sat on Bar Council working parties on the future of pupillage and the implementation of the Bar's Equality Code, and advised and represented the Bar Council in consultations on public funding issues.

He has conducted training for numerous organisations including ILPA, Justice, the EIN, the LSC's ACT Project, and the IAS on issues including judicial review procedure, unlawful detention, and European freedom of movement.

Significant cases include:

House of Lords and European Court of Human Rights:

• Nasseri QBD, CA & HL [2010] 1 AC 1; HL: [2009] UKHL 23, CA: [2009] 1 All ER 116 [2008] EWCA Civ 464, QBD: (2008) 1 All ER 411 [2007] EWHC 1548 (Admin); (declaration of incompatibility by High Court to effect that provision deeming EU states to be safe for third country asylum transfers violated the UK's Article 3 obligations, Home Secretary's appeal upheld by the Court of Appeal and House of Lords, proceedings pending in Strasbourg)
• RB (Algeria) HL: [2009] 2 WLR 512 Times, 19th February 2009 [2009] UKHL 10 (acted for Liberty in their intervention in the House of Lords arguing that the Special Advocate regime in terrorism cases was incompatible with the common law, Article 3 and Article 6)
• Rudi HL: [2008] 4 All ER 1127 [2008] 1 WLR 1434 [2008] UKHL 42; CA [2007] EWCA Civ 1326; QBD: [2007] ACD 57 [2007] EWHC 60 (Admin) (relationship between Article 14 and the common law principle of equality - challenge to the exclusion of former unaccompanied minors from the Home Office's family amnesty)
• A (No.2) [2006] 2 AC 221 [2005] UKHL 71 (acted for a coalition of NGOs including Amnesty International in the leading case on the admissibility of evidence obtained by torture in legal proceedings heard by seven law lords);
• Khadir [2006] 1 AC 207 [2005] UKHL 39 (the limits on the Home Secretary's powers of detention and whether asylum seekers who cannot be removed must be granted leave to remain)
• Adan and Aitsegeur [2001] 2 AC 477 (the only occasion upon which the House of Lords held that European third countries were unsafe)
• Bensaid v UK 33 EHRR 10 [2001] INLR 325 (leading Strasbourg authority on 'extra-territorial' application of article 8 and challenges to expulsion on mental health grounds)

Other courts:

• Saeedi [2010] EWHC 705 (Admin) (whether the UK must comply with EU fundamental rights, as guaranteed inter alia by the EU Charter of Fundamental Rights, when transferring asylum seekers under the Dublin Regulation and whether conditions in Greece render transfer incompatible with EU fundamental rights or the ECHR, pending in the Court of Appeal)
• Ahmed [2010] EWHC 625 (Admin) (prospects of conducting further expulsions to central government controlled Iraq within a reasonable period and consequences for lawfulness of detention of Iraqi nationals in the UK, plus disclosure and oral evidence in judicial review proceedings)
• Limbu [2008] HRLR 48 Times, 7th October 2008 [2008] EWHC 2261 (Admin) ( challenge to the Government's refusal to allow thousands of Gurkha veterans to settle in the UK, raising discrimination issues under Article 14 and the common law, as well as issues about the right to disclosure in public law proceedings which led to extensive disclosure of internal disagreements between the Home Office and MOD)
• RN (Returnees) CG [2008] UKAIT 83 (the final round of three years of continuous country guidance hearings and appeals, in which the AIT rejected the Home Office's case that returns to Zimbabwe could resume unless the returnee already had an individual political profile, and issued fresh Country Guidance that any returnee was at risk unless they could demonstrate allegiance to Mugabe's Zanu-PF, and that many may also succeed under Article 3 on the basis of humanitarian conditions)
• AA and LK [2007] 2 All ER 160 [2006] EWCA Civ 401(the interpretation of the non-refoulement provision in the Refugee Convention and removal to Zimbabwe)
• AA (No. 2) [2007] EWCA Civ 149 (whether removals could begin to Zimbabwe and the threshold for Article 3 ill-treatment in detention abroad)
• Al-Skeini [2007] 1 QB 140 [2004] EWHC 2911 (Admin) (acted for Redress in their intervention in the Divisional Court on the extent to which articles 2 and 3 govern the conduct of British armed forces in Iraq)
• Kurtolli [2004] INLR 198 (circumstances in which risk of suicide will render expulsion inconsistent with article 3)
• CA [2004] INLR 453 (limits of jurisdiction on an appeal on a point of law and the limits of N in a HIV case involving pregnancy)
• Madadi [2004] Imm AR 530 (whether article 6 applies to asylum upgrade appeals)
• Szoma [2003] All ER (D) 230 (Feb) (challenge to local authority's policy of making payments to asylum seekers in arrears)
• Husain [2002] ACD 10 (whether withdrawal of asylum support violates article 3, and applicability of article 6 to asylum support appeals)
• Dhima [2002] INLR 243 (test for sufficiency of protection for article 3 cases)
• Kinuthia [2002] INLR 133 (recourse to remedies following ill-treatment does not constitute adequate protection)
• Turgut [2001] 1 All ER 719 (standard of review in article 3 cases and treatment of fresh evidence on judicial review - settled after the House of Lords granted permission to appeal)
• Revenko [2001] QB 601 (in what circumstances statelessness gives rise to refugee status)
• Senkoy [2001] Imm AR 399 [2001] INLR 555 (definition of fresh claim for asylum)
• Demirkaya [1999] Imm AR 498 [1999] INLR 441 (meaning of persecution and correct approach to past persecution when assessing future risk)
• Cakabay [1999] Imm AR 176 [1998] INLR 623 (whether the High Court should quash a refusal to recognize a fresh claim for asylum if it were wrong rather than only if it were irrational and whether immigration adjudicators could determine whether the fresh claim test was satisfied on the basis that they were determining their jurisdiction to hear an appeal )
• M [1999] Imm AR 548 (expulsion of person with AIDS)
• Bostanci [1999] Imm AR 411 (challenging exclusion of legal interpreter from asylum interview)
• Sarbjit Singh [1999] Imm AR 445 (definition of torture)
• B [1998] INLR 315 (entitlement to damages for false imprisonment where decision to detain asylum seeker flawed on public law grounds)
  

Year of Call

1994

Education

MA (Oxon)

Email Address

m.henderson@doughtystreet.co.uk

Click for contact details

Specialist Teams

Member :

• Housing and Social Welfare
• Human Rights
• Immigration
• International Law Group
• Public and Administrative Law