Mark Henderson is a public lawyer specialising in human rights, asylum, immigration, social welfare, and EU law. His work covers a wide range of judicial review and appeals up to the House of Lords and Strasbourg. He also deals with false imprisonment claims against the Home Office, homelessness appeals, and professional negligence claims. 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 also does a range of advisory work in connection with business immigration.
Recent caseload:
Recent cases include the successful judicial review of the Government's policy of preventing Gurkha veterans from settling in the UK (Limbu). Thousands of Gurkhas stand to benefit from the test case which attracted extensive national coverage. It was notable for the unprecedented disclosure that the claimants achieved of the inter-departmental negotiations leading up to the policy.
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.
He won one of the few declarations of incompatibility to have been granted under the Human Rights Act, the High Court declaring that a key plank of the Government's legislative scheme on asylum violated Article 3 (Nasseri). The House of Lords granted permission to appeal against the Court of Appeal's decision to allow the Home Secretary's appeal. Judgment is awaited following the hearing in the Lords in March 2009.
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 AIT'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.
Mark challenged the compatibility with EU law of the UK's worker registration scheme for accession nationals in the context of homelessness appeal proceedings and is currently acting in the Court of Appeal in a case raising the interpretation of the new right to permanent residence under the Citizens Directive.
Human rights related media work has included advising broadcaster Jon Gaunt on proceedings relying on Article 10 arising out of his sacking from TalkSport for calling a councilor a nazi on live national radio, and the related Ofcom investigation. He has also acted in Contempt of Court applications (some contested) seeking protection from identification for parties and witnesses.
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 book was supplied to all practitioners in the field by the Immigration Law Practitioners Association (ILPA) and the Immigration Services Commissioner, and a new electronic edition will be published by the EIN in 2009). 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 ILPA and EIN Directory of Experts.
He is Access to Justice Convener of ILPA, and a member of its Executive Committee since 2000. He is involved in lobbying on legislation and policy, has represented ILPA on various bodies including the statutory Advisory Panel on Country Information, stakeholders groups of the Administrative Court and AIT, in bilateral meetings with the Home Office on procedure for judicial review and appeals, and on a working group of the Civil Procedure Rules Committee on the Practice Direction for judicial review challenges to removal.
He has also held appointments as consultant to the Immigration Services. He is a member of the Administrative Law Bar Association. Commissioner and assessor for the Bar Council's Immigration Accreditation Panel. 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 it 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 HL: judgment awaited; CA: [2009] 1 All ER 116, [2008] 3 WLR 1386; QBD: (2008) 1 All ER 411 [2008] 2 WLR 523 (2007) HRLR 36 (2007) UKHRR 1008 declaration of incompatibility to effect that provision deeming third countries to be safe for third country removals violated the UK's Article 3 obligations, set aside by the Court of Appeal, permission to appeal granted by the House of Lords, judgment awaited)
- 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: - Limbu 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)
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Year of Call
1994
Education
MA (Oxon)
Email Address
m.henderson@doughtystreet.co.uk
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Specialist Teams
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