Mark Henderson is a public lawyer specialising in human rights, asylum and immigration, social welfare, and EU law. He was named Legal Aid Barrister of the Year at the 2010 Legal Aid Lawyer of the Year Awards. The citation said that "Mark is praised for his agility of intellect and encyclopaedic legal knowledge combined with his forensic attention to detail".
His work covers a wide range of judicial review and appeals at all levels of domestic courts together with the European Court of Justice (CJEU) and the European Court of Human Rights . Over the last 15 years, he has acted in numerous leading cases in human rights, asylum, immigration, and administrative law. He also acts in civil claims including false imprisonment and professional negligence. He advises solicitors on public funding and regulatory matters, including advising extensively on public procurement issues in relation to recent challenges to LSC tenders for civil contracts, and has represented solicitors at hearings of the Legal Services Commission's dispute resolution panels. He also advises and acts in more complex business immigration matters.
He is briefed as a leading junior, and accepts conditional fee agreements in appropriate cases.
Chambers and Partners 2013. The case of NS is one example of the important work that Mark Henderson has undertaken concerning the legality of removal to EU states under Dublin II where there is risk of an Article 3 breach. Solicitors instruct Henderson on complicated EEA cases as he is
"absolutely excellent on really difficult, technical cases."
Previous editions have commended Mark ".... for his expertise on immigration, asylum, EU law and human rights and has recently been involved in cutting-edge judicial review cases relating to disclosure. Sources admire his "phenomenal preparation" as well as his passion and enthusiasm for his subject." Previous editions of Chambers described him as a "hugely passionate public lawyer" (2010), "a master of tactics and strategy" (2007) and "incredibly bright and extremely busy" (2004).
The Legal 500 2011 cited "his involvement in the landmark EU law case of Saeedi" and he has also been described as "outstanding with encyclopaedic knowledge" (2010) and an "expert in this field" (2008).
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 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 and addressed seminars and conferences for numerous organisations including ILPA, Justice, the Centre for European Legal Studies at Cambridge, the EIN, the LSC's ACT Project, and the IAS on issues including judicial review procedure, unlawful detention, and European freedom of movement.
Mark presented the case for Saeedi/NS to the Grand Chamber of the CJEU in June 2011. There were an exceptional range of interventions from 13 Member States, the Commission, UNHCR, EHRC, and Amnesty International/AIRE. The Advocate General's opinion in this test case on the EU Charter of Fundamental rights has now held that there is no UK opt out from the Charter; that Member States duties under the Charter override principles of mutual trust between Member States; and that asylum seekers may not be transferred between Member States where there is a serious risk that their rights under the Charter will be violated. The Court's judgment is expected within months.
Hundreds of judicial review proceedings challenging transfer of asylum seekers to Greece were stayed in the Administrative Court behind Saeedi and after further class based proceedings were threatened, the Home Office conceded these hundreds of JRs and agreed to end transfers to Greece until the CJEU gave judgment in Saeedi. A number of other EU governments also suspended transfers to Greece following the reference to the CJEU in Saeedi.
Another significant ongoing case is Ahmed, the lead case about the failed attempt to enforce removals to Baghdad by charter flight in October 2009. It has broken new ground in judicial review proceedings with the extensive disclosure that was ordered at successive hearings about UK-Iraqi negotiations for returning asylum seekers to Baghdad and the orders that were made for cross-examination of Home Office and FCO officials following that disclosure. The sustained efforts necessary to compel full disclosure from the Home Office led the Court to grant Mr Ahmed's application for indemnity costs against it. Ahmed, and related cases in which Mark acts, also raise serious concerns about ill-treatment of returnees by Home Office escorts.
Mark has acted since 2005 as counsel in a series of Zimbabwean test cases in the AIT/ Upper Tribunal, Administrative Court, and Court of Appeal which prevented the expulsion of asylum seekers to Zimbabwe for long periods and established that a substantial proportion of Zimbabwean asylum seekers were entitled to refugee status. The latest Country Guidance case, EM, was issued in 2011 and is currently in the Court of Appeal.
In 2009, the House of Lords allowed the Home Secretary's appeal in Nasseri after Mark had won the only declaration of incompatibility to be granted under the Human Rights Act in asylum law, the High Court having declared that a controversial deeming provision applying to transfers to EU states was incompatible with human rights. (The AG'S opinion in Saeedi/ NS has accepted Saeedi's argument that the deeming provision is incompatible with the EU Charter.) The House of Lords' judgment is a leading authority for the principle that courts must decide the merits of a human rights case for themselves rather than focussing on public law flaws. Other House of Lords cases include a judicial review testing the exclusion of unaccompanied minors from the Home Office's 'family amnesty' under which thousands of families with children had 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.
Mark acted in Limbu, the judicial review which forced the reversal of the Government's policy of preventing Gurkha veterans settling in the UK, and was part of the delegation that collected the 2009 Liberty/Justice Human Rights Award on behalf of the Gurkha Justice Campaign. The case included an exceptional return to the Administrative Court to argue that the Government had failed to change its policy in accordance with the Court's initial judgment. The case led to a Government defeat in the House of Commons, following which the Prime Minister conceded equal treatment with other foreign veterans, entitling thousands of Gurkhas to settle in the UK.
He acted for the claimants in the judicial review challenge to the Government's handling of the closure of Refugee and Migrant Justice (RMJ) as a result of legal aid cuts. For two decades, RMJ had been the main charity representing refugees and asylum seekers and it was acting for several thousands of the most vulnerable migrants when it went into administration. The JR (CMX) was brought against the LSC, MoJ and the Home Office by a representative group of clients supported by the staff of RMJ. ILPA and the Children's Commissioner intervened. In the course of successive hearings, the LSC ultimately accepted a duty to arrange and fund continuing representation for all several thousand of the RMJ's clients who were initially to be left without representation, and the Home Office agreed special measures to protect RMJ clients.
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.
Mark's civil liberties/ human rights related public law work includes regular judicial review challenges to administrative detention, beginning with the first widely used cases to challenge immigration detention and bail refusals by reference to Home Office policy. His cases have also led to significant concessions in cases 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.
Other current cases include Gaunt, which has established the right of journalists and presenters to judicially review rulings by Ofcom on the basis that they breach rights to freedom of expression under Article 10, even where the broadcasting company/ licensee accepts the ruling. The presenter Jon Gaunt, with Liberty intervening, challenged Ofcom's ruling that his interview with a local politician, in which he called him a "Nazi", breached the Broadcasting Code. While the Divisional Court and Court of Appeal dismissed the claim, their judgments established that it was for the Court to determine whether an interference with freedom of expression was justified under Article 10 rather than, as Ofcom initially argued, intervening only if Ofcom's ruling was unreasonable.
His work with families and children includes cases relying on duties towards children in immigration cases 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.
European Court of Justice, European Court of Human Rights, and House of Lords
Administrative Law Bar Association
Bar European Group
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