Mark Henderson

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

• Saeedi Currently in CJEU; CA: [2010] EWCA Civ 990; QBD: [2010] EWHC 705 (Admin) (whether the EU Charter of Fundamental Rights has direct effect in the UK; its application to the transfer of asylum seekers between EU Member States; and the interpretation of the rights to human dignity, asylum, and a fair hearing and effective remedy (Arts 1, 18, and 47 of the Charter) and the rights derived from the Common European Asylum System)
• 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:

• EM (Returnees) Zimbabwe CG[2011] UKUT 98 (IAC); (major Zimbabwean Country Guidance case heard over several months which was the first Country Guidance case in which extensive disclosure was ordered against the Foreign Office. It narrowed the RN risk categories but gave important guidance on Article 8 for families with children, generally and in the Zimbabwean context. It was the first CG to grapple with risk based on future events, in this case the Zimbabwean elections).
• Gaunt CA: [2011] EMLR 28 [2011] EWCA Civ 692; DC: [2011] 1 WLR 663 [2010] HRLR 31 [2010] EWHC 1756 (Admin) (right of presenters and journalists to challenge Ofcom rulings on Art 10 grounds; test applied by the Court in Art 10 cases; extent of protection of political speech in broadcasting)
• 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)