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RWANDA POLICY: THE GOVERNMENT’S LEGAL NIGHTMARE
In recent weeks, the government has come under attack for their controversial policy regarding the migrant crisis. In 2022 alone, over 7000 individuals attempted to cross the UK-France Channel to start a life in the United Kingdom. The government plans to relocate the refugees to Rwanda for processing, and only then would they be absorbed into UK society.
The plan, however, has been put on hold for the meantime. There have been concerns about the lawfulness of the policy. These legal challenges have put a spanner in the works for Johnson’s government, but he promised: “we will get it done”.
The Legal Challenge
The plan has been deemed unlawful as it penalises asylum seekers on the grounds of their irregular entry, in direct contravention of the 1951 Refugee Convention. The core principle of that convention is “non-refoulment”, which says that refugees should not be returned to a country where they face a severe threat to their lives or freedom.
The belief held by the “firms who have submitted pre-action correspondence” is the human rights of these refugees would be at risk. Amnesty International’s view is that Rwanda is a country with a poor human rights record, and these migrants would be subject to “exploitation and smugglers”.
What is the legal status of the Refugee Convention? It is an international law written by the United Nations 70 years ago. It legally binds all signees to recognise and protect people who flee their country because of conflict. It is not the only international protection regime for refugees; however, it has set legal and moral precedence for all countries involved in absorbing refugees.
Parliament has recently passed the Nationality and Borders Bill. There was a great deal of ‘ping-pong’ between the House of Commons and the House of Lords over whether to include the Refugee Convention in the Bill. They reached a compromise that realised that the Bill is compliant with the Refugee Convention, but not as expressively as the Lords would have liked. If you fancy a light read, look at ‘Lords Amendment 6’.
The critical question to consider is one of semantics. How does one define the status of the individuals who come over from Calais? Are they migrants? Are they refugees? Are they asylum seekers? This, essentially, is what the courts will grapple with and what might cause the government’s plans to unravel. If they are indeed refugees, then the case made by the charities and “liberal lawyers” (Boris’s words, not mine) holds more water.
The Lawyers/Firms Involved
Unsurprisingly, the human rights firm, Leigh Day, has been instructed by Freedom from Torture to advise on this case. I. Stephanie Boyce, president of the Law Society, has said, “The PM appears to have little confidence the plan to send asylum seekers to Rwanda is legal if he is even at this early stage preparing for it to be challenged in the courts”.
This case will also be at the top of any firm’s pro-bono agenda. City firms and local legal clinics alike will be looking for ways to help these individuals should they need legal assistance.
The Next Steps
Lawyers will continue their challenge. The government will continue to stick with their guns. It is a fascinating case to follow for anyone interested in law, politics, or human rights.
Article written by Avishai Marcus
THE GREAT FALL OF THE INDIAN RUPEE
The Indian rupee hit a new low as the dollar strengthened on Monday, as much as 0.7 percent to 77.4337 per dollar, surpassing the previous all-time low of 76.9812 set in March. Stocks continued to fall, with the S&P BSE Sensex Index dropping 1.5 percent, reducing demand for risky assets and causing investors to flee the country’s stocks.
Reason for this record low value of the Indian Rupee
This drop in the value of the Indian rupee can be attributed to the global pandemic. Because of the pandemic, countries witnessed economic devastation. Various foreign governments, such as the United States, printed more money to increase the purchasing power, which was also channelled into India. Thereby, India saw increased foreign inflows, such as $30 billion in 2021. These inflows made it to the forex reserve, reaching the amount of $640 billion.
However, the move of the US to reverse their pandemic policies with an aim to strengthen the dollar has resulted in many companies pulling out of their investments in India. In terms of economics, this decreases the demand for the Indian rupee against its supply, bringing the value or the price down. This decrease in demand will eventually lead to a state of inflation or even hyperinflation.
What is the government doing to curb the state of inflation?
The Reserve Bank of India has leveraged its foreign exchange reserves to keep the rupee from falling further. The RBI has the ability to sell dollars from its foreign exchange reserves and buy Indian rupees. It absorbs excess supply and serves to keep the currency’s value stable. According to the most recent figures, for the first time in a year, the reserve pile fell below $600 billion.
Article written by Advaita Kapoor
THE DENTON TEST
Sanctions are imposed when a civil litigating party fails to comply with practice directions, a court order, or a rule. The Civil Procedure Rules (CPR) grant the defaulting party the power to seek relief from sanctions imposed and the courts the power to grant any such relief under CPR 3.9.
Previously, this rule was interpreted somewhat restrictively and most famously in Mitchell v News Group Newspapers Ltd . The Claimant failed to file his costs budget at least seven days before a hearing. A sanction was imposed on the Claimant, and the Claimant subsequently sought relief. However, the application was refused with Master McCloud stating, ‘there were really no adequate excuses for this breach’, with further reasoning from the Court of Appeal clarifying that non-compliance erodes the efficiency of the litigation process, thereby undermining the overriding objectives of the CPR.
On the one hand, the Mitchell decision is a foghorn sounding a stark warning that the courts are unwilling to tolerate indolence from litigating parties. On the other hand, the decision demonstrates that although it is accepted that the decision guides the litigation process and circumstances within which the courts may grant relief, the reasoning behind the decision was somewhat inflexible and certainly staunch because of the increasing frustration of the courts with litigants’ compliance failures.
However, such rigidity is not always justifiable. For instance, a litigant should not be penalised for the likely inadequacy of his solicitor. Furthermore, the reasons given for the breach in Mitchell are relatively common and continue to be so, there is the criticism that some judges are not mindful of the practical constraints of the directions they give, and additionally, some breaches, although they may be severe enough to warrant a penalty, they may not necessarily affect the course of litigation.
The Court of Appeal seemingly seized the opportunity to retreat from the view that all breaches of ‘particular importance’ adversely impact the course of litigation, and in Denton v TH White Ltd and other appeals , sought to ameliorate the decision in Mitchell. Denton involved three appeals in which defaulting parties sought relief from sanctions imposed by the CPR.
In determining a reformulation on the guidance of granting relief, the Court of Appeal came up with a three-stage test as follows:
- Identify and assess the seriousness and significance of the failure or breach. The courts should not impose sanctions if the breach is insignificant.
- The court must consider why the breach occurred.
- The court must utilise a multi-faceted approach to considering the circumstances surrounding each application for relief in adhering to the overriding principle of the CPR.
Therefore, the Denton test is referred to by the courts in deciding whether applications for the relief of sanctions should be granted.
The reformulation was better welcomed as it is indicative that higher courts are still mindful of the opinions of court users and are willing to make changes in line with the CPR’s objectives to include fairness. Judges must now give more significant consideration when imposing directions and ensure such directions are achievable, and judges must give greater regard to the realities of litigation before making orders.
The test, therefore, has a broader scope in its application in civil cases. For instance, in an application for setting aside a default judgment under CPR 13.3, the courts now consider the Denton principles alongside the CPR rule, as demonstrated in Ince Gordon Dadds LLP v Mellitah Oil & Gas BV .
Nonetheless, the onus remains on a litigant’s solicitor to ensure the need for the test is non-existent in the first instance. A solicitor has a foremost duty to the court in enforcing the overriding principles of the CPR and then to his client. Thus, a solicitor must ensure they remain ahead of the game, not cause unnecessary delays in following directions and court orders, and subsequently not jeopardise their client’s case.
Of course, the dynamic nature of case law suggests a likely reformulation of the Denton test sometime in the future. However, for the moment, given its effectiveness in striking a balance between conformity and empathy for the obligations imposed by civil litigation, its current form is here to stay.