The Future Lawyer Weekly Briefing – W/C 16th January 2023

THE ROLE OF LAWYERS IN ENSURING THE WELFARE OF SEAFARERS

Briefing by Kodjovi Daniel

“The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails”.

These were the words of William Arthur Ward.

Evidently, people discuss the maritime sector, often neglecting that the lives of the seafarers, captains and sailors alike are also meaningful. The maritime sector contributes immensely to the economic development of a nation. Maritime transport is the backbone of international trade and the global economy. Over 80% of the volume of international trade in goods is carried by sea, and the percentage is even higher for most developing countries.[1] Consequently, the shipping industry will continue to be vital in international trade.

According to the International Association of Dry Cargo Ship-owners (INTERCARGO), seafarers are the true heart of global shipping and are vital workers offering essential services.[2] By virtue of this, adequate steps must be taken to safeguard all persons on a vessel to encourage more maritime trade and transactions.

This article breakdowns the challenges faced by commercial seafarers and the roles of lawyers in proffering possible solutions to guarantee their safety.

Challenges bedevilling the safety of seafarers

Considering current realities, seafarers have been facing unprecedented hardship on and off the ship. Their importance has been, over the years, undermined in certain areas, including discrimination against female seafarers and health and safety hazards. The number of female seafarers in the maritime industry is limited. Women make up only an estimated 2% of the ‘world’s maritime workforce.[3]

For example, out of 6,039 seafarers registered in Nigeria, only 567 are females representing 9.3 per cent of the entire seafaring population in Nigeria, while only 304 of the 2,041 Nigerian Seafarers Development Programme (NSDP) beneficiaries are females representing just 14.5 per cent of intakes.[4]

The health and safety of seafarers have become an increasingly significant issue bedevilling the effective transportation of goods on the sea. Due to the nature of their work, seafarers are at sea for several months at a time with limited access to medical care.

As a matter of fact, seafarers often go ‘sea crazy’ due to their extended periods at sea. According to the UK P & I Club, suicide rates among seafarers suffering from poor mental health have more than tripled since 2014.[5]

The role of lawyers in proffering solutions

Legal practitioners and law firms are relevant to every transaction in the maritime sector because the contractual terms often stated in those transactions are farfetched and require adequate legal expertise.

In securing amiable contractual terms for seafarers, a lawyer or a law firm will add terms favouring seafarers. Furthermore, those terms will ensure that the relevant stakeholders provide adequate healthcare as well as significant wages to be paid to seafarers in the event of any such unforeseen circumstances.

Additionally, lawyers have an essential role in the life of seafarers by identifying any rights breached and taking the requisite steps to initiate a lawsuit to obtain the appropriate remedy. In this regard, lawyers can prepare extensive arguments supporting the seafarer to sway the court’s mind on the balance of probabilities, thereby creating an enhanced opportunity to secure a victory.

Finally, lawyers and law firms can formulate or clamour for enacting laws or the insertion of provisions that will help to create a balance between genders recruited as seafarers.

Seafarers play an important role in the success of the maritime sector. Unfortunately, they have been somewhat disregarded, thus making them prone to sea dangers. Lawyers and law firms can ameliorate these dangers by advancing solutions to abate seafaring challenges.

Sources

[1] United Nations Conference on Trade and Development (UNCTAD).

[2] INTERCARGO, “ World Maritime Day 2021: Seafarers: at the core of shipping’s future”, (September 30, 2021). <““World Maritime Day 2021: Seafarers: at the core of shipping’s future” – Intercargo” https://www.intercargo.org/world-maritime-day-2021-seafarers-at-the-core-of-shippings-future/> accessed 14 January,  2023.

[3] International Transport Workers Federation, “ Women Seafarers”. <“Women seafarers | ITF Seafarers” https://www.itfseafarers.org/en/issues/women-seafarers> accessed 14 January,  2023.

[4] Tola Adenubi, “From Discrimination To Abuse, Many Woes Of Nigerian Female Seafarers”, (October 7, 2021), Tribune Online. <“From discrimination to abuse, many woes of Nigerian female seafarers – Tribune Online” https://tribuneonlineng.com/from-discrimination-to-abuse-many-woes-of-nigerian-female-seafarers/> accessed 14 January, 2023.

[5] Eddie Kim, “Going crazy on the high seas”, MEL. <“Going Crazy on the High Seas” https://melmagazine.com/en-us/story/going-crazy-on-the-high-seas> accessed 14 January, 2023.

INDEPENDENT MONITORING AUTHORITY v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Briefing by Aqua Koroma

Independent Monitoring Authority for the Citizens’ Rights Agreements (the IMA) was the recent victor in a case involving the Home Office as the latter public body had previously declared ‘that citizens with pre-settled status must make a second application to the EU Settlement Scheme (EUSS) or face losing their rights under Part 2 of the Withdrawal Agreement’.

The Citizens’ Rights Agreement is part of the UK’s Withdrawal Agreement with the EU. Although the UK government subsidises the IMA, the IMA is non-departmental and independent of the government.

The UK government established the IMA to monitor the rights of EU and EEA EFTA citizens and their families residing in the UK and Gibraltar. The rights include access to healthcare, education, social welfare, and housing.

The EUSS ‘is a Home Office scheme which implements the citizens’ rights provisions of the Withdrawal Agreement. It does this by granting UK immigration status to EU citizens and their families living in the UK under EU free movement law’.

R (Independent Monitoring Authority for Citizens’ Rights Agreements)

v

Secretary of State for the Home Department [2022] EWHC 3274 Admin

The EUSS, implemented in March 2019, carried with it the primary stipulation that EU and EEA EFTA citizens wanting to remain in the UK after the end of the Brexit transition period (31 December 2020) must apply for residency by June 2021, so long as they had resided in the UK for at least five years before the application being made. Those who have lived in the UK for less were granted pre-settled status.

However, whilst it remains the choice of an individual to proceed with such applications, it remains that should an individual decide to settle in the UK permanently, they must apply for settlement; otherwise, all rights, including those of residency, are forfeited.

On the 1^st and 2^nd of November, the IMA challenged the declaration by the Home Office at the Royal Courts of Justice via a judicial review.

The IMA asserted that pre-settled citizens making a second application to the EUSS scheme would mean a loss of those citizens’ rights encapsulated in the Withdrawal Agreement, consequently contravening EU free movement law.

In handing out its judgment, the High Court ruled in favour of the IMA, in that the EUSS and Home Office unlawfully imposed the application requirement.

Mr Justice Lane, in his obiter dictum, stated two crucial reasons for the decision as follows:

• So long as those with pre-settled status have resided in the UK for the requisite five years, they may be granted permanent residency.
• Failure to upgrade to permanent settled status should not equate to the loss of citizens’ rights as it is not one of the determined requirements outlined in any EU withdrawal agreements which would justify such loss.

Reverberations of the judgment

Dr Kathryn Chamberlain, the chief executive of IMA, speaking with Sky News, stated, ‘…our intention was to provide clarity for citizens with pre-settled status, of which there over 2.4 million when we filed this case in December 2021. This current judgment that the system is unlawful provides that clarity’.

The clarity she speaks of is that those with pre-settled status are, as it stands, are not at risk of deportation, and this will remain should the High Court’s decision is upheld. It means that on a personal level, those citizens for whom the UK is home need not be on tenterhooks, with the threat of separation from loved ones, the end of careers and a change of life no longer a stricture.

It is no secret that the UK has one of the world’s better educational, health and welfare systems; therefore, the worries of and for vulnerable citizens, such as the elderly, impaired and young, may be assuaged.

A word of caution however. As the judgment is very recent and the Home Office has been granted permission to appeal, the EUSS is operating as previously. It is also unknown if further appeals will be pending from the decision made at the Court of Appeal, so a celebration at this juncture is premature.

Implications for the legal sector

The legal sector is acutely aware that with such proceedings, the end point is never nigh; it could take months, perhaps years, before a final, conclusive judgment is reached.

Human rights and immigration lawyers and firms may experience an initial influx of interest from EU and EEA EFTA citizens due to the recent judgment. However, as the EUSS is operating as previously, immigration lawyers and firms are unlikely to experience substantial inflation in settlement applications.

The foremost disadvantage is that those to whom the proceedings primarily pertain would be experiencing a state of uncertainty. This predicament could pressure some citizens into prematurely deciding to leave the UK.

Nonetheless, there is no discounting the possibility that the IMA and the Home Office could reach an arbitrated conclusion to prevent prolonged, increasingly disadvantageous, and costly litigation. However, given the current resolute stance of the IMA, it may well be that litigation is the only viable route.

*For clarity, the EEA EFTA states are Iceland, Lichtenstein, and Norway.