The Future Lawyer Weekly Briefing – W/C 15th July 2024

Rwanda Scrapped: Implications on Unlawful Migration to the UK

New Government

Sir Keir Starmer of the Labour Party was declared Prime Minister of Great Britain on July 4, after a victory win in the 2024 General Election (totalling 411 seats) which saw the Conservative Party suffer its worst defeat in its history (down to 121 seats). Other parties gained an increasing number of seats in parliament including Liberal Democrats, SNP, and Green Party and the new addition with Reform UK’s.

Starmer, merely one week into power, scrapped the Rwanda Plan to deport illegal migrants crossing the English Channel into Britain, to find alternative ways to deal with unlawful migration.

In what Reform UK MP Nigel Farage has repeatedly called the ‘immigration election’, Rwanda and illegal migration into the UK remain controversial topics. After several failed readings of a proposed Rwanda Bill to deport illegal migrants, and after the Supreme Court declared the plan unlawful and inhumane (which backtracked the scheme), the Safety of Rwanda Act 2024 received Royal Assent only a few months prior to the General Election. The Act was built on two previous legislations

• Nationality and Borders Act, 2022 – This was introduced shortly after the accession of Rishi Sunak as Prime Minister and Suella Braverman’s appointment as Home Secretary after the 2022 political crisis. Its basic aims were to break the criminal model of trafficking networks, to protect genuine cases of asylum and refuge, and to remove those from the UK with no legal rights to stay.
• Illegal Migration Act, 2023 – This had a more comprehensive outlook on immigration asserting that those with no legal rights in the UK would be removed to a ‘safe third country’ (i.e. Rwanda) or returned to their home country. The incentive was to stop small boat crossings, hasten the removal of illegal migrants to make space for genuine asylum seekers, and prevent abusers of the modern slavery safeguards from entering.

New legislation

Where does the Safety of Rwanda Act come in? It appears as a forceful attempt by the previous government in demonstrating their allegiance and co-operation with the Rwandan government to continue with the immigration plan (through the Migration and Economic Development Partnership), irrespective of the Supreme Court ruling. This was made clear by the government website and by the previous government’s attempt to declare Rwanda safe through new legislation.

The plan proposed a treaty between the two governments and a declaration of Rwanda’s supposed safety through the Act. But with Rwanda scrapped, new legislation appearing as futile, and a no-refund comment from the Rwandan government, unlawful migration is back at square one.

The plan, which costs the British taxpayer £270 million, is expecting no refund of payment by the Rwandan government following Starmer’s decision. This has come with much criticism from all political angles as well as speculation regarding Starmer’s next move on unlawful migration. But what legal implications does this have, especially in the context of immigration law?

The Supreme Court’s press summary from November 2023 claimed that the Home Secretary’s appeal was ‘unlawful’, on the premise that there are ‘substantial grounds for believing that asylum seekers would face a real risk of ill-treatment’. Sitting on this case in the Supreme Court were Lord Reed (who specialised as a barrister in civil cases and a member of the European Court of Human Rights) and Lord Lloyd-Jones (who further specialised in international and EU law).

Further, three firms joined forces to act against the unlawful scheme using pro-bono methods. These were Allen & Overy, Baker McKenzie and Freshfields Bruckhaus Deringer. Working with the United Nations High Commissioner for Refugees, they provided advice on human trafficking and freedom from torture, as well as acting for individual appellants in defence of their genuine asylum cases.

The firms had further aided the domestic court and European Court of Justice in their halting of the first Rwanda flights. Wilson’s Solicitors played a significant role in acting for two asylum seekers in mid-2023 in front of the Courts through their immigration legal expertise.

New plan?

The deemed unlawfulness of the old scheme was based on the fact of facing ill-treatment because of race, religion, nationality, or socio-political membership. So, it raises the question again as to what will happen to illegal migrants.

If Rwanda is deemed unlawful and unsafe, would asylum seekers be returned to their home countries, and how long might this take? What alternative could Prime Minister Starmer present that could lawfully oversee the reduction of small boat crossings and illegitimate asylum seekers?

Starmer and his Home Secretary Yvette Cooper present: the Border Security Command.

The new plan, which aims to strengthen border security and reduce small boat crossings through criminal smugglings gangs, makes little to no mention of illegal migration. Instead, the rhetoric is focussed on international crime and smuggling gangs.

Unlike that of the Conservative Party, the Labour Party’s plan aims to work with Europe and security agencies in the UK to reduce these gangs and small boat crossings, but not to reduce the residing of those living in the UK with no legal rights. Launched early this week, many news outlets have speculated that this will not actually reduce said numbers, but this is yet to be confirmed.

Further reading:

Supreme Court Rwanda Policy Press Summary of Court Case

Safety of Rwanda Act factsheet

Article by Shiven Chudasama

Burnout, Stress, and Situations Faced by Law Students

The study of Law undeniably belongs to one of the most difficult and demanding fields. The volume of material that needs to be processed is enormous. Students are aware of this, but they do not always manage to cope with it.

Therefore, during the three or four years at universities in the United Kingdom, support from schools in the form of applying for mitigating circumstances for exams is possible, and most institutions also provide assistance through student well-being departments.

The findings from the Junior Lawyers Division’s latest resilience and wellbeing survey, led by Kayleigh Leonie, are alarming. The report reveals that 93.5% of respondents experienced stress in their roles within the last month, with almost 25% facing severe or extreme stress levels.

Additionally, 34.5% reported that work-related stress negatively impacted their physical health, causing symptoms like sickness and chest pains. Most troubling is that 6.4% of junior lawyers had suicidal thoughts in the month before the survey. These statistics highlight significant issues within the legal industry that demand attention.

Studies are often just the beginning and preparation for a real legal career, and the stress encountered is only a foretaste of what may await students in the future while practicing this profession. Additionally, the stress students experience is not solely due to overwork and an excess of material but also the highly competitive environment.

Therefore, it is essential to take care of one’s mental state and learn to work under stress during studies, as exposure to such demands and stress can be advantageous in shaping the character of a potential lawyer in the future. However, this requires professional support both in schools and in law firms.

Pressure in law school

The legal environment is inherently very competitive, as is evident even during studies. This is demonstrated by the requirement of most law firms to have first-class (1:1) and at least upper second-class (2:1) grades. Students are therefore under great pressure to achieve such grades to eventually apply for training contracts.

Applications always ask if there were any mitigating circumstances during their studies, but most students do everything to avoid such situations, often neglecting their mental health in the process, such as struggling with time management and prioritizing tasks. Support can be provided by well-being teams at universities or through sessions with a therapist via SFE (Student Finance England), but this is not yet widely promoted or implemented.

Mindfulness is the solution

In 2019, BPP planned to introduce “Lessons of Mindfulness,” where students would have the opportunity to learn stress management techniques from the beginning of their studies and know they could count on university support.

Additionally, in 2022, the USA started promoting “Mindful Lawyering: a Pilot Study on Mindfulness Training for Law Students” after conducting studies among law students, which revealed alarming results including depression, anxiety, and addiction to alcohol and drugs due to stress from studying.

Mindfulness, therefore, aims to teach students not only meditation and relaxation but also time management, work organization, and appropriate stress responses, resulting not only in positive mental health but also in improved efficiency and skills useful in the legal profession. It will also help create a work-life balance, which has recently been promoted by many law firms aware of how exhausting and demanding the work of a lawyer can be.

It is worth considering whether universities in the United Kingdom should promote such mandatory classes from the beginning of a student’s legal education. However, until this happens, students should know that in crisis situations, they can always turn to the well-being team at their universities, who do their best to support them, the GP (General Practitioner), and even SFE.

The support available today may seem inadequate or not promoted enough, but it is crucial to communicate that it is available in various forms and that any person feeling overwhelmed by law studies due to the excess of material, stress, or other reasons has many options to get help.

Conclusion

Law school presents a unique set of challenges that can lead to significant stress and burnout among students. The demanding workload, competitive environment, and pressure to achieve top grades can have a detrimental impact on mental well-being. While some support systems, like well-being teams and therapist sessions, exist, a lack of promotion and utilization hinders their effectiveness.

The potential benefits of mandatory mindfulness programs, like improved stress management and work-life balance, warrant serious consideration by universities. Ultimately, prioritising student mental health is not just about individual well-being; it is about fostering a generation of lawyers who are not only academically qualified but also resilient and able to thrive in a demanding profession.

Article by Malgorzata Kozak

Damaged goods

Legal Implications of the Red Sea Crisis on International Carriage Arrangements: Chapter 4

International commerce heavily relies on maritime transport, which handles 80% of global trade. The Red Sea crisis, a key bottleneck, affects 30% of the world’s container trade and 15% of all maritime trade, disrupting shipping routes, ports, merchants, shipowners, financial institutions, and consumers.

The crisis raises significant humanitarian, environmental, and security concerns, but this article concentrates on the commercial and legal challenges it presents. These include increased costs, contractual complexities, and liability issues.

Legal issues

Legally, the crisis prompts the potential invocation of force majeure clauses or contract frustration if carriers terminate agreements linked to the region, possibly excusing them from delay liabilities. Shipowners might seek indemnities for higher costs due to longer alternative routes.

Additionally, the crisis could spike insurance premiums for vessels and cargo, leading to disputes over cost distribution between carriers and merchants. This crisis compels shipowners to weigh safety against contractual duties within the crisis-afflicted Red Sea region.

The following questions are of legal importance:

1. Can shipowners deviate from the canal against contractual terms or refuse charterers orders to sail through the Suez Canal?
2. Can shipowners refuse to call at a nominated port located along the crisis impacted region?
3. Can Shipowners suspend, cancel or terminate contracts on the basis of the crisis?
4. Who assumes liability for damage to cargo or delay in delivery?

The article addresses the fourth question.

Liability for damage to cargo or delay in delivery

Determining where liability lies for damage to cargo is dependent on who is responsible for the safety and preservation of the goods.

CIF vs FOB contracts

In a CIF contract, based on general principles, the shipper (usually the seller) bears this responsibility till the goods are loaded on the vessel. The carrier’s responsibility for the cargo begins when the goods are loaded on board and ends when they are discharged at the destination port.

This means the carrier (shipowner) is liable for any loss or damage to the cargo that occurs during this timeframe. However, it has been held that where the cargo requires specific care beyond standard transportation practices, and the special care needed wasn’t communicated to the carrier and reflected in the contract, the carrier wouldn’t be liable for damage arising from a lack of such care.

In contrast, an FOB contract puts most of the risk on the buyer for the cargo’s safety during transit. The seller is responsible for the cargo until its loading onto the ship’s deck. Once loaded, the carrier has a limited duty of care for the cargo.

In Seabridge v Transit the court ruled the carrier wasn’t liable for potential damage during transport, as arranging insurance was the buyer’s obligation under the FOB contract. Nonetheless, the carrier is required to take reasonable care to prevent foreseeable damage to goods, and has been held liable for failing to take basic precautions to protect the cargo from foreseeable weather damage.

Specific clauses

Specific clauses in the carriage contract such as a “paramount clause” or “carriage at seller’s risk” plays a crucial role in determining the carrier’s responsibility. In The Julia – Comptoir d’Achat v Louis deRidder the “carriage at seller’s risk” clause on the bill of lading was interpreted to limit the carrier’s liability for negligence during carriage.

Whereas, in Slattery v Tradax the clause was interpreted to only exempt the carrier from liability for inherent vice (damage caused by the nature of the goods themselves). In sharp contrast, The Post Chaser underscored the carrier’s responsibility for proper care of the cargo during the voyage and held that the carrier was liable for failing to take reasonable measures to protect the cargo from foreseeable dangers, even with “carriage at seller’s risk” clause.

Moreso, the court in The Nea Felicity ruled that a paramount clause’s effectiveness lies in not conflicting with core principles of international rules. This highlights the evolving posture of English courts in narrowing the interpretation of specific contract terms that seeks to limit a carrier’s liability, in which case The Julia may be decided differently today.

Reasonable care

Generally, shipowners are required to exercise reasonable care to ensure that goods loaded on vessels do not suffer damage and are delivered on time. This corresponds with the carrier’s responsibility under Article III(1) Hague-Visby Rules and implied warranty, to make the vessel seaworthy before and at the beginning of voyage, and cannot be delegated or derogated from. This has been held to mean “the period from at least the beginning of the loading until the vessel starts on her voyage.”

Consequently, there is no continued duty on the owners to keep the vessel seaworthy throughout the voyage, unless express stated in the contract. Shipowners and their insurers bear the risk of cargo damage or general average expenses caused by a failure to exercise due diligence to make the vessel seaworthy. That remains the case where the unseaworthiness is caused by negligent management or navigation.

However, the limitation of the obligation to make the vessel seaworthy before or at the beginning of the voyage is not logically consistent with the obligation itself. Because, where damage due to unseaworthiness occurs to cargo at a later time, the obligation cannot be used to hold the shipowners liable.

Most negligent navigation will occur during the voyage rather than before it and so it is correct that the obligation extends beyond the beginning of voyage. It is argued that this responsibility should cover the whole voyage and not be limited to the commencement of voyage, on the reasoning that the condition of the vessel remains a significant factor in the performance of the contract beyond the commencement of voyage and should be kept seaworthy by its owners. As clarified in The Ardennes, seaworthiness is not just about the physical condition of the vessel but also encompasses the competence of the crew and the adequacy of equipment for the planned voyage.

Article IV(2), Hague and Hague-Visby rules, and Article 5(6) Hamburg rules, however, exempt carriers/shipowners from liability if the damage or delay resulted from hostilities, civil commotion or an act to save lives. Liability for any loss or damage, including delays, unless caused by their intentional misconduct, is limited. These rules can only apply where incorporated in the contract.

But as confirmed by Maxine Footwear, Article IV(2) exceptions will not apply to a causative breach of the carrier’s obligation to exercise due diligence to make the vessel seaworthy under Article III(1).

Limited liability

Shipowners also enjoy limited liability in claims to charterers and third parties under the Convention on Limitation of Liability for Maritime Claims 1976 (the LLMC Convention 1976) and its 1996 Protocol. Similar provision exists under Article IV(5) of the Hague and Hague-Visby Rules, and Article 6 of the Hamburg Rules.

However, the limit will not be applied where the carrier is shown to have been reckless or acted with intention to cause the loss or damage. The one-year time limit under Article III(6), Hague-Visby Rules may equally serve shipowners interest in relation to liability for goods. It is two-years under the Hamburg rules.

Conclusion

From the foregoing, we have expertly highlighted and examined the complex legal issues that critically affects shipowner’s interest in relation to the crisis. Shipowners are expected to focus on documented objective rerouting decisions, minimizing delays, and exploring solutions with merchants. Reviewing charterparties and ensuring clear amendments to mitigate losses are equally essential approaches in responding to the crisis. Standard clauses are helpful but should be adapted for each contract. Make timely and well-documented indemnity claims.

Article by Ebenezer Ajayi