• Robert Spicer

Recent Supreme Court decisions: British citizenship; equal pay; village greens

British citizenship

Deprivation decision

Case R (on the application of Begum) v Special Immigration Appeals Commission and Others [2021] UKSC 7

Facts In February 2019 the Home Secretary notified Shamima Begum (B) that he intended to deprive her of her British citizenship (the deprivation decision). The reason for this was that B had dual British and Bangladeshi citizenship and had travelled to Syria and aligned with ISIL. Her return to the UK would present a risk to national security. This decision was taken partly on information which should not be made public in the interests of national security.

B was and is still held at a camp in Syria. In May 2019 she applied for leave to enter the UK to appeal against the deprivation decision and to avoid the risk of mistreatment. (The LTE decision). The application was refused.

B then appealed to SIAC against the deprivation decision. The appeal was not finally determined and B applied for judicial review of SIAC’s decision that the Home Secretary had not departed from his human rights policy.

Decision 1. The Home Secretary’s appeal was allowed and B’s cross-appeal was dismissed.

2. B’s appeal against the LTE decision could only be brought on the ground that the decision was unlawful under section 6 of the Human Rights Act 1998. B did not put forward that argument and her appeal against the LTE should have been dismissed.

3. The Court of Appeal had made its own assessment of the requirements of national security. This was an error.

4. The right to a fair hearing does not trump all other considerations, for example the safety of the public. The appropriate response in present case was for the deprivation appeal to be stayed until B was in a position to play an effective part in it without the safety of the public being compromised.

5. The Court of Appeal had mistakenly treated the Home Secretary’s human rights policy as if it were a rule of law. The Home Secretary was not satisfied that depriving B of British citizenship would expose her to a real risk of mistreatment.

Equal pay: comparators

Case Asda Stores Ltd v Brierley and others [2021] UKSC 10

Facts The claimants were women employed in Asda’s retail business. They sought compensation on the basis that, during the six years before they started proceedings in 2014, they were paid less than male employees at Asda’s distribution depots. The question on appeal was whether common terms applied to the claimants’ and the comparators’ establishments. Their claims were upheld by the ET. Asda’s appeal was dismissed by the EAT and by the Court of Appeal. Asda appealed to the Supreme Court.

Decision 1. The appeal was dismissed.

2. The hypothetical exercise to be undertaken to decide whether the terms were common was to ask whether, assuming that the comparator was employed to do his present job in the claimants’ establishment, existing terms and conditions would apply. The ET found that the distribution employees would have been employed on substantially the same terms if they had been employed at the claimants’ site. This finding was confirmed.

3. The claimants could use terms and conditions enjoyed by distribution employees as a valid comparison.

Note: in the next stages of litigation, the issues will be whether the store worker and distribution roles are of equal value and whether there is a reason, other than sex discrimination, for the two jobs not to be paid equally.

Possible compensation has been estimated at between £10,000 and £20,000 for each claimant.

Village greens: statutory criteria

Case TW Logistics Ltd v Essex County Council and another [2021] UKSC 4

Facts An area of concrete in Mistley port in Essex has been used for many years for port vehicles and the storage of cargo. The port is owned and operated by TW Logistics Ltd (YWL). Concurrently, is has also been used by local residents to walk dogs and for general recreation.

In 2008, following concerns about residents falling into the water and a threat of enforcement by the Health and Safety Executive, TWL erected a high metal fence along the quayside. A resident applied to Essex County Council (ECC) to register a large part of the quay as a town or village green (TVG) under the Commons Act 2006. ECC appointed an inspector to hold a public inquiry. The conclusion of this was that the area satisfied the statutory criteria. It had been used as of right for lawful sports and pastimes by significant numbers of local inhabitants for the receding 20 years. ECC registered the area as a TVG. TWL challenged the registration in the High Court, which dismissed the challenge. Its appeal was dismissed by the Court of Appeal and TWL appealed to the Supreme Court.

Decision 1. The appeal was dismissed.

2. The relevant legislative provisions include the following:

* The Commons Act 2006

* The Inclosure Act 1857 and the Commons Act 1876 made it a criminal offence to interfere with a TVG, including interrupting local residents form using it as a place for exercise and recreation.

* The Road Traffic Act 1988 made it an offence to drive a vehicle on a TVG without lawful authority.

* Under health and safety legislation, employers have a duty to protect members of the public from risks to their health and safety.

3. Local residents have to exercise their rights over a TVG in a fair and reasonable way, respecting concurrent reasonable and established use by the landowner. This is the principle of give and take.

4. The effect of registration is that the public acquires the general right to use the land for any lawful sport or pastime. The landowner can continue to carry on activities of the same general quality and level as before. It can also carry on new and different activities, provided that these do not interfere with public rights.

5. TVG registration does not criminalise the landowner which continues pre-existing activities. TWL’s activities are not criminalised where they are “warranted by law”.

6. In relation to health and safety, this applies irrespective of TVG registration. If TWL is lawfully required by the HSE to take some particular action, this would amount to lawful authority for doing so.

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