February 19, 2021

In the recent case of R (Project for the Registration of Children As British Citizens(PRCBC) & Anor) v Secretary of State for the Home Department [2021] EWCA Civ 193, the Court of Appeal held that the sum of £1012 charged for registration of children as British citizen is unlawful. This is because the Secretary of State failed to discharge her section 55 duty of safeguarding and promoting the best interest of children, in setting the fees. The sores of this unlawfulness are strewn all over vulnerable children who are unable to register because their parents cannot afford such exorbitant fees. 

But there is an unethical side to this unlawful fee, which is, profiting from the helplessness of children. Embarrassingly, the unit cost of processing each registration application by the Home Office, as shown in the Visa Fees Transparency Data 2021, is £372. This arithmetically means the Home Office reaps a profit of £640 from each vulnerable child that applies. While the Secretary of State, in court, has refuted abdicating her section 55 duty, yet she might not succeed in dismissing the aura of immorality trailing such profiteering. Immanuel Kant was right to hinge the making of rational decision on some degree of morality. Deductively, no fee regulation made without some ethical considerations will be rational.

What does this court decision mean for poor children and their parents? Well, it may lure the Secretary of State to the review desk, but it is doubtful if the entire fees will be scrapped unless PRCBC convinces the Supreme Court to see the illegality (and right-dwindling effects) of charging any fees at all. 

  SPORTSPERSONS AND UK IMMIGRATION REGIME 

OVERVIEW  

The UK, as a nation, boasts of a rich socio-sporting culture and history.  Sports, unarguably, fit finely into the UK’s service-economy plan.  Sport England reported in 2021 that sports contributed over £39Billion to the economy and the Daily Mail also reported that Premier League contributed £7.6 billion to UK’s economy in 2019/2020. This economic uptick may be attributed to existing structure and systems in the UK which support thriving association sports such as the Premier league, National Football League, England, and Wales Cricket etc. This means that-with organised sports existing for over  150 years-athletes and sportspersons of foreign nationality will normally visit or move to UK for sports engagement, activities, or work.  

However, under the UK immigration regime, a person without right of abode (citizens and commonwealth citizens with lineal link to UK) may not be allowed into UK borders unless entry clearance has been obtained. While some nationals (non-visa nationals) are exempt and can enter the UK without visa, the requirements are different where the purpose is to work as a sportsperson in the UK. Non-visa nationals intending to work as sportspersons in UK would have to obtain a work permit before they could work. Prior to BREXIT-between 1973 and 2020-EU citizens exercised their free movement rights under Articles 20 and 21 of Treaty for the Functioning of European Union to live and work in the UK merely by registration with the Home Office. These rights have now been revoked by Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Withdrawal Act. Consequently, all EU citizens and non-EU citizens intending to work as sportspersons in the UK would require permission to do so under the UK immigration Rules. This piece therefore briefly states the applicable routes for obtaining such permission for sportspersons and the implication of the contemporary immigration regime.  

OPTIONS TO EXPLORE  

Permitted Paid Engagement (PPE) 

A Sportsperson who has been invited by a sports organisation to engage in sports activity in the UK may apply for this niche visit visa (PPE) provided that the duration of stay would not exceed one month. This would be an appropriate route for athletes participating in sports tournament, athletic meets, Commonwealth Games etc. However, it would be unsuitable where the sportsperson wants to live and work in the UK.  

Family and other Unrestricted Routes 

Where it is suitable, a sportsperson may explore other options based on their circumstances. For instance, a sportsperson from the EU countries whose mother or spouse lives in the UK can enter the UK with a family permit and subsequently apply for limited leave to remain under the Appendix EU. A spouse of a settled persons in the UK can also enter and work with spouse visa. A person with UK ancestry can use the ancestry visa to work in the UK, including as an athlete. Given the complexity of UK’s immigration framework and work restriction, it is apt to seek advice from competent immigration adviser or solicitor before settling to use any of these options.   

International Sportspersons Visa  

Prior to the introduction of the new International Sportspersons visa in October 2021, athletes would either use the old Tier 5 visa for short stay or Tier 2 route for extended stay. The two routes would require obtaining an endorsement from a sport governing body in the UK before an athlete applies for entry clearance-there are different governing bodies for various association sports. With the introduction of the new International Sportsperson route, all athletes can apply either for 12 months or less entry clearance/leave to remain or for more than 12 months entry clearance or leave to remain under the International Sportspersons route. The new route-in essence-is a consolidation of the two previous tier five and tier 2 routes. The core difference between long and short stay application under the new route-as well as under the old Tier system- is that proof of knowledge of English language is not required where the entry clearance or leave is 12 months or less. Strategically, where the athlete has no prior knowledge of English language or would be unable to pass the language test, it would be appropriate to make a 12-month entry clearance application. To avoid falling short of the requirements, it is advisable to seek the advice of a competent immigration adviser or solicitor before applying for international sportsperson visa.  

ENDORSEMENT CRITERIA AND IMPLICATIONS  

The new consolidated route still requires the athlete to obtain an endorsement from a relevant governing body in the UK before applying for entry clearance. The endorsement serves a policy purpose and cannot be granted based on the talent and abilities of the athlete alone. Under the endorsement criteria, the athletes must have reached certain heights in their field of endeavour before the relevant sports body would endorse the athlete. Endorsement is anchored on two principles: one, it confirms that a bona fide sports club with legitimate requirements to bring the athlete to the UK is making the application, and two, that the athlete is an internationally established sportsperson at the highest level and/or will make a significant contribution to the development of their sport at the highest level in the UK. 

 Under the Sport Code of Practice, different sports bodies are empowered to set the criteria for satisfying the principle of being ‘internationally established sportspersons’ or one who ’would make significant contribution to the development of their sports in the UK’. The policy purpose the endorsement serves would be better appreciated when the criteria is being applied in real-life situation.  

 The criteria, for instance, for Football Association (FA)England to endorse a footballer who intends to play in the Premier League will include checking where he plays his league football and his club’s  position in the league, the minutes he has played for his national team (international appearances), minutes he has played in continental cups such as UEFA competitions, CAF etc. All these factors attract different points across the spectrum. 

 Leagues are categorised in bands: the Premier League, La Liga, Bundesliga, Serie A and League 1 are all in band one. The Portuguese League, Turkish League and English Championship are in band two. All African, North America and Asian leagues are in the last band, which is band six. Brazilian league, Argentinian League, Russian League, and most of the European leagues are staggered between band three and band five. The band the league falls in determines the points allocated to it.  

A player is required to attain at least fifteen points to merit an endorsement.   Playing in band 1, alone, attracts 12 points while playing in band 6 attracts 1 point. This makes it difficult for young talent playing in African leagues, for instance, to easily meet the points unless they could get an uplift from playing in their national team or winning the African league or the CAF cup. For purpose of allotting points for national team appearance, playing in under 17 and under 21 youth football counts.  

Implications 

The adoption of point-based system for purpose of endorsement offers the UK the opportunity to land only the best, exposed and experienced talents around the globe to play in the Premier League, Championship, or English Football League. However, this  banding system may not be aimed at only sports development, it seems financial and economic reasons might have been considered. It was reported in May 2021 that the Premier League renewed a new TV deal worth £4.8billions. It can be inferred that the attractant for the media companies to the English Premier League would include the diversity, quality of players and level of managers that act in this  theatre of wealth. Consequently, viewers are willing to subscribe if they would be entertained by the known and talented stars in the game. The structure, culture, and the system also fuel quality job creations for the citizens and residents in the UK.  

Further, the Sportsperson route leads to settlement for these superstars and elite managers. Expectedly, they end up acquiring property, spending their accumulated wealth, or investing in the UK economy. For instance, former players and managers have homes in the UK. In return, the high proceeds accumulated during their playing or managing days are directly or indirectly ploughed back to UK’s economy.  

The system may appear to be fair, and present equal opportunity for all talented players, but a thorough study of the band system shows that the classification never prioritised the richness of talents from developing countries. So, it ensures that young players from these developing countries do not access the lucrative sport jobs in the UK unless they have achieved so much in their career while young players in western leagues who might not have achieved similar feat, comparatively, could easily be endorsed merely by being an average player in a middle-table team. This implies that the system could be utilised in reaching other policy goals-in this case, immigration control.  

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POLICE:FROM NEGLIGENCE TO IMMUNITY

August 2, 2018

Generally, any claim where the cause of action is anchored on negligence will succeed if there is a finding that there exists a duty of care, owed to the claimant by the defendant. And as developed in Donoghue v Stevenson 1932, duty of care will necessarily be based on the principles of foreseeability and proximity. Where these two cannot be established, it is likely that the court will be justifiably reluctant to hold that there is a duty of care. The importance of duty of care in negligence cases is relevant in all claims whether against a private person or a public body.

A case in point which underlines how the court hinges the success of negligence claims, even against public body, in this case the police, on the existence of duty of care is Hill v Chief Constable of West Yorkshire 1989. The fact bordered on an action filed against the police for being negligent in detecting and detaining Sutcliffe, a serial killer, who eventually killed Jacqueline Hill, the daughter of the claimant in this case. Relying on the two-pronged test raised in Ann v Merton LBC 1978, the House of Lord held that the police owe no duty of care to Ms Hill, even though the death, a type of damage, was foreseeable but there was not a sufficient proximity between the police and Miss Hill. The court did say that the victim was no more identifiable as a potential victim than any other young woman in that geographical area. By virtue of this decision, a cloak of immunity had been placed on the police in respect of action for negligence where the cause of action arose from act or omissions made by the police in regard to crime control.

If one is surprised at the decision in Hill case in regard to lack of proximity between the police and the victim, one is even blown away by the absurdity that manifested in Michael v Chief Constable of South Wales 2015. The facts were that Ms Michael put a call through, when her life was in danger, to the police, but the call was intercepted by Gwent Police rather than South Wales Police. The operator, who appeared not to have heard that the ex-partner had threatened to kill Ms Michael, informed her that the message will be relayed to South Wales Police. The call was not prioritised, until she called back and they heard a scream. By the time they arrived, Ms Michael had been murdered. When the Supreme Court was seized of the matter, it considered whether the police owed Ms Michael a duty of care when it received her 999 call? The claimant argued that a duty of care will arise where the police are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, and where a member of public gives the police apparently credible evidence that a third party, whose identity and whereabouts are known, presents a specific and imminent threat to his or her life or personal safety. The court rejected these arguments and dismissed the claim, inter alia, on policy grounds. The court made heavy weather about the fact that the decision as to what compensation that should be proper to victims in such cases should be left to the parliament, and that it will not be in the public interest that the police should determine their priorities according to the risk of being sued. It also raised concerns about the financial burden which the police would bear should they be compelled to compensate all the victims for not preventing the crimes in relation to which the claims have arisen.

However, the dissenting opinions of Lord Kerr and Lady Hale shook the absurdity a little and reinvigorated the plea for the establishment of duty of care in cases involving police and the victim of such crimes. Lord Kerr formed the view that there will be a sufficient proximity of relationship where certain elements exist, so as to impose a duty of care on police in negligence. Such duty should arise where there is (I) closeness of association between the claimant and defendant which for instance came into existence when information was given to the defendant ( police), and (ii) the information is to convey to the defendant that serious harm will come on the victim if no protection is accorded him or her, and (iii) that the defendant is the right person or agency to provide the protection, and (iv) finally that the defendant should be able to provide the protection without putting himself or herself in harm’s way.

Apparently from these decisions, it is clear that the police enjoy certain kind of immunity in regard to ( claims for compensation relating to ) negligence which arose in their crime control function. The ensuing question then would be, is this law on police negligence, that is the existence of immunity, fair? The word fair generally connotes treating people equally without favouritism or discrimination. The idea of fairness as to existence of this police immunity, had also been considered in the decision of Caparo v Dickman 1990. The court did state that the duty of care will only arise in connection with police where the damage is foreseeable; there is proximity of relationship between the defendant and the victim; and where it is fair, just and reasonable for such duty to exist. It meant that the court in Caparo intended a policy control mechanism which can only be dislodged where claimants can show that it is just and fair to establish the existence of duty of care.

The policy ideas that are determinant of whether it will be ‘fair and just’ to hold that there is a duty of care appeared to include those which had been highlighted by the court in Michael case. Namely, the financial impact such burden of compensation will have on the police, the fact that it will not be in the public interest that the police should prioritise their work on the risk of being sued, and that the issue as to propriety of the compensation for victims of such cases should be left in the hands of the parliament( and not the courts). It seemed that the court in Michael case doubted the fairness of holding that the police owed a duty of care to the victim for failing to prevent the crime that resulted in the damage.

But there is the other side to ‘fairness’. It is also not fair for the police to be treated differently from other public agencies, bearing in mind that the immunity of other public bodies had either been limited or removed. The police should also be made subject to the same rules of negligence in respect of their decisions (crime control) as to protect a caller in danger as it is applicable to negligence arising from direct operation, let’s say police brutality or recklessness, as established in Rigby v Chief Constable of Northamptonshire 1985. It is also unfair to allow the police a blanket immunity as this will result in denying victims and families access to court. This point constituted the kernel of the decision by the European Court of Human Right in Osman v UK 1997.

It is also not fair, for the police not to be held accountable where a victim had intimated them of the imminent danger that awaited him or her, and the police failed to protect the victim . After all at common law, the police owe the public a duty of protection. While it is true that the court in Michael case hinted that the issue of compensation to such victims should be left to the parliament to decide, yet it is unfair for such victims to go uncompensated for their loss while waiting for the parliament to legislate on the issue ( Or has ubi jus ibi remedium gone with the wind? ). So on balance, while the police should be given freedom to make their crime control decisions without fear of litigation, they should also be made responsible where they have erred and should not be allowed to hide under the shade of immunity even when they are clearly negligent- that too is fairness.

In recognition of the trauma and injustice the claimants in the cases of Hill and Michael had endured, there is now an urgent need to reform the law on police negligence. While acknowledging that the policy issues of ‘throwing open the floodgate’ and the others which the court highlighted in Michael case hold sway, yet it will be reasonable for some of the principles to be revisited and improved in order to accommodate cases where proximity had been entrenched, for instance in Ms Michael case , by virtue of the distress call she made to the Gwent police. There is need for reform to take care of the policy issues which the court highlighted in Michael case, for a laid down statutory strategy would have taken care of the challenges such highlighted issues portend. Therefore the extent of the reform needed in this area would entail taking off that unqualified blanket of immunity, on the pretext of policy reasons, and limiting the protection to circumstances similar to Hill case. But where it appeared that the police had been informed of an imminent danger, for instance in Michael case, and had been in position of proximity with the victim, it seemed rationale to hold that a duty of care had arisen and therefore police should not plead immunity or lack of duty of care in such circumstances. This is exactly what Lord Kerr and Lady Hale appeared to have been canvassing in Michael v Chief Constable of South Wales 2015.