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S Chelvan - Public Law

“[A] master of his subject.  Very informative, humorous, personal, inspiring and very thought provoking.”
 
The Right Hon. Sir Terence Etherton, Chancellor of the High Court (London: 5th February 2013).
 
Known as ‘a tenacious battler who fights with vigour and commitment’ (Legal 500), Chelvan is praised as being ‘very impressive’ and ‘praised for his academic appreciation of the underpinnings of human rights law’ (Chambers UK 2013).  His academic background stems from his Masters in Law at Harvard Law School, specialising in international human rights law, enabling the ability to view litigation through a human rights prism, in order to provide effective solutions to his clients.  Chelvan has a domestic and international practice which is at the forefront of cutting edge litigation in the field.  He provides advice, where the need arises, in the pre-application stage, to ensure that if litigation occurs, then his clients start from a position of strength.  His international work not only includes litigation, but also encompasses advisory work with practitioners, academics, the judiciary, the UN, NGOs, the European Parliament, the media and governments.  
 
Noting that inter partes negotiations are not most effectively served by the first offer from the other side, Chelvan is known for his commitment to ensuring that his client is provided a remedy which fully meets their needs, with Costs. If the matter goes to a substantive hearing, Chelvan ensures that his client’s voice is fully heard throughout the proceedings.
 
In the field of fresh claims in immigration and asylum law, Chelvan is regularly instructed when not only the in-country appeals procedures have been exhausted, but where additionally there have been previously unsuccessful fresh claims, and therefore urgent interim relief needs to be granted.
 
Challenging actions by the police is a relatively new field for Chelvan.  Nevertheless, he has managed to develop new ways of approaching a case which have not been employed in the earlier parts of the litigation by either the legal team, or the law.  Chelvan draws from his expertise in public and administrative law to fully arm the Claimant, in circumstances where there are clear lacunas, in order to benefit the client.
 
RECOMMENDATIONS

Chambers UK
One of the UK’s foremost LGBTI rights activists, acting on behalf of those fleeing persecution on grounds of sexual orientation and gender identity.  “He has majorly contributed to the big change in the attitude of the tribunals to LGBTI cases” “He excels in High Court work, he is very passionate …”
(Chambers & Partners UK, 2016, Immigration, Band 2)

“Very intelligent, hard-working, and imaginative in his approach to cases” (2015) "He has great client skills, as well as court skills. He is a very eloquent speaker and is very watchable in court." "He has probably become the leading practitioner in the UK for political asylum claims on sexuality”  (2014) “The "very impressive" S Chelvan of the same set is praised for his academic appreciation of the underpinnings of human rights law and his ground-breaking work on asylum claims based on gender or sexual identity” (2013, Immigration, Band 2). Chelvan’s "strong advocacy and dedication to clients." He is known as a doyen of immigration cases involving issues of sexual identity. (2012).  [A]t the forefront of ground-breaking cases in the area.  Sources say that he is “extremely committed” and “a particularly effective advocate.” (2011). Chelvan has “immense expertise” and, “the very welcome knack of putting vulnerable clients at ease.” (2010). “You can rely on him to work exceptionally hard and more importantly, highly effectively.” (2009). “Lawyers agree that he is “leading the way in relation to [sexual orientation and gender identity] claims in this area (2008).  Chelvan is referred to as having an “expansive knowledge of the law” and being “an extremely principled man”, who “always demands and strives for the highest standards of fairness and goes that extra mile for the client” (2007).

Legal 500

“An unsurpassed reputation for work with LGBT clients” (2015)

'Committed to forwarding the rights of migrants.' (2014). S. Chelvan is a “ tenacious battler who fights with vigour and commitment” (2010). Chelvan “is renowned for his expertise in gender identity and sexual orientation cases” (2009/10). S. Chelvan’s (with others) record cases with a strong human rights element (2007/08), his “immigration experience” in successful “sexual and gender identity” claims (2008/09)

 
NOTABLE CASES
AA (Somalia) v Entry Clearance Officer (Addis Ababa) [2012] EWCA Civ 563; [2013] 1 W.L.R. 268; [2012] 3 All. E.R. 893; [2012] 3 F.C.R. 96; [2012] Imm A.R. 858  - Supreme Court Hearing on 21st November 2013
Led by Manjit Gill QC. Paragraph 352D of the Immigration Rules relating to family reunion of children with parents who have been granted refugee status in the UK covers biological children and de-facto adoptive children who comply with paragraph 309A. The Somali child who has been accepted to have been recognised to have undergone a kafaala under Islamic law, as a result of her father’s death and mother’s disappearance as a result of persecution arising out of civil war do not come under 352D. Appellant’s success under article 8 of the ECHR at first instance provides alternative route for entry to the UK. 
 
R (O) v SSHD (Administrative Court) (March 2014)
Permission granted on the papers.  Listed for substantive judicial review hearing, to challenge continued lack of consideration of leave of individual claiming Statelessness.  Proceedings have a protracted history, including long periods of earlier unlawful detention.
 
R (RH and DY) v SSHD (CO/12528/20112) (permission granted by HHJ Thornton QC on 18 April 2013).
Judicial review challenge to decision to transfer Eritrean Claimants to Belgium under Dublin II transfer regime, as the First Claimant was outside the territory for more than 3 months, prior to her re-entry (Article 16 (3) of the Regulations).  The Second Claimant has never been to Belgium, and was born following departure.  Belgium initially refused transfer request.  The substantive hearing will also consider whether the current provisions are compliant with Article 13 of the ECHR and provide an effective remedy, in light of Court of Justice’s steps to accede to become a party to the Convention.
 
R (V) v SSHD [2013] EWHC 765 (Admin) (14th March 2013) Clive Lewis QC (sitting as a Deputy High Court Judge  (preceded by earlier litigation:  R (V) v AIT [2010] EWCA Civ 491 and [2009] EWHC 1902 (Admin)).
Successful substantive judicial review challenge of SSHD’s failure to grant settlement under 14-year long residence rule, due to character and conduct findings based on allegations of membership of a criminal gang and assertions linking to criminal conduct which did not lead to charges and/or convictions in a criminal court.  SSHD conceded that reliance on allegations which had not been proved by a fact finding Tribunal, and relying on spent convictions, were unlawful.  The issue to be finally determined was how far back should settlement be back-dated to?  SSHD insisted back-dating could only go back to decision under challenge (March 2011).  Claimant submitted that ILR be backdated to at the time of the withdrawal of the earlier deportation immigration decision in late July 2010 (based on a negative advice on the merits by her Counsel).  Administrative Court held that SSHD’s stance was irrational, and that the guidance of the Court in R (K) v Secretary of State for the Home Department [2010] EWHC 1528 (Admin), when applied in these proceedings, would see a backdating to somewhere within a month of the withdrawal of the earlier decision.  Following 2013 judgment, SSHD back-dated grant of ILR to 1 August 2010, i.e. 8 days following withdrawal of earlier immigration decision, which was preceded by 2010 and 2009 litigation.  Case Note published in 2013 edition of Journal of Immigration, Asylum and Nationality Law.
 
2009-2010 litigation:  Led by Geoffrey Robertson QC - judicial review challenge to Tribunal’s preliminary decision allowing SSHD to rely on redacted evidence, and other hearsay evidence, from anonymous witnesses in a deportation hearing where this evidence did not lead to conviction in criminal proceedings.  SSHD 10 days prior to substantive appeal before the Tribunal scheduled for August 2010 withdrew her deportation decision. Strasbourg application was about to be lodged to stay proceedings before the domestic Tribunal. V eventually granted 3 years DL pursuant to article 8 in March 2011, following second set of judicial review proceedings commenced to challenge delay in determining outstanding 2005 application.  This leads to further challenge and ultimately the successful March 2013 proceedings.  
 
R (Harrison) v SSHD [2013] EWHC 1264 (Admin) (13th February 2013) (Collins J)
Lack of actual exclusion order, does not displace judicial assumption that it exists, even where no such order is produced.  Struck out permission application, for being out of time and illegal status of Claimant during earlier part of stay in the UK.
 
MS (Afghanistan) v SSHD [2013] EWCA Civ 7 (22nd January 2013) – currently seeking leave to appeal to the Supreme Court.  Stay on judgment in force pending outcome of application.
Court of Appeal introduces ‘new test’ for internal relocation alternative, by focussing on lack of risk in place of relocation to be dispositive of asylum claim in circumstances where the Court finds no finding of fact with respect to risk in home area, contrary to what had been the position of both parties to the litigation and the accepted approach prior to this judgment.  
 
GN (South Africa) v SSHD [2012] EWCA Civ 1930 (17th December 2012) – substantive hearing on 27th and 28th June 2013 before the Court of Appeal.
White gay man from South Africa, granted permission to appeal by Laws LJ against Upper Tribunal determination which dismissed his asylum claim, on the basis of effective state protection in South Africa.  Upper Tribunal was not provided by the SSHD, prior to the promulgation of the determination, a copy of her own Operational Guidance Note of February 2012, which conceded that there is a lack of effective state protection in South Africa.  Permission granted on the basis that it was arguable that the SSHD had a duty to disclose this document to the Upper Tribunal which undermined the basis of her appeal.  Appellant successful on asylum and human rights grounds before First-tier Tribunal (IAC) as per  HJ/HT Supreme Court guidelines.  Chelvan instructed following Upper Tribunal determination.
 
R (on the application of AA (Afghanistan)) v SSHD [2012] EWCA Civ 1643; [2011] EWHC 3820 (Admin) – Claimant seeking permission to appeal to the Supreme Court.
SSHD’s policy addressing ‘loss of chance’ where there has been an incorrect age assessment leading to denial of grant of LTR under the Unaccompanied Asylum Seeking Children policy ruled unlawful. Unpublished policy was held to be contrary to section 55 of the Borders, Citizenship and Immigration Act 2009 (for those over 17 years and 6 months but under 18), and to the direction and guidance of the Court of Appeal in AA (Afghanistan) v SSHD [2007] EWCA Civ 12. Claimant’s relief on the additional point that he should have been granted refugee status during the period he was accepted to be 18 dismissed (the LQ (age) and DS (Afghanistan) point). Claimant’s grant of 3 years DL over-turned by Court of Appeal and remitted to SSHD to decide grant of leave.  Court of Appeal additionally directed the SSHD to review the asylum claim on the basis that he is still a child (displacing Ravichandran  principle).  Claimant seeking permission to appeal to the Supreme Court on both points.
 
NP (Sri Lanka) v SSHD [2012] EWCA Civ 906
The lack of reference to internal relocation in a refusal letter refusing asylum, and/or the lack of reliance on internal relocation either at the First-tier Tribunal (IAC) or in a Rule 24 response to grounds of appeal to the Upper Tribunal, or in written submissions pursuant to specific directions, do not prevent the Upper Tribunal (IAC) from addressing this ground of appeal at a hearing. Article 8 (2) of the 2004 Qualification Directive (internal relocation, if relied upon, to be addressed in the decision on the asylum application), and the SSHD’s published Asylum Policy Instruction on Internal Relocation (internal relocation to be raised as a ground in the refusal letter), do not aid the Appellant. Only where there is an unfairness to the opposing party, should there be an adjournment granted, preventing a procedural unfairness. There is no lack of jurisdiction.
 
MW (Democratic Republic of Congo) v SSHD [2011] EWCA Civ 1240
Led by Geoffrey Robertson QC – Upper Tribunal (IAC) materially erred in law in not applying the “very serious reasons” requirement of Maslov in determining the deportation of a settled migrant who had been in the UK since he was a young child. SSHD’s stated case that he was a member of a criminal gang and was involved in drugs and fire arms was rejected by First-tier Tribunal (see case of V above). However, the First-tier Tribunal held that he “knowingly associated” with those involved in gangs. Prior to substantive appeal hearing before the Upper Tribunal SSHD withdrew immigration decision and reinstated Indefinite Leave to Remain.
 
R (otao Razai and ors) v SSHD [2010] EWHC 3151 (Admin) 
Instructed on a pro-bono basis by Allen & Overy LLP on behalf of Bail for Immigration Detainees as intervener – challenging SSHD’s new policy in providing section 4 accommodation through pre-bail hearing assessment.
 
R (otao SB (Uganda)) v SSHD [2010] EWHC 338 (Admin) (UNHCR refworld)
Successful judicial review of refusal of fresh claim of a lesbian from Uganda and unlawful detention claim - highlighted that JM (Uganda) CG was distinguished on the facts, and on the basis of post-CG evidence. The First Tier Tribunal allowed SB's substantive asylum claim - determination promulgated July 2010.
 
OO (Sudan) & JM (Uganda) [2009] EWCA Civ 1432; [2010] All ER (D) 17 (Jun) - Definition of persecution does not arise from unenforced criminal legislation relating to same-sex conduct. However, SSHD concedes that article 8 ECHR violations may amount to persecution. 
 
AB (Pakistan) (Admin) (unreported) (July 2009, Ockelton J)
SSHD concedes fresh claim of trans-man from Pakistan during the judicial review substantive hearing – initial claim as a lesbian a year prior to the hearing. SSHD grants refugee status in February 2011, whilst Country Guidance proceedings on first gender identity case to be reported by the Upper Tribunal are being case managed. SSHD also grants refugee status for gay man from Pakistan thereby conceding country evidence of risk to LGBTIs from Pakistan.
 
NR (Jamaica) v SSHD [2009] EWCA Civ 856; [2010] INLR 169; [2009] All ER (D) 43 (Aug) 
Appeal allowed on basis that sexual identity is current sexual identity, and is not predicated on teenage sexual experimentation. Concessions relating to risk in Jamaica, and then acceptance of lesbian sexual identity, which were made, and then subsequently withdrawn by the SSHD were lawfully withdrawn. Appeal allowed on remittal to Upper Tribunal (IAC) finding that NR is ‘exclusively’ a lesbian and there is a real risk of persecution to her in Jamaica even on the basis of a perceived sexual identity- August 2010.  Point of law incorporated into SSHD’s Asylum Policy Instruction on Sexual Orientation Issues in the Asylum Claim (2010, updated 2011).
 
HJ (Iran) and HT (Cameroon) v SSHD [2009] EWCA Civ 172; [2009] Imm A.R. 600, 
Led by Raza Hussain for HT (challenge to Tribunal’s finding that discretion will be reasonably tolerable where there had been a positive finding of past-persecution by state and non-state agents on the grounds of sexual identity as a gay man). This ‘reasonable tolerability’ test was over-turned by the Supreme Court - HJ (Iran) [2010] UKSC 31; [2011] 1 AC 596 - instructed by HT (Cameroon) to deal with national and international media enquiries following judgment – HT granted refugee status in November 2010.
 
RG (Colombia) v SSHD [2006] EWCA Civ 57; [2006] Imm AR 297 - finding that as the Appellant had been able to be discrete without coming to the attention of vigilante death squads whilst in Colombia, the Tribunal’s finding that he can be returned to Colombia was not unlawful – successful fresh claim litigation followed judgment, abandoned before Upper Tribunal only due to grant by SSHD of ILR under legacy in 2011, following indication by UT that would succeed in his article 8 ECHR appeal.
 
International:
M.E. v SWEDEN, Application no. 71398/12 (European Court of Human Rights) (written comments dated 9 April 2013)
Instructed by FIDH (Fédération Internationale des Ligues des Droits de l’Homme), ICJ (International Commission of Jurists) and ILGA-Europe (European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association). Landmark case to address how all 47 Council of Europe member states will determine claims from lesbian and gay asylum seekers.  Chelvan has been instructed by all 3 international NGOs over the last two years to identify a suitable case for intervention. 
 
Domestic:
European Union Law
 
Penny Norma Davies v. Secretary of State for Work and Pensions (CSP 503/07) (Social Security Commissioners) (March 2008)  - striking down of non-retrospective section of the Gender Recognition Act 2004 as being incompatible with the European Social Security Equal Treatment Directive (79/7/EEC) as it did not provide payment of pension for trans women who turned 60 prior to April 2005 - instructed by Herbert Smith LLP on a pro-bono basis through Law Works - legal teams short-listed for team award for Law Works Awards 2008 and ranked in the Standout category in Dispute Resolution for the Financial Times Innovative Lawyers 2008).
 
Police Actions 
 
2013
X v Chief Constable of Thames Valley Police  – Administrative Court
Challenge to disclosure of allegation of a historic assault on a vulnerable adult to a borough council investigating to whether to undertake a section 47 of the Children Act 1989 inquiry.  Challenge to determine reasonableness and Article 8 ECHR proportionality exercise.\
 
K - County Court proceedings
Using European Convention to provide basis for challenge of lack of effective police investigation of harassment on the basis of gender identity.  Articles 8 (with 14) and 10 (with 14) of the ECHR pleaded to address expression of, in addition to possession of gender identity.
 
2011
Jason Christopher Sutton v the Chief Constable of West Midlands Police – County Court proceedings - False imprisonment and assault –3 day hearing (excluding judgment) 
Successfully represented Claimant awarded £8,000 damages for false imprisonment and assault.  Defendant’s police officers found not to be truthful.  Not reasonable to suspect that Claimant was about to commit a breach of the peace pursuant to section 4 of the Public Order Act 1986, rendering first arrest and imprisonment unlawful.
 
 
QUALIFICATIONS
LLM – International Human Rights Law (Harvard Law School) (Kennedy Memorial Trust Scholar – UK Equivalent to Rhodes).  Executive Editor, Harvard Human Rights Journal.  Article Consultant, Harvard International Law Journal.   Visiting Research Fellow, Centre for International Human Rights Law, Northwestern University, Chicago (Awarded Summer 2000 fellowship).
 
BSc (SocSci) Politics and Law (First Class) (Southampton) (ranked 1st out of 70 in department).
BVC (Very Competent) Inns of Court School of Law.  Called October 1999, Inner Temple, Major Scholarship & Duke of Edinburgh Entrance Award.
 
PhD in Law Candidate (Part-Time) (King’s College London) (commenced 2008, upgraded 2010) 
 
APPOINTMENTS
Equality and Diversity Committee, General Council of the Bar (2008-to date)
 
Bar Pro Bono Unit (Panel Member)