However, the unquestionable value of an internship is compromised by the view that it is only accessible to a select few, namely, that class of privileged middle and upper class students. This is because most internships are unpaid in spite of the fact that most run for a period of 3 to 12 months. This fact, it is alleged, hampers social mobility and condemns students with limited means to very limited access to certain professions as they are put off from undertaking an internship. Organizations such as the National Union of Students and the Trade Union Congress have argued for paid internships alleging that “in the absence of any remuneration, there is potential for an intern to be exploited.” On the other hand, the government through reports such as the Milburn Report, have suggested that the long term benefits of undertaking an internship in terms of career prospects and potential high earnings justify the current system of unpaid internships .

The above arguments are further compounded by the report in December 2009 in the Telegraph, that some internships are on offer for up to £8 000 through recruitment agencies. Additionally, the NewStatesman recently reported that an auction was held at Oxford University where individuals had to pay £300 to take part in the bids and among the “items on offer” where a mini-pupilage at One Essex Court with Neil Kitchener QC and one public relations & marketing internship at the London office of fashion house, Escada. Thus Laura Pennie writing for the NewStatesman rather apocalyptically concluded that “Any graduate or school-leaver without the means to support themselves in London while working for free can currently forget about a career in journalism, politics, the arts, finance, the legal profession or any of a number of other sectors whose business models are now based around a lower tier of unpaid labour.” I wouldn’t put it so bleakly.

Where does all this leave me?
Reading the above articles made me reflect on the reality of my own internship and the cost at which it had come. Like most internships available in London, mine is unpaid, a fact which has left me to fund my transport and other costs by taking up part-time employment on weekends. Additionally, I was fortunate to have been offered the option of either turning up five days a week or three days a week in order to save on costs. I opted for the three day a week option mostly due to the cost of transport from my home in Kent to the Friends of the Earth offices in London. But I’m not alone in this, a university friend of mine, had to consider transport as well as accommodation costs in order to undertake his mini-pupilage in London. What is my view on the current state of internships, should they be funded as the CIPD suggests and are they as invaluable as most people suggest? I cannot provide an immediate answer to these questions but I will draw my conclusions in subsequent blogs as I reflect on my experiences during my three month internship at Friends of the Earth.

In spite of our growth and increasing recognition within the legal community, the editorial team has been committed to preserving the foundational principles of The Argument. The premise of the publication has been, and will continue to be, to serve as a platform for critical law students to question and contemplate pertinent legal issues that are important to them, without the constraints inherently imposed within the academic setting. In line with the ideology adopted by Kent Law School, The Argument does not seek to consider a purely black letter approach. Indeed, to do so would be to ignore the political, social and economic realities of the law and undermine “the complex set of facts that constitute the relationships of members within a given society,” as the character Professor Kingsfield so eloquently offered in The Paper Chase.

This edition of The Argument is significant to us firstly because it affirms our belief that a critical platform is crucial to and sustainable at Kent Law School on a long-term basis. But more importantly, it also marks a transition for the editorial team of The Argument. We as founding editors have appointed a new team of editors with whom we have worked on Issue 3. The new editors will carry on with the publication and our hope is that Kent Law School staff and students will be supportive of them. As previously stated, the success of this publication depends entirely on the ideas and contributions we receive from students. We hope that you will continue to contribute and even challenge The Argument in order for it to mature into a permanent feature of Kent Law School and the University.

We trust that you will find the many articles herein thought-provoking and engaging. You will find perspectives on numerous legal areas, including criminal law, media law, human rights, legal theory, property law and intellectual property law. There are varied discussions on international law, covering legal issues in Bermuda, Bolivia, Iraq, the United States and Zambia. We have also featured an interview with a Corporate and Graduate Recruitment Partner at the international law firm Herbert Smith, a book review, the Kent Law Clinic reports and some legal updates. The editors of The Argument do not necessarily share the views of the authors of the articles nor do we initiate them. We however believe in the authors’ rights to air their views without constraints and we are committed to ensuring that we provide a reliable and impartial platform for this. We aim to develop not only personal writing skills but also those in advocacy. We also hope to develop into an established publication which will offer the wider legal community an accurate and good reflection of the credibility of law students at Kent.

We would like to thank the editorial team for their hard work in preparing this edition, the continued support of Kent Law School, the hard work of the University of Kent Design Team and the generous support of our sponsors and donors. Most of all, we thank our student contributors, for you have ensured the continued existence of The Argument. We look forward to hearing debate and your feedback, and hope that you enjoy reading this issue.

Walker Syachalinga is in the third year of a Law LLB; David A Amaro is in the final year of the senior status LLb (Hons)

The anarchist’s view of the state

Philosophical arguments against the state and by extension law are not a new phenomena. Bao Jingyan proclaimed that there should be ‘Neither Lord Nor Subject’ in 300BC. The French judge Étienne de La Boétie wrote his famous essay The Discourse of Voluntary Servitude in the 16th century, asking ‘why do we subjugate ourselves so willingly to oppression of the law and the state?.Famed author Leo Tolstoy himself also asserted this view at the start of the last century, proclaiming that Government is Violence, and you should not serve it. From Chomsky to Godwin, people from a wide background have purported the virtue of Anarchism, but why? What is it about the state, and by extension law that so many have found so abhorrent? To have a clearer understanding, we must understand what is meant by the Anarchist.

In many ways Pierre-Joseph Proudhon is widely regarded as the first self proclaimed Anarchist. In his seminal work Property, Proudhon speaks with refreshing honesty. ‘What are you then? I am an Anarchist’. For Proudhon the state is an institution of utter dominance and oppression, a place where men are ‘trained, ransomed, exploited, monopolized, extorted, squeezed, mystified, robbed; then, at the slightest resistance…repressed, fined, despised, harassed, tracked, abused, clubbed, disarmed, choked, imprisoned, judged, condemned, shot, deported, sacrificed, sold, betrayed…That is government; that is its justice; that is its morality’. Therefore for the Anarchist the state is not the enforcer of justice, rather the ultimate oppressor, and as such should be challenged. However it is important to recognise that the term Anarchism is a broad church, and thus it is exceedingly hard to pin down its exact meaning. There exists a vast array of views from Anarcho-Capitalism to Anarcho-Syndicalism, but at the route of all of these is the notion of anarchos, the route word of anarchism, meaning without rulers. The Anarchist simply seeks to live ‘without a government’. In the words of Stephan Molyneux ‘It simply means a way of interacting with others without threatening them with violence if they do not obey’. This of course is the exact opposite of law. However while this notion may seem impossible, it is also equally valid to recognise the Anarchist assertion that ‘we live the vast majority of our actual lives in complete and total anarchy’. From love to family to careers to finances we make our decisions in the absence of direct coercion, and cherish the ability to do so.

Law is state endorsed violence

What the Anarchist does understand clearly is that at the heart of the state, is law. While it is often asserted that law is used to regulate society, conversely it also enslaves it. If money is what facilitates the state to function, then it is through taxation that the state acquires its wealth. It goes without saying that taxation is not voluntary, and is enforced by law. But what is law? Yes it may well be about rules, morality, codification, deviance, and all manner of things, but at its simplest, for those who are found to be violating it, it is about force; or violence in other words.

As Shakespeare said, “no legacy is so rich as honesty”, therefore let us at least start our careers honestly before being exposed to the influences of the legal system. A career in law is one in which we accept that we are working in a system that simply attempts to correct proclaimed wrongs with the threat of violence. Now while this may be right or wrong, at least let us attempt to be morally coherent in our own lives and career choices. While we may or may not agree with all that the Anarchist has to say about law, and its morality, on this they have a point, that law is simply violence. In the words of Hannah Arendt ‘Violence can be justifiable, but it never will be legitimate’.

Mattew Pettersson is in the third year of a Law LLB.

I studied law in Cardiff largely because I knew Cardiff relatively well as my family had spent some time living there. I took the standard LLB law course and after graduating I went to the College of Law in Guildford, Surrey to do what was the equivalent of the LPC back in 1983-84.

Did you always aspire to be a lawyer, and if so, why did you choose to be a solicitor?

I had always aspired to become a solicitor since I was at school aged 14. I started my career in a small firm in Oxford called Marshall and Galpin. I then applied for a transfer to Herbert Smith who agreed to receive my transferred Articles.

What aspect of your education has been most relevant to your career?

When I started it helped that I had done a law degree, it was a tough degree which required a lot of hard work in understanding the law and cases. As a trainee and article clerk I developed strong work ethics as it can be a tough job requiring long hours and real dedication to one’s work, especially to the clients.

Could you tell us about what your role as Corporate Partner and Graduate Recruitment Partner?

I have been a Corporate Partner for over 15 years and have been at Herbert Smith for over 25 years. I worked in Hong Kong for a year from 1986-87 and I also headed up an Italian Practice, doing a lot of Italian-related work. For a time I was also in Singapore where I worked as a managing partner for South East Asia from 2001-04. I am the Graduate Recruitment Partner so each day something comes up like interviewing someone for a vacation scheme.

At the moment, my big geographic focus is India; I chair our India group and spend a week each month working there. This involves conducting lectures at some law schools in India and meeting clients and contacts in the evenings.

What qualities prepared you for such a varied career?

A lot of the general qualities needed as a lawyer include the ability to assimilate and process large amounts of information and to make sense of it. Being organised and prepared is also very important as you will need to plan ahead and structure everything efficiently. I find that these skills are interchangeable across any field of law. The ability to work hard and be creative has also been relevant to whatever broad range of responsibilities I’ve taken up over the years.

What is the most fulfilling/challenging aspect of being a Corporate Lawyer?

The most fulfilling aspect is helping the firm develop and grow in India, which is a relatively green site. This is coupled with my graduate recruitment role, I enjoy interrelating and interfacing with students. I enjoy talking to them about what they need to look out for in terms of a career post university.
It is a demanding job and no one should take up law lightly both in terms of the nature of the job and its intellectual challenge. It can be a stressful and challenging existence and people should understand that coming into law.

How do you believe corporate lawyers and corporate firms are performing in regards to social causes and social justice?

They’ve transformed themselves in the last ten years in terms of a genuine desire to want to help in the communities in which they operate. I don’t know what the number is but in London alone over half of staff will be involved in a range of corporate social activities.

Do you think it is practical for young lawyers/graduates to commit to social causes?

I think it is. I think that it is an important aspect of this job that they have an opportunity to go and work in a free legal advice clinic or citizens advice bureau. The skills needed to help somebody with a relatively straightforward legal question are just the sort of skills you need to help somebody with a complicated legal question.

Do you think the present economic climate should be a disincentive for anyone intending to join the profession?In the 25 years that I’ve been in practice there haven’t been issues with talented people getting jobs within the law. My sense is that overall there are still great opportunities for law students coming out university to go into law. I think that law is something that people should consider studying at university with a view to getting a job in the profession.

What qualities do you look for in the graduates you recruit?

We want people who are academically gifted because this is an intellectually challenging job. Consistent academic achievement is important. Social skills are also important as you’re going to be spending time with a lot of clients and it is important that they are able to get along well with you. To be able to communicate very complicated issues and facts in a coherent and clear manner is important. Lastly, you have to be very adept at working hard and working under stress.

What is the most important piece of advice you’d give to any law students aspiring to enter the legal profession?

Before applying, you need to have thought through what the job entails and whether you have the skills I have mentioned above. When recruiting, I look at GCSE grades and A-level grades because I want to see that people have been consistent. You will need to demonstrate an all round commitment and willingness to just get on and do things because that’s what this job requires. This is not just a reactive job, it’s a very proactive one and therefore we’re looking for people who can prove they have this skill.

Walker Syachalinga is in the third year of a Law LLB

The rest of the family present at the time of the murder were her mother, her father and her 6 year old sister. Green went into the room with Abeer Qasim’s family and shot them dead. He then returned to the room with Abeer Qasim where she was held down on the floor by one soldier, already raped once by Sergeant Cortez and Specialist Barker, while Green and another soldier raped her again while Private Howard acted as the lookout. Green finished off his heinous act by shooting Abeer Qasim “2 to 3 times” (according to Cortez) in the head and then burning her body from the stomach down to her feet in order to wipe out any trace before fleeing the scene. The fire from Abeer Qasim’s body spread to the rest of the house and soon Abeer Qasim’s uncle was alerted that his farmhouse was burning. He arrived along with the neighbours to see the farmhouse burnt down and the dead bodies of the family members. One neighbour recalled “The poor girl, she was so beautiful she lay there, one leg was stretched and the other bent and her dress was lifted up to her neck.”

Justice
Soon, the uncle went to Iraqi soldiers who in turn went to US soldiers. The US soldiers that arrived on the scene were told by Green and company that it was the actions of Sunni insurgents who wanted to destabilise Iraq and had committed the rape and murder as vengeance against the American soldiers. The crime was discovered by chance when one soldier who had not taken part in the gang-rape and murder but was aware of it happening, revealed the whole story while under psychological counselling. The men were arrested and subsequently charged and convicted. The story continued to unfold when it was later found out that the soldiers routinely searched the farmhouse and on one occasion Green ran a finger down Abeer Qasim’s cheek, something which terrified her. The soldiers used to watch her from their checkpoint (the farmhouse was 100 metres from the military checkpoint) as she did her chores sometimes giving her mother the thumbs-up and saying “very good, very good”. Private Green received a life sentence with no possibility of parole, a judgement which he is appealing. Specialist James Barker received 90 years imprisonment with parole possible after 20 years. Sergeant Paul Cortez was sentenced to 100 years with parole possible after 10 years. Private Jesse Spielman was sentenced to 110 years in prison with parole possible after 10 years and finally Private Howard was sentenced to 27 months in prison. He is currently out on parole.

The moral of the story
War is no joke as evident by the countless number of lives that continue to be lost while the two leading Governments in the western world sit on their laurels yet every day, we see war being glorified whether it’s in video games or on TV and we continue to buy into this notion that war is glorious and necessary. Many lives have been lost and continue to be lost whether the many soldiers stationed there die needlessly or whether it’s the Iraqi citizens who have committed the crime of being Iraqi that are getting killed through bombs accidentally exploding or mistaken identity by the soldiers.

The point of this story is a simple one: to remind ourselves as law students that law deals with real people and real situations and it is alive and more interesting than ever. The Iraqi War has led to more problems than solutions and this case is just one example of numerous incidents that have occurred in Iraq since the USA and the UK decided in their infinite wisdom to go to war. One of the reasons given by Specialist James Barker for his actions was that the violence he had faced in Iraq had left him “angry and mean” towards the Iraqis. The retaliation from the many terrorist groups working in Iraq was almost immediate. On July 11 2006, the Mujahideen Shura Council showed a video of the torture and beheading of two American soldiers serving as “revenge for our sister who was dishonored by a soldier of the same brigade.” Further attacks were followed by Jaysh Al-Mujahidin and the Islamic Army in Iraq.

Conclusion
I hope this piece of writing seeks to illustrate the horrors of war and reiterate that the Iraqi War is still ongoing even if it’s not being focused on by the news stations anymore. People are still dying while the western world looks on with hardly a glance back to the damage created. It has been so aptly put by Chris Hedges and later used in The Hurt Locker that “war is a drug” yet it does not have to be. There is a solution which involves pulling out as soon as possible. Unfortunately this solution is not very viable. The western world needs oil after all.

Mohammad Ali Askari is in the second year of a Law LLB

A Horrific Ordeal
In 2009, Munir Hussain was given a 30 month sentence for attacking a burglar after pursuing him out of his house and allegedly using disproportionate force. In January at the Court of Appeal, the Lord Chief Justice reduced this sentence to one year suspended for two years. His Lordship stated that this was an ‘act of mercy’ against Munir Hussain, who was of good character and had suffered a ‘terrifying ordeal and emotional anguish’.

The facts of the case were clear and not disputed by the defendant at his trial. The burglar, Walid Salem, together with two accomplices, forced their way into Mr Hussain’s home threatening physical harm and taunts of a sexual assault. Mr Hussain, who managed to overhaul the attacker, chased him down the street and inflicted such serious injury on Mr Salem that he suffered a fractured skull. At the trial, the defendant was deemed to have used disproportionate force, despite his previous good character and the threat caused by the burglar.

Deadly Circumstances
This case follows a number of trials of retaliation by the householder against the burglar using varying degrees of force, some of which have been deemed to be disproportionate whilst others have been seen as proportionate. Probably the most famous case of recent times was R v Martin (2001), where a Norfolk farmer shot and killed a burglar, who, at the time of the shooting, was running away from the front door. Martin was charged with murder, but on appeal, his sentence was reduced to three years for manslaughter. However, in R v Batchelor (Steven Robert) (2009), after shooting a burglar dead, the defendant was acquitted without charge as he was deemed to have acted in self-defence because the burglar was said to have ‘come to get him’.

Although judgements are made according to guidelines setting out appropriate force for cases such as these, these guidelines could be made clearer for the general public. Further, are the tests for appropriate force reasonable or are they biased against householders who simply wish to protect themselves, their family and their home? In our society, we certainly have to speak out against vigilantism, but the question of retaliation is much more complex, as can be seen with the Hussain case. Is there a clear distinction between the actions of a hitherto peaceful man who chased and hit his attacker when his ‘blood was up’ and a position whereby he decided to seek premeditated revenge on his attacker at some later period? Clearly, in the Hussain case, the former action was the case and although this was recognised by the Court of Appeal, should the original judgement have been more lenient to reflect the emotional anguish of Mr Hussain during his ordeal?

Purely Political?
The current political debate on the election hustings has brought the whole question of the use of force in such cases. In a response to the Conservative Party’s position, Paul Mandelle QC, chairman of the Criminal Bar Association, stated that disproportionate force would encourage vigilantism and that ‘the law should always encourage people to be reasonable, not unreasonable; to be proportionate, not disproportionate’. But should the test of reasonableness and proportionality be a balance between individuals having the confidence to protect themselves in any circumstance and the protection of ‘an unwelcome guest’ against disproportionate force?

Madeleine Chambers is in the second year of a Law LLB with French

Coroners and Justice Act 2009
The Coroners and Justice Act 2009 received Royal Assent on 12th November 2009 following a hasty passage through Parliament. The Act signifies the first major reform to the coroner system for well over 100 years. These reforms are intended to be implemented by April 2012 and will provide a new framework that should hopefully address some of the underlying problems of the current system.

The more contentious aspects of these reforms, namely secret inquests and intercept evidence, have been widely publicised in the popular media. It is unfortunate then that this spotlight has overshadowed the reforms to the coronial system. The corpus of these reforms, notwithstanding the amendments to the Regulation of Investigatory Powers Act 2000, should be cautiously welcomed by those interested in improving the transparency and influence of the coroner system.

Aims and Fulfilment of the Coroners Justice Act
The Coroners and Justice Act creates a new coroner service, headed by a new Chief Coroner. The aim of the new service will be to reduce the delays of investigations and also produce guidelines and standards to enable bereaved families to receive a better service. The Act, crucially, aims to improve the transparency of decisions and also pool the knowledge gained at inquests which should prevent further avoidable deaths and injuries. These reforms should benefit the knowledge and expertise of the law relating to inquests.

The Three Caveats
This appraisal, however, should be accompanied by three caveats. Firstly, the Government has intimated that changes will be made to improve access to public funding to enable bereaved families to receive proper advice and representation at inquests. However, the Ministry of Justice has yet to publish any firm details or timescales in this regard. These changes should be viewed with suspicion given the current plans to restrict access to justice and reduce the legal aid budget.

Secondly, the Government bowed to public and political pressure and dropped previous proposals to introduce secret inquests and intercept evidence under the Coroners and Justice Act 2009. Meanwhile, Parliament narrowly voted through the Counter Terrorism Act 2008 which included amendments to the Regulation of Investigatory Powers Act 2000. These amendments enable inquests to be supplanted by secret inquests under the worn-out mantra of “national security”. It is second time lucky then for Justice Secretary Jack Straw MP and the Government. These changes will no doubt seriously undermine the principle of open justice, especially for contentious deaths that involve state agents or occur under the care or custody of the state.

Finally, the new system may lack the appropriate statutory footing to enable coronial inquests to force governmental and other bodies to engage and comply with investigations. The Coroners and Justice Act 2009 did not include reforms to toughen pre-inquest investigations and post-death investigations. It is also did not include reforms to either increase the scope of narrative verdicts or escalate the importance of positive duties under Article 2 of the European Convention on Human Rights. This is a lost opportunity to make inquests more open, knowledgeable, and effective.

Conclusion
To conclude, it is unclear whether the reforms enacted under the Coroners and Justice Act 2009 can remedy the longstanding deficiencies of the present coronial system. There is no quick fix and it is unlikely that the Coroners and Justice Act 2009 will solve these problems. However, the Act should be viewed as a positive step forward for bereaved families and inquest law. The quest for better inquests remains an area of continual development and importance.

Gerald Blessington is in the second year of a Law LLB (part-time)

Poverty-Tourism
The media interest in this place becomes as clear as the air is thin in La Paz. Bizarrely, most travellers in this city are as determined to get into the prison as the inmates are desperate to get out. Thanks to the entrepreneurialism of one former inmate, Thomas McFadden, tourists have been able to pay a fee to bribe the guards and go on an, illegal, guided tour of the prison in the most outrageous form of poverty-tourism I have ever come across. A member of one of these tour groups, Rusty Young, went on to document McFadden’s experiences in the prison culminating in the book Marching Powder. Though the practice is no longer tolerated by the authorities and McFadden has been a free man for a number of years, the tours still take place.

An Economic Struggle
The reason for the popularity of the tours is the strange world that exists behind the prison walls. Its peculiarity all emanates from the fact that prisoners do not automatically receive a cell at San Pedro; they have to pay for it. If you have no money (and remember Bolivia is probably the most impoverished country in Latin America) you have no cell and, so, the inmates have to find a way of paying their rent. As a consequence the inmates, who can afford it, live a life of luxury that the average Bolivian could only dream of in luxurious, fully-furnished apartments. Conversely, the average Bolivian inmate lives a life of squalor sharing tiny cells with entire families.

In an extraordinary testament to capitalism, the need to earn the money to pay cell-rent has meant San Pedro resembles a dilapidated barrio more than a prison. There are grocery shops and even restaurants run by the inmates to create an opportunity to earn some sort of income. This need to pay rent, along with the extreme poverty that is disturbingly widespread in Bolivia, leaves the families of some inmates with no choice other than to move in and share their loved one’s incarceration; there have been known to be around 200 children that live in the prison. One of the biggest ironies is the reason for the prisoners’ detainment. 80% of the inmates are detained (many of them yet to actually be convicted) for drug offences yet a number of them work in the prison’s secret labs, which are rumoured to produce some of the purest and cheapest cocaine in the world, part of the reason why the tours are such a big hit with backpackers. What the tours don ot tend to focus on is the horrific damage cocaine base (a paste form of the drug similar to Crack) does to the many inmates addicted to it.

Western Hypocrisy
The situation at San Pedro prison is another distinct example of the impact western drug policy has on Latin America. The criminalisation is western-driven, the demand for cocaine is western-driven and, as a consequence, the majority of incarcerations are western-driven.

It is easy, when learning of such situations, to fall victim to the insatiable urge to pity. Yet there’s a strange amount to learn from the San Pedro anomaly. For example, the way prisoners are empowered to earn a wage is something that can only be beneficial for rehabilitation. More importantly, there is a worrying amount we have in common.
The most shocking, to our sensitivities, is probably the thought that innocent children and relatives are, effectively, detained there. A visit to any of the UK’s Asylum Detention Centres would confirm that, unfortunately, Bolivia is not the only ‘backwards’ country that makes a habit of detaining its innocent children.

Thomas Barker is in the second year of a Law LLB with European Studies and President of the Kent Debating Society

The Problem
Before outlining the new regime it is important to examine the context and form of these laws, in particular how they came to be and how they are being carried out. The UK’s immigration policy is notorious for its restrictiveness, a stance that closely follows the national sentiment on the issue. With Parliament constitutionally unrestricted in stripping minorities of their rights while surrounded by minority protest groups, it has had no problem passing severe anti-immigration laws. Nevertheless, it is the executive which permits immigration rules which allow for almost complete executive discretion with little judicial scrutiny.

While the Immigration Act (2009) empowers the rules, it only prescribes who is subject to immigration control. The Immigration Rules, on the other hand, are the real body of immigration law and policy. These rules provide the substantive criteria, regulations, and conditions for admission into the UK, although the legal status of these rules is ambiguous. They were best described by Lord Denning as not ‘rules of law’ but rather ones of ‘practice,’ for the guidance of immigration officers. As such, while they are subject to Parliamentary approval, the rules are constructed according to the exigencies deemed necessary by Home Office Secretary (to stop immigration into the UK).
Further, as ‘rules of practice’ they are not binding on the Secretary, nor his executive machinery. All in all, this system allows for absolute state discretion in the area of immigration law and policy to create ever more restrictive rules to respond to the “immigration crisis”. In order to fulfill its mandate to restrict immigration and combat terrorism, the Home Office has introduced these rules for admission that fulfill both criteria. However, in order to stop possible immigrants who wish to use a student visa as a means to circumvent rules, and prevent possible national security threats, the UK government has imposed an onerous regime on the majority of genuine students who are only here to study. Meanwhile, universities, despite increased state funding in the last decade have had equally expansive responsibilities from an ever larger student population for whom they are limited in charging more fees, forcing universities to look elsewhere for profitable income streams. International Students have been a source of profits, with tuition fees nearly three times as much as national student fees, which totaled £2.5 billion and generated £8.5bn for the UK economy in 2009. Enrolling international students is vital for not only maintaining universities financially but also the UK economy as whole.

Rules
Under the new regime, educational institutions, including universities, must become licensed sponsors with the Border Agency in order to enrol international students. Under the licensing agreement, universities must maintain students’ immigration status information, update contact details and monitor student attendance and report any absences. A particular onerous requirement is that universities must report to the Border Agency if a student misses eight classes, something which could occur due to an illness, or report if a student fails to register which is common when returning to university. This new role as an immigration officer undermines the fundamental role of university as an institution of higher learning.

Institutional shift
This new surveillance regime serves to augment educational institutions’ priorities in their role as educators. This is particularly pertinent to academic staff that as front line monitors in the new regime will have conflicting roles as educators and surveillance officers, detracting from their institutional role as facilitators of intellectual potential. However, what is equally troubling is the manner in which bona-fide measures of pastoral care, which ensure student well-being, are co-opted by the new regime and turned into a mechanism of state surveillance to monitor possible national security risks. Further, it is in these monitoring techniques that universities run foul of student’s Convention Rights, in particular the right to a private life, to have the autonomy to arrange an individual education experience and the right not to be subjected to degrading treatment in the form of unjust rules imposed on a single group of students. Moreover this treatment has powerful symbolic weight, framing international students with an aura of distrust as illegal immigrants and possible national security threats.

Wrong message
These measures for increased vigilance overtly imply that there is reason to be vigilant or distrustful of international students as opposed to their national or European counterparts. The prejudices inherent in this regime, despite being substantiated by isolated events and some abuse, are not of significance to alienate the hundreds of thousands of students who legitimately come to study. This treatment which affirms the view of a vocal minority does little to show the openness of the UK and the vibrancy of its international cities.

What it means
These immigration rules expose inherent prejudices. The mechanisms and behaviours put in place serve to institutionally distort educational relations and alienate international student. The universities indifferent attitude in accepting these rules also shows that their priorities lie in profits. While lecturers and teachers unions have spoken against the regime and challenged it, universities have accepted the changes as part of the cost of doing business in a lucrative sector.

Mattew Malaga is in the final year of the Senior Status LLB (Hons)

Over the summer of 2009, Erik Homenick worked with clinic solicitor Elaine Heslop on an education case. Following the hard work of Clinical Option student Jawad Ahmad during the previous academic year, Erik took on the case as a volunteer, preparing submissions for the eventual tribunal hearing. The facts revolved around the provision of special education to a young child with very significant learning disabilities. The law related to the duties of the Local Education Authority under the Education Act 1996 and the case sets out when parental preference should be the deciding factor in the choice of schools. These considerations are even more significant when the child, as in this case, has severe learning disabilities.

The law revolved around three considerations. Firstly, the duty of the Local Education Authority to provide appropriate schooling to a child who has special educational needs; secondly, the case law relating to the appropriateness of the proposed educational provision; and thirdly, the circumstances in which the parents’ choice of school will be selected over the choice of the Local Education Authority. Section 9 of the Education Act 1996 makes it clear that Local Education Authorities should educate children in accordance with parental wishes. This simple goal becomes contested when the child requires special help and their education would be very costly, as a Special Educational Needs and Disability Tribunal (SENDIST) is allowed to weigh up parental choice against the Local Education Authority’s efficient use of resources.

One of the leading cases, Catchpole v Buckinghamshire CC & SENDIST (1999) indicates that the welfare of the student is not the paramount concern of the Local Education Authority under the 1996 Act. There is no absolute rule that a student with special needs must be placed in the school which will best cater to his or her needs. This same case goes on to clarify that students requiring special help shall be put in a school that is not only adequate but appropriate to their needs. The later decision in Oxfordshire v GB (2002) added to the case law by explaining the question of cost and provision of special educational services: if the costs of what the parents want and the costs of what the Education Authority is willing to provide are broadly the same, then the question will probably be decided in favour of the parents. The costs must further be reasonable, and the Ealing v SENDIST & K (2008) decision has indicated that even if there is a small difference between parental choice and the Local Education Authority’s choice, the decision must be balanced in favour of the Local Education Authority to save on resources. This creates a very high threshold that parents must overcome to get the provision that they believe is appropriate for their child.

Our client was able to prove that the educational provision they preferred was appropriate for their child’s needs. Therefore the question of costs never fell to be considered because the parents were able to prove the Local Education Authority’s choice was inappropriate.

Through the hard work of Erik and Jawad, this case came to a happy conclusion for our clients. After some considerable time and a date at the Special Education Needs and Disability Tribunal, our client was able to secure funding from the Local Education Authority for their child. The expenditure now involved amounts to many thousands of pounds, but it is the place at the school of the family’s choice that means so much more. They now feel that their son will be able achieve his full potential.

Injunction Stopping the Removal of an Asylum Seeker

On 4 January 2010, Clinic solicitor Catherine Carpenter received a call at 1.00pm from a frantic volunteer organization. An asylum seeker was booked on a flight leaving at 7.00pm that day from Heathrow airport, to remove him from the United Kingdom after the refusal of his application for asylum.

His supporters were trying to find a solicitor to act in judicial review proceedings to stop the client from being removed. A medico-legal report indicating that the client showed signs of having been tortured in his country had not been considered by the Home Office. The evidence provided by the doctor in this report was that the scarring on the man’s body was “all either diagnostic, consistent or highly consistent with his account of torture”.

After a long series of phone calls and emails a barrister was instructed to make an emergency application to a High Court judge (Administrative Court) for leave to apply for judicial review and an immediate injunction to restrain the removal of the man. The application was made at 6.15pm by telephone – at which point the client was sitting hand-cuffed on the plane waiting for it to depart at 7pm. The injunction was granted by Mr Justice Holroyde, and it was served by the Law Clinic by fax, and the client was taken off the plane at 6.50pm.

In brief, the injunction was granted to stop the Home Office removing the client in order that the medico-legal report could be considered to ensure that the removal would not place the United Kingdom in breach of the Geneva Convention Relating to the Status of Refugees 1951.

Our client now has the chance to argue that his asylum claim be considered by the Home Office to determine if the evidence contained in the medico-legal report amounts to a fresh claim under the Immigration Rules. He can seek to start the process of claiming asylum again with the possibility of either applying for judicial review or appealing to the Asylum and Immigration Tribunal if his claim is turned down, depending on the response of the Home Office. Furthermore, the original decision to remove the client is subject to a pending judicial review in the High Court.

In view of the fact that the work of the Law Clinic has made it abundantly clear that our client’s claim has sufficient merit to obtain public funding, the case has now been referred to a publicly funded solicitor.

The Kent Law Clinic – Canterbury office