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KATHLEEN McNAMARA and MARY McNAMARA vs. EMMA G. PAGAN and LOUIS A. PAGAN.
Plaintiffs bring this action seeking to have the Court determine the location of the lot line separating their property from that of the Defendants, to determine that a fence separating the parcels is a "spite" fence, to enjoin the Defendants from interrupting Plaintiffs' access to the street and "by directing them to either tear down their fence or make a gateway through said fence to provide Plaintiffs with access to the sidewalk," for damages to Plaintiffs in the amount of $25,000 for property depreciation, plus costs and reasonable attorneys' fees.
Defendants filed an answer in general denying Plaintiffs' allegations together with a counterclaim seeking to force Plaintiffs to abate their trespasses and for damages in the amount of $10,000., together with costs, disbursements and attorneys' fees. Plaintiffs deny the allegations in Defendants' counterclaim and ask the Court to dismiss them.
The Court took a view of the area on May 14, 1982 with all parties and their counsel present. A trial was held on September 22, 1982. A stenographer was sworn to record and transcribe the testimony in the case. Six witnesses testified and eleven exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal. Defendants filed a motion at the conclusion of the trial for a directed finding which is herewith denied. Plaintiffs' motion for the taking of a deposition in Florida is likewise denied.
1. By deed dated August 1, 1966 and recorded in Book 11178, Page 023, (Exhibit 11), Bartel R. Gustafson and Edna M.Gustafson conveyed a parcel of land with buildings thereon known and numbered as 102 Western Avenue, Cambridge, Massachusetts, shown as Lot D on Appendix A [Note 1] to Bernice C. Patterson.
2. By deed dated December 15, 1969 and recorded in Book 11778, Page 662, (Exhibit 9), Bernice C. Patterson conveyed the same premises to Peter Fosdick, Trustee of Aquarius Realty Trust.
3. By deed dated August 26, 1971 and recorded in Book 12064, Page 534, (Exhibit 10), Peter Fosdick, Trustee of Aquarius Realty Trust conveyed the same premises, Lot D on Appendix A, to David and Kathleen Clem as tenants by the entirety.
4. By deed dated August 4, 1978 and recorded in Book 13508, Page 274, (Exhibit 1), David Clem and Kathleen Shelton Clem conveyed the same premises to the Plaintiffs Kathleen and Mary McNamara as joint tenants.
5. Defendants have owned the property at 104 Western Avenue, which abuts Plaintiffs' property to the west and is shown as Lot B on Appendix A, for approximately 18 years, having purchased it from a Mr. Benjamin Orates. No deed to Defendants was put into evidence.
6. Plaintiffs and Defendants have had a number of disputes over the last few years involving Defendants' dogs and children and the	Plaintiffs walking across the easterly corner of Defendants' property to empty their garbage.
7. Reference to Appendix A will show that Plaintiffs' lot contains only 1,532 square feet with 27' frontage and Defendants' Lot B, 2,367 square feet with 34.20' frontage. A low wire mesh fence extends across the front of the two lots separating them from the sidewalk on Western Avenue, running from the front steps of the Defendants' dwelling on Lot B easterly to the front steps of Plaintiffs' dwelling on Lot D. There is a gate in this fence at the northeast corner of Defendants' Lot B leading into a back walk to Defendants' dwelling.
8. On the view the Court observed, and the photos submitted into evidence as Exhibits 2, 3, 4, 5, and 6 show, the area between Lot, D and Lot B, including the 6' wire mesh fence erected by the Defendants along the line on July 7, 1980. Between the wire mesh fence and Defendants' dwelling is the 2 1/2' to 3' cement back walk leading from Western Avenue to the rear of Defendants' dwelling. Three steps lead up from the gate at the northeast corner of Defendants' Lot B at Western Avenue into the back walk as shown on Exhibit 4. Plaintiffs' dwelling on Lot D is separated from the 6' fence along the boundary line between the lots by a narrow grass plot. At the street line on Plaintiffs' side of the 6' line fence is a large bush and undergrowth and the low fence bordering the sidewalk on Western Avenue. Removal of this bush and undergrowth and the low fence would allow egress from the rear of Plaintiffs' dwelling directly to Western Avenue, although over a very narrow strip.
9. The Plaintiffs' usual practice, until the erection of the wire mesh fence by the Defendants, was to empty their trash by coming through their cellar bulkhead and walking down the walk on the Defendants' property to the sidewalk. They testified that they did this frequently and without permission.
10. The Court finds that it would be difficult for Plaintiffs to bring large objects down beside their dwelling to their bulkhead in the rear without going onto Defendants' land although passage on foot is possible. The only other way to proceed would be through the house as there is even less room on the easterly side of Lot D.
11. Bernice Patterson, the owner of Lot D from 1966 to 1969, never lived in the dwelling but rented it, and did not know whether her renters walked across the Pagans' property. She did testify that immediately after purchasing the property she used the Defendants' land to remove trash from the bulkhead.
12. Peter Fosdick, Trustee of Aquarius Realty Trust, resided on the property after the Trust acquired it in December of 1969 and frequently walked across the Defendants' property to deposit his trash on the sidewalk without the permission of the Defendants.
13. David Clem, Plaintiffs' immediate predecessor in title, resided on the property for some 7 years during which time he also cut across the Defendants' property to get to the sidewalk but he specifically asked for and received the Defendants' permission to do so. He did not exclusively cut through Defendants' lot to get to the sidewalk but frequently went down his own front steps.
14. Defendant Mrs. Pagan specifically gave the Clems permission to go across her land but never gave anyone else permission to do so.
There are three questions before the Court. 1) Do Plaintiffs have an easement by prescription over Defendants' land; 2) Do Plaintiffs have an easement by necessity; and 3) Is the fence erected by the Defendants a "spite" fence?
I. Do Plaintiffs have an easement by prescription?
The Court answers this in the negative.
One claiming an easement by prescription has the burden of proving that the use has been open, notorious, uninterrupted and adverse for a period of twenty years. Tucker v. Poch, 321 Mass. 73 (1947). Ryan v. Stavros, 348 Mass. 251 (1964).
Even if the Court assumes that the Plaintiffs have used this walk beside their house adversely for the four years of their ownership they must prove that their predecessors in title have used it openly, notoriously, continuously and adversely for at least an additional 16 years in order to meet the twenty year requirement. This they have failed to do.
One of Plaintiffs' predecessors in title, Mr. Clem, who lived at the dwelling on Lot D for seven years from 1971 to 1978acknowledged the Defendants' ownership of the area and asked for and received permission from Defendants to traverse Defendants' property to reach the sidewalk fronting Western Avenue. (See paragraph 10 herein). A permissive use is inconsistent with adverse use. Ryan v. Stavros, supra at 263. Thus, there is an obvious gap in adverse use and Plaintiffs have not established the elements necessary to prove that they have acquired an easement by prescription.
II. Have Plaintiffs acquired an easement by necessity?
The Court likewise answers this in the negative for two reasons.
First, while an easement may be implied by necessity, the necessity must be real. Necessity which may give rise to the implication of an easement need not be absolute physical necessity but must be a reasonable necessity. Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105 (1933). In this case there simply is no reasonable necessity as the Plaintiffs have access to Western Avenue via their own property. Their house has a small yard in front with a walkway from their front door to the sidewalk. If Plaintiffs must have access to the bulkhead	for moving large objects into the cellar as they claim they can remove part of their own low fence bordering the sidewalk on Western Avenue and the bush and still pass to the rear of their property. There is no reasonable need for more access than they presently have and this is especially so given the very limited size of both Plaintiffs' and Defendants' lots.
Second, an easement by necessity is an easement by implication. This, in turn, is founded in the presumed intent of the parties. Restatement: Property,	§§474-476. Such easements can be implied only for the benefit of or against parties within the same title chain.	There has to be a common grantor somewhere in the back chain of title who impliedly reserved an easement and it must carry down to	the present predecessor in title. It cannot be for the benefit of or against strangers to the chain of title. Uliasz v. Gillette, 357 Mass. 96 , 102 (1970). As there is no evidence of a title chain wherein there was a severance of title, these parties are strangers and thus there cannot be an implied easement by necessity.
III. Is the fence erected by Defendants a "spite" fence?
The Court finds and rules that it is not.
This fence, which is a neat, well constructed wire mesh fence, is six feet and two inches at most in height. There was no evidence introduced to show that it unnecessarily exceeded six feet in height nor was there evidence to show that it was maliciously erected to annoy the adjoining owners. It does not come within the purview of G. L. c. 49, §21.
In sum, the Court finds and rules that the Plaintiffs have no easement by prescription or by necessity and the Defendants' fence is not a "spite" fence under G. L. c. 49, §21. No damages have been proven by the Defendants herein and the Court awards none.
[Note 1] Appendix A is a copy of a plan entitled "Subdivision of Land in Cambridge, Mass., Feb. 1, 1960, Edward F. Carney, Reg. Surveyor," which plan is recorded with Middlesex South District Registry of Deeds as Plan Number 703 of 1960, Book 9594, Page 276.


H. Anthony Lehv, Student Atty., Appellate Advocacy Clinic, Washington, DC, argued (Jennifer P. Lyman, Adam G. Silverstein, Student Attys., on brief), for plaintiff-appellant.
Lucy Adams Cardwell, Asst. Atty. Gen., Baltimore, MD, argued (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), for defendants-appellees.
Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.
This case presents the issue of whether inmates participating in prison work programs are covered by the Fair Labor Standards Act ("FLSA" or the "Act"). 29 U.S.C. § 201 et seq. Maryland inmate David W. Harker appeals the district court's dismissal of his suit, in which he and other inmates claimed to be entitled to the federal minimum wage for work performed at a prison workshop located within the penal facility. Because we find no indication that the FLSA applies, or was ever meant to apply, to such inmates, we affirm the dismissal of this lawsuit.
Appellant Harker is an inmate at the Maryland Correctional Institution at Jessup ("MCI-J"). Between 1986 and 1991, he worked in several capacities at the graphic print shop run by State Use Industries of Maryland ("SUI") at MCI-J. The print shop produced stationary, letterhead, and similar products. During that time, Harker did not receive the federal minimum wage or any overtime pay as provided for in the Act, 29 U.S.C. §§ 206-07, but was paid a lower wage determined by the Maryland Division of Corrections ("DOC") Commissioner and the General Manager of SUI. See Md.Ann.Code art. 27, § 681F.
In 1992, Harker sued SUI and various state defendants on behalf of himself and other inmates, alleging, among several claims, violations of the FLSA. SUI is an organization within the DOC created by the Maryland legislature to meet the rehabilitative needs of inmates. Id. at § 680. Specifically, SUI "[p]rovides meaningful work experiences for offenders intended to improve work habits, attitudes, and skills with the objective of improving the employability of the offender upon release." Id. at § 680(1)(iv). Toward this end, SUI operates several plants and service centers, such as the print shop at MCI-J. These operations produce goods and services for sale to government agencies, institutions, and political subdivisions of Maryland, as well as federal institutions and agencies, and those of other states. Id. at § 681C(a)(1). SUI may not sell its products on the open market except in very limited situations, such as sales to charitable or civic entities or when a surplus of goods remains unused after one year. Id. at § 681D. SUI does not generate a profit for the State, and by statute, is supposed to be financially self-supporting. Id. at § 680(1)(i).
Inmates fill all nonmanagerial positions within SUI, and SUI maximizes the rehabilitative value of the inmates' work experience by resembling a "private corporate entity as closely as possible." Id. at § 680(3). Inmates go through a voluntary application and interview process to participate in an SUI program. They work on a regular schedule, although shifts necessarily are shortened to accommodate lock-down schedules and security concerns. SUI may terminate participants in its programs, and although hourly wages are paid, they are set below the FLSA minimum. See id. at § 681F. Even with these parallels between SUI and an outside employer, the Maryland DOC ultimately administers all SUI programs and retains all authority necessary for the proper performance of DOC's statutory mission. Id. at §§ 681(4) and 681M.
After Harker and the other inmates filed their suit, the district court dismissed it under Fed.R.Civ.P. 12(h)(3) "for failure to state any arguable claim within the subject matter jurisdiction" of the court. This appeal followed. Only Harker gave notice of appeal, and he has abandoned his civil rights and Maryland common law claims.1II.
This argument fails. It presupposes that inmates in SUI-type programs should be considered employees for FLSA purposes in the first place. Even with a broad reading of this term, we see no indication that Congress provided FLSA coverage for inmates engaged in prison labor programs like the one in this case.
Initially, the labor being performed in SUI programs differs substantially from the traditional employment paradigm covered by the Act. Inmates perform work for SUI not to turn profits for their supposed employer, but rather as a means of rehabilitation and job training. As a part of the DOC, SUI has a rehabilitative, rather than pecuniary, interest in Harker's labors. By producing useful goods in an atmosphere that mirrors the conditions of a true private employer, SUI helps prepare inmates for gainful employment upon release. DOC's effort to prepare inmates for eventual private employment, however, does not mean that inmates have achieved such a goal while still incarcerated.
SUI and the inmates also have not made the "bargained-for exchange of labor" for mutual economic gain that occurs in a true employer-employee relationship. Vanskike v. Peters, 974 F.2d 806, 809 (7th Cir.1992); Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1325 (9th Cir.1991). They do not deal at arms' length; the inmates enroll in SUI programs solely at the prerogative of the DOC, which both initiates the programs and allows the inmates to participate. Because the inmates are involuntarily incarcerated, the DOC wields virtually absolute control over them to a degree simply not found in the free labor situation of true employment. Vanskike, 974 F.2d at 809-10. Inmates may voluntarily apply for SUI positions, but they certainly are not free to walk off the job site and look for other work. When a shift ends, inmates do not leave DOC supervision, but rather proceed to the next part of their regimented day. SUI and Harker do not enjoy the employer-employee relationship contemplated in the Act, but instead have a custodial relationship to which the Act's mandates do not apply.
Further, the FLSA does not cover these inmates because the statute itself states that Congress passed minimum wage standards in order to maintain a "standard of living necessary for health, efficiency, and general well-being of workers." 29 U.S.C. § 202(a). While incarcerated, inmates have no such needs because the DOC provides them with the food, shelter, and clothing that employees would have to purchase in a true employment situation. So long as the DOC provides for these needs, Harker can have no credible claim that inmates need a minimum wage to ensure their welfare and standard of living. See Vanskike, 974 F.2d at 810-11; Miller v. Dukakis, 961 F.2d 7, 9 (1st Cir.1992).III.
Harker nevertheless argues that the Act still applies here because of its second intended purpose--preventing unfair competition in commerce. See 29 U.S.C. § 202(a)(3). Harker maintains that because some SUI goods may reach the open market, through sales of surplus goods or sales to civic or charitable entities, see Md.Ann.Code art. 27, § 681D, SUI must pay the minimum wage to prevent it from having an unfair advantage over other producers of similar goods.
We are not persuaded that the limited ways in which SUI goods might enter the open market threaten fair competition. Even assuming, however, the viability of this threat, the FLSA still does not apply here because Congress has dealt more specifically with this problem through the Ashurst-Sumners Act. 18 U.S.C. §§ 1761-62. Ashurst-Sumners criminalizes the transport of prison-made goods in interstate commerce in precisely those situations in which prison labor threatens fair competition. See Kentucky Whip & Collar Co. v. Illinois Central R.R. Co., 299 U.S. 334, 351-52 & n. 19, 57 S.Ct. 277, 282-83 & n. 19, 81 L.Ed. 270 (1937).
Ashurst-Sumners' very existence undercuts Harker's argument. Congress passed Ashurst-Sumners in 1935 and the FLSA in 1938. Under Harker's interpretation, Congress would have passed the FLSA knowing that it made Ashurst-Sumners superfluous. What need would there be to criminalize the transport of prison-made goods if they did not enjoy the unfair economic advantage of being produced by cheap (non-FLSA) labor? Yet not only has Congress never repealed Ashurst-Sumners, it has periodically amended and recodified it. See Vanskike, 974 F.2d at 812.
Ashurst-Sumners also exempts from its coverage two situations that pose no threat to fair competition. Both exemptions conflict with Harker's position that the FLSA applies to his work for SUI. First, Ashurst-Sumners exempts prison-made goods, like SUI's, manufactured for use by federal, state, and local governments. 18 U.S.C. § 1761(b). Congress recognized here that governments have other uses for the fruits of prison labor besides the unfair maximizing of profits in the marketplace. Such uses could include rehabilitation efforts, such as Maryland's, or even using the savings accrued from prison labor to offset some of the costs of incarceration. See Vanskike, 974 F.2d at 811-12. Congress encourages such uses by legalizing the transport of prison-made goods when they are sold in the limited marketplace of governmental entities. Harker's position conflicts with this exemption, however, because he would require inmates to be paid minimum wage for producing governmental goods, even though Congress has concluded that such goods do not threaten fair competition.
Second, Ashurst-Sumners exempts the transport of goods produced under the Bureau of Justice Assistance's Private Sector/Prison Industry Enhancement Certification Program. 18 U.S.C. § 1761(c)(1). The Program requires that inmates be paid at least the prevailing local rate for their work, with the FLSA minimum wage as a floor. Id. at § 1761(c)(2); see also 50 Fed.Reg. 12661 (March 29, 1985). This exemption creates a quid pro quo that allows prison-made goods to enter the open market when manufacturers have paid inmates at least the minimum wage to ensure that no unfair competition occurs. Under Harker's interpretation of the FLSA, this Program would be altogether superfluous because the minimum wage already would be paid to inmates, thus eliminating any need for Congress to have ever offered a quid pro quo to manufacturers to avoid unfair competition.
Ashurst-Sumners' specific provisions deal with Harker's concerns more directly than the FLSA's general provisions. We must read the two statutes in pari materia, and it is axiomatic that, in this situation, the more specific statute must control. See Morton v. Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974). Ashurst-Sumners also has no private right of action, and therefore, Harker may not rely on it in this civil suit. Wentworth v. Solem, 548 F.2d 773, 775 (8th Cir.1977). Because of Ashurst-Sumners, however, Congress could never have intended the FLSA to apply to inmates in Harker's situation.
Finally, the case law also supports the view that the FLSA's coverage does not extend to Harker. The courts have refused to apply the FLSA to work done by inmates behind prison walls for any type of prison-operated industry or for the prison itself. We agree with those courts holding categorically that such inmates are not covered by the Act. Vanskike, 974 F.2d at 808 ("courts have not extended the FLSA's definition of 'employee' to cover prisoners who are assigned to work within the prison walls for the prison"); Miller, 961 F.2d at 8 ("courts have uniformly denied FLSA and state minimum wage law coverage to convicts who work for the prisons in which they are inmates"); Worsley v. Lash, 421 F.Supp. 556 (N.D.Ind.1976) (holding that an inmate working as a trustee in the criminal detention ward of a state hospital was not an employee for purposes of the Act); Emory v. United States, 2 Cl.Ct. 579, 580 (1983) ("Prisoners are not employees, within the meaning of the [Act]"). Both Vanskike and Emory dealt with the situations of inmates working not just in the servicing or maintenance of their prisons, but in prison industries similar to SUI. Vanskike, 974 F.2d at 806, 811-12; Emory, 2 Cl.Ct. at 579 (involving the Federal Prison Industries program).
Harker would have us eschew a categorical approach in favor of a case-by-case application of an "economic reality" test to determine if inmates are employees. See Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 936, 6 L.Ed.2d 100 (1961); Gilbreath, 931 F.2d at 1328 (observing that the test requires consideration of the totality of the work situation, including whether the alleged employer (1) hires and fires, (2) controls work schedules, (3) determines pay rates, and (4) maintains pay records). We believe that using this test in situations when an inmate works inside prison walls only encourages unnecessary litigation and invites confusion in an area of the law that should be quite clear.
Even when the economic reality test has been applied to inmates, courts have almost uniformly held that the Act does not cover prisoners working within the prison setting. Gilbreath, 931 F.2d at 1325-26, 1328-31 (holding that inmates working at a private plasma center inside prison were not covered by the Act); Alexander v. Sara, Inc., 721 F.2d 149, 150 (5th Cir.1983) (holding that inmates working at a private, profit-making laboratory inside prison were not covered by the Act); Sims v. Parke Davis & Co., 334 F.Supp. 774, 782 (E.D.Mich.1971) (holding that inmates working at a private drug clinic inside prison were not covered by the Act); Hudgins v. Hart, 323 F.Supp. 898, 899 (E.D.La.1971) (holding that an inmate working for a private employer inside prison was not an "employee" because the prison controlled the inmate's labor); Huntley v. Gunn Furniture Co., 79 F.Supp. 110, 113-16 (W.D.Mich.1948) (same). But see Hale v. Arizona, 967 F.2d 1356, reh'g en banc granted, 967 F.2d 1372 (9th Cir.1992); Carter v. Dutchess Community College, 735 F.2d 8 (2d Cir.1984) (holding that the FLSA might apply to an inmate working as a community college tutor for classes taught inside a prison). Significantly, in all of these cases, inmates performed work for private, outside employers even though their work was done within a penal facility. Even though the companies receiving the ultimate benefit of the work were engaged in commerce for a profit, these courts held that the inmates did not have to be paid minimum wage. Harker's case, of course, does not present even that wrinkle. In his prison job, he worked for the state itself.
The extraordinary circumstances necessary to trigger FLSA coverage of inmate labor were suggested in Watson v. Graves, 909 F.2d 1549 (5th Cir.1990). There, a corrupt Louisiana sheriff and warden hired out inmates housed at the parish jail to a construction company run by the sheriff's son-in-law. The company paid the inmates substantially less than the work release rate required by Louisiana statute. Id. at 1551. The facts were so egregious that the panel deciding the case was moved to write that it "naively" thought "scenarios such as the one now before us no longer occurred in county or parish jails of the rural south except in the imaginations of movie or television script writers." Id. at 1550. In finding that the FLSA applied, the panel emphasized that the labor took place outside the jail, and that it promoted unfair competition by giving the son-in-law's construction company a distinct commercial advantage. Id. at 1555. The court, however, took pains to distinguish situations, such as Harker's, when inmates work "legitimately within the discretion of the correction facility or agency," and when inmates perform work not in the competitive market, but in "the prison itself." Id.
Ruling for Harker in this case would result in an unprecedented expansion of FLSA coverage to inmates working within the prison setting. Such an extension on our part would be no small excursion into the arena of public policy. Forcing states to pay the minimum wage to every inmate involved in an SUI-type program would dramatically escalate costs and could well force correctional systems to curtail or terminate these programs altogether. We also will not judicially impose a new kind of employer-employee framework upon the DOC and its inmates under the guise of interpreting the FLSA's scope. For more than fifty years, Congress has operated on the assumption that the FLSA does not apply to inmate labor. If the FLSA's coverage is to extend within prison walls, Congress must say so, not the courts.


UNITED STATES FIDELITY AND GUARANTY COMPANY v. Ashley Reed Trading, Inc., Scott Ressler, James Ressler, Defendants–Counter–Claimants.
UNITED STATES FIDELITY AND GUARANTY COMPANY, Plaintiff–Counter–Defendant–Appellee, v. FENDI ADELE S.R.L., Fendi S.R.L., Fendi North America, Inc., Defendants–Counter–Claimants–Appellants, Burlington Coat Factory Warehouse Corporation, Cohoes Fashions, Inc., Intervenors–Defendants–Counter–Claimants–Appellants, Ashley Reed Trading, Inc., Scott Ressler, James Ressler, Defendants–Counter–Claimants.
Before SACK, CHIN, and DRONEY, Circuit Judges. Robert J. Tracy (Stefanie Robin Munsky, on the brief), Clifton Budd & DeMaria LLP, New York, NY, for Plaintiff–Counter–Defendant–Appellee United States Fidelity and Guaranty Company. Victor Genecin (Richard L. Mattiaccio and Corrine A. Irish, on the brief), Squire Patton Boggs, LLP, New York, NY, for Defendants–Counter–Claimants–Appellants Fendi Adele S.R.L., Fendi S.R.L., and Fendi North America, Inc. George M. Vinci, Jr. (David B. Picker, on the brief), Spector Gadon & Rosen, P.C., Philadelphia, PA, for Intervenor–Defendants–Counter–Claimants–Appellants Burlington Coat Factory Warehouse Corporation and Cohoes Fashions, Inc.
In this case, a seller of merchandise was insured under two liability insurance policies for any damages it was obligated to pay because of an “advertising injury.” During the coverage period, it sold goods bearing counterfeit trademarks. In two underlying lawsuits, it was found liable for, inter alia, trademark infringement. The insurer brought this action below seeking a declaration that it owed no duty to indemnify the insured under the policies. The district court held that the policies did not cover the losses because they were not the result of an “advertising injury.” We agree, and we therefore affirm.
Defendants–Counter–Claimants–Appellants Fendi Adele S.R.L., Fendi S.R.L., and Fendi North America, Inc. (collectively, “Fendi”) manufacture luxury handbags, shoulder bags, purses, wallets, and other items, and own associated federally-registered trademarks. Ashley Reed Trading, Inc. (“Ashley Reed”) engages in the purchase and sale of off-price branded handbags and other luxury goods in New York and elsewhere, and Scott Ressler and James Ressler are its principals. Intervenors–Defendants–Counter–Claimants–Appellants Burlington Coat Factory Warehouse Corporation and its subsidiary Cohoes Fashions, Inc. (together, “Burlington”) purchase clothing and other merchandise at wholesale and resell to the public at discounted prices. Burlington regularly purchased merchandise from Ashley Reed.
During the relevant time period, Ashley Reed sold counterfeit Fendi goods—fashion accessories that were not Fendi products, but that displayed one or more Fendi trademarks and otherwise reproduced the appearance of genuine Fendi products—to Burlington and others.
Plaintiff–Counter–Defendant–Appellee United States Fidelity and Guaranty Company (“USF & G”) is an insurance company that provides commercial, property, and liability insurance. It issued three liability insurance policies to Ashley Reed between 2003 and 2006. Two of the policies are at issue in this case—the 2003 Policy, effective February 8, 2003 through February 8, 2004, and the 2004 Policy, effective February 8, 2004 through February 8, 2006 (together, the “Policies”).
The Policies provide that USF & G will “pay those sums that the insured becomes legally obligated to pay as damages because of ․ ‘advertising injury’ to which this insurance applies.” App. at 383, 964. “Advertising” is defined as “attracting the attention of others by any means for the purpose of seeking customers or supporters or increasing sales or business.” Id. at 400, 981, 970 N.Y.S.2d 733, 992 N.E.2d 1076. “Advertising injury” includes injury resulting from four specified “offenses,” including: “c. The use of another's advertising idea in your ‘advertising’; [and] d. Infringement of another's copyright, trade dress or slogan in your ‘advertising.’ ” Id. at 400, 981, 970 N.Y.S.2d 733, 992 N.E.2d 1076.
In January 2006, Fendi sued Ashley Reed for trademark counterfeiting, false designation of origin, and trademark dilution in violation of the Lanham Act, 15 U.S.C. §§ 1114(1)(a), 1125(a), and 1125(c), and unfair competition and trademark dilution under New York law (the “First Action”). Fendi sought treble damages pursuant to 15 U.S.C. § 1117(b), on the ground that Ashley Reed intentionally used the Fendi trademarks with knowledge that they were counterfeit. The district court entered a permanent injunction, and awarded Fendi treble damages, prejudgment interest, fees, and costs.
On appeal, this Court affirmed, but vacated the district court's limitation of the damages award to counterfeits sold by Ashley Reed between 2005 and 2006 and remanded for a determination of whether damages should be awarded for the entire 2001 to 2006 period that Ashley Reed had infringed. On April 26, 2013, the district court entered on remand an award reflecting the amount of Ashley Reed's sales of counterfeit goods from 2001 to 2006, trebled, as well as attorneys' fees and costs, for a total monetary award of $34,650,885.91.
USF & G initially denied coverage for the First Action, by letter dated May 11, 2006. It later agreed, however, to pay for the defense of the action, subject to a reservation of rights letter, but continuing to deny indemnification.
In January 2006, Fendi separately sued Burlington, alleging the sale of counterfeit Fendi-branded merchandise that Burlington had purchased from Ashley Reed (the “Second Action”). Burlington asserted third-party claims against Ashley Reed. Fendi and Burlington settled as to Fendi's claims against Burlington, and on April 5, 2012, Burlington obtained a judgment requiring Ashley Reed to pay it damages, attorneys' fees, costs, and interest totaling $248,257.14. This amount reflected Burlington's profits from the sale of counterfeit goods it had purchased from Ashley Reed, as well as attorneys' fees, costs, and interest. See Fendi Adele S.R.L. v. Burlington Coat Factory Warehouse Corp., 867 F.Supp.2d 427, 434, 438 (S.D.N.Y.2012). Unlike in the First Action, the damages here were not trebled. Id. at 433–34.
On July 12, 2011, USF & G commenced this action below against Fendi and the Ashley Reed defendants, seeking a declaration that it owed no duty under the Policies to indemnify Ashley Reed with respect to the First Action. Fendi asserted a counterclaim seeking indemnification for the judgment entered against Ashley Reed in the First Action. Burlington was given permission to intervene to seek indemnification under the Policies for the judgment entered against Ashley Reed in the Second Action. Cross-motions for summary judgment followed.
On August 20, 2014, the district court granted summary judgment in favor of USF & G. The district court held that the basis of Ashley Reed's liability “was the sale—not the advertising—of counterfeit Fendi products,” and therefore that there was no basis for indemnification under the Policies. U.S. Fid. & Guar. Co. v. Ashley Reed Trading, Inc., 43 F.Supp.3d 271, 278 (S.D.N.Y.2014).
Judgment was entered accordingly and this appeal followed.
We review de novo a district court's grant of summary judgment, “construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor.” SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir.2009) (internal quotation marks omitted). “Because interpretation of an insurance agreement is a question of law, we review the district court's construction of the [Policies] de novo.” VAM Check Cashing Corp. v. Fed. Ins. Co., 699 F.3d 727, 729 (2d Cir.2012).
The parties agree that New York law governs the interpretation of the Policies. In deciding whether an insurance policy requires an insurer to indemnify an insured's loss, we must first examine whether there is a “reasonable basis for a difference of opinion as to the meaning of the policy.” Fed. Ins. Co. v. Int'l Bus. Machs. Corp., 18 N.Y.3d 642, 646, 942 N.Y.S.2d 432, 965 N.E.2d 934 (2012) (internal quotation marks omitted). If there is, “the language at issue would be deemed to be ambiguous and thus interpreted in favor of the insured.” Id. This is because “New York follows the maxim of contra proferentem in insurance cases: where the plain language of a policy permits more than one reasonable reading, a court must adopt the reading upholding coverage.” VAM Check Cashing, 699 F.3d at 732.
[a] reviewing court must decide whether, affording a fair meaning to all of the language employed by the parties in the contract and leaving no provision without force and effect, there is a reasonable basis for a difference of opinion as to the meaning of the policy. If this is the case, the language at issue would be deemed to be ambiguous and thus interpreted in favor of the insured.
Int'l Bus. Machs. Corp., 18 N.Y.3d at 646, 942 N.Y.S.2d 432, 965 N.E.2d 934 (internal citations, alterations, and quotation marks omitted).
“The duty to indemnify is determined by the actual basis for the insured's liability to a third person, and does not turn on the pleadings, but rather on whether the loss, as established by the facts, is covered by the policy.” Atl. Mut. Ins. Co. v. Terk Techs. Corp., 309 A.D.2d 22, 28, 763 N.Y.S.2d 56 (1st Dep't 2003) (internal citations and quotation marks omitted); see also Robbins v. Mich. Millers Mut. Ins. Co., 236 A.D.2d 769, 770, 653 N.Y.S.2d 975 (3d Dep't 1997) (“While the duty to defend is generally measured against the allegations of the pleadings in the underlying action, the duty to indemnify is distinctly different, for it is determined by the actual basis of the insured's liability to [a] plaintiff.”).
Several cases have construed advertising injury provisions under New York law. The New York Court of Appeals has held that for a claimed advertising injury to be covered, it “must both arise out of an offense occurring in the course of the insured's ‘advertising activities' and constitute one of the enumerated offenses.” A. Meyers & Sons Corp. v. Zurich Am. Ins. Grp., 74 N.Y.2d 298, 303, 546 N.Y.S.2d 818, 545 N.E.2d 1206 (1989). There, the court held that an insurer had no duty to defend under a policy that covered the “named insured's advertising activities,” where the insured had been accused of manufacturing, importing, and selling plastic fasteners that infringed on another company's patents. Id. at 301–03, 546 N.Y.S.2d 818, 545 N.E.2d 1206. The insured argued that its “injury” was covered because the complaint against it alleged unfair competition, but the court held that because the alleged unfair competition involved the importation and sale of infringing products, this was “not injury arising out of Meyers' ‘advertising activities.’ ” Id. at 303, 546 N.Y.S.2d 818, 545 N.E.2d 1206.
In a similar case, the Second Department held that the insurer had no duty to indemnify under an “advertising injury” clause where the insured had been sued for trademark infringement. Am. Mfrs. Mut. Ins. Co. v. Quality King Distribs., Inc., 16 A.D.3d 607, 607–08, 792 N.Y.S.2d 555 (2d Dep't 2005). In the underlying action, the insured had been found liable for selling counterfeit shampoo bottles bearing an unauthorized trademark. Procter & Gamble Co. v. Quality King Distribs., Inc., 123 F.Supp.2d 108, 118 (E.D.N.Y.2000). The Second Department held that the injury was not an “advertising injury” and that therefore the insurer had no duty to indemnify. 16 A.D.3d at 608.
Id. at 83. We did not reach the issue of the insurer's duty to indemnify, and we specifically noted the possibility that a point might be reached in the underlying proceedings when it became clear that the duty to defend ended because the alleged marketing injury was not covered under the policy. Id. at 83–84; see also Bridge Metal Indus., L.L.C. v. Travelers Indem. Co., 812 F.Supp.2d 527, 542 (S.D.N.Y.2011), aff'd, 559 F. App'x 15 (2d Cir.2014) (in advertising injury coverage case, recognizing distinction between broad duty to defend and narrower duty to indemnify).
App. at 400, 981. Fendi and Burlington do not argue that Ashley Reed's “injury” arises out of the offenses enumerated in subsections (a) or (b), but they both contend that subsection (c) applies, and Burlington also argues that subsection (d) applies.
We conclude that the district court correctly held that the Policies did not cover the injuries here, for subsections (c) and (d) require the use of another's “advertising idea” or “copyright, trade dress or slogan” in “your advertising,” id. at 400, 981 (emphasis added), and there was no advertising by Ashley Reed here. Ashley Reed did not engage in any advertising of the counterfeit goods, and in its complaints in the underlying actions, Fendi did not allege that it suffered injury because of any advertising activities on the part of Ashley Reed. Rather, Fendi complained that it suffered injury because defendants sold counterfeit goods, and damages were awarded in both of the underlying actions based not on Ashley Reed's advertising activities but on its sales of counterfeit products. Accord Meyers, 74 N.Y.2d at 303, 546 N.Y.S.2d 818, 545 N.E.2d 1206 (holding that insured's liability for importing and selling infringing products was not advertising injury); Am. Mfrs. Mut. Ins. Co., 16 A.D.3d at 608, 792 N.Y.S.2d 555 (holding that insured's liability for selling counterfeit shampoo bottles bearing unauthorized trademark was not advertising injury).
Fendi and Burlington argue that Ashley Reed's use of the Fendi mark constituted advertising within the Policies' broad definition of “advertising”—“attracting the attention of others by any means for the purpose of seeking customers or supporters or increasing sales or business.” App. at 400, 981. We reject the argument, in light of the well-settled proposition that insurance policies are to be construed “in light of ‘common speech’ and the reasonable expectations of a businessperson.” Belt Painting Corp., 100 N.Y.2d at 383, 763 N.Y.S.2d 790, 795 N.E.2d 15 (quoting Ace Wire & Cable Co., 60 N.Y.2d at 398, 469 N.Y.S.2d 655, 457 N.E.2d 761). The parties could not have reasonably expected that the advertising injury coverage of the Policies would extend to the insured's sale of infringing goods (where the insured engaged in no advertising of the counterfeit goods) or that “advertising” would include the sale (without more) of counterfeit products. As a matter of common sense, there is a difference between the placement of a counterfeit brand label on a handbag and the act of soliciting customers through printed advertisements or other media. Here, the Fendi brand and logo were used as product identification (or, to be more precise, misidentification) rather than as advertisement. Clearly, Ashley Reed could not have reasonably expected that it would be indemnified for disgorgement damages based on the profits it improperly made from selling goods that it knew bore a false designation of origin. See XL Specialty Ins. Co. v. Loral Space & Commc'ns, Inc., 82 A.D.3d 108, 115, 918 N.Y.S.2d 57 (1st Dep't 2011) (It is “well-established ․ that there is no insurance where an insured is forced to disgorge funds that it acquired wrongfully”); see also Vigilant Ins. Co. v. Credit Suisse First Boston Corp., 10 A.D.3d 528, 528, 782 N.Y.S.2d 19 (1st Dep't 2004) (“The risk of being directed to return improperly acquired funds is not insurable. Restitution of ill-gotten gains does not constitute ‘damages' or a ‘loss' as those terms are used in insurance policies.”); J.P. Morgan Sec., Inc., 21 N.Y.3d at 334–35, 970 N.Y.S.2d 733, 992 N.E.2d 1076.
In short, we conclude that Ashley Reed's injuries arose not from its advertising activities, but from its sales of counterfeit products.
The Policies also contain a falsity exclusion, which provides an additional basis for denying coverage. The Policies exclude coverage for an advertising injury “[a]rising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity.” App. at 389, 1000. To the extent Ashley Reed's use of the Fendi logo on its handbags arguably constitutes advertising—and, again, we conclude that it does not—the falsity exclusion would be triggered, for the record is clear that Ashley Reed intentionally published the material (that is, placed the Fendi logo on its bags) with knowledge that it would be selling goods bearing a false designation of origin. See, e.g., Terk Techs. Corp., 309 A.D.2d at 31–32, 763 N.Y.S.2d 56 (holding that insurer had no duty to defend or indemnify where insured intentionally sold counterfeit goods, as insured's conduct fell within “known falsity” exclusion); A.J. Sheepskin & Leather Co. v. Colonia Ins. Co., 273 A.D.2d 107, 107, 709 N.Y.S.2d 82 (1st Dep't 2000) (holding that insurer had no duty to defend or indemnify where insured intentionally sold infringing goods, as insured's conduct fell within “known falsity” exclusion).
We conclude that the district court did not err in denying coverage.


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41.1 Prior to the amendments to the 2002 Act by the 2014 Act, the Tribunal was empowered to issue a direction to 'give effect to its decision' where it had allowed the appeal. The direction was binding on the Home Office unless it successfully appealed against it. This power has been repealed, except in relation to those few remaining appeals to which the new appeals regime does not apply (see the preface to the 2015 update of the Best Practice Guide for an explanation of the cases to which these provisions do not apply).
41.2 Although the power to give a direction has been removed by statute, the Tribunal retains the ability to give a recommendation following determination of the appeal. A recommendation is extra-statutory and can be made whether the judge has allowed or dismissed the appeal. If he allows the appeal, he may 'recommend' a particular form and period of leave. If he dismisses the appeal, the judge may recommend that leave be granted on other grounds. However, recommendations are not binding and Home Office policy is that they will not be followed unless the Home Office agrees with them. As such, the utility of seeking a recommendation is significantly limited and they are now rarely sought or granted.
41.3 While the Home Office is not bound by a recommendation, it will normally be bound to accept the judge's findings of fact as to the appellant's particular circumstances when it comes to consider any future application from the appellant. Obtaining findings of fact that can support such an application is often much more useful than obtaining a recommendation that the Home Office should grant the application.
41.4 As noted above, s.87 of the 2002 Act has been repealed by changes to the system of asylum and immigration appeals brought about by the 2014 Act. The former appeals regime applies now only to a residual number of cases. The following paragraphs apply only to that limited cohort.
(1) If the Tribunal allows an appeal under section 82, 83 or 83A it may give a direction for the purpose of giving effect to its decision.
(2) A person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1).
(c) an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.
41.5 A direction is often unnecessary for giving effect to a determination allowing the appeal. However, the Tribunal has emphasised that under s. 87, unlike the predecessor provisions in the 1999 Act, the Tribunal's discretion to make a direction is not dependent on it being necessary for a direction to be made. A direction may be made for example where it is desirable that the determination is given effect to promptly because of the vulnerability of the appellant: SP (allowed appeal: directions) South Africa  UKUT 188 (IAC).
41.7 The Home Office is under a legal duty to give effect to the determination of the Tribunal (regardless of whether, in respect of appeals under the predecessor appeals regime, it was accompanied by directions): it is not entitled to reconsider the matter afresh (Boafo, R (on the application of) v SSHD  EWCA Civ 44).
41.8 If the Home Office does not seek to appeal the determination, then the only basis upon which it can be set aside is if the Home Office uncovers 'fresh evidence of fraud which is relevant, credible and not previously available with due diligence' (Saribal v SSHD  EWHC 1542 (Admin)).
41.10 In Chomanga (binding effect of unappealed decisions) Zimbabwe  UKUT 312 (IAC), the Tribunal emphasised that in the absence of fraud or one of the exceptions in para 35 of TB (Jamaica)  EWCA Civ 977 applying, it is not open to the Home Office to seek to make a new decision by reference to evidence which was available at the time of the Tribunal's determination, but which it failed to put in evidence before the Tribunal. In Mubu and others (immigration appeals – res judicata)  UKUT 00398 (IAC), while rejecting the argument that there was any estoppel or application of the principle of res judicata, the Tribunal held that the Devaseelan  UKIAT 00702 principles applied in such cases and that it was not open to the Home Office to seek to relitigate the same issue by reference to evidence which it could have put before the previous Tribunal had it acted with reasonable diligence.
(v) refusing their application would result in them being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which their life or freedom would be threatened on account of their race, religion, nationality, political opinion or membership of a particular social group.
Subparagraphs (iii) and (iv) of para 334 reflect the language of Art 33(2) of the Refugee Convention, which allows an exception to the general prohibition on refoulement of a refugee in Art 33(1). Subparagraph (v) reflects the fact that Article 33(1) of the Refugee Convention only prohibits the expulsion of a refugee to the frontiers of a territory where his life or freedom would be threatened on Convention grounds.
41.12 In SSHD v ST (Eritrea)  EWCA Civ 643,  1 WLR 2858, the appellant was an Eritrean national who had lived all her life in Ethiopia. She had succeeded on asylum grounds in her appeal to the Tribunal against removal to Eritrea, but her case that she also had a well-founded fear of persecution in Ethiopia was rejected. That was irrelevant to whether she was a refugee, because she was an Eritrean national, but it was not irrelevant to the grant of asylum. Following the Tribunal's decision allowing her appeal against removal to Eritrea (but in which no direction was made that she be granted asylum), the Home Office set directions for her removal to Ethiopia. It had told the Tribunal during the appeal that it might do so. The Court of Appeal held that it was open to the Home Office to try to remove the appellant to Ethiopia, because the finding of the Tribunal that she was a refugee whose removal to Eritrea would breach the Refugee Convention did not establish that she was entitled to asylum under para 334 of the Immigration Rules, as the requirements of sub-paragraph (v) had not been established.
41.13 However, the position is different where the new matter on which the Home Office seeks to rely to refuse asylum is something which could and should have been raised in the appeal to the Tribunal, but was not, and which the Tribunal's decision effectively decides against the Home Office. So in SSHD v TB (Jamaica)  EWCA Civ 977, it was not open to the Home Office to try to rely on Art 33(2) of the Refugee Convention for the first time after the determination allowing the appellant's appeal. The decision of the Tribunal that the removal of TB from the UK would breach the Refugee Convention was binding, even though Art 33(2) had not been argued before or considered by the Tribunal.
41.14 In the majority of cases the finding that the appellant is a refugee and that her removal would breach the Refugee Convention will be binding on the Home Office, and will entitle her to be granted asylum under para 334. In the small group of cases where the power under the old s.87 of the 2002 Act remains available, however, you should seek a specific direction if you have any doubt about the Home Office's intentions.
41.15 In the past, there have been unreasonable delays on the part of the Home Office in processing the grant of leave to successful asylum appellants (see Mersin, R (on the application of) v SSHD  EWHC 348 (Admin)). But if the Home Office does not act expeditiously to implement the Tribunal's determination, it will be open to you to bring judicial review proceedings against the Home Office.
(iv) they are not excluded from a grant of humanitarian protection.
(iv) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
The last criterion implements Article 15(c) of the Qualification Directive.
(v) prior to their admission to the United Kingdom the person committed a crime outside the scope of (i) and (ii) that would be punishable by imprisonment were it committed in the United Kingdom and the person left their country of origin solely in order to avoid sanctions resulting from the crime.
41.18 If the Tribunal determines that the appellant qualifies for Humanitarian Protection, the Home Office will then be under the same duty to grant leave under the Immigration Rules as applies to the grant of refugee leave following a successful asylum appeal. Providing that there is no suggestion that the appellant could safely be removed (and admitted) to a third country where there are not substantial grounds for believing that she would be exposed to serious harm, the grant of Humanitarian Protection should follow. The same option exists to challenge the Home Office by judicial review if leave is not granted within a reasonable period.
41.19 If the Tribunal allows the human rights appeal on Article 3 grounds but finds that the appellant is "excluded" from refugee status and Humanitarian Protection, they will normally be subject to the policy on Restricted Leave. The Restricted Leave policy applies where the appellant is excluded from refugee status under Article 1F of the Refugee Convention; where Article 33(2) applies; and where she is excluded from Humanitarian Protection on equivalent grounds (i.e. under 339C(i), (ii) or (iii), save where the only reason for exclusion is the commission of a 'serious crime' which would not lead to exclusion under the Refugee Convention). Restricted leave is ordinarily granted for a maximum of six months at a time and normally subject to stringent conditions as to residence, reporting, employment and education or training.
Cases where it is claimed that removal would breach Article 3 on medical grounds are not usually eligible for HP. In M'Bodj v Kingdom of Belgium (Case C-542/13)  1 WLR 3059, the Court of Justice of the European Union (CJEU) confirmed that subsidiary protection status requires that the harm from which the applicant seeks protection must emanate from the conduct of a third party, and therefore cannot simply be the result of a naturally occurring illness combined with general shortcomings in the health system of the country of proposed return. As such cases raising medical or mental health issues must usually be considered under the Discretionary Leave policy.
This analysis applies equally to cases where a physical or mental illness may have arisen as a result of torture or serious harm in the past, but where there is no real risk of similar treatment occurring in the future. This position is supported by the decision of the Court of Appeal in MP (Sri Lanka)  EWCA Civ 829 (see paragraph 48 in particular). This case is under appeal to the Supreme Court, and the latter has made a relevant referral to the CJEU. However, the Secretary of State for the Home Department's (SSHDs) position remains that set out above.
The exception to this analysis is where someone claims that they will be denied future treatment for a Refugee Convention reason. In such circumstances it may be appropriate to grant refugee status or HP.
... the risk of deterioration in the health of a third country national suffering from a serious illness as a result of the absence of appropriate treatment in his country of origin is not sufficient, unless that third country national is intentionally deprived of health care, to warrant that person being granted subsidiary protection.
41.21A As the API states, this was also the interpretation accepted as correct by the Court of Appeal in MP (Sri Lanka) v SSHD  EWCA Civ 829. MP is a Sri Lankan national who on the findings of the Upper Tribunal was still suffering the effects of torture inflicted in his country of origin, and was at risk of substantial deterioration in his mental health if returned and a serious risk of suicide, in particular because of the lack of appropriate care for torture survivors in Sri Lanka. On appeal to the Supreme Court, it made a reference to the Court of Justice of the EU  UKSC 32 on the question of entitlement to Humanitarian Protection. In its judgment (Case C-353/16 MP v SSHD (24 April 2018)), the Court of Justice, after holding that MP's removal to Sri Lanka would breach the Charter of Fundamental Rights (see 41.22C below), distinguished M'Bodj (at ) and held that it was relevant to take account of both the cause of the current state of health ("acts of torture inflicted by the authorities of his country of origin in the past") and the fact that his mental health condition would be substantially aggravated by return as a result of that trauma (at ). It explained that in the circumstances, MP's entitlement to subsidiary protection would depend on whether he was likely "to face a risk of being intentionally deprived of appropriate care for the physical and mental after-effects resulting from the torture he was subjected to by the authorities of that country" (at ). This might be the case if, inter alia, he "is at risk of committing suicide because of the trauma resulting from the torture he was subjected to by the authorities of his country of origin" but "it is clear that those authorities, notwithstanding their obligation under Article 14 of the Convention against Torture [to make available "the resources necessary to achieve as full a rehabilitation as possible" to victims of torture], are not prepared to provide for his rehabilitation". Such a refusal to provide for the rehabilitation of victims of torture, in the face of a specific international law obligation to do so, would constitute, in the Court's view, an intentional deprivation of appropriate care entitling the appellant to subsidiary protection. Further, an intentional deprivation of healthcare might be established by evidence showing the existence of "a discriminatory policy as regards access to health care, thus making it more difficult for certain ethnic groups or certain groups of individuals… to obtain access to appropriate care for the physical and mental after-effects of the torture perpetrated by those authorities".
An applicant seeking leave to remain on the basis of a serious medical condition may seek to rely on ECHR Article 3 and/or Article 8. In most circumstances, a person cannot rely on Article 3 to avoid return on the basis that they require medical assistance in the UK. The improvement or stabilisation in a person's medical condition resulting from treatment in the UK and the prospect of serious or fatal relapse on expulsion (ie deportation or removal from, or a requirement to leave, the UK) will not in themselves render expulsion inhuman treatment contrary to Article 3.
The threshold set by Article 3 is very high. To meet the threshold, a person will need to show that there are exceptional circumstances in their case which militate against return. Taken together, the relevant case law of D v United Kingdom  25 EHRR 423 and N v SSHD  UKHL31 suggests that exceptional circumstances will arise when a person is in the final stages of a terminal illness, without the prospect of medical care or the support of family or friends or palliative care (ie relief of the pain, symptoms and stress caused by a serious illness and the approach of death) on return. The House of Lords' decision in N was upheld by the European Court of Human Rights in N v UK (2008) 47 EHRR 39, and recently affirmed by the Court of Appeal in GS (India) & Ors v The Secretary of State for the Home Department  EWCA Civ 40, in which Lord Justice Laws confirmed the very high threshold, stating that the case-law suggested that the 'exceptional' class of case is 'confined to deathbed cases' (paragraph 66).
183. The Court considers that the "other very exceptional cases" within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.
…the protection of art.3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where "substantial grounds have been shown for believing that [the applicant], although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy" (at ). This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the art.3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of art.3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely "rapid" experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.
…particularly in the case of a serious psychiatric illness, it is not sufficient to consider only the consequences of physically transporting the person concerned from a Member State to a third country; rather, it is necessary to consider all the significant and permanent consequences that might arise from the removal … Moreover, given the fundamental importance of the prohibition of torture and inhuman or degrading treatment laid down in Article 4 of the Charter, particular attention must be paid to the specific vulnerabilities of persons whose psychological suffering, which is likely to be exacerbated in the event of their removal, is a consequence of torture or inhuman or degrading treatment in their country of origin.
• The duration of Discretionary Leave granted will be determined by a consideration of the individual facts of the case but leave should not normally be granted for more than 30 months (2.5 years) at a time.
As indicated above, this does not apply to those who are excluded from refugee status or Humanitarian Protection.
There may be some cases where it is clear from the individual circumstances of the case that the factors leading to DL being granted are going to be short lived. In such cases it may be appropriate to grant shorter periods of leave. Non-standard grants of a shorter than standard leave period should be used only where the information relating to the specific case clearly points to a shorter period being applicable. Reasons for granting a shorter period must be included in the letter to the applicant.
There will also be some cases where the factors meriting a grant of DL are expected to be sufficiently short lived that the question arises whether to grant a short period of leave or to refuse the application outright whilst giving an undertaking not to remove the individual or expect them to return until the circumstances preventing their return have changed. Such cases could arise at the decision-making stage or following an appeal. Where it is considered that return would be possible within 6 months of the date of decision it will normally be appropriate to refuse the claim outright, not to grant a period of DL, and to defer any removal until such time as it is possible.
41.27 In the few cases in which the power to give a direction still applies (see para 41.1 above), if the Home Office has argued or may subsequently argue that the circumstances of the case indicate that a lesser period than the standard period of Discretionary Leave should be granted, you may wish to ask the Tribunal to find that there is no basis for doing so and to direct that the standard period is granted. For the view that the effect of s. 87 of the 2002 Act is to give the Tribunal jurisdiction (in cases to which it still applies – see para 41.1 above) to decide this issue see MS (Ivory Coast) v SSHD  EWCA Civ 133, para 70.
41.28 If the Home Office is likely to claim that the circumstances rendering removal incompatible with the ECHR are likely to change within six months, you may wish to invite the Tribunal to make a finding to the contrary (and additionally, where the power to make a direction under s.87 of the 2002 Act remains - see para 41.1 above - to direct that Discretionary Leave is granted).
There may be cases where a longer period of leave is considered appropriate, either because it is clearly in the best interests of a child, (and any countervailing considerations do not outweigh those best interests), or because there are other particularly exceptional or compelling reasons to grant leave for a longer period or (ILR). In cases not involving children (as the direct applicant or as dependants), there must be sufficient evidence to demonstrate the individual circumstances are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of DL under this policy. In cases involving children, caseworkers must regard the best interests of the child as a primary consideration (although not necessarily the only consideration) and one that can affect the duration of leave granted. This does not alter the expectation that in most cases a standard period of 30 months' (2.5 years') DL will be appropriate, but it does mean that there may be cases where compelling evidence is available that justifies a longer period of leave (or ILR) to reflect the best interests of the individual child.
Factors such as the length of residence, whether the child was born in the UK and strong evidence to suggest that the child's life would be adversely affected by a grant of limited leave rather than ILR need to be weighed against immigration history, including conduct of the parents or guardians, and wider requirements to ensure a fair, consistent and coherent immigration policy. For example, there may be cases where a child has a serious and chronic medical condition which may not be able to be treated in the country of return and it is considered in their best interests to grant ILR to the child to provide a greater degree of certainty for the purposes of their continued treatment or mental wellbeing.
An example of where it would not normally be appropriate to grant a child ILR may be because they would like to qualify for a student loan in order to go to university. This would not normally be a sufficiently exceptional or compelling reason without additional factors. Individuals in this position may be aged 18 or over and are not prevented from going to university by a grant of limited leave – rather they would not be eligible for a student loan. Some universities may have other funding which they could apply for, such as bursaries, scholarships or other types of support or fee waiver; likewise, some commercial companies and charities.
Higher education institutions also have discretion to treat an 'overseas' student as a home student and charge the home student tuition fee, which is usually lower. A grant of limited leave provides permission to work and individuals could choose to seek employment before they attend university, study part time and work part time to fund their course, or wait until they qualify for ILR after completing an appropriate probationary period of limited leave and access a student loan at that point.
Where a decision is taken to grant ILR to a child because it is considered to be in their best interests, this does not necessarily mean the parents should be granted ILR in line. It will normally be appropriate to grant them a standard period of leave and require them to complete the usual probationary period before being eligible to apply for settlement themselves, unless they can demonstrate exceptional compelling or compassionate factors in their own right that warrant departure from the standard grant of DL under this policy.
In all cases the onus is on the applicant to provide evidence as to why it is in the best interests of the child to be granted a period of leave that is different from the standard period of 30 months' DL. Where a decision maker considers that it is in the best interests of the child or there are exceptional compelling or compassionate reasons to depart from the policy of granting 30 months' DL, the case must be referred to a senior caseworker for consideration.
If you have the evidence to support such an application, you may wish to make representations to the Home Office (and/or to the Tribunal in the limited number of cases where the power to make a direction remains – see para 41.1) that a longer period of leave, or indefinite leave to remain, should be granted in cases in which it is clear that a grant of only 30 months' leave is likely to be detrimental for the appellant or any children affected by that decision. If the evidence is not available at the appeal hearing, this may not be possible and you should make representations after the hearing in such cases. You can always apply for judicial review in any case where there is compelling evidence to support your representations and the Home Office refuse to consider it, even in the absence of a direction from the Tribunal.
In all asylum and non-asylum cases caseworkers must consider the impact of an individual's criminal history before granting any leave.
Where an individual does not fall within the restricted leave policy (for example, where they are not excluded under Article 1F or the criminal sentence was less than 2 years' imprisonment), caseworkers must consider the impact of any criminal history before granting DL, having regard as appropriate to Part 9 (General Grounds for Refusal) and, where an individual is not liable to deportation, paragraph 353B(i) of the Immigration Rules. Criminals or extremists should not normally benefit from leave on a discretionary basis under this policy because it is a Home Office priority to remove them from the UK.
41.30 Even if there is no issue that your client is a refugee or qualifies for Humanitarian Protection, ie if the appeal is being pursued only under an article of the ECHR other than article 3, you may therefore wish to ask the Tribunal to find that she would not fall within the criteria for exclusion under para 339D so as to avoid the Home Office alleging later that she does not qualify for the standard grant of Discretionary Leave on this basis.
41.31 The effect of s.87(4) in cases to which the previous appeals provisions apply (see para 41.1 above) is to enable an appeal to be brought to the Upper Tribunal against such a direction. On its face, it might be construed as only enabling an appeal to be brought against the making of a direction and not against a refusal to make a direction. However, there would be no apparent basis to differentiate in this way and it is unlikely that that was the intended effect.
41.32 Prior to the Human Rights Act, judges (then adjudicators) regularly made a recommendation when dismissing an asylum appeal to the effect that the appellant should be permitted to remain on other grounds. The Home Office told Parliament in 1988 that recommendations by adjudicators were 'invariably' accepted by the Home Office unless they were perverse or otherwise unlawful, and representatives consequently put much effort into pursuing such recommendations.
41.35 A judge's recommendation will therefore be rejected by the Home Office even where the judge has found that there are exceptional compassionate circumstances unless the Home Office has not already considered these circumstances and it agrees with the judge that they justify permitting the appellant to stay. This policy severely limits the utility of seeking a recommendation, and they are in practice now rarely sought or granted.
[E]xtra-statutory recommendations are no longer an appropriate way of dealing with any serious difficulty in the way of returning someone to his country of origin. If that would result in a breach of human rights, then the appeal should be allowed; otherwise it should be dismissed. If there is still any room at all for extra-statutory recommendations, it can only be in the most exceptional cases, if they can be imagined, where fairness requires them without the appellant's human rights being engaged. They ought not to be seen as a sort of compromise solution, allowing the appeal to be dismissed without actually facing the consequences.
41.37 In Gokteke v SSHD  UKIAT 06608, the Tribunal concluded that the adjudicator's decision to make a recommendation despite dismissing the human rights appeal raised concerns about whether he had properly considered the human rights issues when determining the appeal. It sought to discourage adjudicators from making extra-statutory recommendations.
I consider that there remain circumstances after the coming into force of the Human Rights Act in which it is possible and proper for a Special Adjudicator to make a recommendation where he is dismissing Human Rights Act and asylum claims.
41.40 Your primary argument will almost invariably be that the appeal should be allowed on human rights grounds rather than a recommendation made. If you can establish an interference with private or family life then removal is prohibited unless the Home Office can show that it meets a pressing social need (the public interest in expulsion or exclusion as interpreted through the Immigration Rules and Part 5A of the 2002 Act (see chapter 1). A recommendation to the Home Office that it permit your client to stay is arguably inconsistent with the pressing social need to remove her from the jurisdiction which is a prerequisite to dismissing the appeal on article 8 grounds.
41.42 If you do decide to request a recommendation, point out the Home Office's policy on recommendations, and emphasise the factors which have not yet been considered by the Home Office upon which you want the judge to base his recommendation. There is no appeal against a refusal to make a recommendation.
41.43 Far more useful than a recommendation is any relevant finding of fact by the judge concerning the appellant's particular circumstances. Unlike a recommendation, the Home Office is bound to accept any such factual finding (at least where the judge heard oral evidence) unless fresh evidence has come to light that undermines the finding (SSHD v Danaei  Imm AR 84; see also paras 41.8-10 above).
41.44 The Home Office will then have to consider any subsequent application on the basis of the findings of fact made by the judge, even if he has previously disputed these facts. This is important in the context of the system of active review which now applies to grants of refugee status and Humanitarian Protection, and will be particularly important for those who are excluded from these statuses and granted only short periods of discretionary leave to remain or restricted leave. It may bring your client within a beneficial Home Office policy from which she otherwise would have been excluded. It may also provide the essential basis for any application outside the Immigration Rules on compassionate or humanitarian grounds.
Where such treatment falls outside Art 3, there may be cases which justify the grant of exceptional leave on humanitarian grounds. The decision of the Secretary of State in such cases will be subject to the ordinary principles of judicial review but not to the constraints of the European Convention.
99... Whilst, for the reasons given, I would not regard the return of this appellant to Uganda as a violation of article 3, it by no means follows that the Secretary of State is bound to deport her. Plainly he has the widest discretion in the matter. The likely impact upon immigration control (and, doubtless, National Health Service resources) of an adverse article 3 ruling in the case would be one thing; the favourable exercise of an administrative discretion in this individual case quite another. I am not saying that the Secretary of State should now exercise his discretion in the appellant's favour, still less that a refusal to do so would be challengeable; only that the appellant's return would not inevitably follow from the failure of her appeal.
41.47 Such findings may also be relied upon if conditions subsequently change in the country of origin. For example, the judge may have made a positive credibility finding but dismissed the appeal because there is insufficient evidence of present risk. If conditions subsequently deteriorate in the country of origin, the Home Office will normally have to consider any fresh application on the basis of the judge's positive credibility finding as to past events.

matches:
EWCA
EWCA
Art 33
Art 33
EWCA
EWCA
Art 33
Art 33
EWCA
EWCA
UKSC
EWCA
v.
art.3
art.3
art.3
EWCA
Art 3