Shu Shin Luh

Overview

Shu Shin is a public law practitioner focusing on the rights of children and vulnerable adults and others in need of services and support. She acts mainly on behalf of claimants but also advises and represents a number of non-governmental organisations and public bodies.

In 2012, Shu Shin was awarded the Young Legal Aid Barrister of the Year award.

Shu Shin is ranked in the Chambers and Partners UK Bar Guide as an 'up and coming' junior counsel in the areas of administrative and public law and community care, where she is described by solicitors and other barristers as:

• 'having been "involved in some quite significant cases at an early stage in her career" and is recognised for her involvement in homelessness cases on behalf of children. "She is willing to take urgent cases and prioritise them - she'll work long hours to make sure things happen." - Chambers UK 2012 (Social Housing)
• singled out for positive comment by a lot of interviewees. She is known for her particular expertise in age assessment, and is "able to get to grips with things amazingly quickly. She is astonishingly bright." - Chambers UK 2013 (Administrative and Public Law)
• "exceptionally energetic and driven" and a rising star at Garden Court Chambers who "has appeared in many cases usually handled by those barristers well above her year of call." She excels in those matters concerning the rights of children, and in A v Essex CC advised on the first test case regarding disabled children's right of access to effective education under the ECHR. - Chambers UK 2013 (Community Care)

Practice

Her practice covers the full range of social welfare law, including community care (adult and children's social care), mental health, housing and immigration and the legal obligations associated with these areas in domestic, human rights and EU law. She represents those who are most vulnerable, whether they are children, young adults (including 18+ care leavers) and adults, particularly those with complex needs, mental health difficulties or disabilities; are homeless, or are in or leaving custody. She also acts on behalf of victims of trafficking, unaccompanied and age-disputed migrant children. She is frequently instructed in complicated cases raising best interest issues relating to disabled and migrant children as well as mentally incapacitated adults.

Social welfare / Children Act / Housing: Shu Shin is a children's rights expert who has brought successful challenges against social services and health authorities in respect of failings in provision of support and accommodation for vulnerable children and young adults. Her practice covers disputes over s20 accommodation under the Children Act 1989, leaving care duties, and other transition to adulthood duties, inter-authority disputes over duties owed to vulnerable young people. In respect of vulnerable and incapacitated adults, Shu Shin has challenged adult community care assessments, closures of care homes and day centres, failures in protection of vulnerable adults, failure / inadequacy in provision of mental health services, supported housing, lawfulness of adult and child social care policy and eligibility criteria, and continuing NHS care disputes. She is regularly successful in obtaining urgent relief and injunctions both in court and out of hours on behalf of her clients.

In recent years, she has also developed an expertise in representing mentally incapacitated adults, particularly those who are ready to be discharged from detention under the Mental Health Act 1983 and are unable to be so discharged because of inter-authority disputes over which public body is responsible for arranging after care services and support.

She also provides expert advice in immigration and family proceedings relating to public law, discrimination and community care matters.

Age Disputes,Trafficking and Immigration Law: Shu Shin's specialist immigration law background has provided her with the strong foundation to advocate on behalf of migrant children and young people in the full range of judicial review challenges, ranging from challenges to termination of support and accommodation under the Children Act 1989, age dispute challenges, claims involving the unlawful detention and removal of age-disputed children and challenges to the failure of state authorities to protect victims of trafficking by either prosecuting them or refusing / failing to provide them with suitable support, counselling and accmmodation. She was junior counsel in R(FZ) v LB of Croydon [2011] EWCA Civ 59, the guideline case on how the reviewing court should assess whether to grant permission in an age dispute judicial review claim. She represented FZ as a sole junior in the first instance. She was also junior counsel in SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284 which established the correct test for adjourning and removing asylum appeals from the Detained Fast Track, i.e. that a case must be adjourned / removed from the DFT in order to allow a party (in that case, an age disputed minor) to answer the case against him by way of evidence (e.g. a social work report on his age). The case has a far-reaching impact which would make it difficult for any case to remain within the DFT where there is a genuine dispute on which the appellant wishes to adduce relevant evidence.

She was junior counsel in R (AA) v Secretary of State for the Home Department [2012] EWCA Civ 1383 (having been the sole junior in the High Court) in respect of whether the detention of a child wrongly treated by the Secretary of State as an adult can sound in damages where the Secretary of State relied on a local authority assessment of age which is said to be lawful. The appeal to the Supreme Court was heard on 7-8 May 2013, judgment reserved.

She is currently acting as junior counsel on an intervention by the Equality and Human Rights Commission in 4 linked criminal appeals against conviction in respect of child victims of trafficking in respect of the correct approach the court in the first instance and the appellate level should take toward child victims of trafficking who are prosecuted for their crimes linked with their exploitation.

Education: Shu Shin regularly appears on behalf of parents in SENDIST appeals, school exclusions and admissions appeals and judicial review proceedings. She has particular experience in disability discrimination-related and regulatory matters.She was led junior in A v Essex CC [2010] UKSC 33, currently pending at the Strasbourg court, which, if admitted, will present the Strasbourg Court with the first opportunity since 1951 to consider the substantive meaning of the right to education under Article 2 Protocol 1.

Prison law: Shu Shin is experienced in handling sensitive and difficult parole applications for young sex offenders and those subject to indeterminate and extended sentences for public protection.

She also advises regularly on public law challenges against prison authorities, probation and social services for failures in respect of planning for the release of vulnerable children and adults particularly where there is historic failings by children's or adult social services and health authorities to take responsibility for the claimant.

Public Authority Negligence: Arising out of her work with children and young people, Shu Shin has developed an expertise in damages claims against public authorities both as a sole and led junior, including social services, health, education, police and immigration authorities.

Arising from her work representing trafficked victims and age-disputed minors in community care matters, she also advises regularly on civil claims against public authorities in respect of damages arising from false imprisonment, wrongful prosecution and / or arrest, and failure to protect.

She is currently instructed on a claim for damages relating to a child refugee who was wrongly removed from the UK to Afghanistan.Upon issuing of judicial review proceedings, he was brought back from Afghanistan to the UK. A claim in breaches of articles 5 and 8 ECHR are alleged against the Secretary of State for the Home Department and the local authority social services department with care of the child as well as a negligence and misfeasance claim against the local authority social services department.

Family: She also represents children in proceedings in the family courts parallel to ongoing judicial review applications, including wardship applications, appeals against secure accommodate orders, applications to discharge care orders. She also advises on post-adoption judicial review challenges to the failure to provide and / or adequacy of provision of adoption support services to adopted children and their families and to the adequacy of special guardianship support.

Recent Notable Cases

A v Essex CC [2010] UKSC 33: First test case on the meaning of Article 2 Protocol 1 right of access to effective education under the European Convention on Human Rights for disabled children. Has been involved as junior counsel in the matter since 1st instance, first as a pupil and then as a led junior in the Court of Appeal. Application to the European Court of Human Rights currently pending.

R (AA) v Secretary of State for the Home Department [2012] EWCA Civ 1383: Test case consider whether the detention of a child asylum seeker was in breach of the Secretary of State's policy not to detain children. The Secretary of State detained the appellant on a mistaken belief that he was an adult when he was in fact a child. Case raising novel points of statutory construction and interplay between the Secretary of State's power to detain and her duty to safeguard and promote the best interests of children. For judgment, click here.

n.b. Appeal to the Supreme Court was heard on 7-8 May 2013, judgment reserved.

R (FZ) v LB of Croydon [2011] EWCA Civ 59: Guideline case on how the court and the local authority are to resolve age disputes. The Court of Appeal set out the correct approach at the permission stage of an age dispute judicial review claim and laid down clear guidelines on the fairness required in the local authority's assessment of a putative child. For judgment and analysis of the case, click here.

R (RO) v East Riding of Yorkshire [2011] EWCA Civ 196: A local authority is not entitled to terminate a duty under s20, Children Act 1989 and cease to look after a child under ss22 and 23, Children Act 1989 without an assesment of the child's needs. In circumstances where the criteria under s20, Children Act 1989 remain met, the duty to accommodate continues irrespective of a statement of special educational needs naming a residential school in Part IV. The Children Act 1989 has primacy over the Education Act 1996 where welfare provisions are concerned, and s22(3A), Children Act 1989 provides that the safeguarding welfare duty includes a duty to promote the educational achievement of a 'looked after child'. For judgment and analysis of the case, click here.

SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284: Guideline case establishing the correct test for adjourning and removing asylum appeals from the Detained Fast Track. Hearings held in the Detained Fast Track (DFT) must be adjourned, and if necessary, taken out of the DFT, in order to allow a party to answer the case against him by way of evidence unless it would be pointless to do so. In the present appeal, the appellant was an age disputed minor in immigration detention and he sought an adjournment / removal of his case from fast track to secure his own social work report on age. The First Tier Tribunal's failure to grant the appellant an adjournment / take his case out of fast track had been unlawful and the Upper Tribunal also acted unlawfully by dismissing the appeal on the basis that the FTT had not acted irrationally and new evidence would not have made a difference (i.e. failing to apply the "pointlessness test"). The legal test established will make it very difficult for any case to remain within the DFT where there is a genuine dispute on which the appellant wishes to adduce relevant evidence. For judgment, click here.

Durani v Secretary of State for the Home Department [2013] EWHC 284 (Admin): Successful claim in judicial review challenging the lawfulness of the detention of a child by the Secretary of State for the Home Department in exercise of immigration powers. The Court held that the detention was unlawful; the SSHD was not entitled to rely on an age assessment which was not Merton-compliant to detain the Claimant as an adult. The issue of damages has been adjourned and transferred to the Queen's Bench Division. For judgment, click here.

R (EAT) v LB of Newham [2013] EWHC 344 (Admin): Successful claim in judicial review challenging the Defendant's refusal to provide the Claimant and her mother with support and accomomdation under s17, Children Act 1989. The Defendant relied on an assertion that the Claimant's mother's application was treated by the UK Border Agency as a claim under Article 3, ECHR therefore an asylum claim to contend that s122, Immigration and Asylum Act 1999 prevented the local authority from providing support under s17, Children Act 1989. The Court held that whether a person is an asylum-seeker depended on whether she 'made' a 'claim for asylum', which is to be afforded its natural meaning. The fact that the UK Border Agency treated it as an article 3 claim did not render it such a claim. The Claimant and her mother were found not to be asylum-seekers and they were declared to be eligible for support under s17, Children Act 1989. For judgment, click here.

R (YA) v LB of Hillingdon [2011] EWHC 744 (Admin) and R (Y) v LB of Hillingdon [2011] EWHC 1477 (Admin): First full substantive age dispute trial to succeed in obtaining a declaration in favour of the Claimant, a trafficked young woman, now 18, who had been subject to domestic slavery since the age of 6. In the linked case of YA (Nigeria), the High Court had to consider for the first time special measures for a trafficked victim giving evidence in the Administrative Court on the issue of her age. The Court set down guidelines for how to approach the question of special measures for children given evidence in age dispute trials. For judgment in Y, click here.

R (AM) v LB of Croydon [2011] EWHC 6613 (Admin): The Court granted a declaration in favour of the Claimant child that he is the age he claims to be and granted a further declaration that he ought to have been so treated as a child from when he first presented to the local authority, and the duties owed to him as a child under the Children Act 1989 ought to have run from the time he first presented to the local authority.

R (KS) v LB of Croydon [2010] EWHC 3391 (Admin): Three linked test cases on the LB of Croydon's failure to educate three unaccompanied asylum seeking children who have been out of school for more than a year. On the correct test for suitable accommodation under s19, Education Act 1996. Application to Strasbourg on liability and quantum of damages for breach of the claimants' right to education under Article 2, Protocol 1 pending at the European Court of Human Rights.

KC v Newham London Borough Council [2010] UKUT 96 (AAC): Successful appeal against the First-Tier Tribunal's decision to strike out the Appellant's appeal against the contents of Parts 2, 3 and 4 of her grandson's statement of special educational needs. The Upper Tribunal held that there was a live issue to be determined in the appeal, and the FTT had jurisdiction to determine the issue irrespective of the fact that the Appellant's grandson was over the age of compulsory schooling.

Pro Bono

Shu Shin regularly undertakes pro bono work in education, discrimination, community care, asylum support and social security matters. She is happy to accept pro-bono instructions in these areas.

She has experience in preparing pro bono appeals to the Privy Council on behalf of death row inmates and was a legal fellow in Port of Spain, Trinidad and Tobago during summer 2006 assisting the London Panel of Solicitors in such appeals. She was a second junior (led by Ed Fitzgerald QC) in a successful Privy Council appeal against conviction in Lester Pitman v The State of Trinidad and Tobago [2008] UKPC 16.

Training / Advice

With several other members of Garden Court Chambers, Shu Shin edits and contributes to Garden Social, an information website which provides monthly updates on developments in social welfare law. (Click here for the website.)

Shu Shin regularly provides in-house training on the Children Act 1989, community care law, education law, migrant children's rights and rights of trafficked victims to solicitors, law centres and charities across the country. Shu Shin also advises national and international charities on legal matters relating to the rights of migrant and refugee young people. She authored the chapter on "Best Practices in Age Dispute Challenges' in the Immigration Law Practitioners' Asosciation's guide, Working with Refugee Children: Current Issues in Best Practice (published in 2012). She was a key contributor to the Children Commissioner's report, The Fact of Age, (published in July 2012) which reviewed the Court's approach to age assessment challenges in the UK post-Supreme Court judgment in A v Croydon. She provides training to advocacy groups, social workers and legal practitioners on the law in the areas of age disputes and trafficking.

She is a legal advisor to the Welsh Strategic Migration Partnership, a consortium of governt and non-governmental bodies on migrant children's issues and recently advised on the All Wales Practice Guidance on Safeguarding and Promoting the Welfare of Unaccompanied Asylum Seeking Children and Young People.

Background

Shu Shin was born and raised in Hong Kong and Taiwan. Prior to coming to the Bar, she worked as a part-time campaign assistant on the China Team of Amnesty International, where she investigated links between trade and human rights in China, particularly looking at the role foreign technology corporations play in assisting in the restrictions of free flow of information and free speech on China's internet. She helped edit the "Fair Trials" manual in Chinese (which is her first language).

She also spent six and a half years as a journalist for the Washington Post, the Wall Street Journal and the Chicago Sun-Times, writing extensively on issues ranging from consumer rights, immigration, crime and regional politics in Southeast Asia and China. She was a regular commentator on CNBC's Squawk Box, and has appeared on CNN and National Public Radio (NPR). She has won awards for investigations into detention of children in asylum care in the US, deaths arising from officer-involved shootings and price-fixing among grocery conglomerates. Around Asia, she has reported widely on labour and corporate management issues, particularly those involving major multinational clothing manufacturers' dealings in alleged sweatshops in Indonesia, Vietnam and Cambodia. In 2003, she published Business the Sony Way (John Wiley & Sons). In 2005, she published The People of China (Mason Crest Publishing) and The Economy of China (Mason Crest Publishing).

Professional Memberships

• Administrative Law Bar Association
• Human Rights Lawyers Association
• Immigration Law Practitioners' Association
• Education Law Association

Profile updated May 2013

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