Elizabeth Mottershaw

Housing & Homelessness

Elizabeth is ranked as a Tier 2 Leading Junior in The Legal 500 and as Up and Coming in Chambers & Partners.

Elizabeth regularly defends possession, injunction, and committal proceedings. She has appeared for claimants in unlawful eviction and disrepair cases and in challenges to local authority decisions about homelessness duties. Elizabeth acts for clients with complex mental health needs and drug and alcohol problems, and for clients who lack litigation capacity. She frequently acts in cases involving the intersection between housing, the Care Act 2014, and the Equality Act 2010. Elizabeth is ranked as rising star in the 2023, 2022 and 2021 editions of The Legal 500 in social housing.

Examples of her work include:

Leeds City Council v SD (Leeds County Court, June 2021): Elizabeth acted for the Respondent in injunction proceedings issued in the context of an ongoing dispute between neighbours. The Respondent and her family had themselves been subjected to verbal abuse, including abuse about their western clothing and their caste. After one day of evidence, including Elizabeth’s cross-examination of the Claimant’s witnesses, the Claimant agreed to a consent order by which its application was dismissed.

Leeds City Council v KL (Leeds County Court, April 2021): Elizabeth acted for the Defendant in injunction and possession proceedings. The client had mental health problems that gave rise to complex and nuanced defences based on the Equality Act 2010, public law, and the Human Rights Act. After a 4-day trial, and despite findings of fact as to the Defendant having engaged in anti-social behaviour, including racist abuse, both claims were dismissed. The Recorder accepted Elizabeth’s submissions that the Claimant had failed to show that its actions were not discrimination under the Equality Act and that the making of a possession order and an injunction would be unlawful.

AK v CH (Leeds County Court, November 2020) Unlawful eviction: Secured general and special damages at trial totalling just over £23,000 including £200 per day for being made homeless, damages for injury to feelings consequent to harassment, aggravated and exemplary damages.

BOS4 v Wayne Smith (Manchester County Court, May 2017): In this case it was successfully argued on behalf of the Defendant that a payment of money, described by the claimant as rent in advance, was in fact a deposit. It was argued that the wording of the tenancy agreement meant that the case could be distinguished from Johnson v Old [2013] EWCA Civ 415, in which the Court of Appeal held that rent in advance, in the circumstances of that case, was not a deposit. The result was that the claimant could not rely on section 21 of the Housing Act 1996 and the claim for possession was dismissed.

Immigration and asylum

Elizabeth is ranked as a Tier 1 Rising Star in The Legal 500.

Elizabeth appears regularly in immigration and asylum appeals in both the First-Tier and Upper Tribunals. Her work focuses on asylum and human rights appeals, and she also regularly appears in bail applications for those in immigration detention. Her asylum work has included claims based on all four refugee grounds, but she takes a particular interest in cases involving the definition of ‘particular social group’ – especially where this involves risk as a result of transgressing social or cultural mores. Her work includes appeals based on Article 8 rights to family and private life, including those relying on paragraphs EX1 and 276 ADE of the Immigration Rules and the reasonableness of expecting children to leave the UK. Elizabeth advises on the merits of, and drafts grounds for, appeals to the Upper Tribunal and judicial review of Upper Tribunal permission decisions.

She also has experience of judicial review covering Dublin III cases, fee waivers, domestic violence, and deportation.

Her notable cases include:

• O v Secretary of State for the Home Department De novo hearing of asylum case after judicial review and an Upper Tribunal finding of errors or law in the FtT’s first decision: Appellant had arrived in UK as an unaccompanied asylum-seeking child, seeking asylum on the basis of his membership of a particular social group following a tribal feud in Afghanistan; at the time of the de novo hearing the Appellant was by then an adult, however the judge considered age when events occurred in Afghanistan to be relevant to credibility; the determination found that his stay in the UK, his lack of family support, and his mental health, rendered internal relocation unduly harsh. The appeal was allowed under the Refugee Convention;
• A and B v Secretary of State for the Home Department Appeal against the Secretary of State’s decision to refuse the Appellants’ human rights claims for leave to remain: The case turned on the reasonableness of expecting the second Appellant, child to the first, to leave the UK. It was successfully argued that, even though the first Appellant had overstayed her visa, the child’s interests in staying in the UK were so strong that they outweighed the public interest in immigration control. Both appeals were allowed on human rights grounds;
• M v Secretary of State for the Home Department Appeal against the Secretary of State’s decision to refuse the Appellant’s claim for asylum: The Appellant, a national of Iraq, claimed to have a well-founded fear of persecution based on membership of a particular social group having had a relationship with a man disapproved of by her family – essentially the Appellant was fleeing “honour” based violence. The Secretary of State considered that the Appellant’s account was not credible, pointing to the Appellant’s decision to begin a relationship; her boyfriend’s persistence in seeking her hand in marriage; and the alleged implausibility of a father who was said to be both protective and violent. Having heard evidence and submissions, including detailed references to objective evidence, the judge held that the Appellant had established a well-founded fear of persecution and allowed the appeal; and
• R(I) v Secretary of State for the Home Department Judicial review proceedings: In the face of issued proceedings and detailed statement of facts and grounds the Secretary of State agreed to waive the Claimant’s application fee and reconsider her application for leave to remain under Appendix FM.

Court of Protection

Elizabeth’s growing Court of Protection practice includes acting in applications under section 21A Mental Capacity Act 2005 in cases where the Official Solicitor, other litigation friends, and accredited legal representatives act for the client. Elizabeth advises on issues around capacity, eligibility and best interests. She prepares position statements and orders and participates in advocates’ meetings, assisting in identifying and narrowing issues.

Elizabeth also acts for family members, seeking to ensure they are able to have a voice in the decision-making process. Elizabeth is able to bring her experience in social housing to her COP work. Her housing work includes advocacy on behalf of clients who lack litigation capacity and who face possession and injunction proceedings. It also requires expertise in local authority homelessness duties.

Elizabeth’s COP practice includes acting in applications to displace nearest relatives.

Public law

Elizabeth’s public law practice focuses on immigration and housing. She advises on the merits of cases, drafts grounds for judicial review, and appears before the courts. By way of example:

• In a case concerning fee waivers for immigration applications, the Secretary of State refused to accept that an application was valid because the applicant had sought a fee waiver for her children whilst paying a fee for herself. Upon receiving grounds drafted by Elizabeth, setting out the irrationality and unlawfulness of this position, the Secretary of State withdrew her refusal to accept the application; and
• Before the Upper Tribunal Elizabeth successfully argued that a decision refusing an application for leave to remain as a victim of domestic violence should be quashed. The Tribunal accepted the arguments that the Secretary of State had failed to fully consider the evidence, including evidence that post-dated the break-down of the relationship.

International

Elizabeth accepts instructions for advice, advocacy, drafting and training on international human rights law and international humanitarian law.

Elizabeth worked at Amnesty International from 1998-2008. She has subsequently worked as an independent consultant, completing projects for, among others, Amnesty International, Equal Rights Trust, European Human Rights Advocacy Centre, and the law departments of Bristol, Middlesex and London Metropolitan universities. She has served on advisory committees to the board of Amnesty International UK.

Elizabeth has provided specialist legal and policy advice on numerous applications to the UN special procedures and treaty bodies, amicus curiae briefs, and Amnesty International country reports. Her international work has focused on Africa and the Middle East, with particular expertise in international humanitarian law, human rights law on economic, social and cultural rights, and poverty. Elizabeth has carried out research and published on the practical impact and implementation of international law.

Elizabeth has led human rights research missions to Iraq, the Philippines and Yemen identifying breaches of international law by state and non-state actors. As Deputy Director of Amnesty’s Africa program, she managed teams carrying out research in Zimbabwe, Gambia and Nigeria, responsible for strategic aims, research methodology, and publications, as well as security and budgets.

Elizabeth has provided training on IHRL and IHL and has lectured for the University of Tulsa, delivering a comprehensive international law module to post-graduate students, covering IHRL, IHL, international law on the use of force, and international refugee law. Elizabeth has spoken at academic conferences, seminars and expert round tables in the UK, Ethiopia and Belgium.

Elizabeth has an LLM in Public International Law, with distinction, from LSE and has published widely on international law, including in Human Rights Quarterly, European Human rights Law Review, Journal of Human Rights Practice and International Journal of Human Rights.

International criminal & humanitarian law

Elizabeth’s international work has focused on countries experiencing armed conflict. At Amnesty International she led policy and legal work on the Darfur conflict working closely with the research team to identify breaches of IHL (as well as IHRL) in a non-international armed conflict and to devise recommendations to governments and the international community. She co-led Amnesty International’s crisis team on Iraq in 2002-3, travelling to Baghdad, Mosul, Kirkuk and Irbil, holding meetings with victims of abuse, the US military, and women’s organisations. Struck by the horror of armed conflict’s impact on wider economic and social rights, and the limitations of IHL in this regard, Elizabeth undertook research on the complex relationship between IHL and IHRL and the right to water, publishing this in the International Journal of Human Rights.

International human rights law

Elizabeth has given specialist legal and policy advice on numerous applications to UN special procedures and treaty bodies, amicus curiae and Amnesty International country reports. Her work has covered much of Africa, and Iraq, Yemen and Saudi Arabia, covering key rights under the ICCPR, in particular the non-derogable rights to life, and to not to be tortured or subjected to cruel, inhuman and degrading treatment, and to liberty. Examples of the scope of her work include the death penalty in Nigeria, slavery in Mauritania, violence against women in Democratic Republic of Congo, and policing in Zimbabwe.

She has advised on publications concerning international standards on fair trial and on how to conduct human rights research, in particular concerning children.

Elizabeth has researched, written and advised on the impact and implementation of international human rights decisions, including those of the European Court of Human Rights and the African Commission on Human and People’s Rights.

Discrimination

Elizabeth has wide experience of discrimination, in particular with reference to her housing work. She frequently identifies defences to possession claims on the basis of the Equality Act 2010. She has also worked on cases involving housing providers’ failure to make reasonable adjustments for those with disabilities. In such cases she endeavours to secure quick, practical and just outcomes for her clients. The Legal 500 2021 described her work on housing and the Equality Act 2010 as particularly strong.

Example cases:

X v Y local authority

This case concerned a disabled tenant and her disabled son, each with different complex needs requiring different reasonable adaptations to their property. Decisions by the local authority as to adaptations and funding of the same were taken, and information provided, in confusing and piecemeal fashion. Detailed consideration of the many exchanges between the parties and a letter before action for judicial review were followed by a commitment from the local authority that new decisions would be made.

X v Y registered social housing provider

This case concerned an application for an injunction to require the housing provider to make urgent reasonable adjustments, without which the client was unable to access washing facilities. Legal aid funding was secured on the basis of advice from Elizabeth and after discussion between the parties a consent order was agreed – ensuring that work would be done quickly without the need for court hearings.

Publications

• Identifying Human Rights Stories – Middlesex University (July 1, 2014);
• Mechanisms for the Implementation of Decisions of the African Commission on Human and Peoples’ Rights – Human Rights Quarterly (May 20, 2014);
• National Responses to Human Rights Judgments: The Need for Government Co-ordination and Implementation – European Human Rights Law Review 2012 (2012);
• Limits and achievements of the HRA from the socio-economic point of view: the HRA and Poverty – Confronting the Human Rights Act: Contemporary themes and perspectives (2012);
• Time to incorporate the Convention on the Rights of the Child – Guardian (November 19, 2010);
• Poverty, inequality and human rights – Joseph Rowntree Foundation (2009);
• Evaluating the impact of human rights litigation on policy and practice – Journal of Human Rights Practice (2009);
• Evaluating the impact of selected cases under the Human Rights Act – Equality and Human Rights Commission (2009); and
• Economic, Social and Cultural Rights in Armed Conflict – International Journal of Human Rights.

Memberships

• Bar Human Rights Committee;
• Young Legal Aid Lawyers; and
• Human Rights Lawyers Association.

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