ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr Justice Cranston
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE SALES
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The Queen on the application of: (1) TH (Bangladesh) (2) ZA (Mauritius) (3) MNK (Pakistan) |
Applicants |
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- and - |
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Secretary of State for the Home Department |
Respondent |
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Lisa Busch QC and Leon Glenister (instructed by Government Legal Department) for the Respondent
Hearing date: 2 August 2016
Further submissions: 4 August 2016
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Crown Copyright ©
Lord Justice Beatson :
I. Introduction
II. The stayed cases:
"8. Within 28 days of the date of sealing of this order, the claimants in each of the cases comprising the DII cohort shall either withdraw their claims, or file and serve amended judicial review grounds indicating why they continue to pursue their claim in light of the judgment; the defendant shall have 21 days after that to file an Acknowledgement of Service and/or summary grounds of defence if so advised in response to each set of amended grounds; and those cases in which detention is no longer challenged shall be transferred to the Upper Tribunal;
9. The claims of any claimant in the DII cohort which are not withdrawn, but where the claimant fails to file and serve amended grounds within 28 days of the date of sealing of this order in line with paragraph 8 above, shall be struck out."
In a consent order dated 11 July 2016 filed in the Administrative Court the time in paragraphs 8 and 9 was varied to be 21 days from 13 July; i.e. a period ending on 3 August, the day after the hearing. At the conclusion of the hearing before us, Ms Harrison QC on behalf of the applicants applied for a further stay until the day after our judgment. The information given to the court about the position of the stayed cases was limited and the lack of particularity, notice, or forward thinking displayed is regrettable, particularly because Ms Harrison accepted that, had we delivered our decision at the conclusion of the hearing, she would also have applied for an extension. Notwithstanding this, given the way the stayed cases have been case managed to date and for pragmatic reasons, we extended time until the day after the judgment in this application is given.
III. The judgment below:
IV. The grounds on which permission to appeal is sought:
a. Ground 1: The judge erred in declining to quash the Detention: Interim Instruction as a consequence of his finding that there had been breach of section 149 of the Equality Act 2010 and only granting declaratory relief.
b. Ground 2: The judge misdirected himself (at [137] – [139]) in concluding that fairness need not be stated explicitly in a Detained Asylum Casework policy, misconstrued the policy as "operationalising fairness to an extent" when there was a failure to publish the interim process map, and erred in rejecting the submission that the policy failed to meet the requirements of legal certainty and transparency.
c. Ground 3: The judge erred in law in finding (at [149] – [156]) that the consideration of asylum claims in detention under the DII/DAC is not inherently unfair. Its 11 sub-grounds relate to what are said to be errors by the judge as to the adequacy of the safeguards for identifying unsuitable cases for consideration within detention, and handling those of individuals in detention. The errors alleged relate to the submission that the judge accepted inclusionary criteria based on presumptions, failed to grapple with the absence of an opportunity to address the assumptions prior to an individual's inclusion in the DII process, failed to address the fact that the criteria used were not published or made explicit, lack of flexibility, and the impact of lawyers.
d. Ground 4: The above errors meant that the approach to the individual cases (see [128] – [134], [170] – [180]) was flawed because there was no fair opportunity for the applicants to address the criteria for inclusion in the DAC.
V. Discussion
Ground 1
Ground 2
Ground 3
(a) In considering whether a system is fair one must look at the "full run" of cases that go through that system,
(b) A successful challenge to a system on grounds of unfairness must show more than the possibility of aberrant decisions and unfairness in individual cases,
(c) A system will only be unlawful on the grounds of unfairness if the unfairness is inherent in the system itself, and
(d) The core question is whether the system has the capacity to react appropriately to ensure fairness.
Ground 4
TH (Bangladesh)
(a) TH's screening interview had been postponed from 19 to 20 October because he was vomiting and not fit to attend it.
(b) In his interview, TH stated that he had had back pain and that when he was in Kuwait he was beaten by a soldier and a bone in his back was broken, and that he had sleeping problems.
(c) The skeleton argument states that TH had stated that he had been involved in a "demonstration against" the Bangladesh government, although the document referred to in fact states "he was involved in a political meeting with the BNP".
(d) TH is also recorded as stating that the present government, presumably in Bangladesh, will want to kill him, and that an arrest warrant for his involvement with the political meeting had been served on him and was in his party office in Bangladesh.
(e) TH is also recorded as stating that he intended to have additional documents sent from his home country, but it would take four or five days to do so, and that he had some physical problems or medical conditions and would like to be released.
(f) There are notes dated 21 and 26 October respectively recording TH as stating that he had numerous medical conditions and was finding it hard to manage in detention and requesting a rule 35 assessment.
MNK (Pakistan)
ZA (Mauritius)
Ground 5
VI. Conclusion
Lord Justice Sales:
59. I agree.
Case Ref: 2016/2626; 2016/2629; 2016/2627
IN THE COURT OF APPEAL (CIVIL DIVISION)
IN THE APPLICATION FOR PERMISSION TO APPEAL
BEFORE THE RIGHT HONOURABLE LORD JUSTICE BEATSON
AND THE RIGHT HONOURABLE LORD JUSTICE SALES
BETWEEN
Applicants/ Claimants
Respondent/ Defendant
UPON HEARING Counsel for the Applicants and Counsel for the Respondent on 2 August 2016, and considering the Applicants' further submissions dated 4 August 2016
AND UPON the Order of this Court dated 5 August 2016 extending the stay of paragraphs 8 and 9 of Cranston J's Order sealed on 15 June 2016 in respect of the cohort of cases challenging the DII, to the extent that time for compliance with paragraph 8 of Cranston J's Order, as extended by consent order dated 19 July 2016, was further extended until the day after judgment is handed down in the Applicants' application for permission to appeal
IT IS ORDERED THAT:
Dated this 10th day of August 2016
BY THE COURT