ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION
AND ASYLUM CHAMBER)
Upper Tribunal Judge Perkins
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MCFARLANE
LORD JUSTICE KITCHIN
| The Queen on the Application of AB
|- and -
|The Secretary of State for the Home Department
Ms Julie Anderson (instructed by Government Legal Department) for the Respondent
Hearing date : 8th December 2016
Crown Copyright ©
Lord Justice McFarlane :
"Permission is granted on the ground that it is arguable that the applicant suffered unfairness in the light of the recent decisions by the High Court and the Court of Appeal on the Detained Fast Track procedure. The applicant's allegation that he had been the victim of torture should have been investigated by way of the rule 35 procedure. This was not done because of the speed with which his claim and appeal were dealt with. It is arguable that the unfairness affected the disposal of his claim and the appeal."
Leave was granted for amended grounds of challenge to be filed, limited to the extent of the grant of permission. The judicial review claim that had been re-invigorated by UTJ Eshun's grant of permission was the claim determined by UTJ Perkins on 1st June 2016 and is therefore the claim to which this appeal relates.
2nd Feb 2016 Asylum appeal hearing
4th April Judicial Review hearing before UTJ Perkins
11th April Judgment dismissing Asylum Appeal
6th May Permission granted to appeal against Asylum Appeal dismissal
1st June UTJ Perkins judgment on Judicial Review claim
13th June UTJ Coker allows AB's appeal against dismissal of his asylum appeal and directs a re-hearing
AB's asylum appeal is currently adjourned to await the outcome of the present appeal and, particularly, the determination of whether or not the Secretary of State is to be required to use her best endeavours to achieve AB's return to the United Kingdom to take part in that appeal process.
Judicial Review Proceedings
"On 21st November 2014 (AB) purported to make a fresh claim. This was refused and he sought judicial review of that decision. The application for judicial review was refused by UTJ McGeachy but was renewed orally and permission granted by UTJ Eshun on 5th August 2015. Judge Eshun granted permission because 'it is arguable that the applicant suffered unfairness in the light of the recent decision of the High Court and the Court of Appeal in the Detained Fastrack Procedure.' This case came before me because of that grant of permission."
From that summary it appears that the target decisions so far as UTJ Perkins was concerned were:
(a) The refusal to accept the 'fresh claim'; and
(b) Allocation of AB's case to the DFT process.
"In other words the first tier tribunal has decided, perhaps unremarkably, that the applicant has a right of appeal which he is exercising. In these circumstances there seems little point in the present judicial review proceedings. The applicant has a remedy and is using it. If that remedy is not managed properly then there is the possibility of further appeal or other challenge.
8. This case has been overtaken by events. If there is anything unlawful in the process of that appeal, including his being out of the United Kingdom, then his remedies lie in that appeal and not in judicial review of an earlier decision. If this is right, and I think it is, then I have given sufficient reason for my decision."
"I am wholly unpersuaded that the Secretary of State had any reason to think that she was acting improperly when she allocated the case to the fast track or in removing the applicant after the appeal had been heard in the fast track. Points that might have suggested that the fast track was not suitable were not taken until after the decision was made".
"The decision to remove after an unsuccessful appeal hearing is a step apart from any error in the conduct of or decision in the appeal. If it became appropriate to re-admit the applicant because the decision relied on has been set aside then, as indicated above, that is a matter for different proceedings."
That important passage indicates that UTJ Perkins considered that the question of AB being brought back to take part in the appeal process was a matter for those conducting that process in the FTT and was not a proper matter for litigation within the present judicial review claim.
"At the start of the hearing the applicant's representative renewed an application made in writing to admit further evidence concerning the difficulties of contacting their client in the Cameroon. I had already refused the application on the papers because I did not see how that evidence would help me decide the issues that were relevant to the appeal. I maintained that position after oral argument. It is not for me to make directions about the conduct of a hearing that is not before me. I see no point in that claim at all."
"2. The Appellant respectfully submits that the UTJ erroneously concluded that removal was not unlawful.
4. At (paragraph 43) the UTJ concludes that the SSHD: "acted appropriately in light of the evidence that was before her." In reaching this finding the UTJ fails to have regard to relevant Court of Appeal authority, and errs in his approach to the evidence."
Each of these shortly stated grounds was supported by further detail.
1. that the UTJ was wrong to conclude that AB had an alternative remedy in pursuing his appeal before the FTT.
3. the UTJ erred in concluding that TN (Afghanistan) v SSHD  UKSC 40 constrains the courts from correcting past injustices.
5. the UTJ erred in his approach to the issue of the "fresh claim" and consequently the lawfulness of removal.
6. the UTJ erred in the test for remedy following a substantive hearing of judicial review (by deploying the "balance of convenience" test which is not appropriate in a public law context).
"(I) The manner in which the respondent and the tribunals rejected the appellant's asylum claim was unfair and consequently unlawful; UTJ Perkins's conclusion that the process had not been unfair/that the respondent had no cause to believe that the process had been unfair was wrong: this ground of appeal encompasses grounds 2 and 4 in the appellant's Notice of Appeal, on which Beatson LJ granted permission to appeal;
(II) UTJ Perkins's decision not to require the respondent to use her best endeavours to secure the appellant's return to the UK was unfair and for other reasons erroneous in law and, in particular, the UTJ was wrong to treat the availability of an out-of-country appeal as a suitable, alternative remedy: this ground of appeal encompasses grounds 1 and 3, on which Beatson LJ refused permission to appeal, but which the appellant renews."
"1. UTJ Perkins's decision that the SSHD had no cause to believe she had acted unlawfully was wrong: the SSHD acted unlawfully, and had cause to know that, by processing AB's claim under the DFT and by removing him pursuant to tribunal decisions that were unlawful.
2. UTJ Perkins's refusal to grant relief on the basis that American Cyanamid supplied the test was wrong, as was his failure to adopt the principled approach in YZ (China) and his conclusion that AB had an alternative remedy [before] the FTT.
3. UTJ Perkins's refusal to admit "the factual evidence" was unfair and on the legally erroneous basis that it was irrelevant."
i) AB has a current statutory right to an in-country appeal;
ii) The nature of AB's immigration claim is important; he is a refugee under the Refugee Convention and his claim engages rights under ECHR Art 3;
iii) AB's current location is that he is back in Cameroon which is "his country of persecution". There is no precedent for any court tolerating an asylum seeker with an in-country right of appeal being required to prosecute that appeal from the country of persecution;
iv) AB's circumstances in Cameroon are dire;
v) The root cause of AB's absence from the UK at the time of his pending appeal is the unlawful action of the Home Secretary in deploying the DFT scheme which, in turn, resulted in the unlawful (as it has now been held to be) decision of the FTT in relation to AB's appeal on 10th November 2014;
vi) AB has not behaved in such a way as to give cause for the adverse exercise of any judgment against him in that he is not a criminal, has not been guilty of delay with regard to processing his claim and to allow him to return to the UK will not have an adverse impact upon the administration of the system.
"The matter does not end there, however, because there is also the question whether this was a claim which, in the light of all the information that should have been available, could ever have been regarded as one in respect of which a fair and sustainable decision could be made within about two weeks. Given the nature of the appellant's claim, I find it difficult to see how it could. Homosexuality is a characteristic that cannot be reliably established without evidence from sources external to the claimant himself. On the face of it, therefore, the appellant did need additional evidence to support his claim and since some of that evidence was likely to be available only in Jamaica or elsewhere abroad, it was likely that he would need additional time in order to obtain it. A failure to allow him that time was likely to lead (as in the event it did) to a decision that was neither fair nor sustainable."
"… the rules must secure that the proceedings are handled quickly and efficiently, but in a way which ensures that justice is done in the particular proceedings and that the system is assessable and fair. Speed and efficiency do not trump justice and fairness. Justice and fairness are paramount."
Lord Dyson expressed his conclusion on the scheme at paragraph 37 onwards:
"These asylum appeals are often factually complex and difficult. They sometimes raise difficult issues of law too. I am unpersuaded that the safeguards are sufficient to overcome the unfairness inherent in a system which requires asylum seekers to prepare and present their appeals within seven days of the decisions which they seek to challenge.
38. I have no doubt whatsoever about the independence and impartiality of the tribunal judges who deal with the appeals. I accept that they are specialist judges who can usually be trusted to get the right answer on the basis of the material that is presented to them. I am also sure that they do their best to comply with the overriding objective of dealing with appeals justly. Nevertheless, in view of (i) the complex and difficult nature of the issues that are often raised; (ii) the problems faced by legal representatives of obtaining instructions from individuals who are in detention; and (iii) the considerable number of tasks that they have to perform … the timetable for the conduct of these appeals is so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases under the FTR regime" [emphasis in original]
Finally, at paragraph 45, Lord Dyson summarised his conclusion:
"To summarise, in my view the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases. … The system is therefore structurally unfair and unjust."
"I agree with the judge that the court should have regard to and respect the views of the Tribunal Procedure Committee as to the appropriate procedural rules. But this should not be taken too far. The material that we have been shown indicates that during the consultation process the Tribunal Procedure Committee itself and most of the consultees expressed great concern about the potential unfairness of the proposed FTR. It should also be noted that the Tribunal Procedure Committee decided to support the proposed rules after correspondence from the then Lord Chancellor in which he raised the possibility of his overruling the Tribunal Procedure Committee's initial view and supporting the position of the SSHD."
"(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part "immigration decision" means:
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, …"
NIAA 2002, s 92 provides that:
"(1) A person may not appeal under s 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f), (ha) and (j).
(4) This section also applies to an appeal against an immigration decision if the appellant:
(a) has made an asylum claim, or a human rights claim, while in the United Kingdom,
"Where a person in the position of the appellant is removed from the United Kingdom on the strength of an unlawful certificate, the effect is to deprive him unlawfully of an in-country appeal to which he is entitled under the statute. It seems to me that [counsel for YZ] is right in his submission that this should be the starting point for the court in considering in such a case whether to order the person's return to the United Kingdom. It is a factor telling strongly in favour of ordering the person's return, so as to restore him to the position he should have been in under the statute and would have been in if the Secretary of State had acted lawfully. I think it unhelpful and undesirable, however, to talk in terms of a 'presumption' in favour of return and of the need for good reasons to rebut the presumption. I also think it mistaken to characterise the court's discretion as anything other than a wide one. Whilst the fact that a person has been unlawfully deprived of his statutory right to an in-country appeal should be the starting point and is a strong factor in favour of return, it would be wrong to seek to cut down the discretion of the court in relation to the grant of a mandatory injunction. The particular circumstances of the case may give rise to numerous other factors capable of bearing on the question whether it is just and appropriate to grant such an injunction. All such factors should be put into the balance. These cases are fact-sensitive, as the judge said and the decided cases show."
The Respondent's case
'The principle of "anxious scrutiny" may justify a "more relaxed approach" to procedural failures in this area of the law (see Kerrouche  EWCA Civ 2263, per Lord Woolf MR). However, the discipline of pleadings remains important. Issues of this kind need to be clearly formulated, in time for those advising the Secretary of State to consider them and respond, and for the respective arguments to be deployed before the court in an orderly way. Otherwise there is a serious risk that an issue will not be properly digested or understood, and a decision may be reached which seems to do justice in a particular case, but has unforeseen complications for the development of the law more generally.
i) AB's removal occurred at a time when there was no appeal pending and this remained the case even after his present solicitors were instructed;
ii) AB, through his solicitors, purported to put in a 'fresh claim' but this was rejected and that decision no longer forms any part of AB's pleaded case before this court;
iii) Although the result of the Detention Action appeal has been that some DFT decisions have been set aside, not all have been held to have been unfair and the aim of achieving a fast-track system has been held not to have been intrinsically unfair. Some 10,000 decisions were taken under DFT regime yet, for example, only 28 other decisions were set aside by UTJ Clements on the occasion when this appellant's FTT decision as reversed;
iv) JB (Jamaica) did not establish that it was unfair or unlawful for any case of asserted homosexuality to be determined under the DFT. Each case is fact specific and it is possible to distinguish the present case from JB (Jamaica), for example on the ground that the present appellant is bi-sexual, rather than homosexual, and that he plainly lied in order to gain entry to the UK by applying for a business visa;
v) The SSHD was entitled to rely upon the FTT judge's decision to refuse a stay on 5th December 2014. Rule of law values mean that public decision makers must be able to assess the lawfulness of their decisions by reference to contemporaneous judgments of courts or tribunals; the reviewing court does not take into account matters that have occurred after the decision was made (relying on Fardous v SSHD  EWCA Civ 931);
vi) To succeed, the appellant must go further than simply establishing that the original decision of FTTJ Sullivan under the DFT was unlawful. He must establish that the subsequent decision to remove was unlawful at the time that it was made and, in order to do so, it is essential for AB to establish that the SSHD knew that the FTT decision and/or the DFT scheme were unlawful at the time that the removal decision was made (relying on Draga v SSHD  EWCA Civ 842);
vii) UTJ Perkins was therefore right to hold that the removal directions had been lawfully made.
'… Parliament has established a comprehensive statutory scheme for determining the lawfulness of a decision by the Secretary of State to make a deportation order. The Secretary of State may not make the order until an appeal against the decision to make it has been "finally determined" (see paragraph 33 above). In order to give effect to the statutory scheme there is a very strong case for treating the Tribunal's decision on an appeal under section 82(1) as determinative (subject to any appeal to the Court of Appeal) of the issues as between the parties to the appeal in order to ensure finality in litigation and legal certainty.
62. The law, particularly in this field, is constantly evolving, as shown by the number of reported cases. The fact that a decision by the Court of Appeal or the Supreme Court in a later case, perhaps many years later, may, with the benefit of hindsight, make it clear that a Tribunal's decision in an earlier case to allow or dismiss an appeal against a decision to make a deportation order was made on an erroneous legal basis is not a ground for re-opening the earlier decision by the Tribunal. It would frustrate the operation of the statutory scheme if the Secretary of State was not able to rely upon the Tribunal's decision, dismissing an appeal, once time for applying for permission to appeal against the decision had expired, as a lawful basis for making a deportation order.
63. In the present case, these judicial review proceedings were commenced in June 2008 and the law was not clarified until the judgment in EN (Serbia) was handed down in June 2009, some 21 months after the Tribunal's decision. If a Tribunal's decision is not to be treated as finally determining, as between the parties to an appeal under section 82(1), the lawfulness of a decision to make a deportation order, there can be no certainty as to whether there is lawful authority for detention under either paragraph 2(2) or 2(3) of Schedule 3, because at any stage it might be decided in a subsequent case that the legal basis for making the deportation order – the dismissal of the appeal against the decision to make the order – had been flawed.
64. If a person subject to a deportation order has not been removed from the UK, a subsequent decision by the Court of Appeal or the Supreme Court in another case which makes it clear that the Tribunal's decision to dismiss his appeal against the decision to make the order was made on a flawed legal basis, would be a proper ground for an application to the Secretary of State to revoke the order, and for appealing against a decision to refuse to revoke the order, but it would not invalidate either the Tribunal's decision finally determining the appeal, or the deportation order made in reliance upon that final determination.
65. The position may be tested by reference to the position of the person who is served with notice of a deportation order, but who does not appeal against the decision under section 82(1). It would frustrate the operation of the statutory scheme if the Secretary of State was not able to rely upon the fact that no appeal had been brought within time against the decision to make the order as a lawful basis for proceeding to the second stage of the process: the making the order itself. A subsequent decision by the Court of Appeal or the Supreme Court which made it clear that the Secretary of State's decision to make the order had been made on an erroneous legal basis could not affect the lawfulness of a decision against which there had been no appeal. A person who appeals against a decision to make a deportation order and has his appeal "finally determined" by a decision of the tribunal dismissing his appeal cannot be in any better position than a person who does not appeal.
'In determining the lawfulness of the decision made by the Secretary of State, the court examines the decision on the basis of the evidence as known to the Secretary of State when she made the decision. Although the decision of the court is necessarily ex post facto, the court does not take into account matters that subsequently occurred. As Sales J explained in R (MH) v Secretary of State for the Home Department  EWHC 2506 (Admin), at paragraph 105:
"In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State. The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is. Rule of law values indicate that the Secretary of State should be entitled to take advice and act in light of the circumstances known to him, without fear of being caught out by later circumstances of which he could have no knowledge."
His decision was upheld by this court:  EWCA Civ 1112.'
'It seems to me that there is an area, admittedly ill-defined but left open by Lord Steyn in Boddington v British Transport Police  2 AC 143, and Lord Phillips in Mossell (Jamaica) Ltd v Office Utilities Regulation  UKPC 1, in which the act of a public authority which is done in good faith on the reasonably assumed legal validity of the act of another public authority, is not ipso facto vitiated by a later finding that the earlier act of the other public authority was unlawful.'
'136. I read the judgment of Lord Justice Maurice Kay in draft with admiration. I agree with his conclusions and his reasons, with one important exception. I take issue with the conclusion, reached by him in paragraph 120, that this case is "within that ill-defined area" in which the act of a public authority, on the basis of the assumed lawfulness of a prior act of another public authority, is not itself vitiated by the unlawfulness of the prior act. This case raises in an acute form the question whether a public authority that acts on what is subsequently found to have been an unlawful and legally void executive act itself acts unlawfully, and if so whether its own act is itself void.
137. In my judgment, the answer must depend on the circumstances.'
'141. I am prepared to accept, without deciding, that there is a principle that, in "ill-defined" circumstances, the act of a public body ("the public body"), acting in good faith and in reliance on the reasonable assumption that an earlier act of another public body ("the other public body") was lawful, will not be vitiated as a result of a subsequent finding that the earlier act was in fact unlawful. The existence of such a principle is supported by what was said by Lord Browne-Wilkinson in Boddington v British Transport Police  2 AC 143, 194 and, arguably, by Lord Phillips in Mossell (Jamaica) Ltd v Office Utilities Regulation  UKPC 1, para 44.'
a) The root cause of the unlawfulness of the original FTT decision was the SSHD's own decision to allocate AB's case to the FTR;
b) The SSHD, knowing that every consultee was opposed to the FTR scheme on grounds of unfairness, nevertheless forced the scheme into law;
c) The presenting officer for the SSHD at AB's FTT hearing (when he was acting in person) failed to draw the FTT's attention to the decision in R (JB) Jamaica which was in AB's favour and directly applicable to the case;
d) The SSHD failed to facilitate, either before the hearing or by acceding to an adjournment, adequate medical evidence on the issue of what, if any, signs of injury to AB there were as a result of his alleged torture and ill-treatment.
'29. I agree with the judge that the court should have regard to and respect the views of the TPC as to the appropriate procedural rules. But this should not be taken too far. The material that we have been shown indicates that during the consultation process the TPC itself and most of the consultees expressed great concern about the potential unfairness of the proposed FTR. It should also be noted that the TPC decided to support the proposed rules after correspondence from the then Lord Chancellor in which he raised the possibility of his overruling the TPC's initial view and supporting the position of the SSHD. For this reason alone, the court should exercise caution about giving too much weight to the judgment of the TPC. In any event, the question is whether the FTR satisfy the requirements of justice and fairness stated in section 22(4) of the 2007 Act. The answer to this question does not call for expertise which the court does not possess. The court is well equipped to decide whether an appeal process is fair and just. I accept that the concepts of fairness and justice are not susceptible to hard-edged definition. That is why a margin of discretion should be accorded to the TPC, but it should be modest.'
These observations are not, however, reflected in any findings of the court. The focus of the appeal, as the passage in paragraph 29 demonstrates, was for the court to make its own evaluation of the overall fairness of the scheme; it is not apparent that any party sought adverse findings against any minister as to their state of knowledge.
i) AB, as a bi-sexual from Cameroon, should not have been in the DFT regime at all on the basis of the decision of JB (Jamaica);
ii) The Home Office presenting officer at the FTT hearing did not inform AB about, or refer the tribunal to, JB (Jamaica);
iii) The Home Office presenting officer apparently told the FTT that Mr T was not in the United Kingdom, when he was in fact accommodated by the Home Office pending determination of his asylum claim;
iv) Mr T's own asylum claim was being dealt with wholly outside the DFT scheme and he is still in this country awaiting a re-determination of his application for asylum.
'There is no supporting evidence from [Mr T]. [Mr T] is in the United Kingdom and there is no reason why he could not have attended or provided a statement. They are claiming asylum for the same reason and [Mr T] would be aware of the need to provide evidence. There is no evidence that [Mr T] is in the United Kingdom and the visa application does not mention that the Appellant would be travelling with another person.'
Although the content of that paragraph is, to a degree, contradictory, it seems clear that the tribunal was not informed that Mr T was in the UK, being accommodated by the Home Office and that his asylum claim was being progressed through the ordinary tribunal procedure.
Lord Justice Kitchin:
Lady Justice Arden: