England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HON. MR JUSTICE MORRIS;
THE HON. MR JUSTICE JAY and
THE HON. MRS JUSTICE LANG DBE
JR/7689/2017

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/02/2018

The Lord Burnett of Maldon:

1. This is the judgment of the court.
2. This case concerns the grant of urgent interlocutory injunctions against the Secretary of State in relation to the removal from the United Kingdom of an asylum-seeker whose claim for asylum she has rejected but where new representations are made on the asylum-seeker's behalf at the eleventh hour, just before the removal.
3. SB is a national of Afghanistan whom the Secretary of State sought to remove to Afghanistan by way of a commercial flight to Istanbul and then a commercial flight from Istanbul to Kabul. This is an appeal by the Secretary of State in relation to interlocutory injunctive relief granted against her by three different judges at first instance, aimed first at preventing the removal of SB from Istanbul to Kabul and then, since that order was not implemented, aimed at securing his return to the UK. The Secretary of State says that the first order was not implemented because it was not received in time by her officials.
4. Pursuant to the latter orders, SB was returned first to Istanbul and then to the UK. So those orders have been executed. However, the Secretary of State says that none of the orders should have been made. The court is invited to give guidance regarding the proper approach to last minute representations on behalf of an asylum-seeker just before their removal and the principles to be applied by the courts in granting injunctive relief in such cases. The argument has proceeded before us on the footing that the issues are not purely academic.

Factual background

5. SB was born in 1994. He claims that during the US occupation of parts of Afghanistan he worked as a building contractor for the US forces. He says this led to his life being threatened by the Taliban, with the result that he fled the country.
6. SB arrived in the UK by lorry on about 26 November 2015 and claimed asylum. On 21 March 2016 the Secretary of State refused his claim for asylum.
7. SB appealed to the First-tier Tribunal ("FTT"), relying on the 1951 Refugee Convention and his rights under Article 2 (right to life), Article 3 (right not to be tortured) and Article 8 (right to respect for family and private life) of the European Convention on Human Rights ("ECHR"). In a decision promulgated on 10 October 2016, the FTT dismissed his appeal on all grounds. SB's version of events in Afghanistan was found not to be credible. He had only a limited family life in the UK with his father, who had come to the UK some years before he did, and it would be proportionate to remove him. The FTT found that "the only reason [SB] is in the UK is because of his father's disabilities and his inability to bring family members in via normal channels." Permission to appeal to the Upper Tribunal was refused.
8. On 4 July 2017, SB was detained and served with a notice of a removal window, which stated:

"You will not be removed before 17.00 on 10/07/17. After this time and for up to 3 months you may be removed without further notice."

9. At about this time, SB instructed his first firm of solicitors, ST Law Solicitors, who acted for him until September 2017. On 19 July 2017, ST Law Solicitors filed further representations with the Secretary of State to object to SB's removal and seeking his release from detention, relying on Article 8 and his relationship with his father and other relatives in the UK. In a decision letter dated 25 July 2017, the Secretary of State decided that these representations did not constitute a "fresh claim" under para. 353 of the Immigration Rules, so SB's removal could proceed.
10. On 16 August 2017, ST Law Solicitors filed another set of representations, again relying on Article 8 and submitting that SB had to look after his father in the UK, who was suffering from post-traumatic stress disorder and depression.
11. On 17 August 2017 the Secretary of State served removal directions for SB's removal from the UK on 26 August 2017. On 22 August 2017, SB commenced judicial review proceedings to challenge these directions (case no. JR/7131/17), again relying on Article 8 and the medical condition of his father.
12. By a further decision letter to ST Law Solicitors, dated 25 August 2017, the Secretary of State decided that the representations of 17 August 2017 did not amount to a "fresh claim" and that, by reference to Chapter 60 of her Enforcement Instructions and Guidance ("EIG"), there was no basis to stay SB's removal from the UK. The letter referred to the judicial review application JR/7131/2017. It included the following:

"You are aware that your client is liable for removal from the United Kingdom. Section 6 of Chapter 60 of the [EIG] sets out the instructions regarding whether Judicial Review applications present a barrier to removal when removal arrangements are in place. As your client's Judicial Review application was brought within the period of your removal window, it falls within the type of Judicial Review application which does not automatically defer removal."

13. On 26 August 2017, the Secretary of State attempted to remove SB pursuant to the removal directions. SB resisted this and, in circumstances which we do not need to examine, the pilot of the aircraft due to fly to Istanbul refused to carry him. The removal was therefore aborted.
14. On 29 and 30 August 2017 there was significant press coverage of SB's aborted removal, including his name, photographs of him and statements that he feared being killed by the Taliban if returned to Afghanistan. This and subsequent press coverage of SB's case was later said to have given rise to a new sur place asylum claim by him.
15. On 7 September 2017, a charity called the Kent Refugee Asylum Network ("KRAN") contacted a second firm of solicitors, Duncan Lewis, to ask if they would act for him. Duncan Lewis are the solicitors who have acted for SB in the present proceedings. Duncan Lewis told KRAN that they could not do anything for SB until 11 September 2017, when Mr Jamie Bell of that firm would return from annual leave and would be available to act. Duncan Lewis commenced acting for SB on 11 September 2017.
16. Meanwhile, on 8 September 2017 a journalist (possibly acting at the suggestion of KRAN) provided four documents to the Secretary of State which purported to come from Afghan government ministries and to acknowledge that SB had worked as a contractor for the US military ("the new documents"), in support of SB's asylum claim based on Article 2 and Article 3 of the ECHR. These were forwarded to the Foreign & Commonwealth Office ("FCO"), which on 10 September 2017 confirmed by letter, having made enquiries with the Afghan government, that the new documents were clearly forgeries.
17. The events of 12 September 2017 are important. Early in the morning SB was notified that he was to be removed on a Turkish Airlines flight to Istanbul at 11.30 am that day, for onward transit to Kabul. At 8.10 am a member of KRAN contacted Mr Bell to inform him of this development. Mr Bell could not speak direct to SB, as SB's mobile telephone had been taken from him. Mr Bell had to work fast to try to stop his removal, but unfortunately Duncan Lewis's IT systems were down for an hour or so when he got to his office. He was only able to email the Secretary of State at about 10.20 am, notifying her that Duncan Lewis were now the solicitors firm acting for SB and asking for details of the flight. There was no immediate response, but Mr Bell was able to work out which flight that morning was likely to be relevant. Mr Bell quickly worked up a set of representations and emailed them to the Secretary of State's National Removal Command office at 11.19 am. The new documents were appended to the representations, which maintained that they meant that the "fresh claim" threshold under para. 353 of the Immigration Rules had been met in relation to SB's asylum claim. The representations also referred to the coverage of SB's case, both in the press and on the BBC's Persian language TV service, and maintained that this gave rise to a sur place asylum claim, because it was likely to bring him to the attention of the Taliban.
18. Meanwhile, the Secretary of State's Operational Support and Certification Unit ("OSCU") had been considering the representations made on SB's behalf by the journalist on 8 September 2017, together with the new documents submitted in support, and at 11.29 am on 12 September 2017 a decision letter was sent to Duncan Lewis. This decision letter rejected the suggestion that these materials gave rise to a fresh claim for the purposes of para. 353 of the Immigration Rules and indicated that SB's removal would not be halted. The letter indicated that the new documents were forgeries. It also stated that, regardless of whether they were authentic or not, "there is nothing in them to indicate that the authorities in Kabul would not be able to protect your client, or that he would not be able to relocate to a different part of Kabul to avoid any threat against him." (The decision letter gave the date of the representations as 11 September, but it seems clear that this was a slip for 8 September: it referred to the FCO letter of 10 September 2017).
19. At 11.39 am Mr Bell sent an email in response to this, to ask how the FCO could have determined that the new documents were forgeries on 10 September if they had only been submitted on 11 September and seeking an urgent response.
20. At 12.04 on 12 September 2017 the scheduled Turkish Airlines flight, with SB aboard, closed its doors and pushed back from the stand at Heathrow, in preparation for take off. It is common ground that from this point the Secretary of State was not in a position to remove SB from the aircraft, nor was she in a position to prevent its take off. She had no legal authority to do either of these things. We do not need to consider at what time the last opportunity for effective injunctive relief would have been to prevent SB's removal from the UK. But judges must be alert to the practicalities of the late removal of a person from a flight (causing delay through the removal of luggage, for example, or more generally) when considering the grant of what is a discretionary remedy.
21. At 12.47 OSCU emailed Duncan Lewis a further decision letter, this time in response to the Duncan Lewis representations emailed at 11.19 am. It denied that the representations constituted any new or objective information, including by reference to the press coverage, and enclosed the FCO letter of 10 September 2017 explaining that the new documents were forgeries.
22. Meanwhile, Mr Bell had instructed Stephen Knight of Counsel to prepare a second judicial review claim by SB to challenge the removal notice of 4 July 2017 and the removal directions which had been set pursuant to it. The claim included a claim for urgent interim relief to prevent SB's removal that day. We were told that Mr Bell and Mr Knight had only been provided with the decision letter of 25 August 2017, and did not have the decision letter of 25 July 2017 or other documents in the case (including the FTT decision and the documents in case number JR/7131/2017). The grounds of claim included the statement that the judicial review application JR/7131/2017 "was based on the refusal and certification of [SB's] human rights claim under Article 8 ECHR, which had been made prior to this date." Neither aspect of this statement was true: the Secretary of State had not certified SB's Article 8 claim, nor had the judicial review application JR/7131/2017 suggested that she had. The specific grounds of challenge in the new judicial review application were (i) para. 353A of the Immigration Rules and section 77 of the Nationality, Immigration and Asylum Act 2002 prohibiting removal whilst an asylum claim is under consideration; (ii) Chapter 60 of the EIG prohibited removal as the removal window had ended, by virtue of para. 2.1 of the EIG; (iii) Chapter 60 of the EIG prohibited removal as the judicial review on the Article 8 refusal had suspensive effect.
23. The relevant part of para. 2.1 of the EIG states:

"When does the removal window end?

…

If the person makes an asylum, human rights or EU free movement claim, involving issues of substance which have not been previously raised and considered … the window ends."

In support of ground (iii), reference was made to para. 6.2 of Chapter 60 of the EIG, which, according to its second bullet point, applies to suspend a removal where the judicial review proceedings brought in respect of it are:

"the first JR challenge to a decision to certify a claim, the result of which being that there is either no appeal, or any appeal right is out of country only."

24. The grounds of claim asserted that the Secretary of State had decided to certify SB's Article 8 claim, with the result that there was no in-country appeal in relation to that claim. Therefore, so it was alleged, the judicial review lodged on 23 August 2017 satisfied para. 6.2 and had the effect that the removal was automatically suspended.
25. This was untrue. SB's Article 8 claim had not been certified by the Secretary of State as manifestly unfounded (or on the basis of any other ground of certification). It had been rejected by the FTT on an appeal by SB, whereas the grounds of claim gave the impression that the FTT had only considered SB's claim based on Article 2 and Article 3 ECHR and the 1951 Refugee Convention.
26. We were told that this erroneous statement of fact was made by Mr Knight and approved by Mr Bell, who signed the statement of truth for the claim form, because under the pressure of time under which they had to work they read too much into the paragraph of the decision letter of 25 August 2017 which is quoted above. We comment on this below.
27. At 15.08 the claim form and grounds were emailed to the general email address for the Government Legal Department ("GLD"). We were told by Ms Lieven QC for SB that there was no other email address or contact number in the public domain for the GLD. Mr Kellar, for the Secretary of State, cavilled at that. Following the hearing, at our invitation, some details were provided. GLD have two central telephone numbers (0207 210 3000/4700) which appear on the GLD website which can be used by anyone unsure who to contact in GLD. These numbers are only answered in office hours. Also on the GLD website is a central email address, thetreasurysolicitor@governmentlegal.gov.uk. Emails sent to that address will be routed to the appropriate part of GLD as soon as possible but again only in office hours. GLD do not operate an openly publicised system enabling litigants or their solicitors to make immediate contact with GLD out of office hours.
28. The claim form and grounds were forwarded to the Immigration Admin Team's inbox by an Administrative Officer at 16.33. The case was then allocated to an immigration caseworker at GLD the next morning at around 06.44 on 13 September 2017.
29. In the meantime at 16.13 this new judicial review claim was issued in the Upper Tribunal, to which such claims have been allocated. Neither the GLD nor the Secretary of State was given notice, beyond what is described in the previous paragraph.
30. At 17.46, UT Judge Gill made a decision on the papers, declining the application for interim relief on the basis that the claim appeared to be academic, because SB had been removed from the UK before the claim had been issued. A claimant who is refused relief on the papers has a right to renew the application orally. We were told that the Upper Tribunal does not provide an out of hour's service, so SB's advisers properly sought to renew the application for interim relief by an oral application to the duty judge for the Administrative Court, Mr Justice Morris. As a matter of form, the judges of the Queen's Bench Division sitting out of hours can act as judges of the Upper Tribunal. However, the Secretary of State and GLD were not given notice of that application.
31. An urgent out of hours application form was completed on behalf of SB. It referred to the order and reasons of UT Judge Gill, but asserted that SB was still en route to Kabul and could be brought back. It was asserted that SB was not in a removal window, for the reasons set out in the claim form. This contention was based on the incorrect assertion in the claim form that the removal notice of 4 July and the removal directions had automatically come to an end by virtue of para. 6.2 of the EIG. Neither the GLD nor the Secretary of State was given notice of this application, even though Duncan Lewis had an email address for the Secretary of State (which they had been using in the course of the day) and had a general email address for the GLD (which they had also used in the course of the day).
32. At 20.59 Mr Knight, for SB, commenced oral submissions to Morris J by telephone in support of SB's application for an interim injunction. Mr Knight informed Morris J about the order and reasons given by UT Judge Gill earlier in the day. The basis of the claim for injunctive relief was as set out in the grounds of claim, including in particular ground (iii) based on para. 6.2 of Chapter 60 of the EIG.
33. At about 21.30 Morris J indicated that he would grant an order requiring the Secretary of State to prevent SB from boarding the flight from Istanbul to Kabul and requiring her to return SB to the UK on the next scheduled flight on which space was available. The reasons given by Morris J, as confirmed in the order drawn up by him, were as follows:

"I am satisfied that the Applicant has made out a claim for urgent interim relief. At the very least and without determining any issues as to permission, the Applicant has an arguably arguable claim in relation to Ground [iii] that the Respondent has failed to apply para. 6.2 second bullet of Chapter 60 EIG. I am also satisfied that it is appropriate to order return to the UK, even though removal from the UK has been effected, but before Kabul is reached …"

The Order provided:

"(1) The Respondent shall forthwith take all steps available to her to prevent the Applicant from boarding flight TK706 from Istanbul to Kabul due to depart from Istanbul today 12 September 2017 at 2230 UK time (0030 local time)

(2) The Respondent shall return the Applicant to the United Kingdom on the next scheduled flight on which space is available."

34. It is thus clear that Morris J was induced to grant the interim injunction by the misrepresentation by those acting for SB, made by mistake rather than deliberately to mislead the judge, that the second bullet point of para. 6.2 of Chapter 60 of the EIG was applicable in his case, so as to have the effect of closing the legitimate removal window in relation to him, whereas it was not applicable.
35. It appears that, unfortunately, the judge did not call the Home Office number for OSCU available to him to check that the details of the immigration history which had been given to him were correct. No doubt he thought it was safe to rely on what he was told by counsel.
36. The order drawn up at speed by the court stated that the Secretary of State was forthwith to take all steps available to her to prevent SB from boarding flight TK 706 from Istanbul to Kabul and was to return SB to the UK on the next scheduled flight (sc. from Istanbul to the UK) on which space was available.
37. The departure time for Turkish Airlines flight TK 706 from Istanbul to Kabul on which SB was booked was 22.30 (UK time). SB boarded the flight at 21.45.
38. At 22.00 the Secretary of State was served with the order made by Morris J (presumably this was sent to the email address for the Secretary of State with which Duncan Lewis had been corresponding earlier in the day). At 22.22 flight TK 706 pushed back from the stand at Istanbul airport to fly to Kabul, with SB aboard. Shortly thereafter it took off.
39. There is a dispute of fact whether the Home Office officer in Istanbul had notice of Morris J's order in time and deliberately ignored it or whether (as is the Home Office version of events) the notice of the order came to the Home Office so late that it had not been possible to pass the information on to Istanbul in time to stop SB from being on the flight to Kabul when it pushed back from the stand at 22.22. We are not in a position to resolve any issues of disputed fact.
40. On 13 September 2017, when it became clear that SB had departed on the flight from Istanbul to Kabul, Duncan Lewis emailed the Secretary of State at 09.48 to seek an explanation and details of his return flight and indicated that they intended to issue contempt of court proceedings "with no further notice" unless confirmation was received that the Secretary of State was making immediate arrangements to return SB to the UK. At 10.34 Duncan Lewis emailed the Secretary of State with details of flights which might be suitable to return SB to the UK that day. At 11.05 Mr Tonks for the Secretary of State emailed Duncan Lewis to say that the matter was being dealt with as a priority. At 11.20 Duncan Lewis emailed Mr Tonks to say that it was their intention to issue contempt of court proceedings unless they received confirmation from the Home Office that it would make immediate arrangements to return SB to the UK.
41. A little after 2 pm Duncan Lewis and Mr Knight lodged papers with the court for a further urgent application alleging contempt of court by the Secretary of State's officers and seeking an order that the Secretary of State take all steps available to her to procure SB's immediate return to the UK from Kabul and file a witness statement explaining why SB was sent on flight TK 706 to Kabul and why he had not already been returned to the UK from Kabul. It seems that a copy of the papers for that application was sent at 14.14 to the general email address of the GLD, with a copy of the sealed application notice sent to the same email address at 16.07. From the affidavit of Mr Bell dated 13 September 2017 lodged with the papers, it does not appear that they were sent to the Home Office address with which Duncan Lewis had been corresponding up to that time.
42. No explanation was offered for this omission. By contrast, when it came to giving notice of the orders obtained they were sent by Duncan Lewis to the Home Office email correspondence address, not just the GLD. It appears that Duncan Lewis were aware that it should send materials to the Home Office email address if notice was to be given with the greatest speed.
43. The papers were placed before Jay J. It seems that he did not pause to invite submissions from the Secretary of State before making the order sought. He no doubt felt the need to act urgently and was entitled to assume that full notice had been given both to the GLD and the Home Office. Jay J duly made an order at 16.27 on 13 September 2017 along the lines requested by those acting for SB. In his observations on the face of the order, Jay J said,

"The Defendant appears to be in breach of paragraphs 1 and 2 of Morris J's Order of 12/9/17. These are prima facie contempts of court. However, this aspect of the case can be addressed in due course. The immediate imperative is for the Defendant to bring about the return of the Claimant to the UK …"

44. A copy of this order was received by Duncan Lewis at about 17.30 and was served by email on the Home Office, presumably at the address with which Duncan Lewis had been corresponding with the Secretary of State up to that time. Duncan Lewis sent the Secretary of State chasing emails in the course of the day. On 14 September, the Secretary of State served a witness statement as ordered by Jay J, made by Martin Waspe.
45. On 14 September 2017, the Secretary of State issued an application notice to set aside the order of Morris J and the order of Jay J, supported by the witness statement of Mr Waspe, and asking for an urgent hearing by telephone. The application was served on Duncan Lewis by email timed at 14.32. This application was placed before Lang J, who decided to deal with it on the papers without a telephone hearing. Lang J refused the application and made an order at 17.13 reiterating that the Secretary of State was required to comply with Jay J's order requiring the return of SB to the UK. In her written reasons, Lang J said: "… the Claimant ought not to have been removed from the UK in breach of an order of a High Court Judge and so he must be returned." There was, of course, no such order.
46. At an oral hearing on Saturday 16 September 2017 the Secretary of State sought permission from this Court to appeal against the orders of Morris J, Jay J and Lang J. Floyd LJ granted permission to appeal but refused to stay the orders made by the courts below. Therefore, the Secretary of State arranged for SB to be placed on a flight from Istanbul back to the UK, arriving here at 22.45 on 17 September 2017.

Legal framework

47. Section 77 of the Nationality, Immigration and Asylum Act 2002, headed "No removal while claim for asylum pending", provides in relevant part:

"(1) While a person's claim for asylum is pending he may not be—

(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or

(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.

(2) In this section—

(a) "claim for asylum" means a claim by a person that it would be contrary to the United Kingdom's obligations under the Refugee Convention to remove him from or require him to leave the United Kingdom, and

(b) a person's claim is pending until he is given notice of the Secretary of State's decision on it.

…"

48. Paragraph 353 of the Immigration Rules deals with consideration of representations which are said to amount to a "fresh claim" requiring a new immigration decision by the Secretary of State, which might engage a fresh right of appeal to the FTT. The rule and the case-law regarding the test to be applied are very familiar. Paragraph 353A provides:

"Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise."

49. The Administrative Court Judicial Review Guide 2017 provides guidance in relation to judicial review proceedings. In section 14 it reminds parties of their duty of candour. In section 15 it deals with applications for interim relief. At para. 15.6.1 it reminds parties that on an application for interim relief in judicial review proceedings the judge will consider whether there is a real issue to be tried, in the form of a real prospect of succeeding at the substantive hearing; whether the balance of convenience lies in granting the interim order; and any other factors the court considers relevant. The reference to "the balance of convenience" is to the concept set out by the House of Lords in relation to interim injunctions in the leading case, American Cyanamid Company v Ethicon Ltd [1975] AC 396, to which para. 15.6.1 refers in a footnote. Paragraph 15.6.2 states:

"Generally, there is a strong public interest in permitting a public authority's decision to continue, so the applicant for interim relief must make out a strong case for relief in advance of the substantive hearing."

50. Section 15.7 deals with Removals Cases, as follows:

"Removals Cases

15.7.1 There are particular rules relating to cases where a claimant challenges a decision to remove him or her from the jurisdiction, see CPR PD 54A, paragraph 18. Such challenges would now generally fall within the jurisdiction of UTIAC. A person who makes an application for permission to apply for judicial review of a removal decision must file a claim form which must:

15.7.1.1 Indicate on the face of the claim form that the practice direction applies (which can be done by ticking the relevant box in section 4 of the claim form);

15.7.1.2 Attach to the claim form a copy of the removal directions and the decision to which the application relates;

15.7.1.3 Attach any document served with the removal directions including any document which contains the UK Border Agency's factual summary of the case; and

15.7.1.4 Contain or be accompanied by the detailed statement of the claimant's grounds for bringing the judicial review (or give the reasons why compliance with the last two conditions is not possible).

15.7.2 That person must send copies of the claim form to the UK Border Agency.

15.7.3 The Court has set out certain principles to be applied when such applications are made in R (Madan) v Secretary of State for the Home Department [2007] EWCA Civ 770:

15.7.3.1 Such applications must be made promptly on the intimation of a deportation decision and not await the actual fixing of removal arrangements;

15.7.3.2 The detailed statement of grounds must include a statement of all previous applications made in respect of that applicant's immigration status and indicate how the present state of the case differs from previous applications.

15.7.4 Counsel and solicitors appearing on the application, in the absence of the defendant, are under professional obligations to draw the judge's attention to any matter adverse to their client's case, including in particular any previous adverse decisions, and to take a full note of the judge's judgment or reasons, which should then be submitted to the judge for approval."

51. Section 16 of the Guide deals with urgent cases and out of hours applications. It reminds practitioners of important guidance given in R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin), to which we refer below. Section 16.2 explains that Form N463 should be used for applications for urgent interim relief and gives guidance as to what information should be included in it. This includes (para. 16.2.2.4):

"Efforts taken to put the defendant on notice of the application for urgent consideration." It is also stated (para. 16.2.8) that "Wherever possible the Court will want representations from the defendant before determining the application …".

52. Form N463 also contains on its face a reminder of the guidance in Hamid: "When making an out of hours application, applicants should bear in mind R (on the application of Hamid ) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin)".
53. Section 16.3 of the Guide deals expressly with Out of Hours Applications. Paragraph 16.3.4 includes the statement,

"The out of hours judge may also telephone any other party to the application if he or she considers that to be appropriate (this is often done in immigration cases where the application seeks a stay on removal)."

Paragraph 16.3.5 states:

"The fact that a judge is being asked to make an order out of hours, usually without a hearing, and often without any representations from the defendant's representatives and in a short time frame, means that the duty of candour (to disclose all material facts to the judge, even if they are not of assistance to the claimant's case) is particularly important, see paragraph 14.1 of this Guide."

Discussion

54. The making of last minute representations to the Secretary of State, which are claimed to amount to a "fresh claim" for asylum or leave to remain for the purposes of para. 353 of the Immigration Rules, and the making in parallel of an application for urgent interim relief to prevent the removal of an immigrant pending consideration of those representations, can be highly disruptive of attempts by the Secretary of State to remove individuals who in truth have no right to be here. Where a removal which is planned and in progress is stopped at the last moment, there may be a significant delay before the Secretary of State can set up suitable new arrangements for removal. Also, it is likely that the substantial cost of the aborted removal will be wasted.
55. The courts have had experience of some applications for interim relief being made by legal advisers where there is no real merit in them, but as an abuse of process to disrupt the removal operations and to buy more time in the UK for their clients. The courts have therefore already had occasion to give guidance emphasising the professional obligations of legal advisers to make applications for interim relief to prevent removal promptly and with a maximum of notice which is feasibly possible to be given to the Secretary of State: see, in particular, R (Madan) v Secretary of Statement for the Home Department and the Hamid case, both referred to in the Administrative Court Guide.
56. It is unnecessary to set out again in this judgment the guidance which has already been given so clearly in those cases. We take this opportunity, however, to reiterate the importance of that guidance. The basic principles are clear: (i) steps to challenge removal should be taken as early as possible, and should be taken promptly after receipt of notice of a removal window of the kind which SB received on 4 July 2017 in this case; and (ii) applications to the court for interim relief should be made with as much notice to the Secretary of State as is practicably feasible.
57. In the present case, the Secretary of State makes no suggestion that Duncan Lewis, Mr Bell and Mr Knight acted deliberately to manipulate the court process to try to secure the non-removal of their client, SB, at the last minute and then to secure his return to the UK. It appears to us that, having been instructed by SB very late in the day, they acted honestly and in good faith under pressure of time to try to secure the non-removal of their client, in circumstances where it appeared to them there were good grounds to seek to make "fresh claim" submissions pursuant to para. 353 of the Immigration Rules, by reason of the new documents and the sur place press coverage. Nonetheless, things were not done properly and we find it necessary to make some criticisms to which we will return. But this case illustrates the particular difficulties which can arise when a new set of legal advisers come on the scene at the last minute. The duty of candour is directed in the most part to ensuring that matters unfavourable to the applicant are drawn to the attention of the judge. There are many late applications for injunctive relief which are based on little more than an assertion that something may turn up if the new advisers are given time to investigate. Such applications should get nowhere. Yet there is a strong imperative for those instructed late in the day to make no representations or factual assertions which do not have a proper foundation in the materials available to them. Gaps in knowledge should not be filled by wishful thinking. In almost all such cases there will have been extensive engagement between the putative applicant and the immigration authorities and often the independent appellate authorities. So too in many cases there will have been dialogue between the authorities and previous lawyers. There will be a large reservoir of information available. Without access to that information it behoves those who come on to the scene at the last minute to take especial care in the factual assertions they make.
58. SB's position remains opaque. It is true that he has been subject to the restrictions inherent in being detained to await removal. However, at no time has he provided any witness statement to explain when the new documents were provided to KRAN and to him, how they came to be produced, when he was aware of the press coverage about his case, why an application for interim relief was not made immediately the new documents and information about the press coverage were available, and why he did not provide the full set of immigration decisions about his case and copies of his judicial review application JR/7131/17 to Duncan Lewis when he instructed them in September 2017. This is so despite the Secretary of State calling for an explanation from him. SB has offered no explanation for the delay in making an application for interim relief to prevent action pursuant to the removal notice of 4 July 2017, after he had the new documents and the press coverage had occurred. He has offered no explanation for failing to brief Duncan Lewis properly and failing to provide them with all the relevant documents in his case. Nor is there any description of his dealings with his previous solicitors. The suspicion, at least, is that there is no good explanation and that he deliberately sought to instruct Duncan Lewis late in the day and with minimal information in the hope that he would maximise his chances of securing relief to prevent his removal.

The application to Mr Justice Morris

59. There are two points of criticism of Mr Bell and Mr Knight in relation to this application. First, they misrepresented the facts of the case to the judge. We accept they acted honestly and without any intention to mislead him. But there simply was no proper basis for the assertion that the Secretary of State had certified SB's claim for leave to remain pursuant to Article 8 as manifestly unfounded, so as to engage para. 6.2 of the EIG and to found their submission that the removal window had been suspended pursuant to that provision. It is difficult to find any basis upon which Mr Bell could have signed the statement of truth supporting the claim form. We were told that the foundation for their belief that SB's Article 8 claim had been certified was the statement in the letter from the Secretary of State dated 25 August 2017, set out above. However, it is not possible to derive from that statement, by implication, that SB's claim had been certified. Ms Lieven did not seek to suggest to the contrary. The grounds of claim included assertions about the contents of judicial review application JR/7131/17 which should not have been made without checking the documents. There are times when advisers have clear instructions from a client which turn out to be wrong. In the context of last minute applications of the sort which arose in this case great care should be taken before accepting them without inquiry. Yet SB was not responsible for the misleading statements in this case. At the very least it should have been explained that the account given in the grounds of claim was put forward without the documents having in fact been checked, and giving reasons to support the stated belief that this is what they contained, so that the judge could make a critical assessment of those reasons and would be put on alert to check the position with OSCU.
60. Secondly, Mr Bell and Mr Knight did not attempt to give the Secretary of State notice of the out of hours application which was to be made to Morris J. Ms Lieven QC, for SB, suggested that there was no need for them to do so, because section 16.3 of the Administrative Court Guide, dealing with Out of Hours Applications, did not specify that they should and para. 16.3.4 referred to inquiries which the judge might make him or herself.
61. With respect, this is an unsustainable contention. Legal professionals should know that basic fairness means that (unless there is some special reason for secrecy or some insuperable practical impediment) notice must be given to an opposing party where an application is to be made for interim injunctive relief. There is nothing in section 16.3 of the Guide to displace or remove that basic obligation. On the contrary, section 16.3 appears in the chapter on Urgent Cases, in which para. 16.2.2.4 states that form N463 should include a statement of the efforts taken to put the defendant on notice, thereby plainly indicating that the usual obligation of fairness applies (see also para. 16.2.8). The statement in para. 16.3.4 that the out of hours judge may him or herself try to contact the defendant does not relieve the applicant for an order out of hours from the usual obligation to give notice of the application to the other party. It may be that, given the short timescale involved, the Secretary of State might not have been able to make representations in time for them to reach Morris J, but Mr Bell and Mr Knight should have given notice of the application as promptly and effectively as they could.
62. In that regard, it is not satisfactory that the GLD does not provide on its website, and also does not make generally known to solicitors practising in the immigration field, a dedicated email address and telephone number which are to be used for giving notice of urgent applications for interim relief to prevent removals, including out of hours applications. That is so even though the White Book, in Practice Direction 66 (Crown Proceedings) identifies the Treasury Solicitor for practical purposes as the person on whom documents must be served if the Secretary of State for the Home Department is sued.
63. Be that as it may, in the present case we consider that Mr Bell should have given notice of the out of hours application to Morris J not just by way of an email to the general GLD email address, but also to the Home Office email address he had been using in the course of 12 September 2017 and which he reverted to using to inform the Home Office as quickly as possible of Morris J's order, once it had been made. This indicates that Mr Bell understood that the practical way of getting information to the Secretary of State in the most speedy and effective manner in the circumstances of this case was to use that Home Office email address. In the compressed timescale for SB's application for out of hours injunctive relief, Mr Bell should have emailed notice of that application to that address as well as to the general GLD email address.
64. We would add that for urgent and out of hours applications for interim relief to prevent a removal taking place, it will usually be desirable for the judge to check with OSCU on the immigration position of the applicant. This is what is contemplated in para. 16.3.4 of the Administrative Court Guide. It is our experience that OSCU not only have access to the basic information surrounding an individual's immigration history and attempts to avoid removal, but also to critical documents. There is little doubt that OSCU would have been able to correct the fundamental misapprehension upon which the injunction was granted in this case.
65. We take this opportunity to remind judges that it is usually a good idea to place a call to OSCU before making an order to stop a removal.
66. Turning to the merits of the appeal against the order made by Morris J, it is accepted on behalf of SB that the judge proceeded on the basis of a fundamental mistake of fact. By reason of what he had been told, the judge believed that SB had the benefit of a suspension of the removal window by virtue of para. 6.2 of chapter 60 of the EIG. This was not the case.
67. The reason given by the judge for making the order he did cannot be sustained, and unless it is shown that the order would have been made for other reasons the appeal against it must be allowed. Mr Kellar, for the Secretary of State, also submits that because of misrepresentation or the want of candour on the part of SB and/or his legal representatives, the order should be set aside even if there were other good reasons for making it, as a penalty for their conduct.
68. As to the first of these points, this is not a usual type of case where there is an appeal against the grant of an interim injunction. In a usual case, if the first instance judge has misdirected himself or proceeded on the basis of a fundamental mistake of fact (as here), this court would on usual principles set aside the judge's exercise of discretion and then itself exercise the discretion in relation to the continuation of the injunctive relief afresh to manage the position down to trial. But in this case the injunction has (in effect) now been fully executed and SB's removal from the UK pursuant to the removal notice and the removal directions under challenge has been prevented.
69. However, Morris J gave no other positive reasons for making the order. It is not appropriate for us to guess whether he would have made the order on different grounds. The fact is, he did not. In those circumstances, the appropriate course is for us to consider for ourselves the other grounds which are put forward to justify the making of the order.
70. The two other grounds for relief relied upon are, first, that section 77 of the 2002 Act and para. 353A of the Immigration Rules prohibited removal by reason of the representations sent by Duncan Lewis to the Secretary of State by email at 11.19 am on 12 September and, secondly, the removal window had come to an end by virtue of para. 2.1 of Chapter 60 of the EIG.
71. As to the first of these grounds, section 77 and para. 353A impose obligations on the Secretary of State not to remove an individual in certain circumstances. They are both to be read in the public law context as obligations related to fair and proper administration of the regime of immigration controls, which depend upon the Secretary of State being given notice of an asylum claim at a time and in a manner which affords her officials a reasonable opportunity to take on board that a claim for asylum has been made and to appreciate therefore that it is "pending" (section 77); or that further submissions amounting to a human rights or protection claim have been made that require consideration (para. 353A), so as to have a viable opportunity to take steps to comply with the obligations so imposed. The obligations imposed by these provisions are not in the nature of strict obligations which apply regardless of whether the Secretary of State has had a sufficient opportunity to examine a document received from a person facing removal. It is only following proper consideration that the relevant official can reasonably be expected to appreciate that it constitutes what can fairly be described as a claim for asylum; or can fairly be described as "further submissions" to assert a human rights or protection claim. The nature of the task necessarily involves the need to compare the new submissions with what has gone before. There needs to be time having done so, for the Secretary of State of her own motion to stop a removal which was in the process of being carried out in the event that the representations are accepted as satisfying criteria necessary to halt removal.
72. It is not uncommon for voluminous late representations to be emailed to the Secretary of State very shortly before removal is scheduled to occur. It should not be thought that they will operate as an automatic bar on removal.
73. For present purposes, it is not necessary to examine in further detail what might be the limits to the obligations in section 77 and para. 353A, because in our view it is clear that the sending by Duncan Lewis of the written representations timed at 11.19 am on 12 September 2017 did not afford the Secretary of State a viable opportunity to digest what was in that communication and then to put in motion the necessary steps to abort SB's removal then in progress, on a flight scheduled to depart at 11.30 and in fact departing at 12.04.
74. SB having been removed from the UK before the Secretary of State had a viable opportunity to understand that a further claim was being made and to stop the removal operation then in process, there was no obligation under section 77 or para. 353A to return SB to the UK when he arrived at Istanbul. In any event, by that time the Secretary of State had already sent Duncan Lewis her decision letter timed at 12.47 on 12 September 2017 rejecting their representations sent at 11.19 am, which therefore on any view had been considered by the Secretary of State (para. 353A) and had ceased to be pending as a claim (section 77).
75. As regards the second of the remaining grounds, based on para. 2.1 of Chapter 60 of the EIG, we consider that there are two answers to it. First, for reasons similar to those above in relation to section 77 and para. 353A of the Immigration Rules, the words "If a person makes an asylum, human rights or EU free movement claim" in para. 2.1 are properly to be construed as meaning that such a claim is made at a time which affords the Secretary of State a viable opportunity to appreciate that such a claim has been made and to take steps to act to put the relevant part of para. 2.1 of Chapter 60 into effect – which was not the case here. Secondly, and in any event, when the Secretary of State did examine the Duncan Lewis representations, she determined that they did not involve "issues of substance which [had] not been previously raised and considered", therefore the removal window had not come to an end.
76. In our view, this was a conclusion to which the Secretary of State was fully entitled to come. The new documents relied on in the Duncan Lewis representations had been determined to be forgeries, by sound and credible evidence. The sur place asylum claim had no substance. SB's claim to be a person of interest to the Taliban had been found not to be credible by the FTT, so it was very unlikely that they would follow up any press coverage of SB's case and conclude that he should after all be targeted. Also, they did not know when SB would be arriving in Afghanistan and it is not plausible to suppose that the Taliban would have set up a watch on the airport in Kabul to try to intercept SB, a person who was otherwise of no interest to them. No country guidance case nor any other material, such as State Department reports, was put forward to lend any credence to SB's asylum claim based on press reporting of this kind.
77. We therefore allow the Secretary of State's appeal against the order made by Morris J. SB could not show that there was a "serious issue to be tried" for the purposes of the approach adopted in American Cyanamid. The further question raised before us, whether the court should have examined the case on the basis of who, at the interlocutory stage, had the better of the argument on the merits (cf NWL Ltd v Woods [1979] 1 WLR 1294) or should have applied a form of the balance of convenience or the balance of justice and convenience (as we would prefer to describe it in this non-commercial, human rights context) does not arise. Nor does the issue arise, if a balance of justice and convenience test is to be applied, of how one should weigh up an individual's claims based on the 1951 Refugee Convention and Articles 2 and 3 of the ECHR against the disruption and wasted cost if that individual's removal has to be aborted at the last minute; and the general risk of undermining the Secretary of State's ability effectively to enforce immigration controls more generally if late representations made by persons facing removal are to be treated too readily as disabling the Secretary of State from proceeding. We do not think it is advisable to make observations on these points by way of an obiter academic discussion in the present case.
78. We would, however, sound a note of caution in relation to the submission of Mr Kellar, based on para. 15.6.2 of the Administrative Court Guide, that it was incumbent on SB to make out "a strong case for relief in advance of the substantive hearing [of his judicial review claim]". That paragraph is intended to cover the whole wide range of cases heard in the Administrative Court, and is not focused on applications for interim injunctive relief to prevent removal of an immigrant from the UK who founds his claim on Article 2 or 3 of the ECHR or the Refugee Convention. It should not be taken as an authoritative statement of the position in that sort of case.
79. Our conclusion that the appeal against the order made by Morris J should be allowed for the reasons set out above also means that it is not necessary to address Mr Kellar's further submission that, even if one or other of the further grounds relied on by SB had substance, the order should still have been set aside by reason of the misrepresentation (which, though the result of an honest mistake, was made without proper justification) or lack of candour on the part of SB. It is well recognised that in many contexts a court will set aside an order obtained ex parte, without full notice to the other party, if there has been a breach of the applicant's duty of candour to the court, even if the order might otherwise have been justified on general principles. This is done as a deterrent to misuse of the court process. For a discussion of the principles in a commercial context, see Boreh v Republic of Djibouti [2015] EWHC 769 (Comm), [220]-[231] per Flaux J (as he then was).
80. However, if SB had shown that he faced a real risk of being persecuted on some ground covered by the Refugee Convention or killed or subjected to ill-treatment contrary to the Article 3 standard if returned to Afghanistan, we are doubtful that his removal there could nonetheless be justified on the grounds of a decision by the court to refuse relief in the exercise of its discretion in order to impose a penalty to deter abuse of its process. The relevant rights under the Refugee Convention and the ECHR are unqualified and it does not seem to us that it would be open to a Contracting State or, domestically, a public authority to seek to justify infringing them on the basis of the public interest in deterring abuse of process in the courts. The position might be more open to debate in the context of claims under Article 8. Again, however, it is not appropriate for us to make observations bearing on that in the present case.

The application to Mr Justice Jay

81. In our view, Mr Bell did not take sufficient steps, in the circumstances of this case, to give notice of this application to the Secretary of State: see paras. [40]-[41] and [63] above. Again, it appears that the judge did not contact OSCU before making his order. It would have been better if he had done so.
82. Jay J made his order on the basis of a misapprehension of the facts. It is common ground that SB had boarded flight TK706 from Istanbul to Kabul at 21.45 (UK time). It is also common ground that the Secretary of State was only served with the order made by Morris J - which ordered her to take steps "to prevent [SB] from boarding" that flight - by email sent to OSCU at 22.00 (UK time). She and her officials did not, therefore, breach the order. The order did not in terms require that they should try to remove SB from the flight if he had already boarded it, and it would not be proper to imply any such obligation into the order the breach of which could have penal sanctions. It is a very different matter to be required to take steps in a foreign jurisdiction to remove a person who has boarded a plane which is on the point of pulling away from the stand to take off, by contrast with the much more limited and straightforward obligation imposed by Morris J to stop SB from boarding in the first place. The second part of Morris J's order (see para 32 above), required the Secretary of State to return the appellant to the United Kingdom. At first blush this part of the order was consequential upon the first part being successful – at least so far as Istanbul was concerned.
83. Also, Jay J was acting under a fundamental misapprehension that the order granted by Morris J was justified, whereas it was in fact the product of the misrepresentation by those acting for SB and there were no good grounds in support of it. Jay J's order was plainly made to secure the practical enforcement of the order previously made by Morris J. In our view, in the circumstances of this case the order made by Jay J is infected by the problems affecting the validity of the order made by Morris J. Indeed, it can fairly be regarded as a further product of the misrepresentation of the critical facts made on SB's behalf at the outset.
84. For both these reasons, we consider that it is appropriate to allow the Secretary of State's appeal against the order made by Jay J as well.
85. We are provisionally minded to include paragraph 3 of the order made by Jay J in our decision to set aside the relevant parts of that order. By that paragraph, Jay J adjourned an application by SB for committal of the Secretary of State or her officials for contempt of court in relation to breach of the order made by Morris J. On proper construction of the order of Morris J and on the agreed facts as set out in para. [82] above, it appears that there was no breach of that order and therefore that there is no good reason to allow the committal proceedings to continue. However, we give permission for both parties to make short written submissions about whether there is any proper purpose to be served by allowing the committal application to proceed.

The order made by Mr Justice Lang DBE

86. The order by Lang J, at paragraphs 1 and 2, is the product of her rejection of the Secretary of State's application to set aside the orders of Morris J and Jay J. If Lang J had appreciated that both orders were liable to be set aside, as we have held, she would have granted the Secretary of State's application. It follows from our decision to quash the orders made by Morris J and Jay J that the appeal against those paragraphs of Lang J's order should be allowed. Those paragraphs are predicated on the previous orders being valid and have no substance once those orders are set aside. Our provisional view is that paragraph 4 of Lang J's order, relating to SB's application to commit for contempt of court, should also be set aside, but this is subject to any written submissions which are made in relation to that.

Conclusion

87. We allow the Secretary of State's appeal to set aside the injunctive relief granted against her in each of the three orders made below, by Morris J, Jay J and Lang J respectively. It is open to question whether the application by SB to commit the Secretary of State or her officials for contempt of court should be allowed to proceed. We invite written submissions from each party on that point limited to five pages.