QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Penelope Nevill (instructed by Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 22 and 23 May 2019
Crown Copyright ©
The Honourable Mr Justice Lewis:
(1) permission has been granted to challenge the determination of 30 August 2013 and that determination is unlawful as the processing of the appeal within the time limits prescribed by fast track process led to unfairness in her case as (a) she was unable to obtain (a) evidence of lesbian relationships with women in Uganda and (b) a medical report prior to the appeal hearing;
(2) the decision to remove her on 12 December 2013 was unlawful;
(3) a remedy should be granted to quash the determination, and the removal decision, and requiring the defendant to use his best endeavours to facilitate her return to the United Kingdom to enable her to continue with an appeal against the refusal of her asylum claim; and
(4) her detention between 22 July 2013 and 12 December 2013 was unlawful.
The Claimant's Arrival in the United Kingdom and her Detention
The Period From 22 July 2013 to 29 July 2013
The Assessment of the Claimant's Asylum Claim by the Defendant
The Appeal Process
The Period from the exhaustion of appeal right to removal
The Present Proceedings
"1. The substantive hearing be listed on the first available day after 6 May 2019.
"2. The Claimant have permission to amend her Detailed Grounds of Claim to reflect the judgments of the Court of Appeal and Divisional Court in R (TN (Vietnam) v SSHD  EWHC 3546; R (TN (Vietnam) v SSHD  EWCA Civ 2838 by 15 February 2019"
(1) Does the claimant have permission to seek judicial review of the determination of the First-tier Tribunal of the 30 August 2013?;
(2) If so, is that determination, and/or the decision to remove the claimant on 12 December 2013, unlawful?;
(3) If so, do the appropriate remedies include an order requiring the defendant to use his best endeavours to facilitate the return of the claimant to the United Kingdom?;
(4) Was the claimant unlawfully detained during any of the following periods:
(a) 22 July 2013 to 6 August 2013 (i.e. the period pending the decision on 29 July 2013 to include her asylum claim within the fast track procedures and the period of consideration of the asylum claim within those procedures leading to a decision to reject the asylum claim on 6 August 2013);
(b) 6 August 2013 to 10 September 2013 (during which time the claimant was pursuing her appeal against the decision of the defendant to reject her asylum claim); or
(c) 10 September 2013 to 12 December 2013 (when the claimant was removed to Uganda?
THE FIRST ISSUE - THE SCOPE OF THE CHALLENGE
THE SECOND ISSUE THE LAWFULNESS OF THE DETERMINATION OF THE FIRST-TIER TRIBUNAL AND/OR THE DECISION TO REMOVE
"37. 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 7 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 (see para 20 above) 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. "
"45. 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. For the reasons that I have given, the safeguards on which the SSHD and the Lord Chancellor rely do not provide a sufficient answer. The system is therefore structurally unfair and unjust. The scheme does not adequately take account of the complexity and difficulty of many asylum appeals, the gravity of the issues that are raised by them and the measure of the task that faces legal representatives in taking instructions from their clients who are in detention. It seems to me that some relaxation of the time limits is necessary, but it is not for the court to prescribe what is required to remedy the problem. A lawful scheme must, however, properly take into account the factors to which I have referred whilst, I acknowledge, giving effect to the entirely proper aim of processing asylum appeals as quickly as possible consistently with fairness and justice."
"103. For the future I would recommend that a court which has to consider an application to set aside an earlier appeal decision made under the 2005 Rules should approach its task having regard to the following:-
(1) A high degree of fairness is required in this context.
(2) What the Court of Appeal said in DA6 should be borne in mind: that the 2005 Rules created an unacceptable risk of unfairness in a significant number of cases. Depending on the facts it may be that the case which the court is considering is one of those cases.
(3) There is no presumption that the procedure was fair or unfair. It is necessary to consider whether there was a causal link between the risk of unfairness that was created by the 2005 Rules and what happened in the particular case before the court.
(4) It should also be borne in mind that finality in litigation is important. There may be a need to ask how long the delay was after the appeal decision was taken before any complaint was made about the fairness of the procedure. There may also need to be an examination of what steps were taken, and how quickly, to adduce the evidence that is later relied on (for example medical evidence) and whether it can fairly be said that in truth those further steps were taken for other reasons, such as a later decision by the Secretary of State to set removal directions. This may suggest that there is no causal link between the risk of unfairness that was created by the 2005 Rules and what happened in the particular case before the court.
"104. The above should not be regarded as an exhaustive checklist. At the end of the day, there can be no substitute for asking the only question which has to be determined: was the procedure unfair in the particular case? That has to be determined by reference to all the facts of the individual case."
"Homosexuality is a characteristic that cannot be readily established without evidence from sources extrinsic to the claimant himself. On the face of it, therefore, the claimant did need 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 to obtain it. A failure to allow him that time was likely to lead .. to a decision that was neither fair nor sustainable."
The Decision to Remove
THE THIRD ISSUE THE APPROPRIATE REMEDY
THE FOURTH ISSUE THE LAWFULNESS OF THE CLAIMANT'S DETENTION
The Legal Framework.
"(1) A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person require leave to enter or remain in the United Kingdom and does not have it."
"(1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse leave to enter.
"(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions."
"1. There is a presumption in favour of temporary admission or release there must be strong grounds for believing that a person will not comply with conditions of temporary admissions or temporary release for detention to be justified.
"2. All reasonable alternatives to detention must be considered before detention is authorised.
"Each case must be considered on its individual merits, including the consideration of the duty to have regard to the need to safeguard and promote the welfare of any children involved."
"those suffering from serious medical conditions which cannot be satisfactorily managed within detention
"those suffering from serious mental illnesses which cannot be satisfactorily managed within detention (in CCD cases, please contact the spealist Mentally Disordered Offender Team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are waiting to be assessed, or awaiting transfer under the Mental Health Act;
"those where there is independent evidence of torture ."
"2.1 Detained Fast Track Process Suitability Policy
An applicant may enter into or remain in DFT/DNSA processes only if there is a power in immigration law to detain, and only if on consideration of the known facts relating to the applicant and their case obtained at asylum screening (and, where relevant, subsequently) it appears that a quick decision is possible, and none of the Detained Fast Track Suitability Exclusion Criteria apply."
"Those with a physical or mental condition which cannot be adequately treated within a detained environment, or which for practical reasons, including infectiousness or contagiousness, cannot be properly managed within a detained environment
"Those who clearly lack mental capacity or coherence to sufficiently understand the asylum process and/or cogently present their claim. This consideration will usually be based on medical information, but where medical information is unavailable, officers must apply their judgment as to an individual's capacity;
"Those in respect of whom there is independent evidence of torture".
The First Contested Period 22 July to 6 August 2013
The Period Between 6 August 2013 the exhaustion of appeal rights on 10 September 2013.
The Period from 10 September 2013 until Removal on 12 December 2013
"Absent any separate basis for holding that the SSHD acted unlawfully in making and implementing the decision to remove AB to the Cameroon in December 2014, the fact that, subsequently, the DFT regime and his FTT appeal have been held to be unlawful does not render the separate removal decision unlawful or establish that the SSHD was not entitled, at the time, to rely upon the legal validity of the DFT scheme and the tribunal decisions relating to their application".