PN (Uganda) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom |
| Judgment Date | 16 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1508 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 July 2019 |
| Docket Number | Case No: C4/2019/1609 |
[2019] EWCA Civ 1508
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HON MR JUSTICE LEWIS
The Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
Case No: C4/2019/1609
Charlotte Kilroy QC (instructed by The Migrant Law Project, Islington Law Centre) appeared on behalf of the Applicant
Zane Malik (instructed by the Government Legal Department) appeared on behalf of the Respondent
(As Approved)
The Applicant is a Ugandan national, born on 20 July 1993. In September 2010, aged 17, she came to the United Kingdom on a visitor visa valid until 25 February 2011; but she overstayed.
On 21 July 2013, immigration enforcement officers went to an address in London where they forced a bedroom door to find the Applicant in bed with a man. She was arrested as an overstayer. The Applicant did not give her correct identity details. She admitted being an overstayer, and said that she had no relatives in the UK. She was working as a hairdresser, cash in hand. She had no medical condition or special needs, nor was she otherwise vulnerable. An immigration officer determined that she should be detained, which she was.
The following day, 22 July 2013, she claimed asylum on the basis that she was a lesbian, and would face a risk on her return to Uganda because of her sexual orientation. She took part in an asylum screening interview. On 29 July 2013, the decision was taken to process her asylum claim through the Detained Fast Track scheme (“the DFT scheme”), the immigration officer determining that her application could be processed quickly and fairly through that scheme. In her screening interview, she had referred to several lesbian relationships which she said she had had as a child in Uganda with three identified women. She also referred to two further lesbian relationships she had had since being in the UK, one of which she said was ongoing.
Her asylum claim was refused on 6 August 2013. The decision-maker did not accept that the Applicant was a lesbian, and referred particularly to the lack of evidence of her asserted relationships in both Uganda and the UK and the evidence of her being found in bed with a man at the time of her arrest.
The Applicant appealed, and at the hearing before the First-tier Tribunal (Immigration and Asylum Chamber) on 14 August 2013, there was an adjournment to enable her to obtain further evidence. The matter returned to the tribunal on 28 August 2013, when no application was made to adjourn and the substantive appeal was heard before First-tier Tribunal Judge Ievins. The Applicant gave evidence, as did the man with whom she was found at the time of her arrest, another male friend and a woman who gave evidence that she had had sex with the Applicant on two occasions since she had been in the UK. The evidence of the first man was to the effect that his relationship with the Applicant was not intimate, and he had been with her in bed that day having seen her home the night before as a friend after they had been drinking.
In a determination promulgated on 30 August 2013, Judge Ievins refused the appeal, in effect finding that the Applicant's evidence lacked any credibility. Permission to appeal was refused by the First-tier Tribunal on 5 September 2013, and by the Upper Tribunal on 10 September 2013. There were various other applications, but none successful so far as the Applicant was concerned. She was removed to Uganda on 12 December 2013.
On 30 October 2015, through different solicitors, the Applicant commenced judicial review proceedings against the Secretary of State, challenging the decision to remove her in December 2013 and the lawfulness of her detention for periods between July 2013. As part of that claim, it was submitted that, as found in a series of judgments including R (Detention Action) v Secretary of State for the Home Department [2014] EWCA Civ 1634; [2015] INLR 372, the DFT scheme was unlawful in a number of respects.
On 5 November 2015, permission to proceed with that claim was refused by William Davis J. It was renewed on 11 November 2015, but stayed by consent pending the Applicant's application to the First-Tier Tribunal to set aside its own 30 August 2013 decision. However, on 30 May 2017, in TN (Vietnam) and US (Pakistan) v Secretary of State for the Home Department, the First-Tier Tribunal held that it did not have jurisdiction to set aside its own decision in these circumstances. On 21 September 2017, at an oral hearing, permission to proceed in the judicial review claim was granted, but the matter was again stayed pending the ultimate outcome of TN (Vietnam) and US (Pakistan). That occurred on 19 December 2018, when this court and the Divisional Court handed down judgments confirming the tribunal's view as to the scope of its own jurisdiction (Court of Appeal (Civil Division) [2018] EWCA Civ 2838; [2019] 1 WLR 2647 and Divisional Court [2018] EWHC 3546 (Admin); [2019] 1 WLR 2675).
At a further hearing in this claim...
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