R AB v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Kitchin,Lady Justice Arden |
| Judgment Date | 09 February 2017 |
| Neutral Citation | [2017] EWCA Civ 59 |
| Docket Number | Case No: C2/2016/2605 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 February 2017 |
[2017] EWCA Civ 59
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION
AND ASYLUM CHAMBER)
Upper Tribunal Judge Perkins
JR149722014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice McFarlane
and
Lord Justice Kitchin
Case No: C2/2016/2605
Mr Stephen Knafler QC and Mr Mikhil Karnik (instructed by Duncan Lewis Solicitors) for the Appellant
Ms Julie Anderson (instructed by Government Legal Department) for the Respondent
Hearing date: 8 th December 2016
Approved Judgment
In 2014 AB's application for asylum failed and on 6 th December 2014 he was removed from this jurisdiction back to his home country of Cameroon. Now, some two years later, as a result of a number of immigration tribunal decisions AB currently has a live appeal pending before the Upper Tribunal against the refusal of asylum. Within separate judicial review proceedings he sought a direction for the Secretary of State to use her best endeavours to facilitate and fund his return from Cameroon to this country so that he may take a direct and active part in the appeal process. The application for judicial review was dismissed by Upper Tribunal Judge Perkins on 1 st June 2016. Permission to appeal was granted on two specific grounds by Lord Justice Beatson on 5 th September 2016 and we have now heard AB's appeal together with a number of ancillary applications by which he seeks to rely on other grounds of appeal and to admit fresh evidence.
Although it has been possible to summarise the procedural essence of the appeal in one paragraph, the procedural history is, in reality, more complicated. AB, who claims to be bisexual and to have experienced persecution and torture in his home country of Cameroon, had his asylum application processed by the Secretary of State within the Detained Fast Track ("DFT") which was in force at the relevant time in 2014. The DFT regime has subsequently been withdrawn by the Secretary of State following adverse decisions in the High Court and by this court in 2015 as to its overall fairness. At the centre of AB's case before this court is the assertion that by processing his claim within the DFT scheme the Secretary of State was not only acting unlawfully, but also that she had cause to know at the time that, insofar as it related to AB, this was indeed an unlawful process and that his consequent removal back to Cameroon was similarly unlawful and known to be so at the time. AB's case on appeal is that Upper Tribunal Judge Perkins erred, as a matter of law, in holding that the Secretary of State had not acted unlawfully in this regard.
Background
On 15 th June 2014 AB, who was then aged 33 years, together with his friend and alleged sexual partner Mr T, arrived in the United Kingdom from Cameroon. Their entry to the United Kingdom was lawful in that they each travelled on business visas. Neither man made any contact with the immigration service until AB did so in late September 2014. Following an initial interview on 30 th September, he was detained and his case was allocated to the DFT scheme. A subsequent screening interview took place on 15 th October and on the next day, 16 th October he was told of the Secretary of State's decision to refuse his asylum application.
AB's partner, Mr T, was dealt with differently. He undertook an initial interview on 15 th October 2014 as a result of which his claim was not assigned to the DFT scheme but was processed under the ordinary immigration rules. Mr T's application for asylum was initially refused, but this refusal has subsequently been withdrawn and he is now awaiting a redetermination of his application by the Secretary of State. Mr T has throughout remained in the United Kingdom, accommodated through arrangements made by the Secretary of State.
A central feature of the DFT scheme was that the time limits for any appeal against a refusal decision were extremely short. Thus it was that AB's appeal against the 16 thOctober refusal decision was heard by First Tier Tribunal Judge Sullivan on 7 th November 2014. AB attended the hearing. He had instructed solicitors but they, for reasons into which we have not delved, did not attend to represent him at the hearing. He applied for an adjournment but that application was refused. The judge heard oral evidence. At the conclusion of the process, by a decision dated 10 th November 2014, AB's appeal was dismissed. No attempt was made by AB, or anyone acting on his behalf, to issue a further appeal either during the two-day appeal window provided by the DFT scheme or at any later stage before his removal.
On 21 st November AB changed his instruction to the firm of solicitors that now represent him in these proceedings. They sent a series of written submissions to the Secretary of State seeking to establish a fresh asylum claim on his behalf. On 25 th November the Secretary of State refused to treat the further submissions as a fresh claim. On 27 th November a removal direction was issued indicating that AB would be removed back to Cameroon on 6 th December.
On 5 th December the present judicial review proceedings were issued. The Application Notice specifies the target of the proceedings as being the removal direction issued on 27 th November. An urgent application was made for a stay of the removal direction but this was refused by a First Tier Tribunal judge on 5 th December. On the following day AB was compulsorily returned to Cameroon. Thereafter it appears that AB's judicial review application went into abeyance with no positive step being taken in the proceedings until the middle of 2015.
Despite the lack of action within AB's judicial review claim, there were significant wider developments with respect to the DFT scheme as a whole which were to have a direct impact on AB's claim. On 12 th June 2015 Mr Justice Nicol found in favour of a charity "Detention Action" in judicial review proceedings and held that the claimant's challenge to the overall legality of the fast track rules succeeded with the result that the rules were held to be unlawful ( Detention Action v SSHD [2015] EWHC 1689 Admin)). It will be necessary in due course to consider with more particularity the basis upon which the DFT scheme was held to be unlawful.
In parallel proceedings before the Administrative Court at a similar time involving a claim for judicial review by four claimants against the Home Secretary and the First Tier Tribunal, a consent order was made by Mr Justice Blake on 3 rd July 2015. The relevant terms of the consent order include an agreed declaration that "the Detained Fast Track (DFT) as operated at 2 nd July 2015 created an unacceptable risk of unfairness to vulnerable or potentially vulnerable individuals" as defined within paragraph 2 of the order. It was also declared that there was an unacceptable risk of failure to identify individuals "whose claims were unsuitable for a quick decision within the DFT". The definition of "vulnerable or potentially vulnerable" individuals was stated to include, but not be limited to, "asylum seekers who may be victims of torture, significant ill treatment, human trafficking" or other identified circumstances.
On 29 th July 2015 the Court of Appeal (Lord Dyson MR, Briggs, Bean LJJ) dismissed an appeal against the decision of Nicol J in the "Detention Action" judicial review ( R (Detention Action) v First Tier Tribunal (Immigration and Asylum Chamber) [2015] EWCA Civ 840; [2015] 1 WLR 5341), the court holding that the fast track rules were "systemically unfair and unjust".
On 8 th May 2015 AB's lawyers applied to amend his grounds for judicial review. That application was ultimately granted by UTJ Eshun on 4 th August 2015. The decision granting permission made express reference to the "Detention Action" proceedings which had been determined in the Court of Appeal only one week earlier:
"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 1 st June 2016 and is therefore the claim to which this appeal relates.
Separately, and as a consequence of a more general review of decisions that had been taken under the DFT regime, the President of the First Tier Tribunal made an order on 12 th November 2015 setting aside the decision made by FTTJ Sullivan on 10 th November 2014 dismissing AB's immigration and asylum appeal with the consequence that AB had, once again, a live asylum appeal before the First Tier Tribunal.
In the light of the renewed appeal proceedings, AB's solicitors wrote to the Government Legal Department ['GLD'] on 23 rd November 2015 asking for AB to be returned to the United Kingdom in order to take part in the pending appeal proceedings. By letter dated 17 th December 2015 the GLD responded by recording that they were instructed that the Secretary of State "does not agree to return your client to the UK in order to pursue his appeal". Detailed reasons were given in support of that determination.
On 20 th January 2016 the FTT refused an application...
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