R AM, SASA, MHA, and SS v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | McCloskey J,The Honourable Mr Justice McCloskey |
| Judgment Date | 22 May 2017 |
| Neutral Citation | [2017] UKUT 372 (IAC) |
| Date | 22 May 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2017] UKUT 372 IAC
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review
The Honourable Mr Justice McCloskey, President
Having considered all documents lodged, together with the submissions of Miss C Kilroy and Miss M Knorr, both of counsel, instructed by the Migrants' Law Project, Islington Law Centre, on behalf of the Applicants SASA and MHA, and by Bhatt Murphy Solicitors on behalf of the Applicants AM and SS, and of Mr B Keith, of counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 21 June 2017.
R (on the application of AM and others) v Secretary of State for the Home Department (liberty to apply — scope — discharging mandatory orders)
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1. Section 25 (2) (c) of TCEA 2007 invests the upper Tribunal with the same powers as the High Court in matters of liberty to apply.
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2. The mechanism of liberty to apply may be invoked for the purpose of pursuing a declaratory order that the Tribunal's principal order in judicial review proceedings has not been satisfied, particularly (but not exclusively) where the latter is a mandatory order.
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3. In evaluating the scope of liberty to apply in any given case the Tribunal will seek to give effect to the overriding objective.
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4. A mandatory order may be discharged where it has served its main purpose and its perpetuation will advance no discernible end.
(1) In each of these four cases the Applicants have brought applications seeking the following relief:
“A declaration that the Respondent has not complied with paragraph 2 of the Tribunal's order of [date]”.
That section directed that the Respondent “… shall start the process of making a fresh lawful decision forthwith and shall complete that process at latest by midnight on [date].”
The applications continue, in each case:
“We are exercising the liberty to apply mechanism in order to seek a declaration to that effect …”
Each of the four applications is dated 12 June 2017, but were preceded by notifications detailing the basis for the applications on 6 June 2017 to which the Respondent replied on the same day maintaining that the 2 June 2017 decisions are lawful and setting out her position on the liberty to apply application, which elicited a response from the Applicants on 7 June 2017.
(2) The Upper Tribunal responded to these applications by a combined order dated 14 June 2017 whereby (a) the Respondent, the Secretary of State for the Home Department (the “ Secretary of State”), was directed to respond, evidentially or otherwise, by a specified time and date and (b) the applications were listed on an expedited basis before me on 21 June 2017.
(3) The Respondent did not comply with the aforementioned order. Rather, on 15 June 2017, in all four cases, the Respondent lodged an application in the following terms:
“ The SSHD seeks an order that the previous order of the Tribunal be set aside. If the Applicants wish to challenge the decision of 02 June 2017 they should issue fresh JR proceedings. This application should be refused. In the alternative the directions should be varied to allow the SSHD sufficient time to respond. The hearing of 21 June should be vacated for the same reason …
There cannot be any prejudice to the Applicant in the SSHD having a longer and sufficient period to respond.”
I shall explain infra the meaning of “ the decision letter of 02 June”.
(4) The four orders of the Tribunal under scrutiny were variously made on 16 and 17 May 2017. They are in the following, identical terms:
“It is ordered that:
(1) The Respondent shall admit [ AM] to the United Kingdom forthwith using best endeavours at all material times and at latest by midnight on 22 May 2017.
(2) The Respondent shall begin the process of making a fresh lawful decision forthwith and shall complete that process at latest by midnight on 22 May 2017.
(3) Liberty to apply.”
Each of these orders was promulgated as a “short form” order upon the completion of each of the hearings, which were of the “rolled up” species. The practice of the Upper Tribunal is to promulgate a composite judgment and order in judicial review cases. The full judgment was not available at the stage when the hearings were completed. As a result the Tribunal had resort to the “short form order” mechanism.
(5) In all four cases the Secretary of State, under the mechanism of liberty to apply, has applied for, and has been granted, extensions of the time limits specified in (1) and (2) of the orders. As regards (1) of the orders, the current state of play is that the Applicants AM and SS have been admitted to the United Kingdom. The Applicant SASA is expected to be admitted tomorrow (22 June 2017). As regards the Applicant MHA the Tribunal, in making a further extension of time order (today), has directed the Secretary of State to make a full evidential response via the twin media of a witness statement, to be made by a properly selected witness, and disclosure of all material documents, by 13.00 hours on 26 June 2017 [all four Applicants have now been admitted to the United Kingdom and have claimed asylum].
(6) The combined judgments and orders of the Tribunal (to be contrasted with the short form orders) are dated 12 May 2017 (in two cases) and 17 May 2017 (in the other two). These judgments differ according to the differing factual matrix of each individual case. However, in their operative sections they are materially indistinguishable. In all cases the Tribunal held that the Secretary of State's initial decisions (belonging to the so-called “expedited process”), the decision making process and the perpetuation of such decisions via a continuing refusal to admit the Applicants to the United Kingdom were unlawful, in the following series of respects:
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(a) The Secretary of State acted unlawfully in purporting to apply the Dublin Regulation and its sister measure in an incomplete and selective fashion: see AM [2017] UKUT 262 (IAC) at [93] – [115].
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(b) Irrespective of whether the Dublin Regulation and its sister instrument governed the expedited process, the Secretary of State acted unlawfully in operating a procedurally irregular and unfair decision making process: see AM at [116] – [129]. This latter conclusion is encapsulated in [129] of the judgment in AM:
“To summarise, AM can lay claim to a series of procedural, or due process, protections and safeguards enshrined in three separate legal regimes: EU law, the Human Rights Act 1998 and the common law. Based on the analysis, findings and conclusions set forth above he has been denied the safeguards identified. The decision making process resulting in the Secretary of State's original and continued refusal to admit him to the United Kingdom for the purpose of family reunification with AO was, for the reasons explained, irredeemably flawed. It has, without legal justification, breached AM's procedural rights. This applies irrespective of whether the Dublin Regulation governed the expedited process. AM's challenge must succeed in consequence.”
This was prefaced by the following, in [122]:
“The expedited process in the group of five cases to which this challenge belongs was beset with procedural deficiencies and shortcomings and egregious unfairness. These contaminants are either not contested or incontestable. The conduct of the two interviews alone warrants a conclusion of procedural unfairness. The materiality of these procedural frailties is beyond plausible argument. The acid question is whether these procedural irregularities can be excused on the basis of the humanitarian challenge and the need for expedition. These are the two factors on which the Secretary of State relies. These must be recognised as important considerations and we readily acknowledge the major challenge the two Governments concerned faced. However, we consider that the exercise of balancing them with all the other factors summarised below results in a resounding negative answer to the question posed. Fundamentally, there was far too much at stake for these isolated and vulnerable children to warrant any other answer.”
This passage in turn was preceded by the Tribunal's detailed analysis of, and commentary upon, the decision making process, at [36] – [44].
(7) As regards the other judgments delivered it is appropriate to refer to one passage only. In SASA (JR/2476/2017), the Tribunal stated at [35]:
“ AMhas decided two central issues of law which are common to all of the cases in this group namely the application of the Dublin Regulation to the Secretary of State's decision making and therequirements of procedural fairness in the context of the expedited process: see [86] – [128]. TheAManalyses and conclusions apply fully to the case of SASA.”
Continuing, at [36]:
“The principal consequences flowing from the above are as follows:
(i) By failing to give full effect to the Dublin Regulation and its sister measure, the Secretary of State acted unlawfully.
This illegality included blanket exclusion of consideration of cousins under Article 17(2).
(ii) SASA was unlawfully deprived of a series of procedural safeguards and protections.
(iii) SASA's subsequent quest for admission to the United Kingdom under Article 8 ECHR cannot be defeated on the basis that he did not first attempt to secure the same outcome under the Dublin regime.”
The Tribunal added at [39]:
“An alternative conclusion is readily made. If this Tribunal's primary conclusion that this Applicant (and all the others) engaged in a process governed by the Dublin Regulation is incorrect, the alternative conclusion that the ZT (Syria) test expounded in [95] is nonetheless satisfied is...
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