R (on the application of HN and Others) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | McCloskey J |
| Judgment Date | 21 July 2015 |
| Neutral Citation | [2015] UKUT 437 (IAC) |
| Date | 21 July 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2015] UKUT 437 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
The President, The Hon. Mr Justice McCloskey
Upper Tribunal Judge Allen
On this application for permission to apply for judicial review and having conducted a “rolled up” hearing and following consideration of the documents lodged by the parties and having heard Ms S Naik, Mr A Bandegani and Ms B Poynor, all of Counsel, instructed by Duncan Lewis Solicitors, on behalf of the Applicants and Ms M Glass and Mr N Ostrowski, of Counsel, instructed by the Government Legal Department on behalf of the Respondent at hearings at Field House, London on 10 March, 22 April and 08, 11 and 12 May 2015, followed by further written submissions initially completed on 05 June 2015 and ultimately completed on 06 July 2015.
R (on the application of HN and Others) v Secretary of State for the Home Department (JR — scope — evidence) IJR
-
(i) It is intrinsically undesirable that judicial review proceedings be transacted in circumstances where material evidence on which the Applicants seek to rely has not been considered by the primary decision maker.
-
(ii) There is a strong general prohibition in contemporary litigation against rolling review by the Upper Tribunal in judicial review proceedings..
-
(iii) Where a judicial review applicant is proposing to make further representations to the Secretary of State in circumstances where a new decision will forseeably be induced, it will normally be appropriate, to refuse permission or to dismiss the application substantively on the ground that it will be rendered moot and/or an alternative remedy remains unexhausted and/or giving effect to the prohibition against rolling review.
-
(iv) The principles rehearsed above are to be similarly applied to applications for permission to appeal to the Court of Appeal.
-
(v) Where a draft judgment is circulated in advance of handing down the function of parties and their representatives is confined to notifying mis-spellings, formatting defects, inadvertent factual errors, ambiguities of expression and kindred blemishes: Edwards & Ors R (on the application of) v Environment Agency & Ors [2008] UKHL 22 applied
Delivered (in draft) on 17 June 2015. Final approved judgment dated 21 July 2015.
This judgment, to which both members of the panel have contributed, consists of the following chapters:
-
I. These proceedings
-
II. “Rolled Up” Order
-
III. Application to amend
-
IV. Tribunal Directions of 23 May 2015
-
V. The Evidence
-
VI. The Individual Applicants
-
VII. The Issues
-
VIII. Conclusions
-
IX. Order and Ancillary Issues
The subject of removing Afghan nationals from the United Kingdom to their home country, while not lacking novelty, has gained increasing prominence and exposure during the past few months. This has been stimulated by two flights arranged by the United Kingdom government for the purpose of returning unsuccessful asylum claimants to Afghanistan. These planned flights generated a flurry of litigation activity, giving rise to orders of both the Court of Appeal and the Upper Tribunal prohibiting the removal of certain persons until further order.
The Applicants are five single male adults, of assorted ages, ranging from 19 to 40 years, all nationals of Afghanistan. They bring these proceedings against the Secretary of State for the Home Department (the “ Secretary of State”) arising out of action taken by the latter to convey all of them by charter flight to Afghanistan on 10 March 2015. In the case of the fifth Applicant, AB, we made an Order on that date refusing to grant interim relief having heard Counsel for the Applicant. Later on the same date our Order was reversed by the Court of Appeal.
The challenge brought by AB was one of 14 similar cases initiated on the same day, 09 March 2015. The following day, a further 7 comparable challenges followed. All of these challenges were related to the repatriations to Afghanistan proposed to be effected by the Secretary of State's charter flight on 10 March 2015. To summarise, on this date:
-
(a) AB was granted interim relief by the Court of Appeal.
-
(b) The Upper Tribunal granted interim relief in 16 cases.
-
(c) The Administrative Court granted interim relief in 3 cases.
The next material development was that the Secretary of State arranged a further charter flight to Afghanistan, scheduled to depart on 21 April 2015. Removal directions were made accordingly. This was the stimulus for 21 new judicial review applications in which interim relief was granted. We took the view that the determination of these applications had, in effect, been dictated by the Court of Appeal's Order reversing our decision in AB's case on 10 March 2015. Interim relief was, in consequence, granted to a total of 14 Applicants. Pausing, there were, altogether, 35 live cases, having much in common with each other, at this stage.
From this group five lead cases, including that of the fifth Applicant, AB, were selected. This was reflected in a consent order dated 10 April 2015. This mechanism was deployed in the interests of orderly and efficient case management and with a view to inducing a decision of the Tribunal designed to encompass all members of the group. At that stage it was apparent that, broadly, there were two dominant issues in the proceedings, namely the areas within Afghanistan to which the litigants were expected to return or to relocate and the individual characteristics of certain litigants.
As a result of the subsequent withdrawal of four cases by consent, the current number of judicial review Applicants is 32. The evolution of these proceedings outlined above has resulted in the allocation of the Applicants to three Schedules. These are the final Schedule AB, the consolidated Schedule C and Schedule D. These Schedules are appended to this judgment
There are certain facts and factors common to all five Applicants:
-
(a) Each of them entered the United Kingdom unlawfully at different times and claimed asylum unsuccessfully.
-
(b) The First-tier Tribunal (the “ FtT”) dismissed their ensuing appeals.
-
(c) Permission to appeal to the Upper Tribunal was refused subsequently.
-
(d) All of the Applicants are challenging decisions by the Secretary of State to remove them to Afghanistan.
-
(e) Following the initiation of these proceedings and the grant of interim relief at the first of the two stages noted above, namely on 10 March 2015, further representations were made, generating new decisions by the Secretary of State, in all five lead cases, that these did not amount to a fresh claim under paragraph 353 of the Immigration Rules (“the fresh impugned decisions”). The second to fifth Applicants received successive fresh decisions, on 23 and 31 March/01 April 2015. In the particular case of the first Applicant, HN, the decision which he received at this stage was an initial decision. These further decisions of 31 March and 01 April 2015 have overtaken the earlier removal decisions and, following amendment, are the revised target of the Applicants' current challenges.
-
(f) A singular feature common to all five lead cases is that following the fresh impugned decisions, during the currency of these proceedings, further evidence has been generated on behalf of all the Applicants and filed, in support of their judicial review challenges. Further evidence was also assembled and filed on behalf of the Secretary of State. We shall examine the significance and implications of these developments infra.
The most recent country guidance decision of the Upper Tribunal relating to Afghanistan is AK (Article 15(c) Afghanistan) [2012] UKUT 00163. The Tribunal, while noting that there had been a deterioration in the general security conditions prevailing in the country, held that there was an insufficient degree of violence in Afghanistan as a whole to overcome the Article 15(c) threshold. The Applicants in these proceedings make the case that having regard to a substantial body of evidence which has materialised since 2012, it is appropriate to reconsider the guidance promulgated in AK.
There is some ambivalence in the Applicants' arguments as to whether these judicial review proceedings should be the vehicle for the formulation of fresh, updated country guidance. In principle, they might have sought to make a case having the following components: that the new country evidence forms part – a significant one – of the material upon which the Secretary of State should properly have decided that the fresh claims threshold was overcome; that by these judicial review applications the unlawfulness of the Secretary of State's decisions will be exposed; and, in consequence, it will be incumbent upon the Secretary of State to make further decisions recognising that these are indeed fresh claims, with the result that appeals will lie to the FtT which will provide a forum for presenting evidence and ventilating arguments relating to the enduring tenability of the decision in AK. This would not, therefore, be a country guidance appeal by stealth. However, the Applicants' case was not presented in this way.
Following the grant of interim relief to 14 Applicants, as recorded above, these proceedings effectively split into a series of phases:
-
(i) The initial phase, during which the judicial review applications were initiated and interim relief was granted.
-
(ii) The case management phase which, initially, unfolded between 10 March and 22 April 2015.
-
(iii) In parallel with the case management phase, the submission of further representations to the Secretary of State on behalf of all Applicants, including the five lead Applicants and the making of...
To continue reading
Request your trial
-
R (on the application of MK, IK (a child by his litigation friend MK) v Home Secretary
...with a litigation context of “rolling review”: see R (N) v Secretary of State for the Home Department (JR – Scope – Evidence) IJR [2015] UKUT 437 (IAC) at [70] – [75]. Legal Framework 13 (13) There is no dispute inter-partes about the governing legal framework. While this, of course, is no......
-
Upper Tribunal (Immigration and asylum chamber), 2016-05-24, [2016] UKUT 231 (IAC) (R (on the application of MK, IK (a child by his litigation friend MK) and HK (a child by her litigation friend MK) v Secretary of State for the Home Department (Calais; Dublin Regulation – investigative duty) (IJR))
...with a litigation context of “rolling review”: see R (N) v Secretary of State for the Home Department (JR – Scope – Evidence) IJR [2015] UKUT 437 (IAC) at [70] – [75]. Legal Framework There is no dispute inter-partes about the governing legal framework. While this, of course, is not binding......
-
Upper Tribunal (Immigration and asylum chamber), 2017-06-30, [2017] UKUT 331 (IAC) (R (on the application of FT) v Secretary of State for the Home Department (“rolling review”; challenging leave granted))
...seek to challenge. These include R (Tesfay and Ors) v SSHD [2016] EWCA Civ 415, R (Naziri and Ors) v SSHD (JR –scope – evidence) IJR [2015] UKUT 437 (IAC), R (Rathakrishnan) v SSHD [2011] EWHC 1406, R (Bhatti) V Bury MBC [2013] EWHC 3093 (Admin), R (Spahiu and Another) v Secretary of State ......
-
Upper Tribunal (Immigration and asylum chamber), 2016-01-04, AA/07830/2014
...– credibility) China [2013] UKUT 00145 (IAC) and R (on the application of Naziri and Others) v SSHD JR – scope - evidence) IJR [2015] UKUT 00437 (IAC). Statutory Framework 5. The requirements to be met for leave to remain on the grounds of private life paragraph 276ADE(1) are that as at the......