R (on the Application of L) v Secretary of State for the Home Department (Return of Person Removed: Discretion)

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeLane J,O'Connor UTJ
Judgment Date10 July 2020
Neutral Citation[2020] UKUT 267 (IAC)
Date10 July 2020

[2020] UKUT 267 (IAC)


Lane J (President) and O'Connor UTJ

R (On the Application of L)
Secretary of State for the Home Department (Return of Person Removed: Discretion)

Mr A Briddock and Mr D Grütters instructed by the Camden Community Law Centre, for the Applicant;

Mr C Thomann instructed by the Government Legal Department, for the Secretary of State.

Cases referred to:

AJ (s 49B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC); [2018] Imm AR 976

Lewis v Secretary of State for the Home Department [2010] EWHC 1749 (Admin)

Niaz (NIAA 2002 s.104: pending appeal) [2019] UKUT 399 (IAC); [2020] Imm AR 447

PN v Secretary of State for the Home Department [2019] EWHC 1616 (Admin)

R (on the application of AB) v Secretary of State for the Home Department [2017] EWCA Civ 59; [2017] Imm AR 1154

R (on the application of Kiarie) v Secretary of State for the Home Department; R (on the application of Byndloss) v Secretary of State for the Home Department[2017] UKSC 42; [2017] 1 WLR 2380; [2017] 4 All ER 811; [2017] Imm AR 1299; [2017] INLR 909

R (on the application of YZ (China)) v Secretary of State for the Home Department [2012] EWCA Civ 1022; [2013] INLR 60

Legislation and international instruments judicially considered:

European Convention on Human Rights, Article 8

Immigration Rules HC 395 (as amended), paragraph 353

Nationality, Immigration and Asylum Act 2002, sections 72, 78, 82, 94B & 104

Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, rules 32 & 33

Tribunals, Courts and Enforcement Act 2007, sections 11 & 13

Asylum — persecution — bi-sexuality — fresh claim — paragraph 353 of the Immigration Rules — “a realistic prospect of success” — procedure and process — removal — unlawful removal — return of person removed — Tribunal's discretion in ordering return — deprivation of in-country appeal — irreparable harm

The Applicant, a citizen of Nigeria, entered the United Kingdom in 2005 as a student and was subsequently granted further leave to remain. He met his wife, an Italian citizen, in 2006. He claimed to have lived in Italy with his wife and daughters from 2009 until 2012. In 2013 he was convicted of two counts of cheating the Public Revenue and was sentenced to four years and six months' imprisonment. In September 2014 he claimed asylum. In November 2014 he withdrew that claim and applied for a residence card as a member of the family of an EEA national. The Secretary of State for the Home Department refused the application and set directions for the Applicant's removal. Those directions were cancelled when the Applicant made a fresh claim for asylum in January 2016. He made further submissions in connection with that claim in July 2016. The two bases of the Applicant's claim were that he was bi-sexual and had converted to Christianity from Islam. He said that in May 2013 he had returned to Nigeria for a holiday and that his friends there had arranged a sex party involving male prostitutes. He said that the police had been to his family home in Nigeria in January 2016, looking to arrest him for taking part in a gay sex party and having sex with another man. He also said he had received threats from his family and from friends of his father because they had discovered his bi-sexuality and his conversion to Christianity.

In April 2017, the Secretary of State accepted the application as a fresh asylum claim under paragraph 353 of the Immigration Rules HC 395 (as amended) but refused the claim. She did not accept that the Applicant was at risk of serious harm in Nigeria because of his bi-sexuality or religious conversion. She concluded that the timing of the claim for asylum meant it had been fabricated in an attempt to frustrate his removal from the United Kingdom.

The Applicant appealed to the First-tier Tribunal (“FtT”). He attended the case management review (“CMR”) hearing in November 2017 where he informed the FtT of his change of address from address A to address B. The Secretary of State's representative at the CMR hearing updated her records with address B and the FtT recorded address B on the Applicant's file. Regrettably, the FtT sent notice of the substantive hearing to address A. The Applicant did not appear at the substantive hearing in December 2017. The FtT Judge was given to understand that the Applicant had been informed of the date of the hearing by the Secretary of State and therefore determined the appeal in the Applicant's absence. The FtT found that the Applicant was not at real risk of suffering serious harm, such as to entitle him to humanitarian protection and dismissed the appeal. The decision was sent to the Applicant at address A.

On 13 February 2018, the Applicant learned that his appeal had been dismissed. The following day, new solicitors acting for the Applicant notified the FtT of the reason for his non-attendance at the hearing in December 2017 and requested a copy of the FtT's decision. On 20 March 2018, the Applicant received from the FtT a copy of the decision dismissing his appeal. On 21 March, he applied to the FtT for permission to appeal (“PTA”) to the Upper Tribunal. Noting the factual position, the FtT granted PTA on 4 April 2018. It was common ground that the application for PTA made on 21 March 2018 was not out of time, being received by the FtT within the period specified in rule 33(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

By the time the FtT granted PTA, however, the Applicant was no longer in the United Kingdom, having been removed to Nigeria on 28 March 2018. The events immediately leading up to removal were as follows. An internal email of the Secretary of State dated 27 March 2018 from OSCU to a senior caseworker noted the FtT's error in sending the decision to the incorrect address and recommended that removal directions be deferred pending the Tribunal's decision on the permission application. Notwithstanding that advice, an official of the Criminal Casework Team in Liverpool decided to make enquiries with the FtT on 28 March. The email requested that the PTA application be placed before a judge at the earliest as the Applicant was to be removed that evening. It noted that the PTA application prevented his removal. Later on 28 March, a clerk in the FtT in Newport responded by email that the duty judge had advised that an out-of-time application for leave to appeal was not a bar to removal and the appeal would be considered in due course. In purported reliance on that communication from the clerk, the Applicant's removal directions were maintained and he was removed from the United Kingdom.

The Applicant applied for judicial review seeking an order requiring the Secretary of State to arrange and facilitate his return to the United Kingdom within 14 days. The Secretary of State submitted that there was little evidence to support the Applicant's assertion that he was at risk of irreparable harm because of his sexuality or destitution, if required to remain in Nigeria pending the hearing of his appeal.

Held, allowing the application:

(1) A decision to remove a person from the United Kingdom under immigration powers would not be unlawful by reason of the fact that it was predicated upon an earlier decision which had not, at the time of removal, been found to be unlawful, but which later was so found: R (on the application of AB) v Secretary of State for the Home Department[2017] EWCA Civ 59; Niaz (NIAA 2002 s.104: pending appeal)[2019] UKUT 399 (IAC) applied. The fact that a person's removal was not unlawful would not necessarily preclude a court or tribunal on judicial review from ordering the person's return. The fact it was lawful would, however, be a “highly material factor against the exercise of such discretion”: Lewis v Secretary of State for the Home Department[2010] EWHC 1749 (Admin) applied. Where a person's removal was unlawful, by reference to the position at the time of removal, that fact should not only constitute the starting point for the Tribunal's consideration of the exercise of its discretion to order return but was also likely to be a weighty factor in favour of making such an order. The same was true where the effect of the person's removal had been to deprive him of an in-country right of appeal (paras 55 – 60).

(2) The removal of the Applicant to Nigeria on 28 March 2018 was unlawful. Section 78 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) prohibited a person from being removed from the United Kingdom whilst his appeal was “pending” within the meaning given by section 104. Section 104(2) provided that an appeal was not finally determined while an application for PTA under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or was awaiting determination. The Applicant was not served with the FtT's decision dismissing his appeal until 20 March 2018. His application for PTA sent on 21 March was well within the requisite period set out in the Rules. Accordingly, his removal was a breach of section 78 of the 2002 Act. Whether or not the Secretary of State knew or should have known that she had no power to remove the Applicant was plainly a matter of considerable significance, in deciding whether to exercise discretion to order the Secretary of State to take best endeavours to effect the Applicant's return. In the instant case, the Secretary of State was plainly in possession of the facts, which should have led her to conclude that the Applicant had applied to the FtT in time for permission to appeal. The email from OSCU made that apparent. Moreover, the Secretary of State should have recognised that the email correspondence between the Criminal Casework Team and Tribunal Clerk on 28 March gave no support at all for a decision to go ahead with the Applicant's removal. The Secretary of State, at best, ought to...

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