R PN (Uganda) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Lewis J.,Lord Justice Henderson,Lord Justice McCombe |
| Judgment Date | 28 September 2020 |
| Neutral Citation | [2020] EWCA Civ 1213 |
| Docket Number | Case Nos: C4/2019/1609 & C4/2019/1757 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 September 2020 |
[2020] EWCA Civ 1213
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
THE HONOURABLE MR JUSTICE LEWIS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lord Justice Henderson
and
Lord Justice Dingemans
Case Nos: C4/2019/1609 & C4/2019/1757
and
Chris Buttler (instructed by Duncan Lewis) for the Claimant/Appellant/Respondent
Robin Tam QC and Natasha Barnes (instructed by Government Legal Department) for the Defendant/Respondent/Appellant
The Interested Party did not appear and was not represented
Hearing dates: 15 & 16 July 2020
Approved Judgment
Introduction
This appeal raises an issue about whether the judge was entitled to find that PN's hearing before the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”) was unfair. The FTT hearing took place pursuant to the Asylum and Immigration Tribunal (Fast Track Procedure) Rules, known as the Detained Fast Track Rules (“the 2005 DFT Rules”), which have been declared in other proceedings to have been ultra vires, as appears from paragraphs 27 to 35 below. There are also issues about the lawfulness of periods of PN's detention.
This appeal is from the judgment of Mr Justice Lewis (“the judge”) dated 24 June 2019, [2019] EWHC 1616 (Admin). The judge found that PN's appeal to the FTT had been unfair under the 2005 DFT Rules and that the period of PN's detention between 6 August and 10 September 2013 was unlawful.
Both PN and the Secretary of State appeal against the judgment. PN seeks to set aside the findings of the judge that she was lawfully detained from 29 July to 6 August 2013 and from 10 September to 12 December 2013. The Secretary of State seeks to set aside the judge's finding that the Court had, on an earlier occasion, granted PN permission to apply for judicial review to quash the decision of the FTT. The Secretary of State contends that even if PN was granted permission to apply for judicial review to quash the decision of the FTT, that decision should not have been quashed because in fact the proceedings before the FTT were fair to PN. This also means that the consequential findings of unlawful detention should be set aside. The Secretary of State also served a Respondent's Notice in relation to the period of detention between 10 September 2013 and 12 December 2013, seeking to affirm the judge's finding on the basis that the judge should have found that the proceedings before the FTT were fair.
I am very grateful to Mr Buttler and Mr Tam QC, and their respective legal teams, for their very helpful written and oral submissions. By the conclusion of the proceedings it was apparent that the following matters were in issue in the appeal: (1) whether PN had been granted permission by the Court to apply for judicial review of the FTT's decision; (2) whether the judge was entitled to find that the proceedings before the FTT under the 2005 DFT Rules were unfair and should be quashed; (3) whether the period of detention from 29 July to 6 August 2013 was unlawful; and (4) whether the period of detention from 10 September to 12 December 2013 was unlawful.
Factual background
The factual background is taken from the findings made by the judge. PN was born in July 1993 and is now aged 27 years. She is a citizen of Uganda and lived there as she was growing up. She claimed that she did not know who her mother was, and her father had died young. She said she had been brought up by other members of her family and sexually abused and raped as a child. PN said she had had lesbian relationships as she was growing up in Uganda. It is common ground that lesbians are persecuted on the grounds of their sexual orientation in Uganda but the Secretary of State does not accept that PN is a lesbian.
In September 2010, when she was aged 17 years, PN entered the UK as an accompanying child on a visitor's visa. PN was accompanying a person who purported to be her father. It appears to be common ground that the person accompanying PN was not her father. It became apparent in the course of the FTT proceedings that the file relating to the grant of the entry visa had been destroyed. On 25 February 2011, when she was still aged 17 years, PN's visa expired and she became an overstayer.
On 21 July 2013 PN, who was then aged 20 years, was arrested in London for overstaying. When she was arrested PN was in bed with a man, and the various explanations given for that fact became an issue in the asylum claim. PN gave a false identity on arrest. It was common ground that PN's initial detention was lawful.
The first period of detention from 22 July to 6 August 2013
At trial the first period of detention was analysed as being from 22 July to 6 August 2013. On 22 July 2013 PN claimed asylum on the basis that she would be at risk of persecution if returned to Uganda on the basis of her sexuality as a lesbian. On 25 July 2013 it was noted that referral to the Detained Fast Track (“DFT”) process was appropriate, but it was also recorded that if PN was not accepted within that process, temporary release would be considered. Arrangements were made for PN's screening interview, and on 28 July 2013 that interview took place. After that screening interview, on 29 July 2013 the Secretary of State decided to progress PN's asylum claim within the DFT. On 31 July 2013 PN was allocated a solicitor. On 5 August 2013 PN's asylum interview took place. PN's solicitors requested an extension until 7 August 2013 to enable them to contact PN's partner and refer the case to the Helen Bamber Foundation.
On 6 August 2013 PN's solicitors made representations as to why PN should be granted asylum or removed from the DFT process. They also referred the case to the Helen Bamber Foundation. On the same day the Secretary of State refused PN's asylum claim. The Secretary of State did not accept that PN was a lesbian. The Secretary of State noted the absence of evidence of any of the relationships claimed by PN, various other matters were pointed out in PN's account which were said to be implausible, and it was noted that PN had been found in bed with a man on arrest and had not given any proper explanation for that fact.
The second period of detention from 6 August to 10 September 2013
The second period of detention relates to the time that PN was in detention pending the hearing and determination of her applications for permission to appeal against the determination of the FTT. On 7 August 2013 the Helen Bamber Foundation wrote to PN providing her with an initial appointment on 11 November 2013 to determine whether she would be suitable for a further assessment. On 8 August 2013 PN appealed against the SSHD's refusal of her asylum claim to the FTT, and the hearing was scheduled for 14 August 2013.
On 12 August 2013 PN applied for an adjournment of her appeal to the FTT on the basis that she wished to obtain a medico-legal report. On 13 August 2013 the FTT refused PN's adjournment request on the papers but stated that PN could renew the application at her appeal hearing the following day.
On 14 August 2013 PN renewed her request for an adjournment and for the case to be taken out of the DFT procedure. It was said that there was a friend of PN who had given evidence by email, and PN said that because of the earlier rape she was suffering from flashbacks and depression and a medical report was sought to be obtained from the Helen Bamber Foundation in support of the psychological aspects of her appeal. PN's medical records were obtained, they did not show any reporting of torture or mistreatment outside the UK, although it was noted that PN suffered from anxiety related symptoms. It was submitted on behalf of the Secretary of State that there was no guarantee that the report would address the real issue on the asylum claim, namely whether PN was a lesbian. During the course of the hearing of the application to adjourn, five friends of PN arrived. The FTT Judge looked at the visa and thought that it would be helpful to see the original application, which had been initially refused.
The FTT adjourned PN's appeal until 28 August 2013 so that further information: about the refusal of the earlier visa application; and about what had happened on PN's arrest; could be obtained. The FTT Judge did not consider that it would be helpful to have evidence from a medical report.
The hearing in the FTT
On 28 August 2013 the hearing of PN's appeal to the FTT took place at Yarl's Wood Immigration Removal Centre. PN was represented by counsel instructed by Duncan Lewis, solicitors. The Secretary of State was represented by a Home Office Presenting Officer. The visa information was not available, nor was further information from the immigration officers who had arrested PN on 21 July 2013. At the FTT hearing PN gave evidence of her sexual experiences in Uganda and London. She explained that she had been in bed with a man when she was arrested because he had helped her home the night before. Although she had thought about having a baby, and had mentioned that in her interviews when asked about the man who had been in her bed when she was detained, she said she had not had sexual relations with the man, that she did not like men sexually, and was not thinking of using him as a sperm donor. She had only mentioned this because she had thought that the immigration...
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