RLP (Anonymity Direction Made) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | THE HON. MR JUSTICE MCCLOSKEY |
| Judgment Date | 17 March 2017 |
| Neutral Citation | [2017] UKUT 330 (IAC) |
| Date | 17 March 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2017] UKUT 330 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE PRESIDENT, THE HON. Mr Justice McCloskey
DEPUTY UPPER TRIBUNAL JUDGE Mandalia
For the Appellant: Ms E Rutherford, of Counsel, instructed by Fountain Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer
RLP ( BAH revisited — expeditious justice) Jamaica
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(i) The decision of the Upper Tribunal in BAH (EO – Turkey – Liability to Deport) [2012] UKUT 00196 (IAC) belongs to the legal framework prevailing at the time when it was made: it has long been overtaken by the significant statutory and policy developments and reforms effected by the Immigration Act 2014 and the corresponding amendments of the Immigration Rules, coupled with YM (Uganda) [2014] EWCA Civ 1292 at [36] – [39].
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(ii) In cases where the public interest favouring deportation of an immigrant is potent and pressing, even egregious and unjustified delay on the part of the Secretary of State in the underlying decision making process is unlikely to tip the balance in the immigrant's favour in the proportionality exercise under Article 8(2) ECHR.
The provisions of the Nationality, Immigration and Asylum Act 2002 and the Immigration Rules are assembled in Appendix 1 and Appendix 2 to this judgment.
It is a regrettable truism that from time to time one encounters an appeal which has been in the Tribunal system for an indefensibly lengthy period. Sadly, the present case is a paradigm illustration of this thankfully rare phenomenon. It provides an important reminder of the overarching importance of expeditious justice, the ever present need for robust case management and the avoidance of certain practices which are antithetical to both.
The chronology speaks for itself:
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(a) The impugned decision of the Secretary of State, whereby the application of the Appellant for asylum and his human rights claim were refused, in the context of a deportation decision, is dated 04 September 2012.
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(b) The First-tier Tribunal (the “ FtT”) heard the appeal on 09 May 2013 and promulgated their decision some two weeks later. The appeal was dismissed.
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(c) Prior to the hearing on 09 May 2013, there had been a total of four case management review (“ CMR”) hearings conducted by FtT Judges, spanning the period October 2012 to March 2013. On each occasion the decision taken was that the hearing of the appeal should be deferred having regard to ongoing Family Court proceedings involving the Appellant.
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(d) At the fourth of these CMRs the appeal was listed to be heard on 09 May 2013. This hearing did not result in the determination of the appeal. Rather, it yielded a somewhat unorthodox judicial decision purporting to require the Secretary of State to grant the Appellant a period of discretionary leave pending completion of the Family Court proceedings. The FtT has no power to make such an order.
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(e) The Secretary of State appealed against this decision. The Upper Tribunal heard the appeal on 21 August 2013 and, on 27 September 2013, it set aside the decision of the FtT and remitted the appeal to that forum, giving rise to the substantive dismissal of the Appellant's appeal by a decision of the FtT promulgated on 26 November 2013 ( supra).
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(f) Next, the Appellant's application for permission to appeal, made timeously, was refused by a Judge of the FtT.
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(g) By its decision dated 11 March 2014 the Upper Tribunal granted permission to appeal. Pausing, at this stage the appeal proceedings (in their totality) were of some 18 months' vintage. Regrettably, three further years were to elapse until the listing of the appeal before Deputy Upper Tribunal Judge Mandalia and me.
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(h) The initial listing of the appeal before the Upper Tribunal was on 02 October 2014. The appeal was delisted in somewhat opaque circumstances, one feature of which was that the Appellant and his counsel attended the relevant venue on the scheduled date only to learn of this development.
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(i) The manifestly unjustifiable delay which has characterized this appeal throughout continued. The appeal was not relisted until 30 April 2015. By its decision promulgated on 29 May 2015 the Upper Tribunal set aside the decision of the FtT. The Upper Tribunal did not proceed to remake the decision. No explanation for this is provided in its decision. It directed that the appeal be relisted in the Upper Tribunal “ on the next available date”. It would appear that no proper regard was had to either the Upper Tribunal Practice Directions relating to the remaking of FtT decisions or the vintage of the appeal which, by this stage, was approaching its third anniversary.
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(j) The appeal was next listed in the Upper Tribunal on 07 September 2015. A hearing ensued. However, this did not give rise to a judicial decision. Instead, on 01 October 2015 written directions were issued requiring the parties' representatives to make further written submissions relating to the significance of the decision in Bah (EO-Turkey-Liability to Deport) [2012] UKUT 00196 (IAC) (hereinafter “ Bah”). Pausing again, some 1 1/2 years later, the appeal remains uncompleted, for reasons which will emerge below.
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(k) Both parties' representatives duly complied with the time limit (29 October 2015) for the provision of further submissions. The terms of the final paragraph of the Upper Tribunal's directions suggest that, following receipt, the appeal would be decided without further hearing. The next development suggests that an assessment that a further hearing would be convened.
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(l) By further Directions dated 12 November 2015 it was directed that the appeal “ … will be set down for oral hearing, submissions only on the first available date” and made a further direction regarding possible fresh evidence under Rule 15(2A). [Emphasis added].
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(m) On 15 December 2015 the parties' representatives were notified of a resumed hearing to proceed on 22 January 2016. However, by Notice dated 07 January 2016, the hearing was postponed for reasons which are unclear.
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(n) This was repeated in respect of a rescheduled hearing date of 15 February 2016.
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(o) At this stage, the chronology struggles and staggers on to 14 April 2016 when the appeal was relisted. A hearing ensued. However, once again, this did not yield a decision. Rather, the outcome was a judicially devised and signed “Adjournment and Directions”, which included:
“ I adjourn this hearing part heard to be relisted before me on the first available date after 07 July 2016.”
The reason for this course was recorded as “…………. the potential unlawfulness of a decision taken to remove the Appellant under section 10 of the Immigration and Asylum Act 1993dated 13 June 2003 ….” [my emphasis], coupled with a desire on the part of the Secretary of State “ to seek further instructions”.
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(p) The parties were directed to provide written submissions as to the lawfulness of the June 2003 removal decision and a further hearing was to be reconvened before the same Judge after three months.
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(q) The Appellant's representatives then made further representations to the Secretary of State.
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(r) The Secretary of State failed to comply with the aforementioned directions.
The appeal was relisted for hearing on 13 October 2016. The decision made on that date records that counsel for the Appellant applied for an adjournment on the ground that (a) the Judge who had adjourned the appeal on 14 April 2016 had directed that it be relisted before them, (b) the Home Office Presenting Officer claimed not to have seen the directions made arising out of the aborted hearing on 14 April 2016 (notwithstanding that they had been pronounced orally in the presence of the parties) and (c) there were ongoing Family Court proceedings relating to the Appellant's daughter (then aged 14) which had given rise to an order dated 24 August 2016 and were progressing to a “contact” hearing listed to be heard on 24 October 2016. The assigned Deputy Judge of the Upper Tribunal stated:
“ In these circumstances it is only right and proper that this matter be adjourned.”
and directed that the Upper Tribunal directions of 14 April 2016 “ are given full effect.” The Deputy Judge further directed that the relisting would give effect to the convenience of the Appellant's Counsel.
On 17 January 2017 there was a CMR conducted by the medium of telephone. The outcome was the relisting of this appeal for hearing on 17 March 2017.
The appeal was eventually relisted before this panel of Judges on 17 March 2017. Significantly, on this occasion there was no suggestion that the hearing should not proceed on the basis that it was retained exclusively by a particular judge.
It is necessary to mention some even more distant dates and events. The sole conviction underpinning the Secretary of State's deportation decision of September 2012 was a conviction for wounding with intent to do grievous bodily harm dating back to 2001, generating a 4-year term of imprisonment. This was followed by service of the conventional removal notices on the Appellant, on 13 June 2003, based on his asserted status of illegal entrant. This gave rise to an appeal, resulting in a decision of the FtT promulgated on 11 September 2003. This decision records...
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