TH (Bangladesh) and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice Sales |
| Judgment Date | 10 August 2016 |
| Neutral Citation | [2016] EWCA Civ 815 |
| Docket Number | Case No: C4/2016/2626; 2627; 2629 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 August 2016 |
[2016] EWCA Civ 815
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr Justice Cranston
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson
and
Lord Justice Sales
Case No: C4/2016/2626; 2627; 2629
The Queen on the application of
Stephanie Harrison QC, Shu Shin Luh and Anthony Vaughan (instructed by Duncan Lewis Solicitors (1st and 3rd Applicants) and Wilsons Solicitors (2nd Applicant)) for the Applicants
Lisa Busch QC and Leon Glenister (instructed by Government Legal Department) for the Respondent
Hearing date: 2 August 2016
Further submissions: 4 August 2016
Judgment Approved
See Order at bottom of this judgment
I. Introduction
The applicants, who are to be identified as TH (Bangladesh), ZA (Mauritius) and MNK (Pakistan), apply for permission to appeal against the order dated 15 June 2016 of Cranston J. The judge broadly dismissed generic and individual challenges to the lawfulness of the Secretary of State's administration of asylum claims by those in immigration detention in her Detention: Interim Instruction and Process Map ("the DII") and by the Detained Asylum Casework ("the DAC") process. The DII/DAC and the other guidance replaced the Detention Fast Track ("DFT") process which was successfully challenged in judicial review proceedings: see e.g. R (Detention Action) v Secretary of State for the Home Department [2014] EWCA Civ 1634, [2015] INLR 372 and R (Detention Action) v First Tier Tribunal [2015] EWCA Civ 840, [2015] 1 W.L.R. 5341 (the challenge to fast-track appeals).
The circumstances of the applicants are described in Cranston J's judgment: see [2016] EWHC 1331 (Admin) at [50] – [86]. Their cases were regarded as test cases and the cases of some 100 other persons were stayed pending the outcome. There appears to have been an understanding that the other cases would be case managed within these proceedings because many of the other claimants were represented by Duncan Lewis and Wilsons, the solicitors who represent the applicants before us.
The applicants were not entirely unsuccessful. In his order, Cranston J gave declaratory relief that, for reasons given in [156] – [165] of the judgment, the Secretary of State had not paid due regard to her public sector equality duty under section 149 of the Equality Act 2010 in considering asylum claims in detention, and that the detention of a fourth claimant, TCV, from 21 August — 28 September 2015 was unlawful. Additionally, in the case of ZA not all the claim was dismissed: the judge gave her permission to challenge the Secretary of State's decision to certify her asylum claim as "clearly unfounded".
TH, ZA and MNK applied for permission to appeal on 28 June 2016. They later applied to add a further ground of appeal, a stay, and, if permission is granted, expedition. In an order dated 14 July 2014 Vos LJ granted permission to amend the grounds and adjourned the applications to an oral hearing before two LJs on notice to the Secretary of State on 2 August.
There is a considerable body of material before the court. The appeal bundle is in four volumes, one consisting of the generic evidence. There is an authorities bundle, an unpaginated applications bundle and a skeleton argument bundle. The day before the hearing, the applicants filed a supplementary authorities bundle, adding eight authorities and two publications to the 13 items in their first authorities bundle, and a 13 page note for the permission hearing in part responding to points made by the respondent. The respondent filed a bundle on the afternoon of the day before the hearing. It contained a skeleton argument, a number of policy documents including version 3 of the DII, a Policy Equality Statement dated 1 August 2016 which senior Home Office civil servants state demonstrates compliance with section 149 of the Equality Act 2010, and four further authorities, two of which are also in the applicants' bundles of authorities.
The hearing lasted for almost the whole of the day rather than the two hours for which it was listed, and judgment was reserved. In view of the concerns about the handling of asylum claims in detention, it was right that the permission hearing enabled full consideration of the grounds challenging the dismissal of the generic challenge to the DII. It has also been possible to give full consideration to the grounds on which it was contended that the judge's approach to the individual cases of TH, MNK and ZA was flawed from the extensive material about their situation before the court and the individual skeleton arguments and the brief oral submissions made on their behalf. For the reasons I give in section V below, notwithstanding the extent of the argument before us and the criticisms of the judge's reasoning in what were sometimes ingenious submissions, I have concluded that there is no real prospect of a full appeal succeeding.
II. The stayed cases:
Cranston J's order dated 15 June 2016 affected the cases that had been stayed in the following way. It ordered:
"8. Within 28 days of the date of sealing of this order, the claimants in each of the cases comprising the DII cohort shall either withdraw their claims, or file and serve amended judicial review grounds indicating why they continue to pursue their claim in light of the judgment; the defendant shall have 21 days after that to file an Acknowledgement of Service and/or summary grounds of defence if so advised in response to each set of amended grounds; and those cases in which detention is no longer challenged shall be transferred to the Upper Tribunal;
9. The claims of any claimant in the DII cohort which are not withdrawn, but where the claimant fails to file and serve amended grounds within 28 days of the date of sealing of this order in line with paragraph 8 above, shall be struck out."
In a consent order dated 11 July 2016 filed in the Administrative Court the time in paragraphs 8 and 9 was varied to be 21 days from 13 July; i.e. a period ending on 3 August, the day after the hearing. At the conclusion of the hearing before us, Ms Harrison QC on behalf of the applicants applied for a further stay until the day after our judgment. The information given to the court about the position of the stayed cases was limited and the lack of particularity, notice, or forward thinking displayed is regrettable, particularly because Ms Harrison accepted that, had we delivered our decision at the conclusion of the hearing, she would also have applied for an extension. Notwithstanding this, given the way the stayed cases have been case managed to date and for pragmatic reasons, we extended time until the day after the judgment in this application is given.
III. The judgment below:
In the context of an application for permission to appeal, I do not consider it necessary to summarise the judgment below. It was full, careful, and well structured. It extended to 183 paragraphs over 47 single-spaced pages. After an introduction, there are sections on the Secretary of State's policies, the positions of the individual claimants, the generic evidence, and the grounds of challenge. The last of these deals with the judge's decision on the generic challenge between [128] and [166]. It deals with the judge's decisions on the challenge based on unfairness in the cases of the individual applicants between [167] and [182]. I deal with each ground of appeal in section V. When doing so I will refer to the material parts of the judgment below that have been criticised.
IV. The grounds on which permission to appeal is sought:
The original application for permission to appeal lists four grounds of appeal. In fact, ground 3 is a portmanteau ground with 11 sub-grounds, so there are in effect 14 grounds, some of which have significant overlaps with others and the submissions on behalf of the applicants reflected this. The Secretary of State's skeleton argument complains that the grounds are amorphous, wide-ranging and somewhat repetitive. But it does not address the grounds. It responds to what is described as ten themes which are said to be present in the grounds and skeleton argument. The four original grounds are:
a. Ground 1: The judge erred in declining to quash the Detention: Interim Instruction as a consequence of his finding that there had been breach of section 149 of the Equality Act 2010 and only granting declaratory relief.
b. Ground 2: The judge misdirected himself (at [137] – [139]) in concluding that fairness need not be stated explicitly in a Detained Asylum Casework policy, misconstrued the policy as "operationalising fairness to an extent" when there was a failure to publish the interim process map, and erred in rejecting the submission that the policy failed to meet the requirements of legal certainty and transparency.
c. Ground 3: The judge erred in law in finding (at [149] – [156]) that the consideration of asylum claims in detention under the DII/DAC is not inherently unfair. Its 11 sub-grounds relate to what are said to be errors by the judge as to the adequacy of the safeguards for identifying unsuitable cases for consideration within detention, and handling those of individuals in detention. The errors alleged relate to the submission that the judge accepted inclusionary criteria based on presumptions, failed to grapple with the absence of an opportunity to address the assumptions prior to an individual's inclusion in the DII process, failed to address the fact that the criteria used were not published or made explicit, lack of flexibility, and the impact of lawyers.
d. Ground 4: The above errors...
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