The Public and Commercial Services Union v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Mrs Justice Heather Williams |
| Judgment Date | 11 March 2022 |
| Neutral Citation | [2022] EWHC 517 (Admin) |
| Docket Number | Case Nos: CO/4338/2021 & CO/4366/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 517 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewis
Mrs Justice Heather Williams
Case Nos: CO/4338/2021 & CO/4366/2021
The Queen on the Application of
Chris Buttler QC, James Robottom & Katy Sheridan (instructed by Duncan Lewis Solicitors) for the Claimants in CO/4338/2021
James M Turner QC, Chris Buttler QC & James Robottom (instructed by Reed Smith LLP) for the Claimant in CO/4366/2021
David Blundell QC, Julia Smyth, Naomi Hart and Harriet Wakeman (instructed by Government Legal Department) for the Defendant
Hearing date: 25 February 2022
Approved Judgment
Lord Justice Lewis and
Introduction
This is the judgment of the court on two applications for permission to rely on expert evidence in claims for judicial review each of which challenge the lawfulness of the Secretary of State's tactical plan to redirect boats carrying migrants out of UK territorial waters and to induce them to return to France (“the Pushback Policy”). The Pushback Policy is contained in three documents, namely:
i) Policy Statement: Enforcement Operations at Sea Against Migrant Boats Through Use of a Tactical Plan to Redirect Boats out of UK Territorial Waters in the English Channel (“the Policy Statement”);
ii) Preventing small boats progressing through UK Territorial Waters-Guidance, version 1.0 (“the Guidance”); and
iii) Border Force Maritime Command (BFMC) Combined SOP for preventing small boats progressing through UK Territorial Waters, version 1.0 (“the SOP”).
The first application arises in a claim brought by the Public and Commercial Services Union (“PCSU”) and by Care 4 Calais (“C4C”). The PCSU is a trade union representing approximately 80% of Border Force officials responsible for maritime immigration enforcement in the English Channel. These officials will be charged with implementing the Pushback Policy. C4C is a charity that assists migrants who travel from France to the UK via the English Channel. In their Statement of Facts and Grounds, the PCSU and C4C sought permission to rely on a report dated 16 December 2021 prepared by Matthew Schanck, an expert on domestic and international maritime search and rescue.
The second application arises in a claim brought by Channel Rescue, an unincorporated association, concerned with the rescue of migrants at sea and monitoring enforcement actions taken in the English Channel. Channel Rescue applied in its Statement of Facts and Grounds for permission to rely on a report dated 20 December 2021 from Captain John Simpson, a Master Mariner and member of Lloyd's Panel of Special Casualty Representatives.
The defendant does not dispute that the authors of the reports are appropriately qualified and experienced in their fields. She does contend that the test for admission of expert evidence is not met in relation to any part of the two reports.
The hearing of the applications for permission to rely upon the expert evidence of Mr Schanck and Captain Simpson took place before us on 25 February 2022 and we reserved our decision. This is our judgment on the two applications to rely upon expert evidence. We stress that we express no view on the merits of either of the two claims (or on a third, linked claim where issues of expert evidence do not arise). We express no views on whether or not any of the grounds of challenge will be made out. This judgment is concerned solely with the question of the admission of expert evidence.
The issues
The applications depend on whether the expert evidence is reasonably required to resolve the proceedings. The starting point is to identify the issues raised by the claims and then to consider whether the expert evidence is reasonably required to resolve those issues.
PCSU and C4C
In their Amended Statement of Facts and Grounds, PCSU and C4C rely on two grounds of challenge, namely:
i) The Pushback Policy is ultra vires Part IIIA and Sch. 4A of the Immigration Act 1971 (as amended), which sets down a complete code for the Border Force's (“BF”) enforcement powers (“Ground 1”);
ii) Alternatively, the Pushback Policy directs or positively authorises action which will at least in some cases breach Articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and/or breach the statutory requirement that the power be exercised only where necessary and/or breach BF officials' common law duty of care (“Ground 2”).
The defendant's response is that:
i) The Pushback Policy is within the power to stop a ship conferred by para 2(2)(a) of Sch. 4A to the 1971 Act;
ii) Ground 2 constitutes an impermissible attempt to circumvent the fact that the claimants would be unable to show that they are “victims” within the meaning of section 7(1) of the Human Rights Act 1998 (“the 1998 Act”) and thus lack the necessary standing to advance claims under the Act that the defendant's policy is incompatible with Convention rights;
iii) Further or alternatively, as confirmed by the Supreme Court in R (A) v Secretary of State for the Home Department [2021] UKSC 37; [2021] 1 WLR 3931 (“ R (A) v SSHD”), the challenge to the Pushback Policy can only succeed if it is shown that the policy in question authorises or approves unlawful conduct by those to whom it is directed; and the terms of the Pushback Policy documents indicate this is not the case.
Channel Rescue
In its Amended Statement of Facts and Grounds, Channel Rescue relies on three grounds of challenge, namely that the Pushback Policy:
i) Is internally inconsistent and therefore irrational, in that it mandates compliance with international maritime law, but directs, encourages or permits BF officials to act in a manner that is incompatible with international maritime law (“Ground 1”);
ii) Directs, encourages or permits BF officials to breach the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 (“the 1996 Regulations”) (“Ground 2”);
iii) Directs, encourages or permits BF officials to act contrary to the ordinary practice of seamen and thereby contrary to implied limitations to the Immigration Act 1971 and/or the common law (“Ground 3”).
The defendant's response is that:
i) The Pushback Policy does not direct, encourage or permit BF officials to act in a manner incompatible with international maritime law. There is therefore no internal inconsistency or irrationality arising from the fact that the Policy Statement says that the Pushback tactic will be applied “only in compliance with all applicable international law”;
ii) The Pushback Policy does not direct, encourage or permit BF officials to breach the 1996 Regulations (which give domestic effect to the Convention on the International Regulations for Preventing Collisions at Sea 1972 (“COLREGs”)). The Pushback Policy does not allow for any breach of the COLREGs;
iii) Similarly, the Pushback Policy does not direct, encourage or permit breaches of the ordinary practice of seamen.
The Pushback Policy documents
We do not set out a comprehensive summary of the Pushback Policy documents, rather we will highlight passages that are particularly relevant to the submissions we heard as to the extent to which risks highlighted in the experts' reports are in fact acknowledged in these materials. That will be relevant to whether the expert evidence is reasonably required to identify the risks said to arise.
The Policy Statement says:
“4. These crossings are often dangerous. In addition to migrant injuries (hypothermia, dehydration) and several cases where boats have nearly sunk, there have been 9 confirmed migrant deaths by drowning (and a further 3 missing) since 2018, including children. Six of these deaths occurred towards the latter part of 2020, pointing to a significant upward trend and reflecting a dramatic increase in the risks being taken by the migrants and the organised crime groups (OCGs), as regards weather conditions and overloading of boats…As the attraction of this route continues to grow, so does the risk of further accidents and loss of life, particularly as many of the vessels are hardly seaworthy, they are crossing one of the busiest shipping lanes in the world, and the migrants on board are often without safety equipment or navigation experience…”
The SOP, dated 8 October 2021, summarises what is described as the current situation in section 2. Reference is made to the types of craft that are used and then statistics are given in relation to small boats intercepted by BF officials in 2021: over 74% contained children; 23% had someone on board with a medical condition; in only 21% of incidents were all migrants wearing lifejackets; in 95% of the cases the migrant vessel (“MV”) was assessed as being overloaded; and in only 5% of the interceptions were migrants said to be wearing appropriate clothes for sea travel. Section 2 says that the Dover Straits is dominated by an International Maritime Organisation TSS (a Traffic Separation Scheme) and it is “the busiest stretch of water in the World for shipping, the migrants are required to transit both French and then UK traffic lanes before reaching safer inshore waters” which are referred to as an “ITZ”, an Inshore Traffic Zone.
Section 3 of the SOP lists threats and risks that have been identified and which “need to be fully considered and where possible mitigated in relation to the developing tactical options, contingencies and decision making at the time”. The risks that are identified in a series of bullet...
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