The Queen (on the application of Abdul Hameed and Rashida Jabeen) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Lord Justice Singh,Sir Jack Beatson |
| Judgment Date | 18 March 2019 |
| Neutral Citation | [2019] EWCA Civ 456 |
| Docket Number | Case No: C4/2016/2999 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 March 2019 |
[2019] EWCA Civ 456
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HH JUDGE ANTHONY THORNTON QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Lord Justice Singh
and
Sir Jack Beatson
Case No: C4/2016/2999
Mr Robin Tam QC and Ms Julie Anderson (instructed by Government Legal Department) for the Appellant
Mr Gordon Lee (instructed by Duncan Lewis) for the Respondents
Hearing date: 6th March 2019
Approved Judgment
Introduction
This appeal relates to the Asylum and Immigration (Fast Track Procedure) Rules 2005 (“the 2005 Rules”) and to the circumstances in which the respondents were detained at Yarl's Wood IRC pending disposal of their appeals under the Detained Fast Track (“DFT”) process between 9 July 2013 and 22 October 2013.
The judge, HHJ Anthony Thornton QC sitting in the Administrative Court, by judgment handed down on 7 July 2016, among other things declared the 2005 Rules to be unlawful; declared the respondents' detention between 9 July 2013 and 22 October 2013 to have been unlawful; and awarded the respondents substantial damages in respect of such detention, with quantum to be assessed in the County Court if not agreed.
It has to be said that the judgment was, unfortunately, produced in circumstances of unsatisfactory overall delay (over 18 months after the hearing date of 15 December 2014). Further, it was produced in, on any view, unsatisfactory procedural circumstances: the judge's reasoning being primarily based on decisions reported after the hearing, without any further oral hearing being directed.
Although one ground of the appeal of the appellant Secretary of State is based on assertions of the procedural unfairness involved, the oral arguments before us were, pragmatically, focused on the substance of the judge's actual reasoning and conclusions. It is said on behalf of the Secretary of State that the judgment is unsustainable and cannot stand. On behalf of the respondents, on the other hand, while it is frankly acknowledged that aspects of the judgment were and are “problematic”, it is said that the conclusions reached as to wrongful detention can, at all events for the most part, be sustained.
Before us the Secretary of State was represented by Mr Robin Tam QC and Ms Julie Anderson, neither of whom had appeared below. The respondents were represented before us by Mr Gordon Lee, who had appeared below. I would like to place on record that the respective arguments advanced to us were excellent.
Factual Background
I will set out the factual background relatively shortly.
The respondents (whom I will style respectively as AH and RJ) are husband and wife. They both were born in Pakistan: AH was born in 1952 and RJ in 1955. They were married in Pakistan in 1980. It was in due course accepted that they at all times were and are of the Ahmadi faith. As is widely known, there has been significant discrimination against and persecution of Ahmadis in Pakistan.
Although initially based in Karachi, AH thereafter, from around 1989 to 2013, worked in various posts in Saudi Arabia, returning from time to time to Pakistan for family visits. For part of that time RJ remained in Pakistan with the children of the marriage but in 2007 she went to live with AH in Saudi Arabia. When his employment ended in Saudi Arabia they returned to Pakistan on 16 June 2013. On 9 July 2013 they then left Pakistan for the United Kingdom, having valid visitor visas (it appears that they had in fact on previous occasions visited the United Kingdom with valid visas and had on those occasions left in compliance with the visas). On arrival, AH immediately claimed asylum. He did so on the footing of a claimed risk of persecution in Pakistan by reason of his Ahmadi faith. RJ was treated as his dependant. They were both immediately detained and placed in Yarl's Wood IRC. Their cases were assessed as being suitable for the DFT process then extant.
The DFT proceedings
AH was substantively interviewed on 19 July 2013. RJ herself claimed asylum on that date. She was then substantively interviewed on 22 July 2013. They by this time had experienced solicitors acting for them.
By very detailed decision letters of 24 July 2013 the Secretary of State rejected their claims for asylum. It was accepted that they were of the Ahmadi faith. However, aspects of their accounts – for example, assertions of actual threats and persecution by Mulvis and others – were rejected as not credible or reliable. It was noted that, for example, RJ had lived in Pakistan until 2007 without persecution; and that both had from time to time returned from Saudi Arabia to Pakistan without apparent problem. It was not accepted that AH would have been targeted in Pakistan on his return in June 2013 because of his alleged prominent role in the Ahmadi community in Saudi Arabia. Consideration was given to the guidance set out in the Upper Tribunal decision of MN and others (Ahmadis) Pakistan CG [2012] UKUT 00389 (IAC) in refusing the claims. Representations to the effect that their cases should be removed from the DFT process were also rejected by those decision letters.
They thus remained in detention.
On 26 July 2013 they appealed. On 29 July 2013 they applied for removal of their cases from the DFT process and for an adjournment of the proceedings. It was among other things said (as it previously had been said to the Secretary of State) that further evidence was needed, including translations of documents. That application was refused by a First-tier Tribunal judge (Judge Appleyard) on 30 July 2013.
The appeals were heard in the First-tier Tribunal on 2 August 2013. The respondents continued to be legally represented. A further application was made on that occasion to remove their cases from the DFT process and for an adjournment. That was rejected. Both then gave oral evidence through an interpreter. They also produced various documents in support of their claims.
The determination of the First-tier Tribunal judge (Judge Herlihy) was promulgated on 5 August 2013. It extended to 67 paragraphs. It is demonstrably a careful and thorough determination.
The evidence was fully summarised in the determination as were the objective evidence materials, including the country guidance case of MN (Ahmadis). There was a detailed review of the competing submissions. Full reasons were given by the judge to explain the refusal to adjourn (it being noted that it was by now accepted by the Secretary of State that AH had indeed been involved with Ahmadi organisations in Saudi Arabia). Having considered the evidence, the judge made adverse credibility findings. The judge, for example, rejected as not credible the respondents' assertions that they had been threatened in Saudi Arabia (causing them to leave) and then threatened again in Pakistan on their return in June 2013. The judge also found that they had not openly practised or manifested their faith in public; nor had they experienced any problems in the practice of their Ahmadi faith. Accordingly, the claim to asylum, and related claims, were rejected.
Permission to appeal was thereafter refused by the First-tier Tribunal but was granted by the Upper Tribunal on 13 August 2013. On 19 August 2013 a bail application was lodged; but it was withdrawn on 21 August 2013, the day of the appeal hearing in the Upper Tribunal. By determination promulgated on 6 September 2013, the Upper Tribunal judge (Judge Clive Lane) dismissed the appeals. He upheld the decision of Judge Herlihy to refuse to remove the case from the DFT process and to adjourn. He also found no error of law in the judge's appraisal of the evidence and application of the country guidance.
An application for permission to the Court of Appeal was then made. That was refused by the Upper Tribunal. Application was then made to the Court of Appeal itself for permission to appeal. In the event, and following the issue of judicial review proceedings on 21 October 2013, bail was then granted to the respondents on 22 October 2013: by which time AH and RJ had been in detention for 106 days.
On 30 October 2013, Sullivan LJ granted permission to appeal on the papers. He took the view that an appeal had a real prospect of success. In his remarks he among other things said: “this is a troubling case”. In the result, there was no substantive appeal: because on 27 January 2014 the Secretary of State granted asylum to AH and RJ, with (an initial) five years leave to remain. The reasons given included acceptance of further information since submitted by the Ahmadi Association as to AH's activities in Saudi Arabia. It was concluded that it was not reasonable to expect the respondents to compromise their beliefs by disengaging from their activities with regard to the Ahmadi faith. In consequence, the appeal to the Court of Appeal was (by consent) on 28 April 2014 allowed: it had become academic.
The DFT process and the DA litigation
It is convenient here to say something about the DFT process.
It is important at the outset to note three particular points:
(1) First, the administrative power to detain asylum seekers (and others), pending a decision to give or refuse leave to enter, is conferred by statute: see, for present purposes, paragraph 16 of Schedule 2 to the Immigration Act 1971. Such a power is not of itself in any way required to be linked to use of a DFT process.
(2) Second, there is no objection in principle to use of a fast track process in such a context, albeit appropriate safeguards needed to be in place...
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PN v The Secretary of State for the Home Department
...of Davis L.J at paragraph 49 of the decision of the Court of Appeal in R (Hameed) v Secretary of State for the Home Department [2019] EWCA Civ 456. Discussion 65 The 2005 Rules, and the successor rules, the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 201......