The Secretary of State for the Home Department v SB (Afghanistan)
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon,The |
| Judgment Date | 16 February 2018 |
| Neutral Citation | [2018] EWCA Civ 215 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2017/2595 & 2596 & 2597 |
| Date | 16 February 2018 |
The Queen on the application of
[2018] EWCA Civ 215
THE RT HON THE Lord Burnett of Maldon,
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON Lord Justice Sales
and
THE RT HON Lord Justice Flaux
Case No: C4/2017/2595 & 2596 & 2597
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 MORRIS;
THE HON. MR JUSTICE JAY and
THE HON. MRS JUSTICE LANG DBE
JR/7689/2017
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Kellar and Duran Seddon (instructed by Government Legal Department) for the Appellant
Nathalie Lieven QC and Stephen Knight (instructed by Duncan Lewis Solicitors) for the Respondent
Hearing date: 30 January 2018
This is the judgment of the court.
This case concerns the grant of urgent interlocutory injunctions against the Secretary of State in relation to the removal from the United Kingdom of an asylum-seeker whose claim for asylum she has rejected but where new representations are made on the asylum-seeker's behalf at the eleventh hour, just before the removal.
SB is a national of Afghanistan whom the Secretary of State sought to remove to Afghanistan by way of a commercial flight to Istanbul and then a commercial flight from Istanbul to Kabul. This is an appeal by the Secretary of State in relation to interlocutory injunctive relief granted against her by three different judges at first instance, aimed first at preventing the removal of SB from Istanbul to Kabul and then, since that order was not implemented, aimed at securing his return to the UK. The Secretary of State says that the first order was not implemented because it was not received in time by her officials.
Pursuant to the latter orders, SB was returned first to Istanbul and then to the UK. So those orders have been executed. However, the Secretary of State says that none of the orders should have been made. The court is invited to give guidance regarding the proper approach to last minute representations on behalf of an asylum-seeker just before their removal and the principles to be applied by the courts in granting injunctive relief in such cases. The argument has proceeded before us on the footing that the issues are not purely academic.
Factual background
SB was born in 1994. He claims that during the US occupation of parts of Afghanistan he worked as a building contractor for the US forces. He says this led to his life being threatened by the Taliban, with the result that he fled the country.
SB arrived in the UK by lorry on about 26 November 2015 and claimed asylum. On 21 March 2016 the Secretary of State refused his claim for asylum.
SB appealed to the First-tier Tribunal (“FTT”), relying on the 1951 Refugee Convention and his rights under Article 2 (right to life), Article 3 (right not to be tortured) and Article 8 (right to respect for family and private life) of the European Convention on Human Rights (“ECHR”). In a decision promulgated on 10 October 2016, the FTT dismissed his appeal on all grounds. SB's version of events in Afghanistan was found not to be credible. He had only a limited family life in the UK with his father, who had come to the UK some years before he did, and it would be proportionate to remove him. The FTT found that “the only reason [SB] is in the UK is because of his father's disabilities and his inability to bring family members in via normal channels.” Permission to appeal to the Upper Tribunal was refused.
On 4 July 2017, SB was detained and served with a notice of a removal window, which stated:
“You will not be removed before 17.00 on 10/07/17. After this time and for up to 3 months you may be removed without further notice.”
At about this time, SB instructed his first firm of solicitors, ST Law Solicitors, who acted for him until September 2017. On 19 July 2017, ST Law Solicitors filed further representations with the Secretary of State to object to SB's removal and seeking his release from detention, relying on Article 8 and his relationship with his father and other relatives in the UK. In a decision letter dated 25 July 2017, the Secretary of State decided that these representations did not constitute a “fresh claim” under para. 353 of the Immigration Rules, so SB's removal could proceed.
On 16 August 2017, ST Law Solicitors filed another set of representations, again relying on Article 8 and submitting that SB had to look after his father in the UK, who was suffering from post-traumatic stress disorder and depression.
On 17 August 2017 the Secretary of State served removal directions for SB's removal from the UK on 26 August 2017. On 22 August 2017, SB commenced judicial review proceedings to challenge these directions (case no. JR/7131/17), again relying on Article 8 and the medical condition of his father.
By a further decision letter to ST Law Solicitors, dated 25 August 2017, the Secretary of State decided that the representations of 17 August 2017 did not amount to a “fresh claim” and that, by reference to Chapter 60 of her Enforcement Instructions and Guidance (“EIG”), there was no basis to stay SB's removal from the UK. The letter referred to the judicial review application JR/7131/2017. It included the following:
“You are aware that your client is liable for removal from the United Kingdom. Section 6 of Chapter 60 of the [EIG] sets out the instructions regarding whether Judicial Review applications present a barrier to removal when removal arrangements are in place. As your client's Judicial Review application was brought within the period of your removal window, it falls within the type of Judicial Review application which does not automatically defer removal.”
On 26 August 2017, the Secretary of State attempted to remove SB pursuant to the removal directions. SB resisted this and, in circumstances which we do not need to examine, the pilot of the aircraft due to fly to Istanbul refused to carry him. The removal was therefore aborted.
On 29 and 30 August 2017 there was significant press coverage of SB's aborted removal, including his name, photographs of him and statements that he feared being killed by the Taliban if returned to Afghanistan. This and subsequent press coverage of SB's case was later said to have given rise to a new sur place asylum claim by him.
On 7 September 2017, a charity called the Kent Refugee Asylum Network (“KRAN”) contacted a second firm of solicitors, Duncan Lewis, to ask if they would act for him. Duncan Lewis are the solicitors who have acted for SB in the present proceedings. Duncan Lewis told KRAN that they could not do anything for SB until 11 September 2017, when Mr Jamie Bell of that firm would return from annual leave and would be available to act. Duncan Lewis commenced acting for SB on 11 September 2017.
Meanwhile, on 8 September 2017 a journalist (possibly acting at the suggestion of KRAN) provided four documents to the Secretary of State which purported to come from Afghan government ministries and to acknowledge that SB had worked as a contractor for the US military (“the new documents”), in support of SB's asylum claim based on Article 2 and Article 3 of the ECHR. These were forwarded to the Foreign & Commonwealth Office (“FCO”), which on 10 September 2017 confirmed by letter, having made enquiries with the Afghan government, that the new documents were clearly forgeries.
The events of 12 September 2017 are important. Early in the morning SB was notified that he was to be removed on a Turkish Airlines flight to Istanbul at 11.30 am that day, for onward transit to Kabul. At 8.10 am a member of KRAN contacted Mr Bell to inform him of this development. Mr Bell could not speak direct to SB, as SB's mobile telephone had been taken from him. Mr Bell had to work fast to try to stop his removal, but unfortunately Duncan Lewis's IT systems were down for an hour or so when he got to his office. He was only able to email the Secretary of State at about 10.20 am, notifying her that Duncan Lewis were now the solicitors firm acting for SB and asking for details of the flight. There was no immediate response, but Mr Bell was able to work out which flight that morning was likely to be relevant. Mr Bell quickly worked up a set of representations and emailed them to the Secretary of State's National Removal Command office at 11.19 am. The new documents were appended to the representations, which maintained that they meant that the “fresh claim” threshold under para. 353 of the Immigration Rules had been met in relation to SB's asylum claim. The representations also referred to the coverage of SB's case, both in the press and on the BBC's Persian language TV service, and maintained that this gave rise to a sur place asylum claim, because it was likely to bring him to the attention of the Taliban.
Meanwhile, the Secretary of State's Operational Support and Certification Unit (“OSCU”) had been considering the representations made on SB's behalf by the journalist on 8 September 2017, together with the new documents submitted in support, and at 11.29 am on 12 September 2017 a decision letter was sent to Duncan Lewis. This decision letter rejected the suggestion that these materials gave rise to a fresh claim for the purposes of para. 353 of the Immigration Rules and indicated that SB's removal would not be halted. The letter indicated that the new documents were forgeries. It also stated that, regardless of whether they were authentic or not, “there is nothing in them to indicate that the authorities in Kabul would not be able to protect your client, or that he would not be able to relocate to a different part of Kabul to avoid any threat against him.” (The decision letter gave the...
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