Upper Tribunal (Immigration and asylum chamber), 2024-02-08, JR-2022-LON-002069
| Appeal Number | JR-2022-LON-002069 |
| Hearing Date | 23 January 2024 |
| Date | 08 February 2024 |
| Published date | 12 February 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
IN THE UPPER TRIBUNAL Case No: JR-2022-LON-002069
(IMMIGRATION AND ASYLUM CHAMBER)
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
B E T W E E N :
THE KING
(on the application of Amena El-Ashkar) Applicant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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ORDER
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TUESDAY 30 JANUARY 2024
BEFORE THE HONOURABLE MRS JUSTICE STEYN DBE
UPON HEARING COUNSEL for the Applicant and for the Respondent
AND UPON the Respondent applying to withdraw the undertakings that were given to the Tribunal and recorded in the second and third recitals of the Tribunal’s order of 30 March 2023
AND UPON the Applicant and the Respondent agreeing, in consequence of the operative provisions of the present order as set out below, that:
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By Tuesday 20 February 2024 the Applicant may (if so advised) make further submissions to the Respondent concerning her application for a student visa;
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By Tuesday 12 March 2024 the Respondent will reconsider that application and make a fresh decision on whether or not to grant the Applicant a visa and notify the Applicant (either directly or through her solicitors) of the fresh decision; and
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These dates and periods may be varied by mutual agreement between the Applicant and the Respondent without the need for the Tribunal’s prior endorsement.
IT IS ORDERED THAT:
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The Respondent has permission to withdraw the undertakings that were given to the Tribunal and recorded in the second and third recitals of the Tribunal’s order of 30 March 2023, and that order is accordingly varied by deleting the second and third recitals.
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Paragraph 2 of the Tribunal’s order of 30 March 2023 is varied by substituting the following, namely: “The Respondent shall pay the Applicant’s reasonable costs of this application for judicial review, to be assessed on the indemnity basis if not agreed.”
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The Respondent shall further pay the Applicant’s reasonable costs in relation to consequential matters arising following the settlement of these proceedings, including the costs of correspondence in respect of the undertakings and the costs of responding to the present application, to be assessed on the indemnity basis if not agreed.
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There shall be a detailed assessment of the Applicant’s publicly-funded costs in accordance with the Civil Legal Aid (Costs) Regulations 2013.
Case No: JR-2022-LON-002069
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
30 January 2024
Before:
MRS JUSTICE STEYN DBE
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Between:
THE KING
on the application of
Amena El-Ashkar
(NO ANONYMITY DIRECTION MADE)
Applicant
- and -
Secretary of State for the Home Department
Respondent
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Jason Pobjoy and Rayan Fakhoury (instructed by Gold Jennings) for the applicant
Robin Tam KC and Karl Laird (instructed by Government Legal Department) for the respondent
Hearing date: 23 January 2024
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J U D G M E N T
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Mrs Justice Steyn DBE:
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Introduction
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This judgment addresses an application by the Secretary of State to withdraw undertakings provided to the Upper Tribunal, of which the Secretary of State is in breach, and a number of other issues arising as a result of the Secretary of State’s seriously flawed conduct of these proceedings. Although I am considering the Secretary of State’s application, references in this judgment to “the Applicant” denote Ms El-Ashkar, who is the applicant in the proceedings.
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The issues are identified in the Tribunal’s order of 28 September 2023, and endorsed by the parties in a Joint Position Statement filed pursuant to that order, as follows:
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The consequences of the Secretary of State’s breaches of the undertakings provided to the Tribunal and recorded in the consent order sealed on 30 March 2023;
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The Secretary of State’s application to withdraw those undertakings, including consideration of whether it would be appropriate to transfer this case to the High Court to enable any appropriate application to be made by the Secretary of State for a closed material procedure declaration pursuant to section 6 of the Justice and Security Act 2013 for the purposes of determining whether [he] should be permitted to withdraw the undertakings.
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The consequences of the withdrawal of those undertakings, should that application be granted;
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Whether the Secretary of State has breached his duty of candour; and
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Costs.
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The Joint Position Statement (‘JPS’) records:
“Secretary of State’s errors
3. The parties are agreed that the Secretary of State made the following nine errors in relation to the conduct of these proceedings:
3.1 Delay in certification of the September Decision;
3.2 Failure to notify the Applicant or the Upper Tribunal of the certification decision;
3.3 Provision of an undertaking with which the Secretary of State should have known [he] could not comply;
3.4 Positive visa decision made ‘in error’;
3.5 Revocation decision made on purported basis of ‘a change in circumstances’;
3.6 False statement in relation to service of refusal notice;
3.7 Breach of undertaking to provide a gist;
3.8 Breach of undertaking to make a fresh decision within 2 months; and
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Failure to admit non-compliance with undertakings.”
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The Secretary of State acknowledges that the list of errors is long and mutually exacerbating; the errors, for which there is no excuse, are serious. This description is apt. The handling of this case from September 2022 until July 2023 was shockingly poor. This has had a detrimental impact on the Applicant. The result is also that the Tribunal is seised of the question whether to initiate proceedings for contempt against the Secretary of State for his admitted breach of undertakings given to the Tribunal in a sealed order. That is a grave situation for the Secretary of State to find himself in. The responsibility for the mishandling of this case lies primarily with the Secretary of State, but also to an extent with the Government Legal Department (‘GLD’).
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The Secretary of State has given an unqualified and unreserved apology to the Applicant and to the Tribunal for this litany of serious errors. This apology has been given both in writing (in evidence submitted on behalf of the Secretary of State and on behalf of GLD), as well as orally at the outset of the hearing (through leading Counsel for the Secretary of State, Mr Robin Tam KC).
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I shall explain further below the nature of these errors, and how they occurred, before dealing with each of the identified issues. The Secretary of State relies on witness statements made by Doug McLellan, a civil servant working at the Home Office in the role of Deputy Director of Appeals, Litigation and Administrative Review (‘ALAR’), dated 11 August 2023 (‘McLellan 1) and 5 September 2023 (‘McLellan 2’); and by James McVeigh, a senior lawyer in the Home Office Immigration Team 4 (‘HOI4’) of the Government Legal Department, who leads a mini-team of three lawyers and one trainee solicitor in HOI4 (‘McVeigh 1’). The Applicant submitted a third witness statement explaining the impact on her of the Respondent’s conduct, dated 25 August 2023 (‘El Ashkar 3’).
The facts
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The Applicant describes herself as a stateless Palestinian academic and journalist based in Lebanon. In August 2019 she was awarded the Foreign, Commonwealth and Development Office’s Chevening scholarship, which enabled her to study for a master’s degree at the School of Oriental and African Studies (‘SOAS’). She successfully completed that degree and then returned to Lebanon.
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In April 2021 the Applicant was awarded a full scholarship to study for a PhD in International Relations at the London School of Economics (LSE). On 9 October 2021 she submitted an application for a student visa to enable her to attend LSE. While she was waiting for that application to be determined, she was initially able to begin her PhD at LSE by attending remotely, due to the rules concerning Covid-19 that were in place at that time. However, LSE required the Applicant to attend in person from April 2022. Towards the end of February 2022 the Applicant withdrew her student visa application, which had not yet been determined, as her passport was due to expire and she needed to renew it. The Applicant agreed an “interruption” to her studies with LSE until January 2023.
On 20 August 2022, the Applicant submitted a further application for a student visa to enable her to continue her PhD at LSE. Mr McLellan states that the application was “subject to a standard suite of checks”, which identified the need to obtain advice from the Special Cases Unit (‘SCU’) of the Homeland Security Group within the Home Office (McLellan 1 §9, McLellan 2 §4). SCU “conducted a non-conducive assessment to...
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