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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> TN (Vietnam) & US (Pakistan), R (On the Applications Of) v Secretary of State for the Home Department & Anor (Rev 1) [2017] EWHC 59 (Admin) (20 January 2017) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2017/59.html Cite as: [2017] 1 WLR 2595, [2017] WLR(D) 46, [2017] WLR 2595, [2017] EWHC 59 (Admin), [2017] 4 All ER 399 |
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CO/4104/2015 |
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| THE QUEEN |
||
| On the application of TN (VIETNAM) |
1st Claimant |
|
| On the application of US (PAKISTAN) |
2nd Claimant |
|
| and |
||
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendant |
|
| and |
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| THE LORD CHANCELLOR |
Second Defendant |
____________________
Ms Stephanie Harrison QC and Ms Louise Hooper (instructed by Messrs Duncan Lewis) for the Second Claimant
Mr Robin Tam QC, Ms Natasha Barnes , Ms Belinda McRae (instructed by the Government Legal
Department)
for the First Defendant
Ms Julie Anderson (instructed by the Government Legal
Department)
for the Second Defendant
Hearing dates: 11-14 October 2016
____________________
Crown Copyright ©
MR JUSTICE OUSELEY :
detained
fast
track system for the determination of asylum claims and appeals.
Detention
Action
v
Secretary
of State for the
Home
Department
[2014] EWHC 2245, referred to in these proceedings as DA1. DA2 is my judgment on consequential orders. The earliest cases had been concerned with the lawfulness of
detention
for
fast
track decisions on asylum claims by the
Secretary
of State for the
Home
Department,
SSHD. The appeal system was not then involved. Its introduction to the DFT is described in paragraphs 53-54 of DA1. The Immigration and Asylum Appeals (
Fast
Track Procedure) Rules 2003 were introduced.
Fast
Track Procedure) Rules 2005 SI 2005 No 560 were promulgated, the 2005 FTR. These covered appeals, and remained in force until 20 October 2014 when the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2014 No.2604, the 2014 Rules came into force. The new
Fast
Track Rules, the 2014 FTR, were in the Schedule to the 2014 Rules, which also contained the Principal Rules,.
detained
fast
track. The 2005 FTR were not the subject of that challenge, and were not directly argued to be unfair or unlawful. I found that the operation of the system up to the start of the appeal stage was unlawful, because unfair, in a number of respects.
Detention
Action
in R (
Detention
Action)
v First-tier and Upper Tribunals (Immigration and Asylum Chambers), Lord Chancellor and SSHD [2015] EWCA Civ 840, [2015] 1 WLR 5341, DA6, as it was called before me. On 29 July 2015, the Court of Appeal dismissed the Lord Chancellor's appeal against the Order of Nicol J dated 16 June 2015 in DA5, [2015] EWHC 1689 (Admin) declaring that the 2014 FTR and related Tribunal Procedure (Upper Tribunal) Procedure Rules 2008 were ultra vires. They were quashed. Permission to appeal to the Supreme Court was refused.
Home
Office letter of September 2015, referring to the President's draft letter, gave appellants 14 days to notify it that an application had been made, after which, in the absence of such an application, removal steps would be taken. It invited those who had brought judicial review proceedings based on the unlawfulness of the 2014 FTR to use R32 instead. Mr Tam QC for the SSHD explained that the SSHD had not taken issue with the FtT President's ruling for essentially practical reasons related to the number of appeals affected, and their comparative recentness, though the SSHD had concerns about it.
Fast
Track Rules. On 11 January 2016, Mr Clements promulgated a ruling that 50 applications to set aside decisions reached under the 2005 FTR should be adjourned while the Administrative Court ruled on the lawfulness or otherwise of the 2005 FTR. Both Claimants are among the applicants to the FtT. One factor was that the FtT, unlike the Administrative Court, could make no general declaration that the FTR were ultra vires, but would have to rule on the lawfulness of the Rules by way of individual applications.
Were the 2005
Fast
Track Rules ultra vires?
"45. To summarise, in my view the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases. For the reasons that I have given, the safeguards on which the SSHD and the Lord Chancellor rely do not provide a sufficient answer. The system is therefore structurally unfair and unjust. The scheme does not adequately take account of the complexity and difficult of many asylum appeals, the gravity of the issues that are raised by them and the measure of the task that faces legal representatives in taking instructions from their clients who are indetention.
It seems to me that some relaxation of the time limits is necessary, but it is not for the court to prescribe what is required to remedy the problem. A lawful scheme must, however, properly take into account the factors to which I have referred, whilst, I acknowledge, giving effect to the entirely proper aim of processing asylum appeals as quickly as possible consistently with fairness and justice."
fast
track appeal system presented to Nicol J and to the Court of Appeal in DA5 and 6 was drawn from the more recent operation of the system under the 2005 FTR. There was no suggestion that, in the recent years to which that evidence related at any rate, there was any significant difference between the way the appeal system operated under the 2005 and the 2014 FTRs. The further evidence before me was not designed to show that.
detained
fast
track system operated up to the receipt of the adverse SSHD decision. Its attention was focused on the appeal system, from receipt of the adverse decision of the SSHD, the process governed by the FTR at issue.
detained
fast
track more generally. Safeguards were present, and I should not
depart
from observations I had made in DA1 on the vires of the 2005 FTR. He did not challenge directly the principles applied by the Court. He, however, contended that its factual views were not binding, and that the 2005 FTR were not structurally unfair. He also pointed out that the
detained
fast
track had developed while the 2005 FTR were in force, such that a conclusion that the FTR operated unfairly and unlawfully at one point in time could not mean that they always operated in that manner; for example the number of appeals under the FTR in 2013 was nearly twice that in 2007, and was three times higher, as a percentage of total asylum appeals.
detained
fast
track processes up to the stage of the SSHD's decision on the claim, because the removal of an individual at that stage from the
detained
fast
track made it more likely that those remaining, whose appeals were heard under the FTR, were dealt with fairly within those timescales. He also presented statistics about the way in which the safeguards had operated, taking issue with the applicability of the Court of Appeal's conclusions on the operation of the 2014 FTR to the operation of the 2005 FTR.
Detained
Fast
Track, comparing the operation of the two sets of Rules, and stating that the evidence for the whole period 2005-2014 was incomplete. The complexity of cases within the 2005 FTR had varied over the years. For much of the time when the FTR 2005 were in operation, the case load was much smaller than towards the end, so there was less pressure on the lawyers, and the timetable up to the SSHD's decision would have given appellants longer overall to prepare their cases. There was evidence that the time between decision and appeal was usually greater under both FTRs than the FTRs specified. The evidence however also showed that the percentage of appeals transferred out or adjourned was lower under the 2005 FTR, and a lower percentage were adjourned before the hearing. The adjournments were for 12 -14 days, (average - median). Ms Ghelani, solicitor at Migrants' Law Project, took issue with how much of this was really new, or presented a full picture anyway.
fast
track, as supporting his contention that I should not feel bound in relation to the 2005 FTR by what the Court of Appeal had decided in relation to the 2014 FTR, especially in the light of this further evidence. The Court of Appeal did not mention the earlier filtering processes or that 25 per cent of the 960 cases heard during the operation of the 2014 FTR were adjourned or transferred out, and 25 percent of that 25 percent were so dealt with before the day of the hearing; the rest, which amounted to over 18 percent of all FTR appeals, were adjourned or transferred out on the day of the hearing. It was doubtful if the Court had fully appreciated the facts, particularly in the light of the argument, which it accepted, that it was unfair to have to apply for an adjournment or transfer out, on the day of the appeal, to the judge who would then hear the appeal, if the adjournment application were unsuccessful. It could not therefore be said that the 2005 FTR were so unfair throughout their lifetime that they were ultra vires, simply because the 2014 FTR were. On the contrary, the FTR should be found to have operated fairly on the evidence.
fast
track appeal system under the 2005 FTR. Indeed, very little related to the operation of the 2014 FTR. Second, the topics covered by the data before the Court of Appeal relate to the issues it considered. The data before me but not before the Court of Appeal, which also includes data before me for DA1, also relates to those same issues. It covers different periods of operation, though much is related to the more recent years, and the data does not purport to be a complete data set for the topics to which it relates. It does cover, albeit in different form or time frame, the same points as were before the Court of Appeal in terms of numbers of cases, appeals, adjournments and transfers out by Tribunal decision. Third, the material which appears to be additional before me covers the numbers released from the
detained
fast
track before the appeal process for certain periods (from DA1), the mean and median times between the adverse SSHD decision and appeal, excluding adjournments, aimed at showing that these were longer than the FTR required and so that the FTR operated more flexibly than understood by the Court of Appeal, the duration of the adjournments, as set out above, the total number adjourned or transferred out of the
detained
fast
track, as set out above, the number of cases adjourned before and on the day of the hearing, as set out above. Fourth, the Schedule highlights how limited were the references to the data in oral argument before the Court of Appeal, though there were references to the data on adjournments and transfer out, and, on various points, to DA1. But clearly more had been read than was referred to.
detained
fast
track. The types of claim, and the nature of the individuals did not change. The new evidence did not show that the percentages of adjournments and transfers out was higher under the 2005 FTR; in fact they were higher under the 2014 FTR. The evidence before the Court of Appeal was that only a very small percentage of cases were adjourned on a paper consideration before the hearing. I accept her points.
detention
after an adverse decision, as set out by Ms Ghelani; [20-21]. None of that was controversial. The Court understood, at least from judicial experience, what the appeals could involve by way of complexity and credibility and, though there may have been evidence as well, again that is not controversial; [19 and 37]. It had in mind the contrast with the Principal Rules, the fairness of which was not disputed.
Secretary
of State. Lord Dyson added [30] that the question was "whether there is systemic or structural unfairness inherent in the FTR such as to render them ultra vires." This involved an examination of the FTR in the context in which they operate, but not an examination of their practical operation. For this purpose, it used the principles in [27], the essence of which was whether the unfairness was inherent in the system itself, and took as the "core question" whether the system had the flexibility to react appropriately to ensure fairness. The context, summarised above and in [38], led to the conclusion that the timetable was "so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases under the FTR regime." This was so notwithstanding the acceptance by the Court, [38], that the tribunal judges were independent and impartial specialists.
fast
track, (ii) the problem that this process would require the gaps in the evidence to be identified, but if unsuccessful, the appellant would then have to say that he could nonetheless succeed, (which would show that there was no need to take it out of the
fast
track); (iii) there would be a momentum in favour of carrying on, on the day of the hearing; and (iv) FtT judges in the
fast
track would know that routine transfers out could lead to a breach of the rules giving them "responsibility for ensuring that proceedings before the Tribunal are handled quickly and efficiently."
detention,
the issues which arise on appeals, the tight timetable, and its judgment, in that general context, of the inadequacy of the safeguards to provide sufficient systemic flexibility. Its view of that inadequacy is not based on percentages of cases adjourned or transferred, leading to a view that a qualitative judgment about effectiveness and systemic fairness could be derived from a given percentage. Its view was simply that a significant number of cases were treated unfairly. No percentage of adjournments or transfers out could disprove that.
fast
track if the case could not be decided justly within it. This was indeed one of the grounds upon which the SSHD unsuccessfully sought permission to appeal to the Supreme Court, which found that the appeal had no reasonable prospects of success. This argument is a misreading of the Court of Appeal's decision. It did not make the finding that Mr Tam attributed to it, and had it done so I would have been surprised if the Supreme Court had regarded an appeal as lacking reasonable prospects of success. It expressly found, [38], the FtT judges to be independent, impartial and specialist. But the passage continues: "…who can usually be trusted to get the right answer on the basis of the material that is presented to them. I am also sure that they do their best to comply with the overriding objective of dealing with appeals justly." The italicisation is Lord Dyson's. His point at that stage was that the tight timetable prevented them having material which enabled the appellant to present his case fairly. So the injustice was not down to them but to the tight timetable. When he considered the operation of Rule 12, its limitation was inherent in the terms of the Rule itself. Rule 14 failed as a safeguard, not because, contrary to what he said in [38] the judges were not doing what they thought was just, but because the system of the FTR created unfairness to the appellant in presenting the very case for transfer, and conflicting objectives would impede regular transfer out. The expectation of the Rules was that the time limits would be observed. I cannot regard that as a suggestion that the judges did not do their duty; it was rather that the Rules, by objective and content, created a strong bias or presumption in favour of keeping the case in the
fast
track.
fast
track process, or at least not to help them. It was not explicitly argued that the FTR were ultra vires, but the FTR were criticised for unfairness, and the absence of a Case Management Review Hearing was highlighted. The argument about the FTR could easily imply a vires attack, rather than simply an argument about the absence of a corrective mechanism. I concluded that I should therefore comment on the vires, and the extent to which I thought that the difference between the FTR and Principal Rules created unlawful unfairness in the whole process, rather than imply that I thought there was a vires point missed by the Claimant. But my comment cannot be persuasive to me in the light of the judgment of the Court of Appeal, even were its decision not strictly binding on me.
Should a declaration be made to that effect?
detention.
It did not matter that a claimant was out of time to challenge the original appeal.
detained
fast
track system.
Fast
Track appeal decision. Underhill LJ commented that setting aside an appeal decision appeared to be for the FtT. The SSHD argued before him, unsuccessfully, that permission should be refused on the grounds that the challenge to the asylum appeal decision was out of time. Accordingly, part of TN's argument which now has to be considered, is that the later decisions are unlawful because the appeal decision was of no effect, because the FTR 2005 were ultra vires. Although she was out of time to bring a direct challenge to the FTR 2005 and the appeal decision under it, as I read his decisions, Underhill LJ formulated and then permitted the claim as including a direct challenge to both the FTR and the appeal decision, as well as to the later decisions both on the grounds of the invalidity of the appeal decision and on the straightforward application of the test in WM (DRC) v SSHD [2006] EWCA Civ 1495.
detention.
On 9 December 2015, he made an application to the FtT to have his appeal decision set aside on the grounds that the 2005 FTR were ultra vires.
detained
fast
track process at all, and that, in any event, all the subsequent SSHD decisions refusing to treat further representations as fresh claims were unlawful, (23 June, 10 and 14 July, 8 August, 5 September 2014 and 29 November 2015), both because of their dependence on the unlawful appeal decision and in any event because they should at least have been recognised as fresh claims, even if refused.
The consequences of the declaration
detention.
fast
track decisions of the FtT would not have been inevitable nullities; the FTR did not confer jurisdiction. I do not accept Ms Lieven's argument that the Rules were in some way so bound up with the power to decide appeals that all appeals purportedly made under the 2005 FTR were made without jurisdiction.
detained
fast
track appeals, and plainly they were not. But if those Rules applied but were not followed, as would have always been the case, there would have been breaches of the Rules, procedural irregularities, but no necessary nullification of the appeal decisions for want of jurisdiction.
Secretary
of State for the Environment [1981] AC 75, p93B-C and 94H -95B. The procedures were therefore left to the discretion of the minister or person holding the inquiry. Of course, the analogy between that sort of inquiry and an appeal against an immigration decision is limited, but the question of jurisdiction in the absence of the Rules is much closer. Jurisdiction was never doubted in Bushell in the House of Lords, although the absence of rules was a frequent matter of controversy at such inquiries.
Secretary
of State for Communities and Local Government [2015] EWHC 3934 (Admin), Cranston J is of assistance on this aspect, although the context is quite different. The
Secretary
of State had exercised his powers to recover for his own decision various traveller appeals relating to the development of caravan sites in the Green Belt; this had been held to be unlawful on race discrimination grounds. But the decisions he reached on the appeals themselves stood, as he still had jurisdiction to determine them. He had not parted with jurisdiction when originally permitting Inspectors to reach the decision, and remained a lawful decision maker, despite his unlawful recovery decision. This turned on the statutory scheme; appeals are always appeals to the
Secretary
of State and his determination of the appeals was a return, [74], to the "primary statutory locus for the determination of such appeals." Here, the FtT is the sole statutory locus for the determination of appeals, and does not occupy that place by virtue of Rules.
fast
track appeals were unfair. It held that a significant number or proportion were. It did not decide whether that was a majority or not; it did not need to do so. The "significant number" for the Court of Appeal was whether it was sufficient to make the FTR 2014 ultra vires. Whether the Court thought that that was in fact a large proportion or not, it would not have taken many unfair appeals occasioned by the provisions of the Rules for them to be ultra vires, since it is difficult to envisage lawful Rules which provide, systemically, for unfair appeals even on a handful of occasions.
"I accept the reality that an unlawful byelaw is a fact and that it may in certain circumstances have legal consequences. The best explanation that I have seen is by Dr Forsyth who summarised the position as follows in 'The Metaphysics of Nullity, Invalidity, Conceptual Reasoning and the Rule of Law', [in C. Forsyth & C. Hare, The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade (1998)] at p.159:
"It has been argued that unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void.'"
"68. In light of these authorities, the law appears to be this. Unlawful administrative acts are a nullity, but they are presumed to be valid until the court rules otherwise. Once the court declares them to unlawful it is confirming that they have been unlawful from the outset, in other words, that they are void, not voidable. There is the practical problem, that parties may have taken subsequentaction
assuming these unlawful acts to be valid. If they are a nullity, subsequent acts taken on the strength of them are also a nullity. The result might be administrative chaos or even political crisis if a myriad of subsequent acts are void.
69. To avoid the domino effect that all subsequent acts are also a nullity, various solutions have been posited. One is that in some cases judicial rulings should be given prospective force only. That approach did not attract the support of the House of Lords in R v Governor of Brockhill Prison Ex p. Evans (no. 2) [2001] 2 A.C.19. A second favoured by Professor Paul Craig (Administrative Law, 7th edn (2011)), para. 24-22, is that the court in its discretion may withhold a quashing remedy. Yet there is high authority that, generally speaking, a party succeeding in a judicial review will be entitled to relief.
70. Thirdly, there is Professor Forsyth's conceptual approach, the theory of the second actor, approved by Lord Steyn in Boddington. Under this, despite the original act being a nullity, the second actor may have the power to confer validity on a subsequent act. R v Wicks is invoked as an example. The theory is summarised in a passage earlier in the article, and set out by Lang J in AAM (A Child) vSecretary
of State for the
Home
![]()
Department
[2012] EWHC 2567 (QB) at [104]:
"[At p.149] In such cases the invalidity of the first act does involve the unravelling of later acts which rely on the first act's validity. However, the voidness of the first act does not determine whether the second act is valid. That depends upon the legal powers of the later actor. If the validity of the first act is a jurisdictional requirement for the valid exercise of the second actor's powers, then, if the first act is invalid, so is the second. Sometimes it will not be- the tax demand did not need to be valid for the money to be validly paid- and sometimes it will be- a valid tax demand could not be made unless the regulations had been properly made."
71. In practice, it seems to me that the courts will adopt a combination of techniques, as Professor Mark Elliot suggests in Beatson, Matthews and Elliot's Administrative Law, 4th edn, (2005), 101: the courts will be guided by the language of the statutory scheme, its history and policy, but in the exercise of their discretion will also take account of the consequences which would ensure if they concluded that a power could only be exercised on the basis of a valid first act. Discretion in the granting of a public remedy may enter the picture."
fast
track appeal rules makes appeal decisions following that timetable necessarily void at least on application to the appropriate court. Mr Tam is right that those cases deal with the position where the nullity is in the very provision which purported to confer the power or jurisdiction on the decision-maker or actor. Hoffman La Roche, above, at p365 holds that an ultra vires instrument is incapable of ever having an effect on the rights or duties of those it purported to regulate, but that is not the issue here. Boddington illustrates how the invalidity of a byelaw can be raised as a defence to a prosecution based on it; its nullity prevents it being relied on as the basis for prohibitory notices and prosecutions for non-compliance with them, but that is not the issue here. The same applies to Ahmed, above, and to the SSHD's policy for
detention
in R (Lumba) v SSHD [2011] UKSC 12, [2012] 1 AC 245; indeed at [66], Lord Dyson pointed out that Anisminic Ltd. v Foreign Compensation Commission [1969] 2 AC 147 had held that there was but a single category of public law error which led to decision being nullities, so it mattered not whether the decision to
detain
was in breach of a statute or of a rule of public law. This may all be relevant to what happens if any particular appeal decision is held to be a nullity, but does not bear on whether the consequence of the FTR 2005 being a nullity is that the appeal decisions themselves are all nullities, although made by the body which had jurisdiction, and not one dependent on the existence of the FTRs.
actionably
tortious conduct; p947G-948B, Simon Brown LJ, with whom Peter Gibson LJ and Schiemann LJ agreed. The latter cautioned, p951-2, against the adoption of a simple approach that all invalid acts were never capable of having an effect on the rights or duties of parties, as needlessly restricting the possible range of answers which policy, which I read in a broad legal sense, might require. (The Court of Appeal, not bound by the Divisional Court, also considered the issue of validity, and came to a different conclusion from the Divisional Court.) Its judgment on the issue of lawful justification is obiter, but considered, and after full argument. This supports Mr Tam's contentions.
detention
case arising out of a deportation order. Draga was a Kosovan refugee convicted of drug and other offences, and sentenced to 18 months' imprisonment. An Order, by way of statutory instrument in 2004, made under the Nationality, Immigration and Asylum Act 2002, specified certain offences as particularly serious for the purposes of deportation. Draga went through the statutory appeal process against the decision to make a deportation order, including reconsideration, without success. Time for applying for permission to appeal to the Court of Appeal expired in October 2007. This is an important feature of the case when trying to apply it here. He applied out of time for permission to appeal to the Court of Appeal and for permission to amend his grounds to allege that the decision was invalid because the 2004 Order, on which it was based, was itself invalid. The Court of Appeal in 2008 refused the extension of time, saying that the point should have been raised very long ago; it was a point which had attracted interested commentary. Nothing daunted, Draga made further representations to the SSHD who treated them as an application for the revocation of the deportation order, but rejected them. His judicial review proceedings challenging the refusal to revoke the deportation order, based on the alleged nullity of the 2004 Order, were stayed to await the decision of the Court of Appeal which in 2009, in other proceedings, held that the 2004 Order was ultra vires. Nonetheless the SSHD still continued to refuse to revoke the deportation order, and Draga appealed successfully to the FtT against that refusal. It was that successful appeal which disposed of the deportation order.
detention
claim, which was what was left of the judicial review, was whether the flawed decision to make a deportation order, and then actually to make it, invalidated the decision to
detain.
Percy v Hall was among the cases cited. The SSHD argued that the preconditions to
detention
in paragraphs 2(2) and 2(3) of Schedule 3 to the 1971 Immigration Act, giving notice of the decision to make a deportation order, and the making of the order, provided the necessary statutory authority for the decision to
detain.
At [57] Sullivan LJ, with whom Kitchen LJ agreed, and Pill LJ very largely agreed, applying what Lord Dyson said in Lumba [65-68, 86-88], said that the sole basis for both deportation decisions, which gave rise to the exercise of
detention
powers, was the unlawful 2004 Order. "This error was sufficient to render those decisions [on deportation] unlawful, but did it bear upon, and was it relevant to, the decision to
detain
under paragraph 2(2) of Schedule 3?"
detention
was unlawful. It depended on the precise grounds: e.g. the decision on appeal that A was not a person liable to deportation or that the decision was made in bad faith, was different from one where the Tribunal differed from the SSHD in its appraisal of the proportionality of deportation. It was "difficult to identify any principled basis for distinguishing between those public law errors which will render the decision to
detain
unlawful and those which will not." There was no statutory mechanism for challenging the lawfulness of
detention,
but Parliament had established a comprehensive statutory scheme for determining the lawfulness of a decision to make a deportation order.
" 62. The law, particularly in this field, is constantly evolving, as shown by the number of reported cases. The fact that a decision by the Court of Appeal or the Supreme Court in a later case, perhaps many years later, may, with the benefit of hindsight, make it clear that a Tribunal's decision in an earlier case to allow or dismiss an appeal against a decision to make a deportation order was made on an erroneous legal basis is not a ground for re-opening the earlier decision by the Tribunal. It would frustrate the operation of the statutory scheme if theSecretary
of State was not able to rely upon the Tribunal's decision, dismissing an appeal, once time for applying for permission to appeal against the decision had expired, as a lawful basis for making a deportation order.
63. In the present case, these judicial review proceedings were commenced in June 2008 and the law was not clarified until the judgment in EN (Serbia) was handed down in June 2009, some 21 months after the Tribunal's decision. If a Tribunal's decision is not to be treated as finally determining, as between the parties to an appeal under section 82(1), the lawfulness of a decision to make a deportation order, there can be no certainty as to whether there is lawful authority fordetention
under either paragraph 2(2) or 2(3) of Schedule 3, because at any stage it might be decided in a subsequent case that the legal basis for making the deportation order – the dismissal of the appeal against the decision to make the order – had been flawed.
64. If a person subject to a deportation order has not been removed from the UK, a subsequent decision by the Court of Appeal or the Supreme Court in another case which makes it clear that the Tribunal's decision to dismiss his appeal against the decision to make the order was made on a flawed legal basis, would be a proper ground for an application to theSecretary
of State to revoke the order, and for appealing against a decision to refuse to revoke the order, but it would not invalidate either the Tribunal's decision finally determining the appeal, or the deportation order made in reliance upon that final determination.
65. The position may be tested by reference to the position of the person who is served with notice of a deportation order, but who does not appeal against the decision under section 82(1). It would frustrate the operation of the statutory scheme if theSecretary
of State was not able to rely upon the fact that no appeal had been brought within time against the decision to make the order as a lawful basis for proceeding to the second stage of the process: the making the order itself. A subsequent decision by the Court of Appeal or the Supreme Court which made it clear that the
Secretary
of State's decision to make the order had been made on an erroneous legal basis could not affect the lawfulness of a decision against which there had been no appeal. A person who appeals against a decision to make a deportation order and has his appeal "finally determined" by a decision of the tribunal dismissing his appeal cannot be in any better position than a person who does not appeal.
66. In the present case, Mr. Draga's appeal against the decision to make a deportation order against him was finally determined when the time for applying for permission to appeal to the Court of Appeal expired on 26th October 2007 (see paragraph 18 above). In my judgment, when making the deportation order the following month theSecretary
of State was entitled to rely upon the Tribunal's decision dismissing Mr. Draga's appeal as a final determination that the decision in 2006 to make a deportation order against Mr. Draga was a lawful decision. It follows that the
Secretary
of State is entitled to rely on the lawfulness (as determined by the tribunal) of the decision to make a deportation order as lawful authority both for Mr. Draga's
detention
under paragraph 2(2) of Schedule 3 from 2nd August 2006 to 27th March 2007, and for his re-
detention
under paragraph 2(3) of Schedule 3 when the deportation order was served upon him on 30th November 2007.
67. The fact that there was an out-of-time application for permission to appeal to the Court of Appeal which was refused does not affect this analysis. Mr. Draga's appeal against the decision to make a deportation order against him was finally determined in October 2007, prior to the making of the order. The fact that the Court of Appeal refused Mr. Draga's application for an extension of time only serves to reinforce the proposition that there is a need for the statutory scheme to provide certainty as to whether or not there is lawful authority fordetention.
If the
Secretary
of State is unable to rely upon a Tribunal's decision in a case where the Court of Appeal has refused an application for permission to appeal out of time against that decision, it is difficult to see how there could ever be any firm basis for a decision to
detain
under paragraph 2(2) or (3) of Schedule 3."
Detention
was unlawful from the moment the SSHD tried to rely on the cessation device until Draga's release.
detention,
to consider the application to revoke the deportation order, and to reassess the situation. He also said, [82], that the fact that the same actor, the SSHD, made both the 2004 Order and took the deportation decisions, did not alter the position; there was also a separate decision to make the 2004 Order and then to make a deportation order in reliance on it.
detention
decisions.
"The claimant must, however, challenge the substantive decision that is the real basis of their complaint. A claimant may, for example, fail to bring a challenge to a particular decision, and may then seek to challenge some later ancillary or consequential decision or approval of the earlier decision on the ground that the later decision is unlawful as it is based on the original decision which is also unlawful. In such situations the courts may find that the time limit begins to run from the date of the earlier decision."
The editors give an example; I regard the proposition as plainly right. If I am wrong, so too is orthodoxy.
action
at issue depended on the validity of the byelaw. The byelaw's continuing validity was asserted for the very
action
being taken. The defence simply denied it. Time and discretion could not prevent such a defence argument. The closer analogy to the problem here, though all are imperfect, would be whether the invalidity of the byelaw could be asserted in a challenge to enforcement of a fine after conviction, without an extension of time for the challenge to quash the conviction. Boddington is not authority that a challenge to the lawfulness of any subsequent or dependant decision by reference to the lawfulness of earlier decisions of itself permits, let alone requires, the whole chain of decision-making to be unravelled without regard to time limits or discretion. The other decisions Ms Lieven referred to do not contradict that position.
fast
track or for adjournments have been made, and where no attempt has been made to advance claims or circumstances based on vulnerability, or if no issues about fairness have been raised during the appeal, or if the evidence which was said to be missing is not provided as part of a fresh claim made reasonably swiftly after the appeal concluded. The points I have referred to in relation to the "interests of justice" in the FtT would also be relevant in judicial review cases as to whether or not time should be extended, and relief granted, if that were a route to relief available for challenging appeal decisions.
detained
fast
track had or was likely to have been wrongly applied to a claimant for asylum, though the appeal itself was fair, she might, in considering fresh representations, give greater weight for example to explanations for delay in raising a point or producing documents.
The individual cases
TN
detained,
her fresh claim was refused in 2012 and she was removed to Vietnam.
detained
fast
track after screening on 2 August 2014. She was not asked about trafficking. She asked to be released on the grounds that she had recently miscarried and was in distress, but this was refused. The
Detention
Centre GP described her as physically fit and mentally stable.
detention
centre, and was questioned about the money; she refused to sign a confession and eventually escaped. Her brother and a friend arranged for her to come to the UK in October 2013. It was on this journey that she was repeatedly raped by a "western man" involved in bringing people to the UK. This had caused the pregnancy from which she had recently miscarried. She was not referred to any specialist body such as the Medical Foundation.
detention
in Vietnam at her screening interview although she now asserted that that was the main reason for her return to the UK; her explanation was considered deliberately misleading. It was not accepted that she was
detained
on her return, as described, nor for a year, nor that her description of the prison was credible, nor that she could have escaped were the prison as she described, nor that she would then remain at her brother's house while the police looked for her; her accounts of that were rather variable. The scarring could have occurred in any number of ways.
detained
on her return to Vietnam, or able to escape from state
detention
using a big rock to climb over the walls of the
detention
centre; or that she would go to her brother's house which was the obvious place for the authorities to search for her, nor did he believe her description of how, while there, she avoided capture because her brother had simply told them she was not there. Nor did he accept that her mother had been arrested in 2003, as TN had claimed. She had said that she had returned to the UK to be with her partner of five years, who was one of the men who gave evidence on her behalf. She had had ample opportunity to explain the basis of her claim, and on the second occasion in 2014 had been well aware of the asylum process. She had given conflicting evidence about the deaths of her parents more than once. He referred to other discrepancies, including her failure to mention one of the main planks of her claim, namely her arrest in Vietnam, and about her children. He explained why he gave no weight to the supportive evidence of the two male witnesses.
Fast
Track Rules, saying that she should seek advice about whether she might have been prejudiced by any unfairness resulting from her claim and appeal being processed in the
Fast
Track. If so, she should submit written representations in seven days; she did not do so. On 3 August 2015, Removal Directions were again set, served on 7 August for removal on 21 August.
detention.
detention
because of her mental state.
Home
Office, an IAC Designated Immigration Judge, two High Court Judges and a Competent Authority in making their decisions on the same evidence." It also appeared that Dr Bingham had not been provided with all the documents relating to TN's various claims. She had not made the requisite critical evaluation of TN's account, or the repeated inconsistencies and contradictions in it, before being able properly to conclude that the presentation was highly consistent with TN's history. It added: "Given that your account of being beaten and raped whilst in prison in Vietnam was only raised in this medical report, which has not been accepted as determinative of your claim, and your claim to have been imprisoned in Vietnam has previously been rejected by both the
Home
Office and IAC, it cannot be accepted that you were raped and beaten in prison in Vietnam." The further representations did not meet the test for a fresh claim.
detention
claim has been stayed by agreement.
detained
fast
track on the grounds of depression and miscarriage had been refused by the SSHD on 6 August 2014. Fitness for
detention
and interview was not the point here; the point was whether the adjudicatory process in the
detained
fast
track could be fair. Many of these issues had been recognised in DA1, which came out shortly before the appeal in TN. The SSHD had conceded that the
detained
fast
track operated unlawfully in its failure to identify and release potential victims of trafficking; PU and Others v SSHD 20 July 2015, Declaration by Blake J in a Consent Order, that failures to identify indicators that someone was a potential victim of trafficking and to recognise that the case required further investigation made their claims unsuitable for quick determination in the
detained
fast
track. The referral to the NRM should have preceded the appeal hearing, and had it done so, the issue might not have been dropped, where there were two men at the appeal, one described by her as a boyfriend, and another later as a customer, and the telephones found in her possession in the
detention
centre suggested that she was still under the control of traffickers.
fast
track on the grounds of a lack of time to prepare her appeal; she had asked to come out for a different reason right at her entry into the
fast
track. She was represented at all times. Failure even to try to use the flexibility in the Rules meant that she could not now contend that the appeal was unfair. There was no evidence that the shortened time scales in the FTR had prejudiced her case: she had given no evidence as to why expert medical evidence about ill-treatment of her mental health could not have been obtained by her lawyers. She had not provided any expert medical evidence for over a year after the dismissal of her appeal. This evidence could not explain the fundamental flaws in TN's account, including the inconsistencies in the dates of her parents' deaths. The main background evidence on trafficking was freely available on the internet, and so there was no basis for supposing that it would have been produced within the timeframe of the Principal Rules. The inadequacy of time to prepare the case in the
fast
track, which was part of the context for the decision in DA6, could not apply where TN had failed to disclose her claim to have been sexually exploited within the UK. This claim only emerged shortly before she was due to be removed again, more than a year after her appeal was dismissed. The many adverse credibility findings related to what she claimed had happened in Vietnam, and nothing said subsequently had undermined those points. A different timeframe could have made no difference to the decision.
Detention
Centre GP. I agree with Ms Barnes that a number of indicators, such as evading authorities, are consistent with not wanting to be removed from the UK. Merely asking to be removed from the DFT proves nothing. So I see nothing in her presentation in the DFT to show that she should not have been in it at all.
Department
Trafficking in Persons Report of 2015, and the Child Exploitation and Online Protection Centre (CEOP) Report confirming that Vietnamese women are trafficked to work in nail bars, often fronts for money laundering and prostitution, and a Daily Mail online report from March 2015 of a Vietnamese trafficking network in Rotherham operating in the way TN had described.
Home
Office Guidance for staff in Competent Authorities on Victims of Modern Slavery of July 2015 advised that a negative asylum decision should await a conclusive grounds decision from the NRM; objective indicators of trafficking should be considered, rather than simply relying on a victim to identify herself as a trafficked person, but here they were ignored. The decision focused overmuch on credibility, and while internal and external credibility on material facts are relevant, the Guidance advises that trauma may be a valid reason why a potential victim's account is inadequate; these inadequacies may be explained by such factors as mistrust of authority or shame. These points were emphasised by Dove J in R (FK) v SSHD [2016] EWHC 56 (Admin) at [30-35], and by Sir Stephen Silber in R (SF St Lucia) v SSHD [2015] EWHC 2705 (Admin), [2016] 1WLR 1439 notably at [198].
Department
report which covered the same ground. Many indicators of trafficking relied on by Ms Harrison were equally consistent with the behaviour of someone who had no right to be in the UK.
detained,
or when facing removal, or on arrest after return. This degree of failure to raise the point at any stage requires more than a generalised assertion that this may be a consequence of being trafficked or of trauma. If however she was only trafficked the second time she arrived illegally, the indicators Ms Harrison referred to, such as working without pay, lose such significance as they might have had, because this is what happened through her first stay, without her being trafficked for sexual exploitation. There was no real evidence of trauma or the circumstances of being trafficked as an explanation for the delay in raising the issue in her case. Her claim of rape en route shows that she was willing to talk about traumatic events. She had faced imminent removal on more than one occasion, and so her raising of it cannot be attributed to her facing imminent removal. There was no real evidence that she had only very recently escaped the control of others. She had solicitors throughout. I accept Ms Barnes' point that some of the indicators are equally consistent with the behaviour of someone who has no right to be in the UK.
US:
Home
Office interview of 1 April 2014 records US as saying that he is not fit to be interviewed, and was confused and worried. Two days earlier he had been arrested for a suspected fraud - not pursued. He answered the questions at some length, saying that he was happy here and, ambiguously, that when he thought of Pakistan, it made him want to cry; he had always wanted to make his future here. There is no mention of any difficulties in Pakistan, though there did not appear to be any specific question about that. He was interviewed for Emergency Travel Documents on 16 April, and on 24 April 2014 was served with Removal Directions for 30 April 2014.
detained
fast
track process. On a number of occasions, he complained that he was in poor mental health, and sought to delay the process; solicitors asked that he be removed from the
fast
track so that he could gather documents and have them translated.
detention
centre to provide a R35 report despite it being requested. He had not yet been given the opportunity for a full health examination. They enclosed a medical report from Medical Justice by Dr Hartree dated 24 June 2014. The SSHD was urged to postpone removal so that the report could be fully considered. They summarised the report, based on a telephone assessment, medical records and previous decisions and representations. Dr Hartree was of the opinion that US had a "clinical picture of severe and agitated depression"; he sounded tearful and unremittingly sad; he had "prominent symptoms of anxiety, with feelings of panic", fearful of "being maimed by his (alleged) persecutors in Pakistan", which, together with fears of destitution there, dominated his thinking. These were genuine fears, whether realistic or not. US had described to her psychotic symptoms, involving verbal hallucinations, suggesting a psychotic depression. He also had trauma-related symptoms, suggesting that he had PTSD. This was all "highly compatible with his reported history of traumatic experiences" and a genuine subjective fear of persecution. She thought that his symptoms were genuine and would have been difficult to fake. A further assessment was recommended and possible treatments included medication and therapy. US was not removed.
action
protocol letter.
detention
powers.
detention
centre, whom he had seen on several occasions, had said that US was unsuitable for
detention.
detention.
detention
on a number of occasions, was released from
detention
on 3 September 2014.
detention.
detained
on 9 November 2015. US expressed a desire to commit suicide and was placed on special watch. Meanwhile, Removal Directions had been set for 8 December. On 29 November, the SSHD rejected a R35 report as amounting to a fresh claim, though on 2 December, she accepted it constituted independent evidence of torture; but US remained in
detention
as Removal Directions for 8 December had been set over 2 weeks earlier. On 3 December 2015, he was identified by SSHD as a vulnerable individual. A stay on removal was refused by Mitting J on 8 December; but the Removal Directions could not be carried out because US could not be removed from the
detention
centre.
detention
on 17 December 2015.
detention
centres, and not for example from his GP, nor of any treatment sought or received as a result of the earlier diagnoses, beyond medication which he had been prescribed in the
detention
centres; there was no reference to any outside doctor issuing prescriptions. His taking of medicine was disrupted when he moved between
detention
centres. She did not ask him whether, and if not why not, he had seen any doctor or sought any therapy in the light of the previous reports and his current state, as she saw it, during his periods before and outside
detention.
She did not even address the point. He had major depressive disorder and complex PTSD, "entirely caused by the cumulatively traumatic life events which occurred to him in Pakistan." She did not think that he was fabricating symptoms. His medicines were seen as unusual individually, and in combination as showing the gravity of his illness. She also offered the opinion that the UKBA interview "was obtained under duress from a vulnerable individual with a significant psychiatric condition, clearly stating that he was not well enough to be interviewed", and the SSHD should not rely on the inconsistencies it found in his case. He was not presently fit to give evidence. Her primary recommendation for his mental health was that he be granted leave to remain in the UK so that his fears of return to Pakistan would be relieved, and he could feel safe and secure.
detention,
but whether the decision and appeal are suitable for handling in
detention
in the
fast
track timetable; DA1 [154-157].
detention:
at Dungavel IRC in April 2014, the notes simply refer to anxiety and poor sleep caused by his current situation. He stated at medical and later at disability screening at Harmondsworth IRC that he had never suffered from mental health problems. On 11 May 2014, he complained of anxiety, insomnia, headaches and flashbacks; an appointment with the mental health nurse was arranged within the week. Next day, he saw the doctor, complaining of much the same, including nightmares; he was anxious and tearful, but without suicidal or self-harm thoughts, and was coherent in speech. An anti-depressant was prescribed. A few days later, he repeated his complaints, and was told that the medicine needed some time to work, as happened a few days later as well. He failed to attend his appointment with the nurse. Nothing in this history suggested that he should have been removed from the DFT.
fast
track but this had been refused along with the refusal letter. The FtT in its appeal decision had in fact considered the fairness of the appeal continuing in the
fast
track in the light of Duncan Lewis' earlier written representations that it should be removed. The absence of supporting medical evidence, though part of the SSHD's case, did not form part of the FtT's reasoning for dismissing the appeal. Medical evidence would not have countered the rejection of the credibility of the claim in this case, nor affect the conclusions on internal relocation or sufficiency of protection. The later medical evidence merited little weight. The reports ignored inconsistencies in his account. US had also denied suffering any mental health problems at his screening interview, and all his symptoms appeared after he was told that he would be removed on 1 April 2014. This timing was ignored in the reports. There was no evidenced reason why medical evidence should not have been obtained within the
fast
track timetable. US had had ample time in which to collect documentation to support his claim over the five years he had been in the UK; he said that he had been asking for it over that period. Although the absence of representation at the appeal appeared to come as a surprise to US, the IJ gave him time to contact Duncan Lewis, and he then said that he was content to continue. The IJ commented on his clarity, focus and answering of questions. The FtT, refusing permission to appeal, had dealt with the alleged factual error about US working illegally, knowingly: it would have made no difference to the force of the impact of delay in claiming asylum on his credibility.
detention,
and up to 35 days from lodging to hearing of the appeal, R23(2), with case management hearing and an opportunity to seek an adjournment. I do not know whether the outcome of the appeal would have been different if conducted either under the Principal Rules or some fair procedure of the IJ's own devising; but that is not the test. I am clear that the 2005 FTR, in the context in which they operated in this case, meant the appeal was dealt with too
fast
to be fair. I cannot say that the evidence produced shortly after the appeal decision would have made no difference to its outcome. I would quash it if it were for me.
detention,
a point which the last report did not even remark upon.
action required a different approach to how they might be seen by the rational IJ. The first decision was unlawful; its approach to timing ignored very relevant considerations. The related responses of 10 and 14 July dealing with the first medical evidence take a bold albeit perhaps sustainable approach, but only if the first letter had been satisfactory. However, by the time of the 8 August response to the first medical report produced after a face to face interview, and more so after Dr Marcus' response report of 3 September 2014, replied to by the SSHD on 5 September, I regard it as clear that a rational IJ could find that his case was well-founded. I say that, accepting as I do, that US should face some rather more searching questions than his medical evidence suggests he has received from his experts, and they will need to deal with some quite difficult issues as well. The decision of 29 November, read with that of 2 December 2015, shows that the further representations should by then unarguably have been accepted as making a fresh claim, in the light of all the other further evidence, and the speed with which the appeal had been heard. It would have been lawful to refuse the claim but that decision would have been appealable.
Conclusions