AB, R (On the Application Of) v The Secretary of State for the Home Department [2017] EWCA Civ 59

[2017] EWCA Civ 59

Case No C2/2016/2605

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION

AND ASYLUM CHAMBER)

Upper Tribunal Judge Perkins

JR149722014

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 09/02/2017

Before

LADY JUSTICE ARDEN

LORD JUSTICE MCFARLANE

LORD JUSTICE KITCHIN

Between

The Queen on the Application of ABAppellant

The Secretary of State for the Home DepartmentRespondent

Mr Stephen Knafler QC and Mr Mikhil Karnik (instructed by Duncan Lewis Solicitors) for Appellant

Ms Julie Anderson (instructed by Government Legal Department) for Respondent

Hearing Hearing date : 8 th December 2016

Judgment Approved

Lord Justice McFarlane :

[1]In 2014 AB’s application for asylum failed and on 6th December 2014 he was removed from this jurisdiction back to his home country of Cameroon. Now, some two years later, as a result of a number of immigration tribunal decisions AB currently has a live appeal pending before the Upper Tribunal against the refusal of asylum. Within separate judicial review proceedings he sought a direction for the Secretary of State to use her best endeavours to facilitate and fund his return from Cameroon to this country so that he may take a direct and active part in the appeal process. The application for judicial review was dismissed by Upper Tribunal Judge Perkins on 1st June 2016. Permission to appeal was granted on two specific grounds by Lord Justice Beatson on 5th September 2016 and we have now heard AB’s appeal together with a number of ancillary applications by which he seeks to rely on other grounds of appeal and to admit fresh evidence.

[2]Although it has been possible to summarise the procedural essence of the appeal in one paragraph, the procedural history is, in reality, more complicated. AB, who claims to be bisexual and to have experienced persecution and torture in his home country of Cameroon, had his asylum application processed by the Secretary of State within the Detained Fast Track (“DFT”) which was in force at the relevant time in 2014. The DFT regime has subsequently been withdrawn by the Secretary of State following adverse decisions in the High Court and by this court in 2015 as to its overall fairness. At the centre of AB’s case before this court is the assertion that by processing his claim within the DFT scheme the Secretary of State was not only acting unlawfully, but also that she had cause to know at the time that, insofar as it related to AB, this was indeed an unlawful process and that his consequent removal back to Cameroon was similarly unlawful and known to be so at the time. AB’s case on appeal is that Upper Tribunal Judge Perkins erred, as a matter of law, in holding that the Secretary of State had not acted unlawfully in this regard.

Background

[3]On 15th June 2014 AB, who was then aged 33 years, together with his friend and alleged sexual partner Mr T, arrived in the United Kingdom from Cameroon. Their entry to the United Kingdom was lawful in that they each travelled on business visas. Neither man made any contact with the immigration service until AB did so in late September 2014. Following an initial interview on 30th September, he was detained and his case was allocated to the DFT scheme. A subsequent screening interview took place on 15th October and on the next day, 16th October he was told of the Secretary of State’s decision to refuse his asylum application.

[4]AB’s partner, Mr T, was dealt with differently. He undertook an initial interview on 15th October 2014 as a result of which his claim was not assigned to the DFT scheme but was processed under the ordinary immigration rules. Mr T’s application for asylum was initially refused, but this refusal has subsequently been withdrawn and he is now awaiting a redetermination of his application by the Secretary of State. Mr T has throughout remained in the United Kingdom, accommodated through arrangements made by the Secretary of State.

[5]A central feature of the DFT scheme was that the time limits for any appeal against a refusal decision were extremely short. Thus it was that AB’s appeal against the 16th October refusal decision was heard by First Tier Tribunal Judge Sullivan on 7th November 2014. AB attended the hearing. He had instructed solicitors but they, for reasons into which we have not delved, did not attend to represent him at the hearing. He applied for an adjournment but that application was refused. The judge heard oral evidence. At the conclusion of the process, by a decision dated 10th November 2014, AB’s appeal was dismissed. No attempt was made by AB, or anyone acting on his behalf, to issue a further appeal either during the two-day appeal window provided by the DFT scheme or at any later stage before his removal.

[6]On 21st November AB changed his instruction to the firm of solicitors that now represent him in these proceedings. They sent a series of written submissions to the Secretary of State seeking to establish a fresh asylum claim on his behalf. On 25th November the Secretary of State refused to treat the further submissions as a fresh claim. On 27th November a removal direction was issued indicating that AB would be removed back to Cameroon on 6th December.

[7]On 5th December the present judicial review proceedings were issued. The Application Notice specifies the target of the proceedings as being the removal direction issued on 27th November. An urgent application was made for a stay of the removal direction but this was refused by a First Tier Tribunal judge on 5th December. On the following day AB was compulsorily returned to Cameroon. Thereafter it appears that AB’s judicial review application went into abeyance with no positive step being taken in the proceedings until the middle of 2015.

[8]Despite the lack of action within AB’s judicial review claim, there were significant wider developments with respect to the DFT scheme as a whole which were to have a direct impact on AB’s claim. On 12th June 2015 Mr Justice Nicol found in favour of a charity “Detention Action” in judicial review proceedings and held that the claimant’s challenge to the overall legality of the fast track rules succeeded with the result that the rules were held to be unlawful (Detention Action v SSHD

[2015] EWHC 1689

Admin)). It will be necessary in due course to consider with more particularity the basis upon which the DFT scheme was held to be unlawful.

[9]In parallel proceedings before the Administrative Court at a similar time involving a claim for judicial review by four claimants against the Home Secretary and the First Tier Tribunal, a consent order was made by Mr Justice Blake on 3rd July 2015. The relevant terms of the consent order include an agreed declaration that “the Detained Fast Track (DFT) as operated at 2nd July 2015 created an unacceptable risk of unfairness to vulnerable or potentially vulnerable individuals” as defined within paragraph 2 of the order. It was also declared that there was an unacceptable risk of failure to identify individuals “whose claims were unsuitable for a quick decision within the DFT”. The definition of “vulnerable or potentially vulnerable” individuals was stated to include, but not be limited to, “asylum seekers who may be victims of torture, significant ill treatment, human trafficking” or other identified circumstances.

[10]On 29th July 2015 the Court of Appeal (Lord Dyson MR, Briggs, Bean LJJ) dismissed an appeal against the decision of Nicol J in the “Detention Action” judicial review (R (Detention Action) v First Tier Tribunal (Immigration and Asylum Chamber)

[2015] EWCA Civ 840

;

[2015] 1 WLR 5341

), the court holding that the fast track rules were “systemically unfair and unjust”.

[11]On 8th May 2015 AB’s lawyers applied to amend his grounds for judicial review. That application was ultimately granted by UTJ Eshun on 4th August 2015. The decision granting permission made express reference to the “Detention Action” proceedings which had been determined in the Court of Appeal only one week earlier:

“Permission is granted on the ground that it is arguable that the applicant suffered unfairness in the light of the recent decisions by the High Court and the Court of Appeal on the Detained Fast Track procedure. The applicant’s allegation that he had been the victim of torture should have been investigated by way of the rule 35 procedure. This was not done because of the speed with which his claim and appeal were dealt with. It is arguable that the unfairness affected the disposal of his claim and the appeal.”

Leave was granted for amended grounds of challenge to be filed, limited to the extent of the grant of permission. The judicial review claim that had been re-invigorated by UTJ Eshun’s grant of permission was the claim determined by UTJ Perkins on 1st June 2016 and is therefore the claim to which this appeal relates.

[12]Separately, and as a consequence of a more general review of decisions that had been taken under the DFT regime, the President of the First Tier Tribunal made an order on 12th November 2015 setting aside the decision made by FTTJ Sullivan on 10th November 2014 dismissing AB’s immigration and asylum appeal with the consequence that AB had, once again, a live asylum appeal before the First Tier Tribunal.

[13]In the light of the renewed appeal proceedings, AB’s solicitors wrote to the Government Legal Department [‘GLD’] on 23rd November 2015 asking for AB to be returned to the United Kingdom in order to take part in the pending appeal proceedings. By letter dated 17th December 2015 the GLD responded by recording that they were instructed that the Secretary of State “does not agree to return your client to the UK in order to pursue his appeal”. Detailed reasons were given in support of that determination.

[14]On 20th January 2016 the FTT refused an application for AB’s appeal to be adjourned pending his return. The appeal was therefore conducted in AB’s absence on 2nd February 2016 with judgment dismissing the appeal being promulgated on 11th April.

[15]The early summer of 2016 saw activity on both fronts with respect AB’s asylum appeal and his judicial review claim. The dates, which overlap and interlock with each other in a potentially confusing sequence, are as follows: 2nd Feb 2016 Asylum appeal hearing 4th April Judicial Review hearing before UTJ Perkins 11th April Judgment dismissing Asylum Appeal 6th May Permission granted to appeal against Asylum Appeal dismissal 1st June UTJ Perkins judgment on Judicial Review claim 13th June UTJ Coker allows AB’s appeal against dismissal of his asylum appeal and directs a re-hearing AB’s asylum appeal is currently adjourned to await the outcome of the present appeal and, particularly, the determination of whether or not the Secretary of State is to be required to use her best endeavours to achieve AB’s return to the United Kingdom to take part in that appeal process.

Judicial Review Proceedings

[16]Partly as an inevitable result of changes in the underlying circumstances, and in particular the decision in the “Detention Action” proceedings, and partly, it has unfortunately to be said, as a result of a lack of precision on the part of AB’s lawyers, neither the decision which is the target of the judicial review proceedings, nor the specific grounds of challenge (and now grounds of appeal) that are relied upon in support of that challenge have been clearly identified. It is therefore necessary to take a short time to track through AB’s pleaded case.

[17]The original judicial review claim form issued on 5th December 2014 specified the target decision for review as “the removal directions” made on 27th November 2014 directing AB’s removal to Cameroon on 6th December. Two grounds of challenge were advanced. Ground 1 asserted a failure to correct an earlier injustice on the basis that AB should have been removed from the DFT process because the circumstances of his case, namely an assertion of persecution on the grounds of bisexuality, rendered it unsuitable for the fast track procedure. Reliance was placed upon R (JB) (Jamaica) v SSHD

[2013] EWCA Civ 666

to which reference will be made in due course. Ground 2 complained of inadequate treatment of the purported “fresh claim” made by AB’s new solicitors shortly prior to the removal directions. The relief sought was the cancellation of the removal directions, quashing of the decision to decline to consider his further submissions as a fresh claim and removal of AB from DFT scheme.

[18]Following the decision of UTJ Eshun on 4th August 2015 AB was permitted to amend his grounds of challenge in order to rely on three grounds, namely, unlawful removal to Cameroon, secondly a repeat of the previous ground 1, asserting a failure to correct an earlier injustice and, ground 3, inadequate treatment of the fresh claim.

[19]On 31st March 2016, having considered an application on paper, UTJ Perkins refused AB permission to rely upon additional evidence in the form of statements or reports describing his current circumstances in Cameroon.

[20]The hearing of the judicial review application took place before UTJ Perkins on 4th April 2016. AB was represented by counsel, Mr Mikhil Karnik and the Secretary of State was represented, as she is before this court, by Ms Julie Anderson. At the hearing the judge, once again, refused the application to admit fresh evidence. Judgment was reserved and handed down on 1st June 2016.

[21]In terms of process within the judicial review claim, a number of points arising from the early stages of UTJ Perkins’ judgment are of note. Firstly, the judge records the target decision of the judicial review challenge as follows (at paragraph 3): “On 21st November 2014 (AB) purported to make a fresh claim. This was refused and he sought judicial review of that decision. The application for judicial review was refused by UTJ McGeachy but was renewed orally and permission granted by UTJ Eshun on 5th August 2015. Judge Eshun granted permission because ‘it is arguable that the applicant suffered unfairness in the light of the recent decision of the High Court and the Court of Appeal in the Detained Fastrack Procedure.’ This case came before me because of that grant of permission.” (a). The refusal to accept the ‘fresh claim’; and (b). Allocation of AB’s case to the DFT process.

[22]At paragraph 4 UTJ Perkins records correctly that AB’s renewed FTT appeal had been heard on 2nd February and subsequently dismissed (on 11th April, one week after the oral judicial review hearing before UTJ Perkins). The judgment does not record, presumably because UTJ Perkins had not been informed, that on 6th May permission to appeal against that outcome had been granted and the appeal was due to be heard on 13th June, twelve days after UTJ Perkins handed down his judgment. On the incomplete information before him, UTJ Perkins, understandably, simply states “no doubt the applicant is considering his position”.

[23]It is plain that UTJ Perkins considered the concurrent live appeal process before the FTT to be an adequate channel for remedy of the matters about which AB complained within the judicial review proceedings for, at paragraph 7 and 8 of his judgment, he effectively records his determination of the judicial review claim as follows:

“In other words the first tier tribunal has decided, perhaps unremarkably, that the applicant has a right of appeal which he is exercising. In these circumstances there seems little point in the present judicial review proceedings. The applicant has a remedy and is using it. If that remedy is not managed properly then there is the possibility of further appeal or other challenge. 8. This case has been overtaken by events. If there is anything unlawful in the process of that appeal, including his being out of the United Kingdom, then his remedies lie in that appeal and not in judicial review of an earlier decision. If this is right, and I think it is, then I have given sufficient reason for my decision.”

[24]Having, effectively, determined the judicial review application by the close of paragraph 8, UTJ Perkins nevertheless reviewed the material and submissions made before him on the wider issues in the case in the remaining forty-five paragraphs of his judgment. It is, however, relatively clear that the judge considered that the target of the judicial review claim was the original in-country processing of AB’s claim within the DFT scheme and before FTTJ Sullivan, together with the treatment of the ‘fresh claim’, rather than any later decision not to return AB to the UK to take part in the now revived appeal process.

[25]UTJ Perkins approached the wider issues that had been raised before him on the following basis. Firstly, he considered that the outcome of the “Detention Action” litigation, and the specific decision to set aside the November 2014 dismissal of appeal in this applicant’s case, established that it was “now clear beyond argument that the applicant was removed from the United Kingdom before his appeal had been determined properly”. He did not, however, accept the contention that the removal decision was wrong in the light of the rules and the law at the time that it was made. In particular, he noted that no application had been made by the lawyers then acting for AB to have his case removed from the DFT procedure and the judge accepted that “the Secretary of State was entitled to assume that if there had been proper reasons for taking the case out of fast track an application would have been made”. Similarly, particularly in the light of the fact that AB had legal representation, he rejected the submission that the Secretary of State should have taken the initiative and sought medical evidence, in relation to AB’s asserted injuries from torture, herself.

[26]On the more general argument that, irrespective of hindsight, the Secretary of State had grounds to know at the time that the DFT process was unlawful, the judge stated: “I am wholly unpersuaded that the Secretary of State had any reason to think that she was acting improperly when she allocated the case to the fast track or in removing the applicant after the appeal had been heard in the fast track. Points that might have suggested that the fast track was not suitable were not taken until after the decision was made”.

[27]UTJ Perkins went on to hold that he was satisfied that there was no error in removing AB (paragraph 48):

“The decision to remove after an unsuccessful appeal hearing is a step apart from any error in the conduct of or decision in the appeal. If it became appropriate to re-admit the applicant because the decision relied on has been set aside then, as indicated above, that is a matter for different proceedings.”

That important passage indicates that UTJ Perkins considered that the question of AB being brought back to take part in the appeal process was a matter for those conducting that process in the FTT and was not a proper matter for litigation within the present judicial review claim.

[28]So far as the “fresh claim” was concerned, UTJ Perkins concluded that there was, in reality, nothing “fresh” in relation to the material submitted in November 2014 and that the Secretary of State was therefore justified in not treating that material as “a fresh claim”.

[29]Finally, in relation to the fresh evidence relating to AB’s current circumstances in Cameroon UTJ Perkins concluded (paragraph 52) as follows:

“At the start of the hearing the applicant’s representative renewed an application made in writing to admit further evidence concerning the difficulties of contacting their client in the Cameroon. I had already refused the application on the papers because I did not see how that evidence would help me decide the issues that were relevant to the appeal. I maintained that position after oral argument. It is not for me to make directions about the conduct of a hearing that is not before me. I see no point in that claim at all.”

[30]For the reasons that he had given UTJ Perkins dismissed the claim for judicial review and it is against that determination that AB now appeals.

The appeal

[31]AB’s Notice of Appeal against the Upper Tribunal’s refusal of judicial review is supported by six pleaded grounds. On 5th September 2016 Lord Justice Beatson granted permission to appeal limited to grounds 2 and 4 only which had been pleaded as follows:

“2. The Appellant respectfully submits that the UTJ erroneously concluded that removal was not unlawful. 4. At (paragraph 43) the UTJ concludes that the SSHD: “acted appropriately in light of the evidence that was before her.”

In reaching this finding the UTJ fails to have regard to relevant Court of Appeal authority, and errs in his approach to the evidence.” Each of these shortly stated grounds was supported by further detail.

[32]Permission to appeal was refused in relation to the other four grounds which were, in summary terms: 1. that the UTJ was wrong to conclude that AB had an alternative remedy in pursuing his appeal before the FTT. 3. the UTJ erred in concluding that TN (Afghanistan) v SSHD

[2015] UKSC 40

constrains the courts from correcting past injustices. 5. the UTJ erred in his approach to the issue of the “fresh claim” and consequently the lawfulness of removal. 6. the UTJ erred in the test for remedy following a substantive hearing of judicial review (by deploying the “balance of convenience” test which is not appropriate in a public law context).

[33]In AB’s skeleton argument for this appeal, dated 10th October 2016, Mr Stephen Knafler QC, who now leads Mr Karnik, purported to re-cast grounds 2 and 4, for which permission had been granted, and grounds 1 and 3, which are the subject of a renewed oral permission application, as follows (I have attributed numbers (I) and (II) for these two grounds which appear simply as bullet points in paragraph 22 of the skeleton argument):

“(I) The manner in which the respondent and the tribunals rejected the appellant’s asylum claim was unfair and consequently unlawful; UTJ Perkins’s conclusion that the process had not been unfair/that the respondent had no cause to believe that the process had been unfair was wrong: this ground of appeal encompasses grounds 2 and 4 in the appellant’s Notice of Appeal, on which Beatson LJ granted permission to appeal; (II) UTJ Perkins’s decision not to require the respondent to use her best endeavours to secure the appellant’s return to the UK was unfair and for other reasons erroneous in law and, in particular, the UTJ was wrong to treat the availability of an out-of-country appeal as a suitable, alternative remedy: this ground of appeal encompasses grounds 1 and 3, on which Beatson LJ refused permission to appeal, but which the appellant renews.”

[34]On 16th November the appellant issued an application firstly to amend his grounds of appeal to plead

ECHR Article 8

and Article 8 with Article 14 in accordance with an argument set out at paragraph 42 of his skeleton, secondly, to add an additional ground complaining of the judge’s refusal to admit the fresh evidence, thirdly to adduce that fresh evidence into the appeal and, finally, to adduce evidence of a medical examination undertaken of AB’s partner, Mr T. Each of those applications was opposed by Ms Anderson on the part of the Secretary of State and we are grateful to her for the full skeleton argument that she produced at short notice in response.

[35]At the commencement of the oral hearing the court sought clarification from Mr Knafler as to the specific decision that was the target of the judicial review claim and the grounds of appeal upon which he now relied. Mr Knafler responded that the decision under challenge was the Home Secretary’s refusal to use her best endeavours to bring AB back to the United Kingdom, that being the decision recorded in the GLD’s letter of 17th December 2015. Mr Knafler’s response was a surprise given that the pleaded target in the judicial review claim form was the removal decision taken over twelve months earlier in November 2014. The December 2015 decision is not identified as the target of challenge in the appellant’s grounds of appeal and skeleton argument and it did not surface as the identified issue in the judgment of UTJ Perkins. Having considered those points, Mr Knafler nevertheless confirmed that the “decision” under challenge in the judicial review claim form should now be shown as the 17th December 2015 refusal to bring AB back to the United Kingdom.

[36]Mr Knafler was further pressed by the court to clarify whether he now sought to amend his grounds of appeal to the formulations contained in paragraphs (I) and (II) above. Having been granted time to permit consideration of this question, at the close of his submissions Mr Knafler produced three reformulated grounds of appeal in the following terms:

“1. UTJ Perkins’s decision that the SSHD had no cause to believe she had acted unlawfully was wrong: the SSHD acted unlawfully, and had cause to know that, by processing AB’s claim under the DFT and by removing him pursuant to tribunal decisions that were unlawful. 2. UTJ Perkins’s refusal to grant relief on the basis that American Cyanamid supplied the test was wrong, as was his failure to adopt the principled approach in YZ (China) and his conclusion that AB had an alternative remedy [before] the FTT. 3. UTJ Perkins’s refusal to admit “the factual evidence” was unfair and on the legally erroneous basis that it was irrelevant.”

[37]Mr Knafler confirmed that he was no longer pursuing arguments with respect to Article 8 and

Article 14 of the ECHR

[38]In relation to these three newly formulated grounds of appeal, ground 1 encapsulates original grounds 2 and 4 for which permission to appeal has been given by Beatson LJ. Ground 2 reflects original ground 6 which was not flagged as a ground which was still pursued in counsel’s skeleton argument of 10th October; if it is to be pursued permission to appeal is required. Ground 3 is a new ground that had been trialed in the appellant’s application to this court dated 16th November and also requires permission to appeal before it can be pursued.

[39]At the appeal hearing this court received Mr Knafler’s oral submissions in support of AB’s wide ranging case in full, and without restricting him to the grounds upon which permission to appeal had been granted. It must however be noted that, in a case which is itself procedurally complicated and potentially confusing, it is unhelpful for the appellant’s case to be pleaded with such a striking lack of clarity and consistency. Such lack of precision makes this court’s task yet more difficult and, more particularly, potentially places the respondent in a wholly unfair position. As will be seen, the potential for unfairness was compounded during the oral hearing by oral submissions, which had not previously been made in writing or raised before the Upper Tribunal, to the effect that the Secretary of State had effectively forced the DFT scheme into law against the advice of the Tribunal Procedure Committee on the basis that she, at the very least, suspected that the scheme was intrinsically unlawful and could not be justified on the grounds of fairness. For my part I would deprecate this aspect of the presentation of AB’s case. The whole purpose of a pleaded case with specific tightly cast grounds of appeal and a transparent skeleton of the argument that is to be presented is designed to achieve litigation which can readily be accepted and processed by the court and which is fair to all the parties. Unfortunately, the presentation of AB’s case, in this regard, falls well short of the expected standards.

[40]Mr Knafler set the context for his more detailed legal arguments by describing six factors which underpin AB’s case on appeal. They are: i) AB has a current statutory right to an in-country appeal; ii) The nature of AB’s immigration claim is important; he is a refugee under the Refugee Convention and his claim engages rights under

ECHR Art 3

; iii) AB’s current location is that he is back in Cameroon which is “his country of persecution”. There is no precedent for any court tolerating an asylum seeker with an in-country right of appeal being required to prosecute that appeal from the country of persecution; iv) AB’s circumstances in Cameroon are dire; v) The root cause of AB’s absence from the UK at the time of his pending appeal is the unlawful action of the Home Secretary in deploying the DFT scheme which, in turn, resulted in the unlawful (as it has now been held to be) decision of the FTT in relation to AB’s appeal on 10th November 2014; vi) AB has not behaved in such a way as to give cause for the adverse exercise of any judgment against him in that he is not a criminal, has not been guilty of delay with regard to processing his claim and to allow him to return to the UK will not have an adverse impact upon the administration of the system.

[41]In relation to the DFT scheme Mr Knafler made two central submissions. Firstly, that, in any event, the circumstances of AB’s claim, namely bisexuality in the Cameroon, rendered his case inappropriate for allocation to the DFT. Secondly, and more generally, he drew attention to the unlawful nature of the DFT scheme as a whole. Taking those two submissions in turn, the first is founded upon this court’s decision in R (JB) Jamaicav SSHD

[2013] EWCA Civ 666

. In that case the Court of Appeal (Moore-Bick, Black LJJ and Sir Malcolm Pill) was concerned with a Jamaican national who claimed to be homosexual and who sought asylum on the grounds of persecution back in his home country and whose case had been allocated to the DFT. Moore-Bick LJ, giving the main judgment of the court, with which the other two members agreed, having observed the cursory nature of the investigation undertaken of JB’s circumstances, and having noted that a failure properly to comply with a policy relating directly to the exercise of a power to detain is sufficient of itself to render detention unlawful, went on to state (at paragraph 29):

“The matter does not end there, however, because there is also the question whether this was a claim which, in the light of all the information that should have been available, could ever have been regarded as one in respect of which a fair and sustainable decision could be made within about two weeks. Given the nature of the appellant's claim, I find it difficult to see how it could. Homosexuality is a characteristic that cannot be reliably established without evidence from sources external to the claimant himself. On the face of it, therefore, the appellant did need additional evidence to support his claim and since some of that evidence was likely to be available only in Jamaica or elsewhere abroad, it was likely that he would need additional time in order to obtain it. A failure to allow him that time was likely to lead (as in the event it did) to a decision that was neither fair nor sustainable.”

[42]In support of his submission that the decision in JB (Jamaica) cannot be distinguished from the present case, Mr Knafler refers to the earlier Supreme Court decision HJ (Iran) and HT (Cameroon) v SSHD

[2010] UKSC 31

. In the judgment of Lord Hope DPSC and Lord Rodger JSC (at paragraphs 35, 38 and 44) there is acceptance that there is a reasonable fear of persecution of individuals who are gay in Cameroon with (at paragraph 44) a particularly graphic description of an assault on HT in that country. Mr Knafler also made reference to some additional decisions in which the Secretary of State has conceded that a homosexual applicant from the Cameroon should not have been processed in the DFT. Finally, he observed that AB’s partner, Mr T, was not processed under the DFT scheme.

[43]Mr Knafler’s second submission in relation to the DFT relies to a large extent upon the conclusions of this court in the “Detention Action” appeal (R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber)

[2015] EWCA Civ 840

), in which the DFT was referred to as the ‘FTR’. At paragraph 22, Lord Dyson MR described the court’s approach to the vires of the DFT:

“… the rules must secure that the proceedings are handled quickly and efficiently, but in a way which ensures that justice is done in the particular proceedings and that the system is assessable and fair. Speed and efficiency do not trump justice and fairness. Justice and fairness are paramount.”

Lord Dyson expressed his conclusion on the scheme at paragraph 37 onwards:

“These asylum appeals are often factually complex and difficult. They sometimes raise difficult issues of law too. I am unpersuaded that the safeguards are sufficient to overcome the unfairness inherent in a system which requires asylum seekers to prepare and present their appeals within seven days of the decisions which they seek to challenge. 38. I have no doubt whatsoever about the independence and impartiality of the tribunal judges who deal with the appeals. I accept that they are specialist judges 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. Nevertheless, in view of (i) the complex and difficult nature of the issues that are often raised; (ii) the problems faced by legal representatives of obtaining instructions from individuals who are in detention; and (iii) the considerable number of tasks that they have to perform … the timetable for the conduct of these appeals is 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”

[emphasis in original] Finally, at paragraph 45, Lord Dyson summarised his conclusion:

“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. … The system is therefore structurally unfair and unjust.”

[44]In making his submission that the SSHD deliberately went against the advice of the Tribunal Procedure Committee, whose role it was to approve the DFT rules, Mr Knafler relies on Lord Dyson’s description of the process at paragraph 29 of his judgment:

“I agree with the judge that the court should have regard to and respect the views of the Tribunal Procedure Committee as to the appropriate procedural rules. But this should not be taken too far. The material that we have been shown indicates that during the consultation process the Tribunal Procedure Committee itself and most of the consultees expressed great concern about the potential unfairness of the proposed FTR. It should also be noted that the Tribunal Procedure Committee decided to support the proposed rules after correspondence from the then Lord Chancellor in which he raised the possibility of his overruling the Tribunal Procedure Committee’s initial view and supporting the position of the SSHD.”

[45]Mr Knafler’s overall submission on this aspect of the case is that UTJ Perkins’s conclusion that the Home Secretary had not acted unlawfully is unsustainable. The Secretary of State should, he submits, have known, prior to ordering AB’s removal, that she had acted unlawfully.

[46]Mr Knafler submits that AB has a statutory right to an in-country asylum appeal and that this right should be respected by the court and reflected in an order directing the Secretary of State to facilitate AB’s return to this jurisdiction. The submission is based upon the Nationality Immigration and Asylum Act 2002, ss 82 and 92. Insofar as it is relevant, NIAA 2002, s 82 provides:

“(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal. (2) In this Part “immigration decision” means: … (d) refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, (e) variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, …”

NIAA 2002, s 92 provides that: “(1) A person may not appeal under s 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies. (2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f), (ha) and (j). … (4) This section also applies to an appeal against an immigration decision if the appellant: (a) has made an asylum claim, or a human rights claim, while in the United Kingdom, …” … (d) refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, (e) variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, …” (a) has made an asylum claim, or a human rights claim, while in the United Kingdom,

[47]It is apparent that the SSHD refused AB’s application for leave to remain in the UK under either s 82(2)(d) or (e) (depending on the date of the expiry of his original business visa). He therefore has a right, under s 92(1), to appeal against that decision ‘while he is in the United Kingdom’ either because he comes within s 92(2) or s 92(4) because he made his asylum claim ‘while in the United Kingdom’.

[48]Mr Knafler readily accepts that there is no statutory provision which requires the SSHD to bring back to the UK, or even to re-admit to the UK, an individual who comes within s 92; his submission is that, in this case, where, as a result of an unlawful decision, AB has been removed from the UK at a time when he had, or should have had, a continuing right to an in-country appeal, the SSHD should facilitate his return so that he can benefit from that right. In support of this point, Mr Knafler refers back to the core points which underpin his case and asserts that it is simply unconscionable for a person who would otherwise have an in-country right of appeal to be required to exercise that right not only out of the country but when he is back in the country of persecution upon which his asylum claim is based. Despite extensive research, AB’s lawyers have been unable to find any example of a case where an appeal has been conducted in such circumstances.

[49]In terms of the remedy that is sought, namely a mandatory order requiring the SSHD to use her best endeavours to achieve the return of AB to the United Kingdom, Mr Knafler gains support from the decision of this court in R (YZ (China)) v SSHD

[2012] EWCA Civ 1022

(Lloyd, Stephen Richards and Elias LJJ) in which YZ had been removed back to China prior to his representatives making an oral renewal of an application for judicial review. The oral application was successful, leave for judicial review was granted and the Secretary of State then accepted that YZ’s case should be looked at again. The application before the court, which had been refused at first instance, was for an order requiring the SSHD to facilitate YZ’s return to the UK in order to take part in the SSHD’s review of his claim.

[50]Although YZ was ultimately unsuccessful in the Court of Appeal, Mr Knafler, rightly in my view, seeks to gain support from the leading judgment of Richards LJ which accepts that, in principle and in the right case, the court can make a mandatory order of the type for which he argues. At paragraph 49 Richards LJ said:

“Where a person in the position of the appellant is removed from the United Kingdom on the strength of an unlawful certificate, the effect is to deprive him unlawfully of an in-country appeal to which he is entitled under the statute. It seems to me that [counsel for YZ] is right in his submission that this should be the starting point for the court in considering in such a case whether to order the person’s return to the United Kingdom. It is a factor telling strongly in favour of ordering the person’s return, so as to restore him to the position he should have been in under the statute and would have been in if the Secretary of State had acted lawfully. I think it unhelpful and undesirable, however, to talk in terms of a ‘presumption’ in favour of return and of the need for good reasons to rebut the presumption. I also think it mistaken to characterise the court’s discretion as anything other than a wide one. Whilst the fact that a person has been unlawfully deprived of his statutory right to an in-country appeal should be the starting point and is a strong factor in favour of return, it would be wrong to seek to cut down the discretion of the court in relation to the grant of a mandatory injunction. The particular circumstances of the case may give rise to numerous other factors capable of bearing on the question whether it is just and appropriate to grant such an injunction. All such factors should be put into the balance. These cases are fact-sensitive, as the judge said and the decided cases show.”

[51]In reviewing the relevant factors, Richards LJ held that the judge had been entitled to treat the fact that the appellant’s removal had appeared lawful at the time as ‘a highly material factor’ against the exercise of discretion to direct return (paragraph 51). He also accepted that an in-country right of appeal is of very real importance and that an out of country appeal has undoubted disadvantages (paragraph 55). In distinction to the present case, the fact that YZ’s claim was based on

ECHR Art 8

, as opposed to Art 3, was relevant in rendering his return to participate in the process less pressing.

The Respondent’s case

[52]Ms Anderson stresses that this appeal should only succeed if the Appellant establishes an error on a point of law, yet, she argues, even the newly formulated grounds of appeal do not expressly assert a specific error of law by UTJ Perkins; by implication the error relied upon is assumed to be irrationality.

[53]More specifically, and understandably, on behalf of the Secretary of State, Ms Anderson takes great exception to the introduction for the first time at the oral appeal hearing of submissions to the effect that the SSHD acted as a puppet-master through the then Lord Chancellor and the Rules Committee in order to introduce the DFT scheme.

[54]More generally, Ms Anderson argues that the three freshly drawn grounds of appeal, which were handed to the court some five minutes before she rose to her feet to reply to the appeal are, in reality, all new grounds. She therefore objected most strongly to the way in which these matters had been introduced at such a late stage. In this regard Ms Anderson was right to remind the court of the words of Waller LJ in AA (Afghanistan) v SSHD

[2007] EWCA Civ 12

at paragraph 57: ‘The principle of “anxious scrutiny” may justify a “more relaxed approach” to procedural failures in this area of the law (see Kerrouche

[1997] EWCA Civ 2263

, per Lord Woolf MR). However, the discipline of pleadings remains important. Issues of this kind need to be clearly formulated, in time for those advising the Secretary of State to consider them and respond, and for the respective arguments to be deployed before the court in an orderly way. Otherwise there is a serious risk that an issue will not be properly digested or understood, and a decision may be reached which seems to do justice in a particular case, but has unforeseen complications for the development of the law more generally.

[55]In Ms Anderson’s submission, these points are not simply ‘pleading points’ but go to the substance of the appeal. For example, by relying upon YZ (China) in his new ground 2, the appellant is presenting a wholly different case to the one deployed before UTJ Perkins where YZ (China) was not referred to in the amended grounds and where, in response to her own reference to the case, Mr Karnik had submitted that the authority was ‘not relevant’ to the issues. The case before the UTJ had been squarely based on the assertion that the original process had been unlawful and therefore principles of restitution and fairness required that AB be returned to this jurisdiction.

[56]In response to the Appellant’s central case, as represented initially by original grounds 2 and 4, then by the reformulation in his appeal skeleton that I have numbered ‘I’ and now by newly formulated ground 1, Ms Anderson makes seven core submissions: i) AB’s removal occurred at a time when there was no appeal pending and this remained the case even after his present solicitors were instructed; ii) AB, through his solicitors, purported to put in a ‘fresh claim’ but this was rejected and that decision no longer forms any part of AB’s pleaded case before this court; iii) Although the result of the Detention Action appeal has been that some DFT decisions have been set aside, not all have been held to have been unfair and the aim of achieving a fast-track system has been held not to have been intrinsically unfair. Some 10,000 decisions were taken under DFT regime yet, for example, only 28 other decisions were set aside by UTJ Clements on the occasion when this appellant’s FTT decision as reversed; iv) JB (Jamaica) did not establish that it was unfair or unlawful for any case of asserted homosexuality to be determined under the DFT. Each case is fact specific and it is possible to distinguish the present case from JB (Jamaica), for example on the ground that the present appellant is bi-sexual, rather than homosexual, and that he plainly lied in order to gain entry to the UK by applyingfor a business visa; v) The SSHD was entitled to rely upon the FTT judge’s decision to refuse a stay on 5th December 2014. Rule of law values mean that public decision makers must be able to assess the lawfulness of their decisions by reference to contemporaneous judgments of courts or tribunals; the reviewing court does not take into account matters that have occurred after the decision was made (relying on Fardous v SSHD

[2015] EWCA Civ 931

); vi) To succeed, the appellant must go further than simply establishing that the original decision of FTTJ Sullivan under the DFT was unlawful. He must establish that the subsequent decision to remove was unlawful at the time that it was made and, in order to do so, it is essential for AB to establish that the SSHD knew that the FTT decision and/or the DFT scheme were unlawful at the time that the removal decision was made (relying on Draga v SSHD

[2012] EWCA Civ 842

); vii) UTJ Perkins was therefore right to hold that the removal directions had been lawfully made.

[57]Of the various submissions made by Ms Anderson, those that I have numbered (v) and (vi) are the centre of this appeal. If it is legally correct to hold that the decision to send AB back to Cameroon must be evaluated on the basis that the two tribunal decisions taken at the time were lawful (relying on Fardous) it must follow that the appellant may only succeed if he can establish that the SSHD knew, at the time of removal, that either the FTT decision and/or the DFT scheme were unlawful (Draga). Although he did not formally make a concession, the point is, at least by implication, accepted by Mr Knafler who mounts his case on the express basis in the newly formulated ground 1 that he needs to establish that the Secretary of State had ‘cause to know’ of the unlawfulness at the time that the removal direction was made and implemented. It is therefore necessary to look at the cases of Draga and Fardous (to take them in chronological order) in some detail.

[58]In Draga v SSHD the Secretary of State appealed against a finding that Mr Draga had been unlawfully detained. In August 2006 the SSHD decided to make a deportation order against Mr Draga having deemed that his deportation would be conducive to the public good, pursuant to Immigration Act 1971, s 3(5)(a) following his conviction for a serious drugs offence the previous year, and that a deportation order was justified under s 5(1). The decision was not overturned despite an extensive appeal process and in November 2007 the SSHD signed a deportation order. A further appeal process followed which included an application for judicial review. While the judicial review application was pending, this court handed down its decision in EN (Serbia) v SSHD

[2009] EWCA Civ 630

in June 2009 holding that the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 was ultra vires and therefore unlawful. Mr Draga’s deportation decision had been made under the 2004 Order. In September 2010 the FTT allowed an appeal by Mr Draga and set aside the deportation order on the basis that it had been made under the 2004 Order. For two periods during this extended process of appeal and counter-appeal, Mr Draga had been detained in detention pending his expected deportation. The question for the court was whether, despite the accepted unlawfulness of the original deportation decision (based on the 2004 Order), the periods of detention, which had been authorised under the law as it was at the time prior to decision in EN (Serbia), were themselves unlawful.

[59]Sullivan LJ, giving the lead judgment with which Pill and Kitchin LJJ agreed, set out his conclusion on this issue at paragraph 61 onwards: ‘… Parliament has established a comprehensive statutory scheme for determining the lawfulness of a decision by the Secretary of State to make a deportation order. The Secretary of State may not make the order until an appeal against the decision to make it has been “finally determined” (see paragraph 33 above). In order to give effect to the statutory scheme there is a very strong case for treating the Tribunal’s decision on an appeal under section 82(1) as determinative (subject to any appeal to the Court of Appeal) of the issues as between the parties to the appeal in order to ensure finality in litigation and legal certainty.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 the Secretary 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 for detention 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 the Secretary 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 the Secretary 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.

[60]The court held that the Secretary of State was entitled to regard Mr Draga’s potential for appeal against the deportation decision to be at an end by November 2007 and that any detention thereafter was, in consequence, not unlawful. Mr Draga was successful in his claim with respect to a later period of detention after the EN (Serbia) decision, but it is the approach of the court to the earlier period (as set out above) which is of relevance to this appeal.

[61]Fardous v SSHD

[2015] EWCA Civ 931

was also a claim for unlawful detention. The background to the case is not relevant to this appeal and Ms Anderson made reference to it in order to rely upon the following statement of approach made by the Lord Chief

Justice at paragraph 42 of his judgment:

‘In determining the lawfulness of the decision made by the Secretary of State, the court examines the decision on the basis of the evidence as known to the Secretary of State when she made the decision. Although the decision of the court is necessarily ex post facto, the court does not take into account matters that subsequently occurred. As Sales J explained in R (MH) v Secretary of State for the Home Department [2009] EWHC 2506 (Admin), at paragraph 105: "In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State. The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is. Rule of law values indicate that the Secretary of State should be entitled to take advice and act in light of the circumstances known to him, without fear of being caught out by later circumstances of which he could have no knowledge." His decision was upheld by this court: [2010] EWCA Civ 1112.’

[62]Ms Anderson submits that, based upon the approach in Draga and in Fardous, UTJ Perkins was entirely correct at paragraphs 39 to 41 of his judgment to hold that the SSHD was entitled to rely upon the FTT process and the fact that no appeal had been lodged before proceeding to make the removal directions once that process had concluded.

[63]In reply Mr Knafler referred to R (Sharon Shoesmith) v OFSTED and others

[2011] EWCA Civ 642

in which the court considered what the impact (if any) is upon the decision of public body B from a subsequent finding that a earlier decision by a different public body A, upon which B relied, was unlawful. The matter, in terms of legal principle, was referred to in short terms by each of the judges [Lord Neuberger MR, Maurice Kay and Stanley Burnton LJJ]. Maurice Kay LJ, giving the principal judgment in the case, described the approach at paragraph 119:

‘It seems to me that there is an area, admittedly ill-defined but left open by Lord Steyn in Boddington v British Transport Police [1999] 2 AC 143, and Lord Phillips in Mossell (Jamaica) Ltd v Office Utilities Regulation [2010] UKPC 1, in which the act of a public authority which is done in good faith on the reasonably assumed legal validity of the act of another public authority, is not ipso facto vitiated by a later finding that the earlier act of the other public authority was unlawful.’

[64]At paragraphs 136 and 137, Stanley Burnton LJ disagreed with Maurice Kay LJ on the applicability of the suggested principle to the facts of the Shoesmith case but he accepted that, in the right case, it may apply:

‘136. I read the judgment of Lord Justice Maurice Kay in draft with admiration. I agree with his conclusions and his reasons, with one important exception. I take issue with the conclusion, reached by him in paragraph 120, that this case is “within that ill-defined area” in which the act of a public authority, on the basis of the assumed lawfulness of a prior act of another public authority, is not itself vitiated by the unlawfulness of the prior act. This case raises in an acute form the question whether a public authority that acts on what is subsequently found to have been an unlawful and legally void executive act itself acts unlawfully, and if so whether its own act is itself void. 137. In my judgment, the answer must depend on the circumstances.’

[65]Like Stanley Burnton LJ, the Master of the Rolls (at paragraph 141) was prepared to accept the principle, but disagreed that it applied in the case before the court ‘141. I am prepared to accept, without deciding, that there is a principle that, in “ill-defined” circumstances, the act of a public body (“the public body”), acting in good faith and in reliance on the reasonable assumption that an earlier act of another public body (“the other public body”) was lawful, will not be vitiated as a result of a subsequent finding that the earlier act was in fact unlawful. The existence of such a principle is supported by what was said by Lord Browne-Wilkinson in Boddington v British Transport Police

[1999] 2 AC 143

, 194 and, arguably, by Lord Phillips in Mossell (Jamaica) Ltd v Office Utilities Regulation

[2010] UKPC 1

, para 44.’

[66]Mr Knafler submitted that the subsequent developments with respect to DFT, and the setting aside of the FTT decision, plainly vitiated the original decision to refuse AB’s asylum claim under the DFT scheme. He further submitted that, in the context of the approach described in Shoesmith, there were four reasons why the SSHD could not obtain protection from having relied upon the apparent soundness of the original tribunal decisions (to dismiss the appeal and then to refuse a stay) at the time that the removal directions were made and implemented; the four reasons were: a) The root cause of the unlawfulness of the original FTT decision was the SSHD’s own decision to allocate AB’s case to the FTR; b) The SSHD, knowing that every consultee was opposed to the FTR scheme on grounds of unfairness, nevertheless forced the scheme into law; c) The presenting officer for the SSHD at AB’s FTT hearing (when he was acting in person) failed to draw the FTT’s attention to the decision in R (JB) Jamaica which was in AB’s favour and directly applicable to the case; d) The SSHD failed to facilitate, either before the hearing or by acceding to an adjournment, adequate medical evidence on the issue of what, if any, signs of injury to AB there were as a result of his alleged torture and ill-treatment.

[67]Mr Knafler acknowledged that his high-end argument to the effect that the Secretary of State had acted in bad faith by forcing into law a regime which, at the time, she had cause to know was unfair had not been pleaded and was raised for the first time in his oral submissions. He nevertheless maintained the submission and invited this court simply to repeat the ‘findings’ that had been made in this regard by Nicol J and by Lord Dyson MR.

Discussion

[68]At the centre of the issues in this case are the submissions (v) and (vi) made by Ms Anderson. These are not disputed by Mr Knafler and, indeed, it is those submissions which require AB’s case to be argued on the premise that the SSHD knew, or ‘had cause to know’, at the time that the removal direction was made that her decision to refuse asylum under the DFT scheme and the subsequent FTT appeal had been unlawful on the ground of unfairness. Draga v SSHD establishes that, without more, the simple fact that a decision relied upon by a decision-maker is found subsequently to have been unlawful does not affect the lawfulness of a later decision based upon it but made prior to the date on which the relied upon decision was held to have been unlawful. As Sullivan LJ states at paragraph 65, to hold otherwise would frustrate the operation of the statutory scheme. In like manner, the Lord Chief Justice’s statement of principle in Fardous v SSHD confirms that rule of law values require that the Secretary of State is entitled to act in the light of the circumstances known to her at the time that the relevant decision is made.

[69]This court is bound by the decisions in Draga and Fardous. The starting point for our consideration must be that, in absence of any additional basis for holding that decision ‘B’ was made unlawfully, a later finding that, in the event, an earlier decision ‘A’ that was relied upon was unlawful does not, of itself, affect the validity of decision ‘B’. Absent any separate basis for holding that the SSHD acted unlawfully in making and implementing the decision to remove AB to the Cameroon in December 2014, the fact that, subsequently, the DFT regime and his FTT appeal have been held to have been unlawful does not render the separate removal decision unlawful or establish that the SSHD was not entitled, at the time, to rely upon the legal validity of the DFT scheme and the tribunal decisions relating to the appeal and the refusal of a stay.

[70]Mr Knafler realistically accepts that AB must establish more than the fact that, with hindsight, the DFT regime and the FTT decision in AB’s case were unlawful. Although the target of these judicial review proceedings is now the decision of the SSHD in December 2015 to facilitate AB’s return to this jurisdiction, there is no direct assault on that decision; AB’s case is dependent upon establishing an additional ground for unlawfulness on the part of the Secretary of State at the time of the original removal decision. That additional ground is said to be that the SSHD knew, or had cause to know, at the time, that the DFT and the placing of AB’s case within it were unlawful on the grounds of unfairness. It is upon the establishment of this state of knowledge, or imputed knowledge, on the part of the SSHD that the appeal on original grounds 2 and 4 (and their subsequent reformulation into new ground 1) turns.

[71]There are a number of very substantial impediments in the way of AB’s submissions with respect to the imputation of knowledge to the SSHD in December 2014. Firstly, the ability for this point to be run on appeal, for the Secretary of State to respond to it and for the court to form a conclusion upon it has been fundamentally compromised by the fact that it had simply not been stated to be part of AB’s case until Mr Knafler gave voice to it as part of his oral submissions. Neither the original grounds for judicial review, nor the amended grounds, made any reference to the knowledge of the SSHD. None of the six original grounds of appeal referred to ‘knowledge’ and the point was not even made in AB’s skeleton argument. So much is accepted by Mr Knafler, but, as I have already observed [paragraph 39], the impact of the point being raised only once the hearing has commenced is that the Respondent was denied any opportunity to consider and respond to it, with the consequence that the court has only heard one side of the argument.

[72]Where, as here, the new point that is raised is not simply an additional supporting point to an argument that has otherwise been well trialed in advance, but is, as can now be seen, the point upon which AB’s central case turns, the adverse impact on the overall fairness of the appeal process and of the court’s ability to analyse the point are at their highest. In this regard it is also important to understand that the submission that is made impacts upon the integrity and good faith of the Secretary of State and includes an assertion that she forced the DFT regime into law, against the advice of all those who were consulted, knowing that the fairness and lawfulness of the rules were, at the very least, suspect (to adopt the words of Mr Knafler’s oral submission). For the court to decide against the Secretary of State on such a submission, when she has been given no effective notice of the point, would, in my view, be so unfair as to be unconscionable as a matter of principle.

[73]The second impediment in the way of AB pursuing a finding as to knowledge or imputed knowledge as to the lawfulness of the DFT scheme at this hearing is that the case has simply not been prepared on that basis. Other than the observations of Nicol J and Lord Dyson MR, upon which Mr Knafler relies and to which I will turn, there is no material before this court on the point one way or the other. We do not have any details of the consultation process that preceded the implementation of the DFT rules, we do not have evidence of what the then Lord Chancellor did or did not communicate to the Rules Committee and we do not have any other material upon which to form a view as to the SSHD’s state of knowledge. Again, Mr Knafler impliedly acknowledges this deficit by basing his entire submission on this point upon what is said in the judgments of Nicol J and Lord Dyson in the Detention Action proceedings.

[74]The first instance judgment of Nicol J in the Detention Action judicial review does contain a summary, with detailed extracts, of the consultation process conducted by the Rules Committee prior to the adoption of the DFT scheme [paragraph 25 to 30] but Nicol J did not go on to make any findings as to the state of knowledge of the SSHD or the Lord Chancellor, nor is there a finding that the ministers knew, or must have known, that the fast-track scheme was inherently unfair.

[75]On appeal it is correct, as Mr Knafler points out, that Lord Dyson described the Lord Chancellor’s apparent role in the consultation process in the course of his summary of the material before the court at paragraph 29:

‘29. I agree with the judge that the court should have regard to and respect the views of the TPC as to the appropriate procedural rules. But this should not be taken too far. The material that we have been shown indicates that during the consultation process the TPC itself and most of the consultees expressed great concern about the potential unfairness of the proposed FTR. It should also be noted that the TPC decided to support the proposed rules after correspondence from the then Lord Chancellor in which he raised the possibility of his overruling the TPC’s initial view and supporting the position of the SSHD. For this reason alone, the court should exercise caution about giving too much weight to the judgment of the TPC. In any event, the question is whether the FTR satisfy the requirements of justice and fairness stated in section 22(4) of the 2007 Act. The answer to this question does not call for expertise which the court does not possess. The court is well equipped to decide whether an appeal process is fair and just. I accept that the concepts of fairness and justice are not susceptible to hard-edged definition. That is why a margin of discretion should be accorded to the TPC, but it should be modest.’

These observations are not, however, reflected in any findings of the court. The focus of the appeal, as the passage in paragraph 29 demonstrates, was for the court to make its own evaluation of the overall fairness of the scheme; it is not apparent that any party sought adverse findings against any minister as to their state of knowledge.

[76]In the absence of findings against the SSHD in the Detention Action proceedings, AB’s case must rest upon the submission that, in the light of the unanimous response to the consultation conducted by the Rule Committee to the effect that the fast-track scheme would be unfair, the SSHD must, at the very least, have suspected that that was indeed the case. The content of the judgments of Nicol J and Lord Dyson on this aspect simply cannot support such a finding. For that reason and for the earlier reasons that I have given, it is neither fair nor possible for that issue to be litigated before this court at this hearing.

[77]In the circumstances, AB’s central submission that the SSHD knew, or had cause to know, that the DFT was unfair and therefore unlawful at the time that she allocated AB’s case into the procedure fails.

[78]The second limb to the case on ‘knowledge’ is that the process before FFTJ Sullivan was itself so unfair that the SSHD, through her officers, knew or had cause to know that that was the case at the time and therefore could not reasonably have relied upon the outcome of the process as a basis for removing AB to Cameroon. In this regard four points are made: i) AB, as a bi-sexual from Cameroon, should not have been in the DFT regime at all on the basis of the decision of JB (Jamaica); ii) The Home Office presenting officer at the FTT hearing did not inform AB about, or refer the tribunal to, JB (Jamaica); iii) The Home Office presenting officer apparently told the FTT that Mr T was not in the United Kingdom, when he was in fact accommodated by the Home Office pending determination of his asylum claim; iv) Mr T’s own asylum claim was being dealt with wholly outside the DFT scheme and he is still in this country awaiting a re-determination of his application for asylum.

[79]For my part, I regard these four matters to be the most concerning aspects of this case. The court is entitled to impute to the SSHD knowledge of the decision in JB (Jamaica) and an understanding that it was so relevant to the issues in AB’s case that the Presenting Officer was under a duty to alert the FTT to its relevance (particularly in circumstances where AB was without representation). Ms Anderson’s attempts to distinguish JB (Jamaica) from the present case were unconvincing and, in circumstances where there is no evidence that the decision maker engaged with the JB point before allocating AB’s case to the fast-track, her submission is hard to sustain. For the reasons additionally identified by Mr Knafler (see paragraph 42 above), AB’s case should not have been allocated to the fast-track procedure in view of his asserted status as a bi-sexual man living in Cameroon.

[80]So far as Mr T’s circumstances are concerned, FTTJ Sullivan’s judgment (paragraph 21) states:

‘There is no supporting evidence from [Mr T]. [Mr T] is in the United Kingdom and there is no reason why he could not have attended or provided a statement. They are claiming asylum for the same reason and [Mr T] would be aware of the need to provide evidence. There is no evidence that [Mr T] is in the United Kingdom and the visa application does not mention that the Appellant would be travelling with another person.’

Although the content of that paragraph is, to a degree, contradictory, it seems clear that the tribunal was not informed that Mr T was in the UK, being accommodated by the Home Office and that his asylum claim was being progressed through the ordinary tribunal procedure.

[81]These four aspects of the tribunal hearing, taken separately and together, generate significant cause for concern as to the overall fairness of the hearing. Had we been hearing a direct appeal from the FTT decision, these factors would have persuaded me to allow that appeal. This court is, however, looking at these matters from a different and less direct perspective. The FTT decision has already been set aside on other grounds. The target of the judicial review and of this appeal is the decision in December 2015 not to facilitate AB’s return to the UK to take part in his renewed appeal. For these points as to the fairness of the FTT hearing to be sufficient to render that December 2015 decision unlawful it must be established, as Mr Knafler accepts, that the SSHD knew, or had cause to know, at the time AB was removed that the fairness of the FTT process had been compromised by them to such a degree as to be unsustainable. If so, then, albeit that there is a further discretion on the question of remedy, the case for holding that the December 2015 decision was also unreasonable and that this court should require the SSHD to facilitate AB’s return is strong. If not, then that is the end of the point.

[82]Despite the concern that I have over these four matters, they fall short, in my view, of establishing that the SSHD knew, or had cause to know, that the FTT process had thereby been rendered unfair to a degree that it would, or even probably would, be overturned if there had been an appeal. Firstly, none of the individual points represents such a glaring or fundamental breach of fairness which would, of itself, fatally flaw the whole process. Secondly, despite knowledge of these matters (both the significance of JB (Jamaica) and Mr T’s circumstances), which it can be reasonably assumed, neither AB’s existing lawyers nor the firm that came to act for him from 21st November sought to pursue them by appeal prior to removal. Although the time limit of 2 days for appealing under the FTR had expired, it would have been open to the new solicitors to seek to appeal out of time or to use these points within the judicial review proceedings. Thirdly, once the judicial review had been issued, a tribunal judge had refused to issue a stay on the removal directions. Each of these three matters point against holding that the SSHD had the requisite degree of knowledge (or imputed knowledge) as to the fairness of the process at the time that removal took place.

[83]In the circumstances AB’s main ground of challenge, for which permission to appeal has been granted, (original grounds 2 and 4 / new ground 1) is not made out. It is not established that UTJ Perkins was in error in holding that the there was no cause to believe that the SSHD had acted unlawfully.

[84]Having referred to UTJ Perkins at this stage, it is right to record that the case as mounted for AB in this court is very substantially different to that presented to the UT and, even if I had come to a contrary conclusion on this central point, that would not have been as a result of any criticism of his judgment or his handling of the case.

[85]In contrast to the space taken to deal with the central point, I can deal with AB”s case as it appears in the newly formulated grounds 2 and 3 in very short terms on the basis that, in the light of my conclusion, if my Lady and my Lord agree, on the primary ground of challenge, these can no longer be live issues.

[86]Ground 2 is concerned with remedy. As I have indicated at paragraphs 49 and 50, if the question of remedy had been a live issue, YZ (China) identifies that there is jurisdiction for the court, in an appropriate case, to make a mandatory order requiring the SSHD to facilitate the return of a foreign national to the United Kingdom in order to take part in an in-country appeal. Each case will be fact specific and a range of considerations will be relevant. If AB had succeeded on his main ground of challenge and had established the necessary state of knowledge on the part of the Secretary of State, then that finding would on its own be a significant factor in favour of redressing matters to the extent of requiring her to use her best endeavours to achieve his return to the UK.

[87]More generally, regarding remedy, the six factors which Mr Knafler identifies as being at the core of AB’s case are valid and powerful pointers in favour of granting the relief sought. In distinction to YZ, this is an ECHR, Art 3 claim, which again increases the strength of AB’s argument as to remedy. For the reasons given by Stephen Richards LJ, there is significant value that attaches to an in-country appeal process where the claimant can directly engage with the authorities and the tribunal. In addition, whether or not there are any reported cases to the contrary, I accept the submission that, in circumstances where the SSHD has been found to have acted unfairly and unlawful to the degree required for AB to have succeeded on his main ground of challenge in this case, it is hard to justify his current appeal proceeding while he remains as an asylum seeker in his ‘country of persecution’.

[88]Before concluding on ground 2, it is helpful to turn at this point to new ground 3 relating to fresh evidence. As we made clear at the start of the hearing, the court had read the material on a preliminary basis in order to understand the challenge to UTJ Perkins’ decision to refuse it, and also to evaluate the application to admit it into this appeal. The evidence which relates to AB’s current circumstances in Cameroon cannot be relevant to the substantive judicial review challenge which, although targeted at the December 2015 decision not to return, is justified by the SSHD’s state of knowledge at the earlier time of removal. The evidence of life subsequently in Cameroon is simply not relevant to that issue. The fresh evidence would, in my view, be relevant and admissible if the court were to go on to consider an order for the SSHD to facilitate AB’s return. If the appeal on the central challenge had been successful, I would therefore have granted permission to appeal on new ground 3 and admitted the evidence as part of the evaluation of remedy.

[89]With regard to the fresh evidence, this court must also be mindful of the duty, as described in R v. Secretary of State for the Home Department, Immigration Appeals Tribunal, Ex parte Robinson [1997] Imm AR 568 at paragraph 39, to consider whether an ‘obvious point’ of ECHR convention law is ‘readily discernible’, which is in favour of the Appellant, even if such a point was not taken below or expressly raised on appeal. Having re-read the fresh evidence in that context, whilst the Appellant’s circumstances in Cameroon (if the evidence were to be accepted) are far from ideal, what is described falls well short of establishing an obvious claim for breach of his rights under ECHR, Article 3. The makers of the witness statements do not say that AB is afraid for his safety because of his alleged sexuality (as opposed to other more general reasons arising from the conditions in Cameroon). He has not been living there with his partner, who remains in the UK. His past history suggests that, in any event, he is likely to have chosen to be discreet about his homosexuality and the evidence of persecution since return to Cameroon is weak. In addition, it is of note that the Appellant’s case was not run by his experienced counsel before this court on the basis of a breach of Article 3. In the circumstances, I am satisfied that the duty identified in Ex Pte Robinson does not arise in this case.

[90]Returning to new ground 2, the court, on the basis described in paragraph 88, would have the additional support of the accounts (albeit untested and unchallengeable at this stage) contained in the fresh evidence; this would be considered together with Mr Knafler’s powerful submissions. On that basis, if the primary ground for challenge in new ground 1 had succeeded on appeal, I would have readily granted permission to appeal and allowed the appeal on new grounds 2 and 3 before making an order requiring the SSHD to use her best endeavours to facilitate and achieve AB’s return to the United Kingdom to take part in the appeal which is currently pending before the tribunal. Unfortunately for AB, if my Lady and my Lord agree, that cannot be the outcome of this appeal because of the failure of his substantial grounds of challenge. In the circumstances I would grant permission for the Appellant to amend his grounds of appeal to the three newly pleaded grounds. I would dismiss the appeal on ground 1 (on the basis that this now represents the former grounds 2 and 4 for which permission to appeal has been granted) and I would refuse permission to appeal on all other grounds.

Lord Justice Kitchin:

[91]I agree.

Lady Justice Arden:

[92]I also agree.