AM, R (on the application of) v Secretary of State for the Home Department [2017] UKUT 372 (IAC)

“A declaration that the Respondent has not complied with paragraph 2 of the Tribunal’s order of [ date]”

“We are exercising the liberty to apply mechanism in order to seek a declaration to that effect … “ Each of the four applications is dated 12 June 2017, but were preceded by notifications detailing the basis for the applications on 6 June 2017 to which the Respondent replied on the same day maintaining that the 2 June 2017 decisions are lawful and setting out her position on the liberty to apply application, which elicited a response from the Applicants on 7 June 2017. (2) The Upper Tribunal responded to these applications by a combined order dated 14 June 2017 whereby (a) the Respondent, the Secretary of State for the Home Department (the “ Secretary of State”), was directed to respond, evidentially or otherwise, by a specified time and date and (b) the applications were listed on an expedited basis before me on 21 June 2017. (3) The Respondent did not comply with the aforementioned order. Rather, on 15 June 2017, in all four cases, the Respondent lodged an application in the following terms: “ The SSHD seeks an order that the previous order of the Tribunal be set aside. If the Applicants wish to challenge the decision of 02 June 2017 they should issue fresh JR proceedings. This application should be refused. In the alternative the directions should be varied to allow the SSHD sufficient time to respond. The hearing of 21 June should be vacated for the same reason … There cannot be any prejudice to the Applicant in the SSHD having a longer and sufficient period to respond.”

“It is ordered that: (1) The Respondent shall admit [ AM] to the United Kingdom forthwith using best endeavours at all material times and at latest by midnight on 22 May 2017. (2) The Respondent shall begin the process of making a fresh lawful decision forthwith and shall complete that process at latest by midnight on 22 May 2017. (3) Liberty to apply.”

“To summarise, AM can lay claim to a series of procedural, or due process, protections and safeguards enshrined in three separate legal regimes: EU law, the Human Rights Act 1998 and the common law. Based on the analysis, findings and conclusions set forth above he has been denied the safeguards identified. The decision making process resulting in the Secretary of State’s original and continued refusal to admit him to the United Kingdom for the purpose of family reunification with AO was, for the reasons explained, irredeemably flawed. It has, without legal justification, breached AM’s procedural rights. This applies irrespective of whether the Dublin Regulation governed the expedited process. AM’s challenge must succeed in consequence.”

“The expedited process in the group of five cases to which this challenge belongs was beset with procedural deficiencies and shortcomings and egregious unfairness. These contaminants are either not contested or incontestable. The conduct of the two interviews alone warrants a conclusion of procedural unfairness. The materiality of these procedural frailties is beyond plausible argument. The acid question is whether these procedural irregularities can be excused on the basis of the humanitarian challenge and the need for expedition. These are the two factors on which the Secretary of State relies. These must be recognised as important considerations and we readily acknowledge the major challenge the two Governments concerned faced. However, we consider that the exercise of balancing them with all the other factors summarised below results in a resounding negative answer to the question posed. Fundamentally, there was far too much at stake for these isolated and vulnerable children to warrant any other answer.”

“ AM has decided two central issues of law which are common to all of the cases in this group namely the application of the Dublin Regulation to the Secretary of State’s decision making and the requirements of procedural fairness in the context of the expedited process: see [86] – [128]. The AM analyses and conclusions apply fully to the case of SASA.”

“The principal consequences flowing from the above are as follows: (i) By failing to give full effect to the Dublin Regulation and its sister measure, the Secretary of State acted unlawfully. This illegality included blanket exclusion of consideration of cousins under Article 17(2). (ii) SASA was unlawfully deprived of a series of procedural safeguards and protections. (iii) SASA’s subsequent quest for admission to the United Kingdom under Article 8 ECHR cannot be defeated on the basis that he did not first attempt to secure the same outcome under the Dublin regime.”

“An alternative conclusion is readily made. If this Tribunal’s primary conclusion that this Applicant (and all the others) engaged in a process governed by the Dublin Regulation is incorrect, the alternative conclusion that the ZT (Syria) test expounded in [95] is nonetheless satisfied is available. This takes as its starting point the finding that the expedited process, whatever its precise legal characterisation, was replete with defects and shortcomings. Laudable though the aim of expedition was this cannot serve to redeem the serial frailties identified in [23] – [28] above and in [36] – [43] of AM . On this alternative approach, reasoning by analogy with ZT (Syria), the conclusion that the process in which the Applicant participated was “not capable of responding adequately to [his] needs” and failed to provide an “effective way of proceeding” is irresistible. The reason for this fundamentally is that the process devised and operated lacked the scope, structures, depth, penetration and flexibility necessary to ensure basic procedural fairness, adequate enquiry, sufficient evidence gathering and proper fact finding. The effect of this is that the adoption of both approaches yields the same conclusion namely that the “exceptionally compelling circumstances” test does not apply to this challenge.” (8) Having regard to the sequence by which the inter-related hearings unfolded, the most detailed consideration to the question of remedy is to be found in the judgment in AM . At [130], the Tribunal described this as an “ important” question, noting the decision of the Court of Appeal in ZT (Syria) . This was followed by, at [131] – [133]: “[131] In the present litigation context we are bound to take into account that the “Calais expedited process” is done and dusted. The Tribunal could, in theory, formulate a remedy requiring the Secretary of State’s officials to seek the permission of the French authorities for the purpose of travelling to the reception centre in France where AM is accommodated and conducting a procedurally fair and regular inquisition followed by all appropriate subsequent steps, which would include thorough enquiries of OA and his family circumstances. However this would entail delay and uncertainty, coupled with the imponderable of the necessary co-operation of the French authorities. It would also be cumbersome and expensive. [132] We take into account simultaneously the desirability of any remedial order not interfering with appropriate further best interests and child safeguarding checks and enquiries. Given the inadequacies of enquiry and procedural defects which we have diagnosed, the outcome of such steps could, in principle, frustrate the family reunification aspirations of AM and OA. While we attribute substantial weight to the evidence of the two protagonists, which we consider plausible, we must recognise that this will not necessarily be determinative of the ultimate outcome for both. [133] The considerable delays to date must further be weighed. In addition, each segment of continuing delay is plainly inimical to the Applicant’s best interests. We also take into account that the immediate practical effect of AM’s admission to the United Kingdom will be his absorption within the statutory care system, without prejudice to a final decision. Thus while on the one hand it would not achieve immediately his goal of family reunification, on the other this would protect his best interests while final checks and enquiries are completed. Furthermore, this step will enhance the prospects of a fresh decision making process which will respect his right to procedural fairness and other due process safeguards and guarantees and, simultaneously, facilitate the Secretary of State’s corresponding legal obligation. AM’s swift transfer to the United Kingdom would also be a positive step from the perspective of his mental health.”

“Thus there is a delicate and intensely fact sensitive balance to be struck. Having considered the submissions of both parties’ representatives, we have concluded, in the exercise of our discretion, that the appropriate remedy is the following: (i) An Order quashing the Secretary of State’s initial decision whereby the transfer of AM from France to the United Kingdom in November/December 2016 was refused. (ii) A declaration that the aforementioned decision and the Secretary of State’s continuing refusal to admit AM to the United Kingdom are unlawful being in breach of the Dublin Regulation and its sister measure and/or the procedural dimension of Article 8 ECHR and/or the common law requirements of procedural fairness. (iii) An Order requiring the Secretary of State: (a) to forthwith make all necessary and immediate arrangements for the transfer of AM from France to the United Kingdom, using best endeavours at all times and not later than midnight on 22 May 2017; and (b) to begin forthwith a fresh decision making process in AM’s case, to be completed by the same deadline. (iv) There shall be liberty to apply.”

“The order of Mr Justice McCloskey did not state specifically the basis on which the ‘fresh lawful decision’ should be made, or the particular evidence that should be considered or disregarded. Therefore, in making this decision the SSHD has taken into account the evidence listed below and considered the following questions: (1) Whether your client would qualify for transfer under the Calais expedited process, which was based on the criteria and definitions for [sic] family members, siblings and relatives set out in Articles 2, 8.1 and 8.2 of the Dublin III Regulation; (2) Whether your client meets the criteria set out in the judgment of the Court of Appeal in ZT (Syria) for transfer to the UK on the basis of Article 8 of the ECHR. ”

“The SSHD notes that the effect of the order to admit your client, at the same time and by the same date has the order to make a fresh decision on whether to transfer your client, makes the practical effect of this decision null. We assume that it is your clients’ intention to claim asylum on arrival in the UK, following which the SSHD will consider the claim according to the usual processes.” (11) The Secretary of State’s further decisions in the cases of SASA and MHA contained, respectively, one further ingredient of substance not replicated in the other two cases. In the case of SASA it is recalled that the Secretary of State’s original negative decision was based exclusively on the fact that SASA and his United Kingdom based relative are in a cousin/cousin relationship. However, within the further decision there is an analysis of certain pieces of documentary evidence giving rise to the assertion of “ inconsistency during the expedited process … “, in turn yielding the conclusion that the United Kingdom persons concerned are not related to SASA. In common with the other cases this exercise relied upon a decision making process which this Tribunal has held to be procedurally unfair. (12) In the case of MHA (JR/2492/2017) the judgment of this Tribunal contains, at [27] – [32] an assessment of the Secretary of State’s unlawful failure to conduct a proper assessment of this Applicant’s best interests. The Tribunal stated inter alia, at [32]: “Here it suffices to identify the following clear facts and factors. First, it is overwhelmingly in MHA’s best interests to escape from his current plight and ever worsening predicament in France. Second, there is no indication that any feature of SHA or his circumstances contradicts swift reunification of the two brothers. Third, SHA’s short term, medium term and long term future in the United Kingdom will not inevitably involve removal to some other country. Fourth, there is no indication that family reunification cannot be maintained even in the event of such removal. Finally, in the short to medium term there is no other realistic or feasible prospect of family life for this teenager.”

“Each of these touchstones … points clearly to a reasonable prediction that inter-partes consensus in SHA’s case is unlikely and that protracted litigation is a probability.”

“ … SHA is not legally present in the UK. The SSHD understands that the remaining authorities have accepted that they are the state responsible for his care as he was awarded subsidiary protection in Romania on 10/07/2015. SHA has previously claimed asylum in the UK following illegal entry …. This was refused …. [Subsequently] the Home Office erroneously dropped SHA out of the Third Country Unit (TCU) process after incorrectly assuming that SHA’s removal to Romania would be processed through the Dublin III regulation. As such, the SSHD incorrectly identified that she had missed the six month procedural deadline for processing such removals. When it came to light that the TCU drop out was an error, the SSHD’s position is that she had no obligation to substantively consider SHA’s asylum claim within the UK. SHA was informed of TCU’s intention to remove him to Romania on 12/05/2017. ”

“ SHA has now been served with a fresh decision refusing his asylum claim … The Romanian authorities have confirmed that they will accept the transfer of SHA to Romania under the readmission agreement and efforts are being made to effect this. ”

“ …. This step will enhance the prospects of a fresh decision making process which will respect his right to procedural fairness and other due process safeguards and guarantees and, simultaneously, facilitate the Secretary of State’s corresponding legal obligation. ”

“[91] In a context where there have been repeated requests for disclosure, in both this case and the others, the evidence does not include any case notes, file notes, emails or other contemporaneous records. Nor is there any material documenting the training and instructions, if any, given to interviewers and interpreters, with one limited exception which seems directed more to decision makers. Furthermore, the evidential gaps thereby created have not, in many material instances, been rectified through the medium of witness statements. Given the major procedural dimension of this judicial review challenge and the absence of any agreement or concession on various material factual issues, this is one of those cases where, it becomes necessary for the Tribunal to find certain material facts, as was recognised by Lord Brown in Tweed v Parades Commission [2006] UKHL 53 at [52]-[57]. This exercise will extend to considering whether inferences arising from the absence of the kind of materials noted may reasonably be made. Linked to this is the Secretary of State’s duty of candour. [92] It is appropriate to recall the decision of the Court of Appeal in R (Das) v SSHD [2014] EWCA Civ 45. In that case, the Court drew attention to a striking gap in the evidential matrix, namely “the absence of any evidence on behalf of the Secretary of State before the Court below or before this Court to explain her decision making in this case”: see [79]. The Appellate Court approved the principal formulated by the first instance Court, namely inferences adverse to the Secretary of State’s case may properly be drawn in such circumstances. The following passage in the first instance judgment, at [21], is especially noteworthy: “The basis for drawing adverse inferences of fact against the Secretary of State in judicial review proceedings will be particularly strong, because in such proceedings the Secretary of State is subject to the stringent and well known obligation owed to the Court by a public authority facing a challenge to its decision …. ”

“ …. to co-operate and to make candid disclosure by way of affidavit of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings … ”

“ …. Officials do not routinely keep minutes/attendance notes of every telephone call with French operational counterparts. ”

“[52] I have received, and considered, the parties’ further written representations mooted above. On behalf of the Applicant, there is no challenge, at this stage, to the order being formulated in the terms provisionally indicated. The only issue of substance raised is that the order should include a specific clause requiring active communication and co-operation on the part of the Secretary of State with the Applicant’s representatives. The purpose of this is expressed in the following terms: “… to ensure that both parties have relevant information to assist with facilitating transfer and so that the vulnerable Applicant is kept informed of progress.”

“ The disclosure of documents in civil litigation has long been recognised throughout the common law world as a valuable means of eliciting the truth and thus of enabling courts to base their decisions on a sure foundation of fact. ”

“I emphasise: (a) This is, once again, a backstop, not a vague aspirational target; and (b) Active communication and cooperation between the parties’ representatives is of paramount importance.”

“ The ‘liberty to apply’ order is a judicial device intended to supplement the main orders in form and convenience only so that the main orders may be carried out. Within its ambit, errors and omissions which do not affect the substance of the main order may be corrected or augmented, but nothing must be done to vary or change the nature or substance of the main orders …. What amounts to a variation depends on the context of the individual case. ”

“ (1) In relation to the matters mention in (2), the Upper Tribunal – (a) Has, in England and Wales or in Northern Ireland, the same powers, rights, privileges and authority of the High Court …. (2) The matters are - (a) the attendance and examination of witnesses, (b) the production and inspection of documents, and (c) all other matters incidental to the Upper Tribunal’s functions. ” [My emphasis] I consider that section 25(2)(c) has the effect that the Upper Tribunal may exercise the same “liberty to apply” powers as are exercisable by the High Court. To the extent that any reinforcement of this analysis is required, section 25(3) provides that section 25 (1) “ … shall not be taken ... to limit any power to make Tribunal procedure rules ” and, within the body of the latter, rule 5 provides that the Upper Tribunal may regulate its own procedure, subject to the provisions of the 2007 Act and this includes, per rule 5(2), a power to “ …. give a direction in relation to the conduct or disposal of proceedings at any time …. ”

“(1) The Respondent shall admit [the Applicant] to the United Kingdom forthwith using best endeavours at all material times and at latest by midnight on 22 May 2017; (2) The Respondent shall begin the process of making a fresh lawful decision forthwith and shall complete that process at latest by midnight on 22 May 2017. ”