Court of Appeal quashes Immigration and Asylum Tribunal result due to unlawful and ultra vires procedural rules
R (on the application of PN (Uganda) (Claimant) v Secretary of State for the Home Department (Defendant) & Lord Chancellor (Interested Party) [2020] EWCA Civ 1213
The Claimant is a woman of Ugandan citizenship who claims to be a lesbian. In Uganda, lesbians are persecuted on the basis of their sexual orientation. In 2010 she entered the UK as an accompanying child on a visitor’s visa, but this visa expired and in July 2013 she was arrested for overstaying. Upon her arrest she was found in bed with a man and was put into detention. She unsuccessfully applied for asylum on the basis of her sexual orientation as a lesbian and the First-tier Tribunal (Immigration and Asylum Chamber) dismissed an appeal against this decision in August 2013. The FTT hearing took place pursuant to the Asylum and Immigration Tribunal (Fast Track Procedure) Rules, known as the Detained Fast Track Rules (“the 2005 DFT Rules”). Permission to appeal to the Upper Tribunal was refused in September 2013, meaning that she had exhausted her appeal rights. In October 2013, she made further submissions which included an affidavit from a Ugandan woman who said she had been in a lesbian relationship with the Claimant. The Defendant refused to accept her further submissions as a fresh claim. While this was ongoing, the Claimant spent three further periods in detention and in December 2013 was eventually removed to Uganda.
In 2017, the Claimant was granted permission to apply for judicial review of the FTT’s decision, but with the claim being stayed pending determination of R. (on the application of TN (Vietnam)) v Secretary of State for the Home Department [2018] EWCA Civ 2838. In February 2019, she obtained permission to amend her grounds of claim to reflect the judgment in R(TN (Vietnam)) which found the 2005 DFT rules to be unlawful. The judge hearing her judicial review claim found that her appeal to the FTT had been procedurally unfair because the Rules had not given her sufficient opportunity to obtain evidence to support her claim about her sexuality, and that her detention between August and September 2013 had been unlawful. Following an order by Lewis J, the Claimant was returned to the UK. The Defendant appealed the decision, contending inter alia that the FTT Judge had specifically addressed whether the proceedings were fair and had found them to be fair.
HELD: Lewis J was correct to hold that the proceedings before the FTT were unfair on the basis of the time limits contained in the 2005 DFT rules. The High Court judgment was made on the particular facts in this case and the Court of Appeal could see no basis for interfering with that finding, a finding based upon proper grounds. Hence, the FTT’s determination from 2013 was quashed and will have to be heard again. The Court of Appeal also decided that Lewis J was correct to hold that the Claimant’s periods of detention from 1) August to September 2013 and 2) September to December 2013 were unlawful. The Claimant had accepted that the first detention in July 2013 was lawful because she had been validly detained after being located by immigration officers, there had been a risk of absconding and at that stage she had not been detained for the purposes of the detained fast-track process. As Lewis J had correctly found, detention during that period was lawful because the public law failings had not been relevant to the decision to detain. In deciding thus, the Court of Appeal dismissed the Defendant’s appeal, and allowed in part the Claimant’s appeal to the extent of holding that detention from September to December 2013 was unlawful.
Automated facial recognition technology used by police breaches right to private life
The Queen (Bridges) v The Chief Constable of South Wales Police & others [2020] EWCA Civ 1058
This appeal concerns the lawfulness of the use of automated facial recognition technology (“AFR”) in a pilot project by the South Wales Police Force (“SWP”). AFR is a new technology used to assess whether two facial images depict the same person. The specific type of AFR at issue, known as AFR Locate, works by extracting […]
Court of Appeal upholds Secretary of State’s decision not to support resettlement of the Chagossians to the Chagos Islands
R (Horareu) & Anor v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010
The Divisional Court had dismissed claims for judicial review to quash the decision made by the Minister of State for Foreign and Commonwealth Affairs that the Government of the UK would not support resettlement of the Chagossians to the Chagos Islands, which are part of the British Indian Ocean Territory, but would provide a financial support package of approximately £40 million for Chagossians over a period of ten years. This appeal raised issues about whether the European Convention on Human Rights extends to the Chagos Island, and the intensity of the review carried out by the Divisional Court. It also addressed the implications of a recent opinion of the International Court of Justice and a consequential resolution of the General Assembly.
The Court of Appeal rejected the analysis of the Appellants concerning the scope of the Advisory Opinion and UN resolution and their relationship to the rights sought to be enforced by the Appellants and as to their impact upon the scope and effect of Article 1 and 56 ECHR. The reasons given by the Advisory Opinion and UN Resolution do not serve to engage the ECHR and do not enlarge the common law right of abode.
As to whether anxious scrutiny was applied by the Divisional Court and the Decision-maker, The Court of Appeal held that the adoption of a formal standard of “anxious scrutiny” would not have made any difference to the result in the Divisional Court or in the Court of Appeal. A finding that the standard of review is not technically one subject to “anxious scrutiny” does not mean that the Court will not look long and hard at the decision challenged in the case. In light of this, it was not necessary to consider whether the standard of anxious scrutiny applied to the decision maker as well as the Court.
Chris Packham refused permission to appeal on decision relating to construction of HS2
R (Packham) v Secretary of State for Transport [2020] EWCA Civ 1004
HS2 is a high-speed railway project designed to connect London, Birmingham, Manchester and Leeds, with intermediate stations linked to the existing national rail network. Its construction is envisaged in phases, under the High Speed Rail (London– West Midlands) Act 2017 giving the necessary powers for the construction and operation of each phase. These proceedings concern a challenge by the applicant, Christopher Packham, to the Government’s decision on 11 February 2020 to proceed with HS2. The grounds of challenge involve consideration of the Oakervee review report and climate change issues. Mr Packham seeks permission to appeal against the Divisional Court’s refusal to grant permission to apply for judicial review.
The applicant maintained two grounds of appeal. The first was that the Government erred in law by misunderstanding or ignoring local environmental concerns and failing to examine the environmental effects of HS2 as it ought to have done. The second was that the Government erred in law by failing to take account of the effect of the project on greenhouse gas emissions between now and 2050, in the light of the Government’s obligations under the Paris Agreement and the Climate Change Act 2008.
Held: the court upholds the Divisional Court’s decision and refused Mr Packham’s application for permission to appeal and the application for permission to apply for judicial review. The court rejected both of Mr Packham’s substantive grounds of appeal as unarguable.
Begum granted leave to enter the UK to participate in her appeal
Begum v Secretary of State for the Home Department [2020] EWCA Civ 918
The Court of Appeal (King, Singh and Flaux LJJ, also sitting as a Divisional Court) today handed down judgment in the next stage of Shamima Begum’s challenge to the deprivation of her British citizenship.
There were two issues in the case: first, what should be the consequence of the finding reached at an earlier hearing by the Special Immigration Appeals Commission (SIAC) and Administrative Court that Ms Begum could not have a fair and effective appeal in her current circumstances; and second, whether SIAC had been wrong in its approach to the question of whether the Secretary of State complied with her policy because the deprivation decision had the direct and foreseeable consequence of exposing Ms Begum to a real risk of mistreatment which would constitute a breach of Article 2 or 3 ECHR (the right to life and the right not to be subjected to inhuman and degrading treatment).
On the first issue, the Court accepted the Secretary of State’s argument that it would be wrong to allow the deprivation appeal without there having been substantive consideration of the Secretary of State’s national security case, but agreed with Ms Begum that her appeal should not be stayed (or proceed without her participation) as had been suggested by SIAC, since that would compound the unfairness she faces. The Court therefore found that Ms Begum must be granted leave to enter the UK to participate in her appeal.
On the second issue, the Court found that SIAC had been wrong to approach this issue as a judicial review rather than a full merits appeal. SIAC is required to decide for itself whether a deprivation decision exposes an appellant to a direct and foreseeable risk of treatment contrary to Article 2 or 3, and not merely to decide whether the Secretary of State was entitled to conclude that the decision created no such risk. The Court ordered that this issue be remitted to SIAC.