Court of Appeal quashes Immigration and Asylum Tribunal result due to unlawful and ultra vires procedural rules


Re: 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. Lewis J 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 appeals 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.

Chris Buttler was involved in this case.