Madan & Anor v Secretary of State for the Home Department

Mr Madan and Mr Kapoor are both citizens of the Republic of Afghanistan. Mr Madan is a Sikh. Mr Kapoor appears to be a Hindu, though at one stage of the immigration process it seems to have been claimed that he also was a Sikh. Both claim to fear persecution on grounds of their respective religions if returned to Afghanistan. Both are unlawfully in this country, and the Secretary of State has made deportation orders against both of them. On 26 June 2007 the solicitors to both men issued Judicial Review proceedings seeking to challenge those deportation orders, and at the same time applied to Mitting J for injunctions preventing their removal pending those proceedings. Mitting J refused those applications and refused permission to appeal to this court. On application to a single judge of this court the deportation orders were stayed until the permission applications could be considered by the full court. After some discussion with the court at the consequent hearing counsel for the Secretary of State suggested that the merits could be more properly considered at an expedited hearing of the Judicial Review applications and the Secretary of State undertook to suspend any action on the deportation orders until those applications were discharged. We agreed to that course, albeit with some considerable reluctance, not least because it became apparent as the hearing proceeded that the material before us did not equip us to reach a proper decision ourselves.

We therefore made no order on the applications, against that undertaking and an undertaking by the applicants’ solicitors to promote the Judicial Review proceedings with all despatch. This whole episode has, however, pointed to some wider issues on which the court needs to give guidance, which we do in this judgment. First, however, but purely in order to render the rest of what we say intelligible, we say something briefly about the nature and history of the two cases.

Mr Kapoor was apprehended attempting to enter the United Kingdom clandestinely in March 2000. He was refused asylum, but granted exceptional leave to remain until 26 February 2006 under the then policy with regard to persons coming from Afghanistan. In October 2005 the AIT issued a Country Guidance determination, SL and others [2005] UKIAT 00137, which held that Sikhs and Hindus returning to Afghanistan do not face a threat of persecution per se, but that religion was a factor that could be taken into account in individual cases. In June 2006 Mr Kapoor’s solicitors made a fresh claim, apparently for asylum, on the basis of an expert report about Afghanistan (not shown to us, and no longer relied on); but also claiming relief under article 8. That application was rejected, and in September 2006 Mr Kapoor withdrew his appeal against the rejection, his solicitors having given unfavourable advice as to the prospects of success. Rather, Mr Kapoor made an application for Indefinite Leave to Remain, on the basis of his previous exceptional leave, by then expired.

On 18 January 2007 the Secretary of State informed Mr Kapoor that he was considering his deportation, and invited representations. The solicitors replied on Mr Kapoor’s behalf. On 19 February 2007 the Secretary of State informed the solicitors that those representations had been rejected, and on 21 February 2007 wrote to Mr Kapoor rejecting his application for indefinite leave to remain. A deportation order was served on 14 March 2007, and copied to the solicitors on 21 March 2007. They told us that thereafter they wrote to Mr Kapoor on a few occasions, but had no response. They did nothing about further challenge to the deportation order.

Miss Jones, who held a difficult brief with considerable resource, told us that the solicitors were justified in their inaction because no decision had been made on the application for indefinite leave to remain. That was wrong, on two grounds. First, a decision had been made, and communicated to Mr Kapoor in the letter of 21 February 2007. We were told that Mr Kapoor had never received the letter. We do not accept that. It was sent to him at the Dover Removal Centre where he was then detained, and in the short time available to her to address this allegation the Secretary of State was able to show us the office record of that despatch. Second, however, whether or not the decision had been made or notified to Mr Kapoor, if the deportation order was to be resisted because of pending leave proceedings it was necessary to take that point immediately on the order being made, and not to leave things, as they were left in this case, until removal was imminent.

With removal immediately pending, on 24 June 2007, as already described, the solicitors commenced Judicial Review proceedings challenging the decision to deport. That was based on two heads. First, Mr Kapoor’s claims, previously abandoned, under article 8. Second, a claim that it was now unsafe in any event for Sikhs or Hindus to be returned to Afghanistan, that claim being based on a report of a Dr Ballard, produced for the first time in these proceedings on 25 June 2007.

Mr Madan entered the United Kingdom unlawfully in 2003, an immediate claim for asylum being dismissed. The Secretary of State accepted representations as a fresh claim in August 2005, but that was rejected in April 2006. No application was made for statutory review, but a month after the decision further representations, again alleged to be a fresh claim, were submitted to the Secretary of State. The Secretary of State responded in early June 2007, rejecting the application and notifying the solicitors that removal directions had been set for 2040 hours on 26 June 2007. Yet further representations were made, and rejected on 22 June 2007. An application for Judicial Review of the decision to deport was then issued on 26 June 2007, the very day of the proposed removal, and again relying on the report of Dr Ballard, which again only made its appearance at that stage of the proceedings.

We mention now one unsatisfactory feature of both of these cases, which is that serial applications were made for reconsideration on the basis of changed circumstances. Advisers need to consider very carefully before making such an application (which is very demanding on public resources) whether the application is justified. It will amount to professional misconduct to make an unjustified application with a view to postponing the implementation of a previous decision.

Looking at the cases more generally, it will be convenient first to explain what appears to be in issue in the two cases, and why this court adopted the course described above.

Any court considering this claim will wish to bear in mind that

Nevertheless, it is not possible for this court, having envisaged that the Judicial Review proceedings should continue, to make any order as to their contents. It will therefore be open to Mr Kapoor to pursue this complaint if, on mature consideration, his advisers think that a proper course.

Dr Ballard’s report is relied on to offset the Country Guidance case of SL and others, and thus to cause the Administrative Court to set aside the deportation orders, on the grounds that Afghanistan is no longer safe for Sikhs or Hindus irrespective of their individual circumstances. The Administrative Court is really a wholly unsuitable tribunal for that purpose. Country Guidance cases have a special status, failure to attend properly to them being recognised by this court as an error of law even though Country Guidance cases deal only with fact: see R(Iran) v SSHD [2005] EWCA Civ 982 [27]. They have that special status because they are produced by a specialist court, after what at least should be a review of all of the available material. And that in particular involves a judicial input from a background of experience, not least experience in assessing evidence about country conditions, that is not available to judges such as sit in the Administrative Court and in this court. A judge hearing a Judicial Review application will therefore wish to tread carefully before finding that a Country Guidance case is unreliable just on the basis of one or two subsequent reports. The parties appearing before him will in particular wish to ensure that he is aware of any decisions in the AIT subsequent to the Country Guidance case in which that case has been considered.

These general considerations are over and above the cogent criticisms that Miss Giovanetti was able to make of the provenance and range of Dr Ballard’s report itself, which again the administrative judge will wish to take carefully into account.

We have seen that the process with which Mitting J was concerned was initiated, and brought before the judge, on the very day on which removal was to take place, despite the solicitors having known, in the case of Mr Kapoor for several months, that deportation had been ordered. Mitting J concluded that the delay was deliberate, in order to make it impossible for proper judicial consideration to be given to the underlying merits. He was quite right to say that proper consideration could not be given to the merits: hence, in part, this court being obliged, reluctantly, to remit the matter to the Administrative Court. It is also wholly understandable that on the material and submissions made to him the judge thought that the applications were an abuse. We have now received from the solicitors a 120 paragraph witness statement which, although revealing a most unsatisfactory state of affairs, denies any deliberate misleading of the court. We accept that denial at face value, but set out how in other ways these matters were conducted unsatisfactorily.

Mitting J said that in any event an application should have been made to the court, if at all, as soon as it was known that deportation had been ordered. As Mitting J pointed out, in the case of Mr Madan that was 11 June 2007. He did not know, but we now know, that in the case of Mr Kapoor the solicitors had been informed of the order as long ago as 14 March 2007. The failure to act promptly inevitably led to the difficulties that faced Mitting J and this court. As to the evidence of Dr Ballard, which is now said to be the thing that solves everything, the solicitors told us that they were not aware of Dr Ballard or his ability to help until they initiated the present proceedings, when they were told about him by Miss Jones. A report by Dr Ballard had in fact been used to persuade Mr Justice Langstaff to grant permission for Judicial Review in another Afghanistan case, Pagalug CO/2864/2007 on 11 May 2007, in which Miss Jones was instructed, but by different solicitors. We again accept what the solicitors tell us, but we are bound to note that they also told us that they have a prominent position in asylum work, including in particular cases involving Afghanistan. If Dr Ballard and his work are indeed as significant as is now claimed, it is very surprising that such solicitors had never heard of him. The result of this process was that Dr Ballard’s report was almost literally thrown across the table at Mitting J, so that the judge was understandably very reluctant to give weight to it. And it is far from clear that it was expressly stated to the judge that Dr Ballard’s report was in conflict with a Country Guidance case, with the implications indicated above.

In the hope of avoiding a repetition of the unsatisfactory course of this case, we now set out some principles that must be followed in future. We do so against this background. In immigration matters the court is usually reluctant to follow the usual course of visiting faults of advisers upon their clients, for the reasons that were explored in the judgments in this court in BR(Iran) v SSHD [2007] EWCA Civ 198. But, as the same case makes clear, that does not exempt the professional advisers from sanctions should they be responsible for impeding the efficient work of the courts.

These are set out in no special order. All of them are important. Failure to adhere to them may lead to professional sanctions.

CPR PD 54.18 makes provision for the hearing of judicial review applications in the Administrative Court against removal from the jurisdiction. Such applications must be made promptly on the intimation of a deportation decision, and not await the actual fixing of removal arrangements.

The detailed statement required by PD 18.2(c) must include a statement of all previous applications made in respect of the applicant’s immigration status, and indicate how the present state of the case differs from previous applications.

Counsel or solicitors attending ex parte before the judge in the Administrative Court are under professional obligations (a) to draw the judge’s attention to any matter adverse to their clients’ case, including in particular any previous adverse decisions; and (b) to take a full note of the judge’s judgment or reasons, which should then be submitted to the judge for approval.

Those contemplating thereafter applying to this court should remember that they are most unlikely to succeed unless they can identify an error of law on the part of the judge.

This court has no jurisdiction to entertain any application for ancillary relief, such as an injunction against removal, unless an application has been made for permission to appeal against the decision of the administrative court. Any application for injunctive relief should either (a) only be made after an application for permission to appeal has been issued; or (b), in cases of real urgency, where the court office is not open, against an undertaking to issue the application (and pay the appropriate fee) at the first opportunity.

The Treasury Solicitor should be promptly informed of the intention to apply for injunctive relief, in case he is able to and wishes to attend.

The applicant should put before the Lord Justice (a) the papers that were before the judge in the administrative court, including the matter referred to in sub-paragraph (ii) above; (b) counsel or solicitors’ note of the reasons or judgment of the judge in the administrative court, stating whether or not it has been approved by the judge; (c) a succinct statement of the error or errors alleged to have been committed by the judge in the administrative court, general claims that the judge erred in fact or law in taking a particular view, or in his decision as a whole, not being acceptable; (d) where there has been any delay in bringing the matter before either the administrative court or the Court of Appeal, an explanation of that delay.

Counsel will remember that where the application is made ex parte there is a particular obligation to draw the court’s attention to relevant authority, including in particular Country Guidance cases.