T, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE OWEN: This is an application for judicial review of two decisions. First, the decision of the Secretary of State for the Home Department on 8th July 2003 to remove the claimant from the United Kingdom and, secondly, the decision of the Immigration Appeal Tribunal dated 24th July 2003 refusing him leave to appeal against the decision of an adjudicator.

The application arises in the following circumstances. The claimant is a native of Cameroon. He arrived in the United Kingdom with his two brothers in 2000 having escaped from custody in Cameroon, and claimed asylum in June of 2000. The claims of the claimant's brothers were refused by the Secretary of State. They appealed to the adjudicator who, following a joint hearing on 26th February 2002, dismissed both asylum claims but allowed the human rights appeals on the basis that there was a real risk of the re-detention and further ill-treatment in Cameroon.

The Secretary of State then granted the brothers indefinite leave to remain apparently for a period of four years. For reasons that are not revealed in the papers before me the claimant's claim for asylum, somewhat surprisingly, proceeded separately from those of his two brothers. His claim was rejected by the Secretary of State and he too appealed to the adjudicator. The appeal was heard by a different adjudicator. The Secretary of State was not represented. Somewhat surprisingly, in the light of the decision on appeal by the brothers, the claimant's appeal was dismissed by a determination dated 30th March 2003. No appeal against that decision was submitted within the requisite ten working days.

On 6th June 2003 the claimant changed his solicitors to those who currently represent him. On the following day he was taken into custody. His solicitors then immediately informed the Immigration Service of their interest, and at 1.45 am on 8th July 2003, having learnt that he was about to be deported, faxed an out-of-time application to the Tribunal for permission to appeal. Copies were also faxed to the Immigration Service at 8 minutes and 11 minutes past two that afternoon, but the claimant was nevertheless removed from the United Kingdom at 7.45 on the evening of 8th July and was returned to Cameroon.

It is now acknowledged that his removal was unlawful although the defendant reserves the right to argue on appeal that the decision of Davis J in Erdogan v Secretary of State for the Home Department [2004] EWHC 541 (Admin) was wrongly decided, and that in consequence the concession that the removal was unlawful was wrongly made. On 24th July 2003 the tribunal refused permission to appeal on the sole ground that there would be no point in granting permission as the appeal would inevitably have to be treated as abandoned under section 58.8 of the 1999 Act. In fact the relevant provisions are contained in the 2002 Act.

It is to be noted that the chairman of the Tribunal did not determine the application on the basis that it was out of time -- that was not an issue that he resolved -- but he accepted that for the purposes of the application, and I quote, "it is not the fault of the applicant that his application was not brought in time".

It is now accepted by the Tribunal, and on the part of the Secretary of State, that the decision of the Tribunal refusing permission to appeal should be quashed and that the application should be remitted to the Tribunal for consideration by a different Tribunal chairman. It follows that the claimant succeeds on the second limb of the application.

given the concession made on behalf of the defendant he also succeeds in his challenge to the legality of his removal on the evening of 8th July.

The sole issue that therefore arises for my consideration is whether there should be injunctive relief requiring the Secretary of State to take steps to secure the claimant's immediate return to the United Kingdom. The issue is relatively narrow because Mr Maxwell-Scott who appears for the Secretary of State helpfully indicated at the outset that the Secretary of State would undertake to take such steps if the claimant's renewed application to the Tribunal for permission to appeal against the decision of the adjudicator is successful.

It is also submitted on behalf of the Secretary of State that the decision can be taken by the Tribunal within a very short period of time. Inquiries have revealed that it could be taken within seven days of my making an order quashing the original decision, although of course that time estimate has to be considered in the context of the break for Easter. But Mr Gill QC, who appears on behalf of the claimant submits that notwithstanding that undertaking, there ought to be injunctive relief. He makes that submission essentially for two reasons.

First he says that this is a case in which it is now accepted that the Secretary of State has acted unlawfully, and that the consequence of his acting unlawfully is to deny the claimant the statutory protection to which he is entitled whilst an appeal is pending. The claimant has been returned to a situation in which he is exposed to the potential violation of his human rights, the risk that of course founds his application for asylum and his human rights claim. Mr Gill submits that in such circumstances the guiding principle is that the Secretary of State should immediately take steps to right the wrong that he has done the claimant.

That gives rise to an issue of principle between the parties in that Mr Maxwell-Scott submits that there is no overriding principle that in such circumstances the Secretary of State should immediately act to right the wrong. He submits that the exercise of the court's jurisdiction to grant injunctive relief is discretionary, and that in the exercise of a discretionary remedy it is always necessary for the court to take account of all the circumstances.

In my judgment Mr Maxwell-Scott is right to say that I am obliged to take account of all his circumstances. But the first and primary factor to be taken into account is the fact that the Secretary of State has acted unlawfully, and has in consequence put the claimant into the position in which he is exposed to a potential violation of his human rights.

I also take account of the argument advance on behalf of the Secretary of State that the application for permission to appeal against the decision of the adjudicator can be determined within a short period. But Mr Gill submits that if he is properly and effectively to present the application for permission to appeal it is necessary for him to obtain further and full instructions from the claimant as to the up-to-date position.

The Tribunal is of course entitled to take account of the circumstances prevailing at the time when the application for permission is made; and Mr Gill therefore argues that he will be handicapped in his presentation of the claimant's case unless he is able to take such instructions.

The practical difficulty that he would face in taking such instructions if the claimant is to remain in Cameroon where he is some two hours distant from the capital speak for themselves. In my judgment that consideration is decisive. I am satisfied that the claimant will be prejudiced unless injunctive relief is given at this point.

The second strand to Mr Gill's argument is that the claimant will in any event need to return to this country in order both to give instructions and to appear in court in due course in relation to the claim for damages that will follow the acknowledgment on the part of the Secretary of State that he acted unlawfully.

I am satisfied that there is also force in that submission although it does not have quite the immediacy of his first submission, namely that the application to the Tribunal cannot be advanced as strongly as might be the case unless he has the opportunity to take full instructions from the claimant.

Accordingly, I have come to the conclusion that it is appropriate in the circumstances of this case to grant the relief that the claimant now seeks.

Mr Maxwell-Scott, I think, am I right, that there was an indication that in such circumstances the Secretary of State would prefer to give an undertaking to the court rather than that I should be in the perhaps somewhat invidious position of ordering the Secretary of State to take such steps.

MR MAXWELL-SCOTT: That is exactly right, my Lord. I think similar undertakings have been given in previous cases.

MR JUSTICE OWEN: Yes, I am very conscious of that.

MR MAXWELL-SCOTT: Best endeavours was used in Changuizi.

MR JUSTICE OWEN: I therefore will accept the undertaking that will flow from the decision that I have made.

Now there are, I think, three other matters that I need to address. First, the question of directions for the assessment of damages. Mr Gill, I am not sure that it is necessary or appropriate for me to make any directions at this stage unless you are specifically inviting me to. It seems to me that that can properly await the opportunity which I hope is now going to be available to you to take proper instructions on this matter, and in any event this may be a matter which is resolved between the parties.

MR GILL: My Lord, I think that is right.

MR JUSTICE OWEN: The second matter is that I am satisfied that it is appropriate to make an order continuing to preserve the anonymity of the claimant. Third and last is the matter of costs on which I will hear you both. Can I say in relation to the order that I would like Mr Gill and Mr Maxwell-Scott to prepare the appropriate undertaking to the court which I can then initial at a late stage during the day. Yes. Now those are the remaining outstanding matters.

MR GILL: My lord, that is right. Mr Maxwell-Scott and I can word the order appropriately.

MR JUSTICE OWEN: There will be the order quashing the decision of the Tribunal and remitting it for a rehearing, and then, secondly, there will be the undertaking to return the applicant.

MR GILL: Yes, the first of those, the reconsideration, to take place after the claimant has been --

MR JUSTICE OWEN: Yes, exactly, to take account of the reasons I have given.

MR GILL: My lord, yes, I think that the declaration speaks for itself as to the illegality so I do not need anything else in relation to that, so that simply leaves the question of costs. Can I ask for my costs?

MR JUSTICE OWEN: Yes.

MR MAXWELL-SCOTT: I accept the application for costs, of course. Just dealing with two other matters. Firstly, the question of remittal. I wonder whether there is a need for more precision here because the IAT may think that as soon as it receives the order then it should respond within seven days.

MR JUSTICE OWEN: I think that is why Mr Gill was indicating that the order that you draft between you should make it plain that it should not be heard until the claimant has had the opportunity to give instructions to Mr Gill and Mr Gill the opportunity to consider the terms of the application, but I will leave it to you, if I may, to draft that appropriately.

MR MAXWELL-SCOTT: May I suggest that it also if necessary makes clear that it is entirely a matter for the IAT whether it grants permission the application out of time, whether it grants permission at all, and whether it permits new evidence and new grounds to be raised.

MR JUSTICE OWEN: I think that will be clear from the very fact that I am quashing the decision and simply remitting it for reconsideration by the Tribunal.

MR MAXWELL-SCOTT: I mentioned the out-of-time point because there had been some discussion during this hearing as to whether they had already extended time.

MR GILL: If it assuages my learned friend's concerns, having heard what your Lordship said, that the Tribunal did not decide that question I would have to accept that it is open for them to look at it again. I do not think we need anything in the order because of what I have said.

MR MAXWELL-SCOTT: Finally, there is the question of permission to appeal. You will have noted from my skeleton argument that the matter which we did not discuss in any great detail today, namely the correct construction of section 104 of the 2002 Act, is on its way to the Court of Appeal and that our concessions in respect of that today were not intended to bind us finally, and we would ask for permission to appeal on that point as was flagged up, I would suggest, in my skeleton argument. It is certainly a point which Mr Justice Davies thought deserving of the Court of Appeal's attention. In my skeleton argument I sought to reserve the right to argue the point. Our position was that it was not possible to distinguish the decision of Mr Justice Davies and there was not any great merit in attempting to do so. The Court of Appeal would have the opportunity to decide whether his construction --

MR JUSTICE OWEN: His decision is now on its way to the Court of Appeal.

MR MAXWELL-SCOTT: It is.

MR JUSTICE OWEN: Yes.

MR GILL: If it helps from my point of view, bearing in mind that Mr Justice Davies has granted permission to appeal on the very question that arose in this case with the illegality, I do not think I could object to an application or wish to appeal on that point.

MR JUSTICE OWEN: Yes.

MR GILL: Now, if ultimately the Secretary of State's appeal to the Court of Appeal on that point succeeds, that might have knock-on consequences for damages claims, in which case your Lordship was also entirely right not to give directions at this point in relation to that. However, none of that affects the injunction because, in any event, everybody accepts that there was an application put in place at the time that the appellant was removed.

MR JUSTICE OWEN: Yes. Mr Maxwell-Scott, in light of what Mr Gill has said I think it is appropriate to give you permission to appeal. What would be helpful is if in addition to the order that I am asking you both to draft for me if you could produce a draft of the point, the narrow point on which you seek that permission, so that I can incorporate that in my permission to appeal.

MR MAXWELL-SCOTT: In those circumstances, may I also ask for permission to the appeal on the injunction point, the reason being clearly that an important part of your Lordship's reasoning was the fact that the decision to remove had been unlawful. That is a matter that is connected with the point which your Lordship has already given permission in and, of course, if one matter is going forward by way of permission there is an extra logic, we would submit, in the other matter proceeding with it. May I make it quite clear that we are not in any way seeking a stay of the undertaking so it does not in fact effect the practicalities of what is going to happen to the claimant in this case.

MR JUSTICE OWEN: In that case it becomes entirely academic does it not, Mr Maxwell-Scott?

MR MAXWELL-SCOTT: Well, it becomes perhaps academic to the result in this case but it is potentially significant in other cases.

MR JUSTICE OWEN: Its significance in other cases is dealt with. The permission that I give in any event as to the point of principle, whether it is the proper construction of the section.

MR MAXWELL-SCOTT: If the Court of Appeal were to take a different view to Mr Justice Davies, then that would cast, in my submission, unsatisfactory ambiguity as to the authority to be given to your Lordship's decision about the injunction, because a plank of this case would have been overturned.

MR JUSTICE OWEN: My judgment proceeded on the premise that the decision by the Secretary of State was unlawful. If that point is subsequently resolved in the Court of Appeal -- I mean, you conceded it for these purposes, but if that point goes the other way in the Court of Appeal, then my judgment would not have any residual value so far as in the other cases are concerned. So it does not seem to me that on the face of it you need the further permission to appeal. The issue would be effectively dealt with.

MR MAXWELL-SCOTT: I do not press the point any further.

MR JUSTICE OWEN: I am not prepared to give you a further permission to appeal. Mr Gill, Mr Maxwell-Scott, I am very conscious of the pressures on your time but the quicker you are able to produce the order for me the better on the last day of term.

MR GILL: Certainly. Lastly, legal aid taxation.

MR JUSTICE OWEN: Yes, you may both your costs and your legal aid taxation.

MR GILL: I am grateful.

MR JUSTICE OWEN: I am most grateful to you both for your assistance.