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Avoiding the naughty step in Cart judicial review cases
Credit: Smuconlaw on Wikimedia Commons

Avoiding the naughty step in Cart judicial review cases

On a warm summer’s day in late July, five sets of appellant lawyers found themselves in Court 4 of the Upper Tribunal in Field House, huddled together on what could only be characterised as “the naughty step”.  Unaware at the start of the day the rationale for the hearings before President Lane and Vice-President Ockelton, it became quickly apparent that there was a steel thread running through the five cases: they related to cases remitted to the Upper Tribunal from the High Court following successful orders quashing refusals of permission through the portal of Cart judicial review proceedings. All five hearings raised points of practice and procedure arising from acts and/or omissions by those representing the appellants. 

The case in which I appeared has now been reported as MA (Cart JR: effect on UT processes) Pakistan [2019] UKUT 353 (IAC). The determination addresses the procedural mechanism for including grounds pleaded before the High Court in Cart judicial review proceedings that were not pleaded before the tribunals below.

The substance of the appeal was an LGBT+ asylum claim. The tribunal found that due to my client’s “exceptionally severe mental condition, well-attested by medical opinion not subject to any challenge, [he] will be unable to maintain a life of discretion whatever his wishes would be”. This corrects a historical wrong by highlighting the causal nexus between mental health and the inability to live a life of “discretion” to avoid persecution.

Gay man from Pakistan with paranoid schizophrenia refused asylum

MA is a gay man from Pakistan. Whilst in Pakistan he was married to a woman and had six children. He was in clandestine relationships with men from a young age. The Home Office accepts that MA is a gay man and in a genuine and subsisting marriage with another man since 2017. 

The current proceedings relate to an appeal against refusal to revoke a December 2010 deportation order. This was made following a 12-month sentence for false identity and false representation offences.

The pivotal issue in this case was the post-flight diagnosis of paranoid schizophrenia, a condition only arising and diagnosed following MA’s 2006 arrival in the UK. The First-tier Tribunal considered a May 2018 medical report by Dr Catherine King in support of a claim under Article 3 of the European Convention on Human Rights. But it held that he would be able to receive on return appropriate medication and treatment (if not to the same standard). It added that MA had “a large circle of family members in Pakistan who should be able to provide him with help and support”.

But Dr King had written a second report, dated 30 August 2018. It suggested that MA’s schizophrenia would prevent him from being discreet if returned to Pakistan. The fact that the First-tier Tribunal appeared not to engage with either report was not mentioned in the grounds of appeal. Both the First-tier and the Upper Tribunals refused permission to appeal, so a Cart judicial review of this refusal commenced.

Refusal of permission to appeal quashed on judicial review

The Cart judicial review application contained, for the first time, two paragraphs highlighting Dr King’s findings with respect to the applicant’s “ability to be discreet and fears on return”. But the grounds did not identify the First-tier Tribunal’s error in only considering the earlier May 2018 report and not both reports.

This gave rise to the High Court requesting clarification on whether this second and more detailed report was before the First-tier Tribunal. The judge pointed out that 

this goes to the heart of the case, whether the claimant would live discreetly in Pakistan because, if not, it would be uncontroversial his appeal should be allowed.

By now MA had instructed a new legal team (Farani Taylor solicitors) who instructed the author. We successfully applied to rely on supplementary grounds, highlighting the nexus between the applicant’s paranoid schizophrenia diagnosed after his arrival in the UK and conduct on return. The High Court granted permission to appeal and, noting no request for a substantive hearing, quashed the decision of the Upper Tribunal to refuse permission to appeal.

Both parties had prepared the resulting Upper Tribunal hearing on the basis that the grounds and scope of the appeal were agreed by the High Court. But the Upper Tribunal made clear that any grounds not pleaded in the original statutory grounds (pursuant to sections 11 and 12 of the Tribunals, Courts and Enforcement Act 2007) must be before the Upper Tribunal as a matter of amended grounds.

How to amend grounds following Cart judicial review proceedings

We relied on Rule 2 (on the overriding objective) and Rule 5(3)(c) (amendment of documents) of the Upper Tribunal Procedure Rules 2008 in order to rely on the supplementary grounds, as before the High Court. The Upper Tribunal granted permission at the hearing [43].  

It is clearly good practice where reliance is placed on amended grounds for all the documents lodged following the refusal of permission by the Upper Tribunal to be lodged prior to any substantive hearing to ensure the Upper Tribunal is clear about the basis of the challenge to the original determination.

Where it is arguably clear that there has been a shift in the core focus of the challenge to the First-tier Tribunal determination from the original pleadings, then it would be advisable following the order of the High Court to provide to the Upper Tribunal the relevant documents (grounds pleaded for the judicial review, the Order granting and disposing of the proceedings) with an application to amend within a reasonable timeframe and in any event prior to any hearing before the Upper Tribunal. It would be difficult for the Secretary of State to oppose amending the grounds as she would be an interested party to the proceedings before the High Court.

The official headnote

(1) Where the decision of the Upper Tribunal to refuse permission to appeal against the decision of the First-tier Tribunal is quashed by the High Court, following the grant of permission in a “Cart” judicial review under CPR 54.7A, the Upper Tribunal’s ability to grant permission to appeal without a hearing depends upon the Upper Tribunal being able to understand, from the High Court’s grant of permission in the judicial review, what led the Court to conclude that the requirements of CPR 54.7A(7) were satisfied.

(2) If the Upper Tribunal lists an application for permission to appeal for an oral hearing, following the quashing of a refusal to grant such permission, the appellant will need to ensure that the Upper Tribunal and the respondent have all the relevant materials in connection with the “Cart” judicial review, which may bear on the issue of whether permission to appeal should now be granted.

(3) This will be particularly important where the case for the appellant has materially changed from what it was when the Upper Tribunal received the application for permission to appeal. In such a scenario, the Upper Tribunal will be unable to discern the potential point at issue merely by revisiting the original grounds of application for permission to appeal.

(4) The requirement in CPR 54.7A, that there must be shown to be something arguably legally wrong with the way in which the Upper Tribunal reached its decision in response to the grounds of application that were before it, is important. If it is not observed, there is a serious risk of a “Cart” judicial review being seen as a third opportunity for an appellant to perfect grounds of challenge to the First-tier Tribunal’s decision, when Parliament has ordained that there should be no more than two.

Substantive asylum appeal allowed: discretion and mental illness

MA relied on a causative link, outlined in the medical reports, between fear of persecution and his sexual identity, on the one hand, and his paranoid schizophrenia on the other. As the psychiatric evidence put it:

He lives in daily fear of return. This fear is intensified on a psychotic level as the essence of his psychosis is about exposure of his sexuality which makes him exceptionally fearful of return. [MA] would be poor at being discreet about his homosexuality if returned for exactly this reason… [MA] would be poor at being discreet about his homosexuality if returned because he is extremely fearful and convinced that there is a conspiracy to expose his sexuality. He becomes violent and aggressive when he is under perceived threat and is likely to struggle to control his responses.

The Upper Tribunal made a clear finding the appellant will “not be able to maintain discretion”. It found, at paragraph 60: 

It is this feature of the report of 30 August… that is in our judgment crucial. There is, as [the Home Office] accepted before us, no reason to doubt it. The question of any reasons for the appellant’s discretion does not arise in this case. Nor, realistically, does any question about whether he would wish (or choose) to be discrete. The position is that he is a homosexual man who because of his quite exceptionally severe mental condition, well-attested by medical opinion not subject to any challenge, will be unable to maintain a life of discretion whatever his wishes would be.

In RG (Colombia) [2006] EWCA Civ 57, the Court of Appeal dismissed an appeal by a gay man from Colombia, finding that the psychiatric evidence the appellant would suffer a nervous breakdown if he had to conceal his sexual identity on return was not evidence to show discretion was not reasonably tolerable (applying the legal test at the time). As in MA, the first instance tribunal in RG had only considered the psychiatric report in the context of the free-standing Article 3 medical treatment claim, rather than the sexual identity protection claim. Re-reading RG through the prism of MA provides an alternative pathway to show why RG could have succeeded: his breakdown on return would arguably lead to his revealing his identity.

Challenging discretion arguments

In the country guidance case of SW (lesbians – HJ and HT applied) Jamaica CG [2011] UKUT 251 (IAC), the Upper Tribunal provided guidance on how non-conformity to the heteronormative stereotype of how a straight woman should conduct herself before a potential persecutor can lead to perception of a non-straight “at risk” identity, even if the person is straight (a category of identities referred to by this author as the “Queer Refugee”). It will need successive litigation to show how impermissible the continued existence of the “discretion” limb in protection claims is given the stark reality of being returned to countries where any slip will lead to identification. 

What MA does do is start drawing the veil away to unmask the reality of Queer Refugees to “be able to maintain discretion”. We must continue to challenge the legal loophole enabling refusal of protection claims based on “choosing” discretion based on mere social pressure and personal choice provided for by the penultimate conduct limb of Lord Rodger’s guidance in HJ (Iran). Only then can we correct this historical wrong and step towards sanctuary — for in reality, how many Queer Refugees will be able to maintain discretion not for one day, or one week, but for the rest of their lives?

Dr. S. Chelvan is Head of Immigration and Public Law at 33 Bedford Row Chambers. Over the last 20 years, Chelvan has established a niche practice in protection and human rights claims. He is profiled in Band 1 in Legal 500 (2021) (Immigration, London Bar) - “His expertise in sexual-identity-related asylum claims is world-renowned”. Chelvan holds an LLM from Harvard Law School (2001, Kennedy Memorial Trust scholar), and was awarded a PhD in Law from King’s College London in June 2019 - his thesis was entitled: ‘At the End of the Rainbow: Where Next for the Queer Refugee?’. He tweets from @S_Chelvan.