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Court of Appeal dumps on retired judge for detention decision “without any supporting reasons or explanation”


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Immigration judges who get things wrong tend not to be named, unless of course you are Dr Majid. All the more surprising, then, that the Court of Appeal sought to name (and, frankly, shame) Judge Anthony Thornton QC in R (Hameed) v Secretary of State for the Home Department [2019] EWCA Civ 456.

The main complaint was that the judge had acted in a way that was procedurally unfair when deciding an unlawful detention claim. The applicants in question had been detained for 106 days under the Detained Fast Track system after claiming asylum. After a series of appeals reaching the Court of Appeal, they were eventually granted refugee status.

However, prior to that, a judicial review was issued claiming that their detention was unlawful. The substantive hearing came before Judge Thornton in December 2014. He then retired, and did not deliver judgment until July 2016. In those 18 months, there were a string of cases about whether the Fast Track rules were lawful and whether decisions made under that system were unfair. The Court of Appeal ultimately found that although the rules generated a risk of unfairness, appeal decisions made pursuant to those rules were not necessarily unfair.

During those 18 months, Judge Thornton sensibly requested parties to produce further written submissions, although the Secretary of State said that: “it would be inappropriate to address such a difficult issue on the papers a year after oral argument has been concluded”.

Ignoring that entirely, the judge did exactly what he was asked not to do; and his judgment was picked apart by the Court of Appeal.

Lord Justice Davis held that by not calling for further oral argument, the judge acted in a way that was ultimately procedurally unfair. It didn’t matter that another judge reached the same conclusion in a later case.

The judge’s conclusions that any fast track process was legally flawed had been rejected in subsequent case law and were:

without any supporting reasons or explanation or any sufficient analysis of the evidential position as it then stood, as not to withstand scrutiny.

Perhaps the biggest criticism of all was that the judge had substituted his own views for the views of the tribunal judges below:

In fact, as it seems to me, the judge’s approach throughout appears to operate almost entirely at a level of hindsight and without any, or any obvious, reference as to how things could reasonably be perceived to be at the time. In particular, it pays scant, or even no, regard to the initial judicial decisions of two judges of the First-tier Tribunal to refuse to take the appeals out of the DFT process or to grant an adjournment. It also seems to pay no real regard to the carefully considered determination of Judge Herlihy – a determination reached in the light of all the evidence then adduced…

Thankfully, none of the criticism filtered down to counsel, whom the court described as making “excellent” arguments. A rare compliment amongst the barrage of criticism.

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Bilaal Shabbir

Bilaal Shabbir

Bilaal is an Advocate at the Scottish Bar and practises in both Scotland and Jersey, focusing on public law, commercial dispute resolution and offshore trust litigation. He is a Panel Member on the Football Association’s (FA) National Serious Case Panel.