High Court gives guidance on secret correspondence for charter flight removals

The Administrative Court has set some boundaries and given a warning of potential sanctions to the GLD regarding the withholding of charter flight details in removal cases. The case is R (Jasseh) v Secretary of State for the Home Department [2025] EWHC 47 (Admin).

The claimant was issued with removal directions for a flight on 9 January 2025. He was unrepresented and lodged an application for judicial review in the Upper Tribunal, asking for interim relief by way of a stay on his removal from the UK. He had previously lodged five claims for judicial review between October and December 2024, also challenging his removal, all of which were refused permission.

The claim was transferred to the Administrative Court because it included a challenge to a negative trafficking decision. A hearing was listed for 8 January 2025 and interim relief was refused.

On 7 January 2025 the Government Legal Department sent an email to the Administrative Court headed “Strictly confidential – Gambia Charter”. The email said that the charter flight was scheduled for 9 January at around 7.45am. The email explained that GLD and counsel were on call to consider and defend any urgent applications relating to the claimant’s removal.

It stated that the claimant had previously lodged several judicial reviews which did not contain all the relevant information and that an Upper Tribunal judge had asked for a bundle with the litigation history to be provided by the GLD. The email said that four bundles and a chronology were to follow in subsequent emails.

At the start of the hearing, the judge queried why that email had not been copied to the claimant. Counsel for the Home Secretary advised that this was in line with the published policy “not to disclose the time of charter flights for removals, because doing so could enable targeted disruption, which in turn could endanger staff as well as those subject to removal”, as the email had contained details of the charter flight.

The GLD responded further in writing on 10 January 2025, stating that:

17. With hindsight, we can see that this email could be interpreted as containing submissions and is an inadvertent breach of CPR 39.8. We apologise unreservedly for this error.

18. In light of this, we are currently reviewing our internal procedures in respect of emails proactively sent to the Tribunal and Court in advance of charter flights. We would welcome feedback whether the Court wishes to be notified of the details of GLD’s on call immigration lawyers and if this assists the Court.

The court referred to CPR 39.8 which sets out the requirements for copying correspondence to court to the other party. It was stated that the email sent by the GLD on 7 January 2025 “plainly contravened” that provision of the CPR as

It was about a particular case; it was sent after proceedings and an application for interim relief had been issued and were before the court; and it went well beyond a “routine, uncontentious and administrative” communication of the kind mentioned in CPR 39.8(2). It contained submissions about what had happened in previous litigation, including a submission that the claimant had failed (whether deliberately or otherwise) to provide a complete picture to a tribunal. For these purposes, it does not matter whether the submission was well-founded. There was no reason, let alone a compelling reason within CPR 39.8(3), for not copying this part of the email to the claimant.

The court said that in future any similar private communications should be referred to the Administrative Court lawyers who will direct that it be returned to the sender, and may refer the matter to a judge for consideration of whether sanctions should be imposed or case management directions given.

It was confirmed that an email sent before proceedings have been brought or threatened, which just contain the departure time of a planned charter flight and contact details of the lawyers who will be dealing with any litigation is permitted under CPR 39.8(1). However once proceedings have been started or threatened then the GLD and counsel will need to consider their duty of candour and CPR 39.8(3) and keep under review whether it is appropriate to continue to withhold from the claimant the intended departure time.

The court said that the time of the flight in this particular case was not material but there may be other cases where it is (a very recent example being the charter flight to Albania that left this morning at 1am). The example given by the court was if “the Home Secretary were notified in the late afternoon or evening of an intended application for interim relief, it would not be fair to keep the claimant and/or his or her lawyers wholly in the dark about the flight departure time.”

The court concluded with this instruction for future correspondence:

From now on, where proceedings have been filed or threatened, any communication to the Administrative Court about a removal which is not copied to the other party or parties should:

(a) make clear in the subject line that it has not been copied to other parties;

(b) indicate whether this is because the communication is “routine, uncontentious and administrative” in nature (CPR 39.8(2)) or because there is a compelling reason not to copy it to the other party (CPR 39.8(3));

(c) if CPR 39.8(3) is relied on, set out the “compelling reason” why it has not been so copied and record that the author considers that the reason applies to the whole content of the communication;

(d) explain what the claimant has been told about the matters being communicated to the court; and

(e) record that the author is satisfied that this complies with the defendant’s duty of candour, with a brief explanation of the reasons why.

The idea of the GLD being subject to sanctions in a similar way to those acting for claimants is of course a nice idea in principle, but I will believe it when I see it.