The High Court has ordered the Home Office to return an asylum seeker to the UK from Uganda because her 2013 asylum appeal hearing was unfair. PN v Secretary of State for the Home Department [2019] EWHC 1616 (Admin) is the latest in a series of cases about the consequences of the Court of Appeal finding that the Detained Fast Track appeal system was unlawful because it created a risk of systemic unfairness. This is the first time that the Home Office has been ordered to return an asylum seeker to the UK because of an unfair appeal.

Background

PN’s asylum appeal was determined using the 2005 Fast Track Rules. In 2015 the Court of Appeal declared that the 2014 Fast Track Rules, which were similar to the 2005 version, were unlawful because they created a risk of systemic unfairness. In 2018 the Court of Appeal confirmed that the 2005 Fast Track Rules were also unlawful for the same reason.

The court held that this did not mean that all asylum appeal determinations made using the rules were a nullity, but rather that the courts must consider in each case whether the application of the Fast Track Rules rendered the appeal process unfair. The court recommended that a relatively strict approach be taken to identifying that an asylum appeal had been unfair, taking into account the high level of fairness required in asylum appeals tempered by the importance of finality in litigation.

Unfair appeal

PN had claimed asylum on the basis of her sexuality and a core part of her claim was that she had had lesbian relationships in Uganda. Understandably, she wanted to present evidence about those relationships to the judge at her appeal. Even though she was granted a 14-day adjournment, this evidence had not been obtained by the time of the appeal hearing. Her appeal was dismissed and she was later removed to Uganda.

Mr Justice Lewis held that the short timescale imposed by the Fast Track Rules, which prevented the claimant from adducing evidence of her previous relationships, meant that the appeal determination was unlawful. In reaching that decision he noted that the nature of the claimant’s asylum claim meant that she would necessarily have to obtain evidence from other sources. The claimant had taken steps to obtain that evidence and ultimately did obtain it after the hearing. The judge held that the claimant’s failure to complain about the unfairness of proceedings at the time was irrelevant because making such a complaint to the judge hearing her appeal would have forced her to identify the deficiencies in her case and therefore been fatal to the appeal if her complaint had been rejected.

Return to the UK

As with all public law remedies, Lewis J had the discretion to refuse to order the Secretary of State to return the claimant to the UK from Uganda. The relevant Court of Appeal authority states that having been unlawfully deprived of a statutory appeal is a strong factor in favour of return, but it is not a decisive consideration.

Nonetheless, Lewis J concluded that this case required him to make an order for the Secretary of State to use his best endeavours to return the claimant to the UK, despite the delay in raising the issue:

In all the circumstances, and principally because the claimant had been unlawfully deprived of her statutory right of appeal within the United Kingdom and would be required to appeal from a country where she claims she faces a real risk of persecution, it is appropriate to order that the defendant use his best endeavours to facilitate the claimant’s return to the United Kingdom to proceed with her appeal against the rejection of her claim for asylum. The other factors relied upon do not outweigh those conclusions and, at least in one respect (the ability of the claimant to give live evidence at the appeal hearing) are consistent with facilitating the return of the claimant to proceed with her appeal.

PN has been in Uganda since her removal there in December 2013.

Detention

Separately, Lewis J also found that the detention of the claimant during the period that she was exercising her appeal rights was unlawful. He found that the policy governing detention during this period was unlawful because it lacked transparency and did not comply with the Hardial Singh principles.

Moreover, PN would be entitled to substantive damages because the Secretary of State was unable to establish that he would have lawfully detained the claimant anyway if the unlawful policy had not been applied. It should have been apparent to Home Office officials that the claimant was seeking to obtain evidence from Uganda to support her asylum appeal and therefore detention would not comply with the Hardial Singh principles.

Conclusion

The facts of this case were very strong because the claimant could clearly identify what evidence she had been trying to obtain during the appeal process, why it was important to her claim and that she did obtain it relatively soon after the appeal was determined.

It remains difficult for asylum seekers who have been removed from the UK to obtain orders for their return to the UK. Nonetheless, Lewis J is a recognised expert on remedies in judicial review claims (he literally wrote the book on them). So hopefully this decision will encourage other judges considering similar applications to grant return orders.

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