The latest in a rash of recent cases displaying poor behaviour on the part of the Home Office is R (Amena El-Ashkar) v Secretary of State for the Home Department JR-2022-LON-002069. This is a decision on an application by the Home Secretary to withdraw undertakings that had been provided to the Upper Tribunal and had been breached.

The decision also addresses “a number of other issues arising as a result of the Secretary of State’s seriously flawed conduct of these proceedings”. A joint position statement agreed by the parties agrees that the Home Secretary made nine errors in the conduct of the proceedings.

Background

The applicant is a stateless Palestinian academic and a journalist. She is also a Chevening scholar who completed a master’s degree at the School of Oriental and African Studies (SOAS) and then left the UK. She was awarded another scholarship in 2021, to undertake a PhD in International Relations at the London School of Economics. She applied for a student visa on 9 October 2021 and was able to start her PhD remotely in the meantime, although she was required to attend in person from April 2022.

Her student application had still not been decided by the end of February 2022 and the applicant had to withdraw the application as she needed her passport so that she could renew it. It was agreed that she could pause her studies until January 2023.

A further student visa application was submitted on 20 August 2022. The Home Office’s Special Cases Unit of the Homeland Security Group deemed the applicant’s presence in the UK non-conducive to the public good. On 30 September 2022 the Home Office refused the application stating that in light of her “character, conduct or associations” it was undesirable to grant the applicant leave to enter the UK. No explanation was given for the decision.

On 27 October 2022 the applicant requested an administrative review of the decision and a pre action letter was sent on 14 November 2022. The Special Cases Unit was not advised of either of these challenges.

On 28 November 2022 a response was sent stating that the pre action letter was premature given the outstanding administrative review.

On 7 December 2022 the Special Cases Unit asked the Home Secretary to certify the refusal of 30 September 2022 under section 2F of the Special Immigration Appeals Commission Act 1997, meaning that any challenge would need to be made to SIAC. This was done on 20 December 2022.

The reason for this delay was apparently that officials were prevented from putting non-urgent business to ministers over a period that included 30 September to early December 2022. The reasons given for this were ministerial changes and “wider pressures”. The Special Cases Unit were unaware of the administrative review and the threat of legal action, and so did not view the decision as urgent.

The judicial review

The applicant was not notified of the certification decision and her judicial review application was lodged in the Upper Tribunal on 22 December. The Home Secretary filed the acknowledgement of service and summary grounds on 13 January 2023 and failed to disclose the certification decision.

On 20 January 2023 the Upper Tribunal granted permission. The Home Secretary then proposed settlement of the claim and this was withdrawn after a consent order was agreed and sealed on 30 March 2023. The Home Secretary had agreed to reconsider the refusal decision and make a new decision within two months. It was also agreed that if she was “minded to” refuse the application again then the applicant would be told the gist of the case against her and would be given two weeks to make representations in response, before the decision was re-made.

The evidence given was that the Home Office was not advised by the Government Legal Department of the “legal significance of the inclusion of undertakings in the consent order”. It appears from paragraph 26 that they attempted to blame a Government Legal Department trainee for the error in agreeing this consent order but the Upper Tribunal was having none of it, pointing to the need for proper supervision. The Government Legal Department apologised for this.

On 10 May 2023 the applicant was granted entry clearance following a reconsideration. This was discovered by the Special Cases Unit by chance on 7 June, and the grant was revoked on 8 June 2023, in a letter dated 13 March 2023. The decision said that the refusal was because of a change in the applicant’s circumstances since the grant of entry clearance. It also said that full reasons would be set out in a separate notice. Neither of these things was true and on 21 June 2023 the Home Office sent a letter to the applicant stating that her application had not been refused and was still being reconsidered.

On 7 July 2023 the applicant was informed of the SIAC certification decision, and the Home Secretary also purported to comply with the undertaking by providing the gist of the case against the applicant, however this was completely generic. The Home Secretary then applied to the Upper Tribunal to withdraw the undertakings on the basis that he could not “responsibly comply” with the undertaking to provide a “minded to” letter if he was considering refusing the application again.

Needless to say, this process has had a “profound and detrimental impact” on the applicant’s life.

The Upper Tribunal’s decision

The tribunal considered whether it should initiate contempt proceedings against the Home Secretary, however concluded that while breach of undertakings is “a matter of grave concern” it was not necessary or proportionate to initiate contempt proceedings. This was because the Home Secretary had admitted the breach, investigated, taken action to remedy the situation, and apologised. The partial responsibility of the Government Legal Department was also listed as a relevant consideration.

The Upper Tribunal also allowed the undertakings to be withdrawn, accepting that the Home Secretary “considers that he cannot responsibly comply with them”.  

Costs were awarded to the applicant on the indemnity basis.

Conclusion

The judgment refers to a “series of recent cases” where the Home Secretary has breached court orders or undertakings. In this specific case some additional processes were put in place to avoid a similar situation occurring again, however the problems are obviously far more systemic than this. In the absence of any real consequences for those involved, it is difficult to see that any of these decisions will effect positive changes at the Home Office.