The recent decision in R (SB (Afghanistan)) v SSHD [2018] EWCA Civ 215 concerned the removal of an Afghan asylum seeker last year. As the judgment records, the case generated a significant amount of media attention amid reports that it had taken place in breach of a High Court order, with committal proceedings for contempt of court issued against Amber Rudd, Secretary of State for the Home Department.

SB was eventually flown back to the UK at Home Office expense, having reportedly spent several days barricaded in a Kabul hotel.

In its forensic dissection of the events surrounding the removal, a heavyweight bench of the Court of Appeal — led by the Lord Chief Justice — has now allowed the appeal by the Secretary of State against the High Court orders requiring SB’s return, and found that his lawyers had misrepresented the facts in securing relief.

The judgment highlights the danger of an immigration lawyer taking on an urgent removal case at short notice.

The removal of SB

SB had been refused asylum and the Secretary of State had already made one abortive attempt to send him back to Afghanistan. The precise timing of the events surrounding the second removal is important and is apportioned appropriate column inches in the judgment. The most salient points are as follows.

At 12.04pm on 12 September 2017 the doors of the Turkish Airlines flight carrying SB closed. He would be changing planes in Istanbul, and catching a connecting flight to Kabul.

SB’s lawyers, Duncan Lewis, had only begun acting for him the previous day. Following notice by their client early on the day of removal, they prepared a set of representations that were submitted to the Home Office by email at 11.19am, appending what were said to be new documents which had not been previously been disclosed. The documents purported to be from the Afghan government and prove that SB had worked as a contractor for the US military.

Unbeknown to the solicitor acting in the case, these documents had already been handed to the Home Office on 8 September 2017 by a journalist. Foreign Office checks with the Afghan authorities had found that they were “clearly forgeries”. At 11.29am the Home Office issued a decision letter, explaining those findings and stating that the new representations did not change the risk calculus.

Removal would proceed.

On the tarmac in Istanbul

The onward flight to Kabul was due to leave Istanbul at 10.30pm.

While SB was in the air, his lawyers issued proceedings challenging his removal. Although the judicial review application was initially refused by the Upper Tribunal on the basis that the applicant had already left, it was renewed to the High Court, with submissions made at an oral hearing by telephone at around 9pm.

No notice was given of this application for renewal to the Secretary of State.

Without getting into the technicalities of the arguments (see paragraphs 22-26 of the judgment for more on this), they were essentially based upon an incomplete picture of the procedural history of the case. The lawyers had not seen important document that would have cleared things up.

The application to the High Court was successful. At 9.30pm on the same day, an order was made by Mr Justice Morris requiring the return of SB to the UK. As found by the Court of Appeal at paragraph 34:

It is thus clear that Morris J was induced to grant the interim injunction by the misrepresentation by those acting for SB, made by mistake rather than deliberately to mislead the judge…

The Home Office was served with the order at 10.00pm. According to the judgment, SB was already on the plane at this stage, although the flight did not leave until 10.22pm.

The court refused to rule on the dispute about whether those escorting SB knew that the order had been made and chose to ignore it (SB’s view), or whether it came to late to be passed on to Istanbul in time (the Home Office view).

Either way, the court found that the order had not been breached, as it only required that SB be prevented from boarding the plane, not that he be taken off it.

One wonders to what extent the Court of Appeal’s position here was coloured by its clear view of SB’s claim as one without merit.

And so to Kabul

Anyhow, following the Secretary of State’s failure to observe the spirit — if not the letter — of the order of Morris J, further proceedings were issued the following day alleging that the Secretary of State was in contempt of court. The High Court made a further order on 13 September, and then again on 14 September, both of which required the return of SB.

The Court of Appeal sat on Saturday 16 September to hear an application for permission to appeal the three orders of the High Court by the Secretary of State. Permission was granted, although she was still required to return SB. He arrived back in the UK on 17 September.

This judgment was the outcome of that appeal.

Victory for the Secretary of State

The Court of Appeal’s line was sharply different to that taken in sympathetic media coverage of the case. It wondered aloud why SB seemed to have been less than forthcoming with his new solicitors before the drama described above, and with the Home Office afterwards:

The suspicion, at least, is that there is no good explanation and that he deliberately sought to instruct Duncan Lewis late in the day and with minimal information in the hope that he would maximise his chances of securing relief to prevent his removal.

These are suspicions only, of course: there is no evidence to suggest that SB deliberately did anything. It is rather hard to find legal representation from a detention centre and it is perfectly possible that it took SB some time to do so.

Both SB’s solicitor and his counsel at the time of the removal were criticised by the court. It absolved them of any dishonesty or intention to mislead, but found that “things were not done properly”. The facts of the case were found to have been misrepresented to the judge and notice of the last-ditch application not given to the Secretary of State (not easy, in fairness, given that the Government Legal Department does not provide contact details for this purpose).

To bring a long story to a close, the appeal against Morris J’s order made on the night of 12 September was allowed. He had made it “on the basis of a fundamental mistake of fact” and the other grounds now advanced to justify it were not made out (see paragraphs 66-76).

Further submissions were invited on whether the contempt of court application should proceed. It does seem unlikely to succeed in light of this judgment.

Impact of this case

As set out by the Lord Chief Justice at paragraph 58:

this case illustrates the particular difficulties which can arise when a new set of legal advisers come on the scene at the last minute. The duty of candour is directed in the most part to ensuring that matters unfavourable to the applicant are drawn to the attention of the judge. There are many late applications for injunctive relief which are based on little more than an assertion that something may turn up if the new advisers are given time to investigate. Such applications should get nowhere. Yet there is a strong imperative for those instructed late in the day to make no representations or factual assertions which do not have a proper foundation in the materials available to them. Gaps in knowledge should not be filled by wishful thinking.

Since the case of Hamid [2012] EWHC 3070 (Admin), making applications for injunctive relief in immigration removal cases has presented serious risks for practitioners. The Free Movement course on urgent injunction applications deals with these issues, including in a 30-minute podcast interview between Colin and Jawaid Luqmani on the subject. Jawaid makes some very important points with his customary force: there are huge dangers in taking on cases at the last minute, desperate migrants facing removal are not always reliable sources of information about their own cases and therefore there are some potential clients who are beyond help.

It should be made clear that there was no allegation — either from the bench or from the Secretary of State — that representatives for SB acted in anything but good faith, and this was not a Hamid case.

There is a risk that high-profile cases such as these damage the already strained relationship between practitioners and the courts in this area, with judges less likely to take submissions made by lawyers at face value, potentially leading to greater injustice in the future.