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“Sorry episode”: Chief Justice reprimands Home Office for disclosure failures
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Yilmaz & Anor v Secretary of State for the Home Department  EWCA Civ 300 concerned two Turkish nationals, Mr Yilmaz and Mr Arman, who were deported in 2017 due to their criminal convictions.
Both had made human rights claims to stay in the UK. Their claims were certified, meaning that they could only appeal against deportation from outside the UK. Anyone unfamiliar with the Home Office’s “deport first, appeal later” policy, and the problems it has caused, can find Free Movement’s previous coverage here and here.
Mr Yilmaz and Mr Arman duly lodged appeals following their deportation. Nearly five years later, the appeals have still not been heard. As noted by the Lord Chief Justice, “such a delay does not reflect well on the system”.
In 2020, the two men raised judicial review proceedings in the High Court, with the aim of securing their return to the UK to pursue in-country appeals. They argued that it was not possible for fair hearings to be conducted from outside the UK.
Mr Justice Mostyn rejected that argument, deciding that Mr Yilmaz and Mr Arman could prepare for, and participate in, their appeals through video links. Their claims were therefore dismissed. This was on 13 May 2021, following a hearing on 5 May 2021.
High Court kept in the dark
The timeline is important. In around July 2021 it became apparent that the Home Office had been informed by the Turkish authorities in March 2021 that, in fact, hearings via video link from Turkey would not be possible:
… the Secretary of State, pursuant to her duty of candour, disclosed to the claimants that on 21 March 2021 the Turkish Ministry of Justice had informed British Embassy staff in Ankara that all evidence to be obtained via a video-link from Turkey to a United Kingdom court or immigration tribunal had to be obtained through official Turkish legal channels and not via a link at the Embassy; and that this had been notified to Home Office staff on 31 March, by an e-mail which explicitly made the point that this ‘would prevent the use of video-links for our immigration out-of-country appeals’. [Paragraph 6]
The reason given for withholding this highly relevant information from the High Court was:
… the responsible official within the Home Office wanted to await a more formal statement of the Turkish Government’s position, and the outcome of further possible attempts to persuade it to modify it. He did not think it necessary to inform the Government Legal Department until that had occurred. 
Once this failure to disclose came to light, the Home Office fell on its sword:
Mostyn J’s conclusion that a fair appeal could be conducted by video-link from Turkey would have been different if the true position had been disclosed to him, as it should have been. Acknowledging that, the Secretary of State revoked the section 94B certificates in both cases on 27 July 2021. 
Mr Yilmaz returned to the UK on 8 September 2021. Unfortunately, Mr Arman’s solicitors and family have lost touch with him, so it has not yet been possible to arrange his return.
The Court of Appeal was left to figure out what to do with the cases in light of these developments.
Rubbing salt in the wound
The Court of Appeal was concerned by the Home Office’s breach of the duty of candour and so issued directions seeking further disclosure. As noted in the judgment:
There were serious delays in supplying that disclosure. We need not give the details, but it is sufficient to say that although extensions of time were sought even the revised deadlines were not met, without any explanation or further application, and further witness statements and documents were filed at various dates up to 4 February. In a case which has exposed a serious breach of the Secretary of State’s duty of candour and the wholesale failure to comply with directions of this court is more than unfortunate. 
In relation to the original failure to disclose the email from the Turkish authorities, the Home Office offered “an unreserved apology to the court and the claimants”. The Court of Appeal responded as follows:
We accept the sincerity of that apology, but it is particularly regrettable that the original non-disclosure has been followed by the delays in giving the necessary further disclosure referred to above… If a party finds it impossible to comply with an order they must forthwith apply to the Court for an extension, with a full explanation of why it is necessary. We hope lessons have been learnt from this sorry episode. 
When it comes to judicial criticism – which is always marvellously understated and unwaveringly polite – “more than unfortunate” and “particularly regrettable” is about as bad as it can get.
The cases were sent back to the High Court to allow Mr Yilmaz and Mr Arman to proceed with their claims for damages against the Home Office, the other aspects of their claims having been rendered academic by the Home Office agreeing to return them to the UK.
With remote hearings now routine, are out-of-country appeals still unfair?
As Nath noted in her write-up of the High Court decision, Mostyn J had a lot to say about out-of-country appeals in the post-COVID era, in which remote hearings are ubiquitous. The Court of Appeal preferred to leave it to the immigration tribunals to determine whether out-of-country hearings can now be conducted fairly:
It must, however, be for the First-tier Tribunal and the Upper Tribunal, with their specialist expertise, to consider, and where appropriate give guidance on, what fairness requires in the context of evidence given by remote means in out-of-country appeals of different sorts… The use of remote technology in legal proceedings, including hearing evidence by phone or computer link, became ubiquitous in all jurisdictions during the Covid pandemic. Many reservations about its use have been dispelled but there remains a central issue about fairness and the interests of justice that is best considered on a jurisdiction by jurisdiction basis with an eye to the different types of case and participation under consideration.
The court drew attention to the recently reported Upper Tribunal decision of Agbabiaka (evidence from abroad, Nare guidance) Nigeria  UKUT 286 (IAC) (covered by Eric Fripp here) and the First-tier Tribunal’s presidential guidance note on giving evidence from abroad (covered by CJ here). Both are examples of the tribunals considering the issue of remote hearings for themselves.