AM & Anor, R (on the application of) v The Secretary of State for the Home Department

The Queen on the application of AO, AM, SASA, MHA, YS, KIA and SS Applicants v Secretary of State for the Home Department Respondent The Honourable Mr Justice McCloskey, President Having considered all documents lodged by the parties and having heard the parties’ respective representatives, Ms C Kilroy and Ms M Knorr (together), of counsel, instructed by Bhatt Murphy Solicitors and Mr R Toal, of counsel, Islington Law Solicitors on behalf of the Applicants and Ms A Walker, of counsel, instructed by the Government Legal Department on behalf of the Respondent, at a hearing at Field House, London on 11 April 2017. INTERIM RELIEF ORDER AND DIRECTIONS: ALL CASES EXCEPT AO AND YS (1) These are applications for interim relief at this embryonic stage of the proceedings. Expedition is also sought. Each of these cases belongs to a group which may be loosely described as ‘post-Calais’ cases. They all involve unaccompanied teenagers each of whom has pressing needs and circumstances. It is necessary to bear in mind the remedy which is sought in each of these cases namely a mandatory order requiring the Respondent to admit each of the Applicants to the United Kingdom forthwith. That is the primary relief sought in every case. The applications for interim relief also seek the same remedy. Of the group of seven cases two have been the subject of voluntary reconsideration by the Secretary of State namely the cases of AO and YS. As a result of this reconsideration the Secretary of State has reached a diametrically different decision and is now prepared to admit these Applicants to the United Kingdom. (2) I accept the submission of Ms Kilroy that if the Secretary of State’s earlier application to stay these cases had been successful then realistically these two cases would not have been reconsidered and this outcome would not have eventuated with the result that all seven Applicants would remain in precisely the same position. As it is, according to my arithmetic there are now five Applicants who continue to litigate in this Tribunal. In the case of AO I have already conducted a preliminary hearing ad have made an order of an interim species (3) One of the features of all of these cases is that the decisions made on behalf of the Secretary of State in the somewhat mysterious process which was devised during late 2016 were made on the basis of the evidence then available. That was around December 2016 and in all of these five cases the Secretary of State concluded that admission to the United Kingdom under a process which remains somewhat obscure in many respects would be refused. Proceedings were initiated subsequently by these seven unsuccessful applicants. (4) This Tribunal’s first detailed consideration of these cases is recorded in its decision dated 29 March 2017 in AO and AM which refused the Secretary of State’s applications for a stay. Since that date these proceedings have evolved permission to apply for judicial review has been granted in one case only ( the case of AM) and in that case the Tribunal has adjourned the interim relief application. (5) All of the cases have one feature in common namely that fresh evidence has been generated. Broadly the fresh evidence takes the form of a series of witness statements and expert reports. None of this fresh evidence has been considered by the Secretary of State other than in the somewhat cursory fashion disclosed in witness statements of Ms Farman on behalf of the Secretary of State. It is common case that those witness statements do not purport to contain or amount to a new decision, a reviewed decision or a reconsidered decision. This is based on the position adopted by the Secretary of State which is that the Secretary of State will not voluntarily make fresh decisions in any of these cases. This position is justified on the basis of the contention that all of the new evidence belongs exclusively to the framework of the Dublin Regulation process and, accordingly, can only be deployed within that process. Thus, it is argued, all new evidence belongs solely to a Dublin Regulation application for asylum to the French authorities. (6) This brings me to the current state of play in all of these extant cases. The Upper Tribunal finds itself in an unsatisfactory position. It is the first recipient of all of the new evidence. The undesirability of that state of affairs was emphasised in this Tribunal’s decision in HN (Afghanistan) that was the subject of consideration on appeal by the Court of Appeal which expressed no disapproval of anything said in this Tribunal’s decision. In short in any public law context there is a strong general rule that all evidence bearing on the relief sought by the litigant should first be considered by a public authority decision maker rather than in the context of legal proceedings. This may be viewed as an aspect of the exhaustion of alternative remedies principle. It also reflects the supervisory character of judicial review. (7) This brings me to an issue of case management. The Tribunal has two basic choices. One is to determine the interim relief applications on the basis of all the available evidence. If that option were to be exercised the Tribunal would reject the Respondent’s objection that the newly produced evidence should not be admitted. There are several reasons for this. They include, inexhaustively, the human rights dimension, the children’s rights dimension and the public law character of the proceedings. They also include the consideration that the new evidence has been produced at a stage when permission has not yet been determined. Furthermore, it has not involved any breach of any procedural rule, any practice direction or any special case management direction formulated to date. (8) The second main option involves not adjudicating upon the application for interim relief as formulated but adjourning that application for the purpose of the Secretary of State, who is the primary decision maker, considering all of the new evidence and making decisions. Without determining this particular issue finally at this stage I add the following with caution. The correct analysis may well be that any decisions arising out of the exercise mooted would not be properly characterised a review or reconsideration of the earlier decisions made in each of these cases around December 2016 within the ambit of the somewhat obscure process which was devised between the United Kingdom and French governments. Accordingly it would in my provisional view be wrong to apply the prism of those earlier decisions and that earlier process to all of the new evidence that is now available. (9) The following analysis arises irresistibly from the nature of the challenge that is brought in each of these cases. These are individual rights challenges. They are founded fundamentally on Article 8 of the Human Rights Convention. They base themselves on the principles which were espoused by this Tribunal in ZAT And Others and approved by the Court of Appeal in ZAT and developed. The decision in ZAT makes clear that in certain circumstances Article 8 provides the appropriate legal vehicle for securing admission to the United Kingdom and it does so outwith and apart from the regime of the Dublin Regulation. Whether any of these Applicants ultimately succeeds in making good their claim in this fashion does not arise at this stage. (10) Once one applies that analysis the unsustainability of the Secretary of State’s position becomes clear. The decision which the Secretary of State is obliged to make must be viewed through that lens. It is based on duty. First of all it is the ordinary public law duty of a public authority invested with relevant decision making powers and discretions to make a decision when required to do so. Second, it is based on section 6 of the Human Rights Act, which applies directly to the Secretary of State in this Article 8 context. It would be manifestly incompatible with the Convention rights of the Applicants if the Secretary of State were simply to refuse to assess the merits of a human rights claim at all. (11) In light of the position which the Secretary of State has adopted I am proposing to take the less desirable of two courses. The more desirable course would be for the Secretary of State to acknowledge for the reasons which I have just articulated that there is a duty of decision making of the kind which I have outlined. However such acknowledgment is not forthcoming. As I am satisfied that such a duty exists in law and given the intrinsic desirability of the Secretary of State’s considered assessment of and decision in respect of all the new material preceding this Tribunal’s evaluation of the primary interim relief sought by the Applicants and, in due course, the substantive remedies pursued I propose by way of interim relief to order the Secretary of State to consider all of the new evidence together with such written representations as the Applicants may wish to make and to make decisions accordingly. This will be entirely without prejudice to the determination of any of the substantive issues which arise at any stage of these proceedings namely the interim relief stage, the permission stage or the substantive stage. (12) Proceeding in this way means with reference once again to HN (Afghanistan) that the correct sequence is re-established. It so happens in HN (Afghanistan) that there was a dimension involving paragraph 353 of the Immigration Rules. But that makes no difference at all to the analysis which I have espoused. Furthermore, the right to make fresh representations in the context of any immigration or asylum or human rights decision is not based on paragraph 353 of the Rules. It is a common law, or public law, right. Paragraph 353 empowers the Secretary of State to treat the further representations in a certain way but it does not speak to the right to make them and accordingly the paragraph 353 dimension of HN (Afghanistan) does not provide a point of distinction with the present cases. (13) The duty which I have identified will involve the following. It will involve conscientious consideration of all of the new evidence and any accompanying representations. It will require an open mind on the part of the decision maker. It will have to take into account the plight of the Applicants and the need for conscientious expedition. It will not involve some kind of preordained outcome based on the December 2016 decisions: first, for the reasons that I have given and second, because the landscape of each of the cases has developed very significantly since then. The decision maker will have to confront what the Court of Appeal decided in ZAT and what this Tribunal has decided in a series of cases which have not been either challenged in or reversed by the Court of Appeal namely the potential potency and reach of Article 8 of the Human Rights Convention in this kind of context. These are all factors which must be brought to account in the decision making which will follow. (14) The final question is that of time limit. In both the stay application and the ruling in AO and AM last week I have drawn attention to the expedition which has been accorded to these cases. That expedition will have to be applied also by the Secretary of State. I am ordering the Secretary of State to make decisions in all of the cases not later than 19 April 2017. If that time limit cannot be achieved in one or more of the cases so be it. The Tribunal may then well have to grasp the nettle of proceeding in the considerably less satisfactory fashion which I have identified but this option must first be exhausted to the extent possible. The Tribunal will be available with or without decisions from the Secretary of State to reconvene at extremely short notice for the purpose, if necessary, of focusing on the primary interim relief sought by the Applicants and determining those applications as they are currently framed. While I grant interim relief in these terms today I do not determine finally the interim relief applications. They are, rather, adjourned on those terms. (15) Amendment of the Applicants’ challenges may also foreseeably arise. (16) I reserve costs and grant liberty to apply. Signed: The Honourable Mr Justice McCloskey President of the Upper Tribunal Immigration and Asylum Chamber Dated:12 April 2017 ________________________________________________________________________________ Sent to the Applicant, Respondent and any interested party / the Applicant’s, Respondent’s and any interested party’s solicitors on (date): Home Office Ref: