Upper Tribunal Orders Home Office to Return Asylum Seeker to UK

15 Jul 2020

The President of the Upper Tribunal, Mr Justice Lane, today ordered the Home Office to use its best endeavours to pay for and facilitate the return to the UK of a man who was removed to Nigeria in March 2018.

The case involved a mix of unfortunate administrative errors, inexplicable and erroneous representations by the Home Office, and an unlawful removal. In his determination, referencing implications for the rule of law, Lane J placed significant weight on the “deliberate or reckless law-breaking” by the Home Office.

This blog post sets out the relevant events in the procedural history of the case and highlights the considerations that led to this unusual decision by the Upper Tribunal.

Unfortunate Procedural History

The Applicant had made a fresh asylum claim on the basis of sexuality and religious conversion in January 2016, which the Home Office refused in April 2017. However, the Home Office did accept that the claim had not already been considered and that, notwithstanding its rejection, its had a realistic prospect of success on appeal to the First-tier Tribunal.

In November 2017, the Applicant attended a case management and review hearing in person and he informed the Tribunal he had changed his address. He had previously informed the Home Office of the same, to ensure compliance with his immigration bail. However, while the Tribunal file did record the new address, it did not cross out the old address. Unfortunately, the Tribunal then sent the notice of the substantive hearing to the Applicant’s old address.

Consequently, the Applicant was unaware of his substantive appeal hearing in December 2017 and did not attend. Making matters worse, during that hearing the Home Office Presenting Officer – for reasons that have remained unclear – told the FTT Judge that the Appeal Bundles, which listed the hearing date, had been sent to both addresses. The HOPO also stated that the Applicant had absconded and failed to report as required by his immigration bail.

As subsequently transpired, these submissions were patently incorrect. However, the FTT Judge assumed they were correct and proceeded with the hearing in the absence of the Applicant. His appeal was dismissed.

The Applicant, meanwhile, remained oblivious to the status of his appeal. This changed when the Home Office contacted him in February 2018, to attend an interview with the Nigerian authorities to acquire a travel document to facilitate his return. Confused by the letter, the Applicant contacted the FTT to enquire about the status of his appeal. He was informed it had been dismissed. His freshly instructed solicitors then wrote to the FTT, informing it of the reasons for his non-attendance in December, requesting a copy of the determination and for it to be set aside. They informed the Home Office of the same.

The Applicant received a copy of the determination on 20 March 2018 and submitted his application for permission to appeal on 21 March 2018. Permission was granted on 4 April 2018 and, unsurprisingly, in May 2018 the Upper Tribunal allowed his appeal and remitted it for a fresh hearing before the FTT.

Opportunistic Removal

However, by that time, the Applicant had been removed to Nigeria. The Applicant had been detained by Immigration Enforcement when he was boarding a ferry to Belfast. Removal Directions were set for 28 March 2018. An internal Home Office e-mail, dated 27 March 2018, explicitly acknowledged that the application for permission for appeal – which was then still outstanding – had merit because their system revealed the FTT had indeed relied on the Applicant’s old (and incorrect) address. That e-mail advised the Criminal Casework Team to defer the removal.

However, on the day of the removal, CCT made enquiries with the FTT  whether the application for permission to appeal could be placed before a judge at the earliest opportunity. The response from a clerk in the FTT, citing instructions from “the Duty Judge”, simply stated that an out of time application for permission to appeal was not a bar to removal and that the application would be considered in due course. In reliance on that e-mail, and while ignoring the internal advice to the contrary from the day before, the Home Office removed the Applicant.

Approach by the Upper Tribunal

Following the remittal decision by the Upper Tribunal, the Home Office suggested it could facilitate a video-link from the British Deputy High Commission in Lagos. The Applicant rejected that suggestion. While the FTT found it was inappropriate, it also found that it did not have the power to order the Home Office to return the Applicant to the UK to attend his remitted appeal. The Upper Tribunal does have this power: its use requires a balancing of factors weighing in favour and against its use.

The Applicant commenced judicial review proceedings; permission was granted on 1 May 2020 and the case came before a panel of the Upper Tribunal on 15 June 2020. The Applicant sought an order requiring the Home Office to return him to the UK.

In a judgment written by Mr. Justice Lane, the Upper Tribunal held that if the removal had been unlawful, this should constitute the starting point for its consideration as to whether to grant the order sought. It also held that it would be a weighty factor in favour of granting the order.

The Upper Tribunal found that removal had been unlawful. The Home Office should have recognised that the email from the clerk in no way undermined the earlier internal advice to defer the removal. At worse, the response from the Home Office suggested someone taking unwarranted and opportunistic advantage of the unfortunate phrasing of the email. The Upper Tribunal commented that there would be serious implications for the rule of law if deliberate or reckless law-breaking were not treated as a weighty consideration when exercising discretion in judicial reviews.

Turning to other considerations, the Upper Tribunal found the fact that removal had deprived the Applicant from his statutory right to an in-country appeal particularly significant, especially since his case concerned a claim of real risk of persecution. Further relevant was the admission by the Home Office that, despite rejecting it, the claim nevertheless had a realistic prospect of success in the FTT.

The Upper Tribunal did not consider it appropriate to give the fact of the Applicant’s criminal offending much weight, given his right to an in-country appeal. Similarly, the fact that the Applicant’s asylum claim had weaknesses and that there was little evidence to support his assertion that he was destitute could not be given more than limited weight.

The Upper Tribunal also considered the impact of COVID-19 on the case, which it found most difficult. The Home Office argued the hearing could take place via video-link from Nigeria. However, given the Applicant’s case for return is a very strong one, it was inappropriate for him to conduct his appeal from Nigeria.

Accordingly, the Upper Tribunal considered the factors weighing in favour of making of an order to secure the Applicant’s return significantly outweighed the factors lying on the other side. The Home Office was ordered to use its best endeavours to pay for and facilitate the return of the Applicant to the UK.

Allan Briddock and Daniel Grütters were instructed by Joanna Sherman from Camden Community Law Centre and appeared on behalf of the Applicant.

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