In these judicial review proceedings, brought by “PN”, Lewis J held that the dismissal of Ugandan woman’s appeal against the refusal of her asylum claim had been reached by a procedurally unfair process because her case had been dealt with under the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005, which did not provide her sufficient opportunity to obtain evidence to support her claim. PN’s asylum claim was based on her sexual orientation. She was a former Yarl’s Wood detainee who was removed from the UK on 12 December 2013. However, five-and-a-half years later, granting relief Lewis J made a mandatory order for the Home Office to use its best endeavours to facilitate PN’s return to the UK so that she could continue with her asylum appeal. Lewis J prefaced his judgment with the point that it was difficult to determine the relevant facts because of the lack of witness statements from decision-makers and contemporaneous documentation in the case. Owing to the unfairness caused by the shortness of the timescales provided for by the 2005 Rules, which prevented PN from adducing evidence of her lesbian relationship in Uganda with a lady called Rose, Lewis J held that the decision of the First-tier Tribunal dismissing her appeal had to be quashed. The outcome was steered by JB (Jamaica)  EWCA Civ 666 where Moore-Bick LJ opined that homosexuality cannot be readily established without evidence from sources extrinsic to the claimant herself.
The court addressed the procedural unfairness during PN’s appeal, the lawfulness of the decision to detain and remove her, and the appropriate remedy. Lewis J judged that PN’s detention from the refusal of her asylum claim until the exhaustion of her appeal rights was unlawful and entitled her to damages for unlawful detention for that period. Among other things, PN argued that the fast track procedures had prevented her from obtaining crucial expert evidence of her history of childhood sexual abuse including rape and she submitted that the said evidence was relevant to fairness. It was necessary to know the whole story (or the “human story”) when considering her claim and that because of her vulnerability, she would not have been able, or would have been less able, to present her evidence in a cogent fashion. In Detention Action  EWCA 840 (“DA6”), Lord Dyson MR opined that asylum appeals are factually complex and difficult and can at times raise difficult issues of law and his Lordship was therefore not at all persuaded that the 2014 Rules, the successor rules to the 2005 Rules, made enough allowances to transfer out of the fast track process and were thus unfair.
A national of Uganda who was born in July 1993, PN arrived in the UK in September 2010 as an accompanying child on a visitor’s visa and she unlawfully remained in the UK when that visa expired on 25 February 2011. Subsequently, enforcement officers visited a London address on 21 July 2013 and found PN in an upstairs bedroom with a man. After forcing the door open the enforcement officers arrested PN for overstaying in the UK. Contemporaneous records revealed that she was evasive about her identity. However, she confessed to overstaying and said that she was single, had no relatives in the UK, worked as a hairdresser and was paid cash in hand. She also said that she had not tried to harm herself and was fit and well and not taking medication. Official papers recorded her as not having a psychiatric disorder, medical problems or concerns and not being a vulnerable adult and not having other special needs.
Rather than granting temporary release, an immigration officer decided to detain her and she was sent to Yarl’s Wood IRC. Healthcare staff records show that she said that she had palpitations and fainted and was upset and stressed. But IRC staff wrote that she “appears well physically and emotionally” and on 22 July 2013, the day she claimed asylum, a GP concluded that she was “physically and mentally alert” but claimed to be “anxious”. She was referred for counselling. It was decided that her claim would be processed under the Detained Fast Track Scheme. PN was given a solicitor to represent her and her asylum interview was held on 31 July 2013 and she was asked 263 questions. She said that she first realised that she was a lesbian at about the age of 13 and divulged details of lesbian relationships that she claimed to have had as a child with various women, namely Grace, Justine and Rose. These relationships led to her being beaten by her relatives. PN’s uncle sexually abused her and made death threats if she ever told anyone. Her explanation for the man in her bedroom at the time of her arrest was that she met him her birthday party and invited him back because she had recently been thinking about having a child.
She attempted, through solicitors, to remove her case from the Detained Fast Track Process by explaining that a medico-legal report was needed to evaluate her claim of torture, rape and her mental and physical health. The short timescales also stopped her from obtaining her UK partner Mildred’s evidence. The solicitors stated that PN had not gathered enough evidence in support of her claim. The solicitors liaised with the Helen Bamber Foundation in respect of the medico-legal report. PN’s claim was refused on 6 August 2013 and found that her removal would not breach her ECHR rights.
The decision-maker disbelieved that PN was a lesbian because there was no evidence of her relationships with Grace, Justine or Rose in Uganda or with Ruth or Mildred in the UK. Since she was found in bed with a man when she was arrested, it was the case that she was in heterosexual relationship with this man and was not a lesbian. PN had been in touch with Mildred by telephone and she had enough time to get a letter from her. PN’s detention reviews recorded that she had been retained in the Detained Fast Track Process despite repeated complaints about headaches and depression. She was deemed unsuitable for temporary release. The day after the refusal the Helen Bamber Foundation gave PN an appointment for assessing her need for a medico-legal report.
Appeal and removal
Under the 2005 Rules the timescales were very short and no provision existed for a case management review. There were only two working days for the notice of appeal to be filed. The appeal hearing was to be held two working days after the Home Office served its bundle (which had to be filed two working days from service of the notice of appeal). Adjournments for a maximum of 10 days were permitted and the First-tier Tribunal’s decision was to be served within two working days of the hearing.
PN’s case was adjourned for two weeks not because a medico-legal report would assist but because of obtaining information concerning an earlier visa application which had been refused. The hearing resumed on 28 August 2013. PN, the man who was present in her bedroom upon her arrest, and another male friend all gave evidence as did a woman who said that she had had sex with the claimant on two occasions.
The First-tier Tribunal dismissed the appeal because the judge did not find PN to be a credible witness and that she was not a lesbian. She was refused permission to appeal and became appeal rights exhausted and was kept in detention. Repeated judicial review challenges to prevent her removal were unsuccessful. Numerous medical documents were produced in respect of her. The last of these said that PN met the diagnostic criteria for panic disorder, PTSD with secondary psychosis and major depressive disorder. The doctor expressed the view that her account of her sexual development was consistent with homosexual orientation. The doctor stated that PN was unfit to fly both for mental and physical health reasons. However, UTJ Southern refused to grant relief and she was removed.
Judicial review claim
In October 2015, PN began proceedings challenging the decision to remove her and detention. Her judicial review challenge went through many twists and turns. First permission was refused owing to the claim being out of time and then it was stayed on three occasions. Ultimately, on 6 February 2019, Supperstone J ordered that the substantive hearing should be listed and he granted PN permission to amend her detailed grounds of claim to reflect the judgments given by the Divisional Court and Court of Appeal in TN (Vietnam)  EWHC 3546 and TN (Vietnam)  EWCA Civ 2838. Earlier, in March 2018, PN provided amended detailed grounds to amend her claim form to include a claim that the determination of the First-tier Tribunal of 30 August 2013 dismissing her appeal should be quashed.
The Administrative Court
As a preliminary point Lewis J observed that the First-tier Tribunal held “it is not at all clear why evidence in relation to historic rape impacts on the core claim which is the appellant’s sexual orientation and risk on return.” He noted at the outset that the Home Office resorted to quibbling over whether permission had really been granted for PN to challenge the First-tier Tribunal’s determination. Addressing this issue he said that Supperstone J’s order had granted PN permission to amend the claim form to challenge that determination on the grounds that the procedure leading to it was not fair. The amended grounds of claim did make those amendments and therefore the amended claim for judicial review did include a claim for an order to quash the determination of the First-tier Tribunal.
(i) Procedural fairness and PN’s appeal
In DA6, Lord Dyson MR gave three reasons why the power in rule 14 to transfer appeals out of the fast track procedure was insufficient to ensure overall fairness. Lord Dyson’s threefold reasoning was that (i) there may not have been enough time to complete inquiries into possible further evidence, (ii) it was only possible to seek a transfer out at the appeal hearing itself, and (iii) it was probably that judges would regard the time provisions as the ones usually to be applied and there was likely to be a reluctance to postpone or transfer an appeal on the day of the appeal hearing. Overall, Lord Dyson concluded “the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases.” He was not persuaded that the safeguards were sufficient to overcome the unfairness inherent in a system requiring asylum-seekers to prepare and present their appeals within seven days of the decisions which they seek to challenge.
Singh LJ recommended in TN (Vietnam) that in an application to set aside an earlier appeal decision made under the 2005 Rules the court should approach its task by observing that (i) a high degree of fairness is required in this context, (ii) the 2005 Rules created an unacceptable risk of unfairness in a significant number of cases, (iii) it is necessary to consider whether there was a causal link between the risk of unfairness that was created by the 2005 Rules and what happened in the particular case before the court, and (iv) overall, there can be no substitute for asking the only question which has to be determined: was the procedure unfair in the particular case? That has to be determined by reference to all the facts of the individual case. Singh LJ’s recommendations were non-exhaustive. Applying these principles to the present context, Lewis J held that:
70. First, I bear in mind that the claimant’s asylum claim necessarily involved obtaining evidence from external sources, that is, sources other than the claimant herself. Furthermore, as at least some of the lesbian relationships relied upon were said to have taken place in Uganda, it would realistically be necessary to obtain evidence from one or more persons in Uganda.
Moreover, the extremely tight timescales provided for by the 2005 Rules did not provide sufficient time to enable PN to do that. She did not apply to take the case out of the fast track procedure (or to adjourn it) on the basis that she was seeking evidence from Uganda. She did do so on the basis of getting a medico-legal report. However, as Lord Dyson recognised in his judgment in the DA6 case, it puts an individual in an unfair position if she has to apply for an adjournment or a transfer out of the fast track on the basis that she needs evidence from abroad to substantiate her claim because, if the application is refused, she will have highlighted deficiencies in her appeal. In light of the above, Lewis J held that:
75. For those reasons, I consider that there was procedural unfairness in the process for determining the claimant’s appeal to the First-tier Tribunal and that unfairness was caused by the short time scales provided for by the 2005 Rules. The claimant did not have the opportunity to adduce the evidence of Rose relating to the nature of their relationship in Uganda. For that reason alone I consider that the determination of the First-tier Tribunal should be quashed.
The court was reinforced in its view by the approach taken by the Court of Appeal in JB (Jamaica) where Moore-Bick LJ judged that sexual orientation cannot readily be established without evidence from sources extrinsic to the claimant herself. On the other hand, Lewis J held that even if the removal decision was flawed because of the quashing of the First-tier Tribunal’s decision, quashing the decision to remove PN would not have any practical effect because she had already been removed and so the matter was academic.
(ii) Appropriate remedy
The determination of the First-tier Tribunal of 30 August 2013 was unlawful since the procedure leading to that decision was unfair. Granting an order quashing, or setting aside, that determination was appropriate. The effect was that PN’s appeal against the refusal of her asylum claim remains outstanding/undetermined and the question was whether the Home Office should be ordered to use its best endeavours to facilitate PN’s return to the UK for her to continue with her appeal. In YZ (China)  EWCA Civ 1022 it was the view of Richards LJ that the fact that a person has been unlawfully deprived of her statutory in-country right of appeal “is a strong factor in favour of return.” Applying that approach, Lewis J stated:
81. It is appropriate to make a mandatory order requiring the defendant to use his best endeavours to facilitate the claimant’s return to the United Kingdom to pursue her appeal. First, the claimant has a right of appeal which she is entitled to pursue from within this country by reason of section 92(1) and (4) of the 2002 Act.
Moreover, given that the Home Office accepted that, if PN is a lesbian, she would face a real risk of persecution, Lewis J found “a strong interest” in letting PN pursue her appeal from within the UK rather than from Uganda where she would surely face a real risk of persecution in the interim if her claim for asylum is subsequently successful. The statutory position under section 77 of the Nationality, Immigration and Asylum Act 2002 is that that a person may not be removed from the UK whilst his or her claim for asylum is pending. Thus statute reflects the importance of allowing a person to remain in the UK until the claim is assessed.
In PN’s case the tribunal’s determination was unlawful and her outstanding remained undetermined. Thus, the circumstances pointed strongly in favour of enabling her to return to the UK until her appeal is finally determined and this view was in keeping with McFarlane LJ’s point in R (AB)  EWCA Civ 59 that it is hard to justify a person’s appeal to proceed while she or he remains as an asylum-seeker in her or his country of persecution. Since PN’s credibility as a witness will underpin her appeal her presence to give oral evidence in proceedings was important. Moreover, there was no possibility of evidence by video link from Uganda and tendering evidence by video link was seen as inadequate by the Supreme Court in Kiarie and Byndloss  UKSC 42 (discussed here). Bearing that observation in mind, the fact that PN is likely to have to give oral evidence, and that her credibility will be key in the determination of her appeal, her return is minimally consistent with ensuring the fair determination of her asylum claim.
The claim had been brought out of time, but on the facts of the case it was not open to the court to say that it was contrary to good administration to require the Home Office to use its best endeavours to enable PN to return to the UK to proceed with her asylum appeal in circumstances where the appeal was, initially, dealt with unfairly. Because PN had been unlawfully deprived of her statutory right of appeal within the UK and would be required to appeal from Uganda where she claims she faces a real risk of persecution on the basis of her sexuality, it was appropriate to order the Home Office to use its best endeavours to facilitate her return to the UK to proceed with her case. Overall, the result in this case has got to be the comeback of the century.
(iii) Detention and damages
PN was detained from 21 July 2013 until her removal from the UK on 12 December 2013. She contended that she was entitled to damages for false imprisonment and a sought a declaration that each period of her detention was unlawful in light of the principles articulated in the cases of Hardial Singh (1984) 1 WLR 704 and R (I)  EWCA Civ 888. Lewis J found that PN’s detention from the refusal of her asylum claim on 6 August 2013 until the exhaustion of her appeal rights on 10 September 2013 was unlawful. In light of Detention Action  EWCA Civ 1634 (or “DA4”), the decision to detain her was influenced at least in part by the use of an unlawful policy, namely the use of detention for persons within the fast track process who were appealing refusals of their asylum claim. Lewis J found that the policy was unlawful as it lacked clarity and transparency and was also unjustified in terms of compliance with the Hardial Singh principles. The court held that, in any event, the Home Office failed to show that it would have detained PN under the general criteria in the Enforcement Instructions and Guidance and she was entitled to damages for her detention from 6 August 2013 until 10 September 2013.
Significantly, the judgment in TN (Vietnam)  EWHC 59 highlights that more than 10,000 appeals were decided by the operation of the fast track system under the 2005 Rules. Therefore, there is wider potential for this judgment to aid others like PN who are in need of a miracle. It is sad that her removal was not suspended while she was still in the UK, but of course UTJ Southern was unmoved by medical evidence that she suffered from PTSD with secondary psychosis and major depressive disorder and that her account of her sexual development was consistent with homosexual orientation. Sadder still is the fact that the Home Office has elected to appeal Lewis J’s judgment to increase PN’s suffering by prolonging her predicament so that she remains in Uganda where the persecution of the LGBT community is very acute. If Lewis J’s judgment is upheld it will enable many other victims of the fast track process to get justice in their cases.
PN responded to his decision by saying: “I didn’t get a fair hearing, the Home Office must do what the High Court judge told them to do. I want my life back. I am a lesbian, I don’t want to live in fear anymore.” However, the Home Office is still intent to deny PN her legal rights. Yet the Home Secretary Sajid Javid hypocritically made false statements during the recent Pride celebrations in London that his department supports LGBT rights.