T, R (on the application of) v Secretary of State for the Home Department

Injunctive relief following an unlawful removal is discretionary and must be assessed in all the circumstances. The primary consideration is the unlawfulness of the Secretary of State’s conduct and its consequence for the claimant’s exposure to a potential violation of human rights. Where removal materially impairs the claimant’s ability to present a pending appeal, particularly by preventing effective instructions, that practical prejudice may be decisive. The court may quash an immigration appeal tribunal’s refusal of permission and remit the application for reconsideration. Remittal does not determine whether permission should be granted, whether an application is out of time, or whether new evidence or grounds should be admitted.

The claimant, a Cameroonian national, challenged the decision to remove him from the United Kingdom and the Immigration Appeal Tribunal’s refusal of permission to appeal against an adjudicator’s dismissal of his asylum and human rights appeal.

The Secretary of State accepted that the removal was unlawful for the purposes of the application. The Tribunal accepted that the claimant was not at fault for the delay but refused permission on the basis that any appeal would inevitably be treated as abandoned. It was also accepted that the Tribunal’s decision should be quashed and remitted.

The remaining issue was whether the court should require steps to secure the claimant’s return pending reconsideration of permission to appeal.

1. The claim succeeded on both principal challenges. The refusal of permission to appeal was quashed and remitted to a differently constituted Tribunal. The unlawfulness of the removal was declared or accepted for the purposes of the proceedings.

2. The grant of injunctive relief was discretionary. The court had to consider all the circumstances, but the primary factor was that the Secretary of State had acted unlawfully and had thereby placed the claimant in a position of potential exposure to a violation of his human rights.

3. The Tribunal could determine the renewed application within a short period, but the claimant needed to provide full and up-to-date instructions. His continued absence in Cameroon created a practical difficulty in obtaining those instructions and would prejudice the effective presentation of the application. That consideration was decisive.

4. The court therefore accepted an undertaking from the Secretary of State to take steps to return the claimant if the renewed application for permission to appeal succeeded. The remittal was for reconsideration only. It remained for the Tribunal to decide whether to extend time, grant permission, and admit any new evidence or grounds.

5. Permission to appeal was granted on the narrow point concerning the construction of section 104 of the 2002 Act. A further permission concerning the injunction was refused because the judgment proceeded on the accepted premise that the removal was unlawful and any contrary determination would remove the judgment’s residual significance.

This was a first-instance judicial review. The decision of the Immigration Appeal Tribunal was quashed and the matter was remitted for reconsideration by a different Tribunal chairman.