Ahmed v Secretary of State for the Home Department

Where an immigration decision is quashed after the claimant has been removed, the court must provide an effective remedy for the unlawfulness. In an exceptional case, that may require the Secretary of State to take reasonable steps to secure the claimant’s return so that a lawful decision and an effective in-country appeal can occur.

In assessing proportionality, the decision-maker must assume, for the contingent analysis, that the factual account relied upon is true. Doubt about the truth of the account must not be allowed to distort the separate assessment of whether removal would be proportionate if the account were accepted.

The claimant challenged the Secretary of State’s decision that further representations did not amount to a fresh claim. Permission for judicial review was initially refused and the claimant was removed to Iraq. Permission was later granted and the decision was quashed because it was irrational to conclude that removal was proportionate where there was a realistic prospect that an immigration judge might reach a different conclusion concerning family life and proportionality.

The court then considered the appropriate relief. The central issues were whether the claimant should be returned to the United Kingdom and whether the Secretary of State could instead require him to pursue an out-of-country entry-clearance application and appeal.

1. Relief following unlawful removal. The claimant’s removal had been authorised by earlier court orders and had not itself breached Article 8. Nevertheless, the Secretary of State’s decision on which the removal proceeded was unlawful. The court had to ensure that the quashing order provided an effective remedy for the disadvantage caused by that unlawfulness.
2. An out-of-country appeal would lack the advantages of an in-country appeal. The claimant would be unable to give evidence personally and be tested about his claim before decision-making. There were also practical difficulties in obtaining evidence by video link from Iraq, and an in-country appeal could take account of the continuing development of family life. In the exceptional circumstances of this case, those considerations justified an order requiring the Secretary of State to take all reasonable steps to facilitate the claimant’s return.
3. Proportionality assessment. The Secretary of State had to keep separate two contingencies: first, whether the account of family life was true; and secondly, assuming it was true, whether it arguably constituted private or family life and whether removal was arguably disproportionate. Doubt about the truth of the account could not properly be allowed to enter the assessment of proportionality on the assumption that the account was true.
4. The court observed that robust handling of unmeritorious claims remained appropriate, but cases in which excessive robustness led to unlawful removal would be very rare. The Secretary of State should recognise that failure to provide an effective remedy might make courts more reluctant to adopt such an approach before all proceedings had concluded.
5. The decision dated 26 December 2008 was quashed. The Secretary of State was ordered to take all reasonable measures to procure the claimant’s return to the United Kingdom and to make a further decision providing a lawful basis for any subsequent removal. The claimant was awarded his costs, subject to detailed assessment.

The judgment describes earlier procedural steps rather than an appeal from another judgment:

• High Court (Administrative Court): permission was initially refused on paper by a deputy High Court judge, and a later injunction application was refused by another deputy High Court judge. The claimant was removed to Iraq.
• High Court (Administrative Court): Mr Justice Ouseley subsequently granted permission, treated the matter as a substantive hearing, quashed the Secretary of State’s decision and determined the consequential relief in this judgment.