AB, R (On the Application Of) v The Secretary of State for the Home Department

Later discovery that an earlier decision was unlawful does not, without more, invalidate a later decision made before that discovery. Lawfulness is assessed by the circumstances known to the decision-maker at the time. A public authority may rely on the apparent legal validity of a tribunal decision unless there is a separate basis for challenging the later act. A claimant seeking return to exercise an in-country asylum appeal must therefore establish contemporaneous knowledge, or cause for knowledge, of the earlier unfairness. The court also confirmed that a mandatory return order is available in an appropriate case, but involves a wide, fact-sensitive discretion rather than a presumption.

AB’s asylum claim was processed under the detained fast-track scheme, refused, and dismissed on appeal. He was removed to Cameroon. Following litigation concerning the fairness of the scheme, his tribunal decision was set aside and a further appeal became live, but the Secretary of State refused to facilitate his return to the United Kingdom. The First-tier Tribunal refused to adjourn the renewed appeal, and the Upper Tribunal dismissed AB’s judicial review claim on 1 June 2016.

AB appealed to the Court of Appeal. The central issue was whether the Secretary of State knew, or had cause to know, when removal occurred that the fast-track process or the tribunal appeal was unlawful through unfairness, and whether the court should require his return to participate in an in-country appeal.

The appeal was dismissed unanimously. McFarlane LJ gave the judgment, with Kitchin LJ and Arden LJ agreeing.

1. Effect of later unlawfulness. The later finding that the detained fast-track scheme and the First-tier Tribunal decision were unlawful did not, by itself, invalidate the separate removal decision made before those findings. Under Draga v SSHD [2012] EWCA Civ 842 and Fardous v SSHD [2015] EWCA Civ 931, lawfulness had to be assessed by reference to the circumstances known to the Secretary of State when removal was decided.
2. Knowledge and pleading. AB’s central allegation that the Secretary of State knew, or had cause to know, that the scheme was unlawful had not been pleaded or prepared. It was first advanced orally and concerned the Secretary of State’s integrity and good faith. It would have been procedurally unfair to decide the issue without notice, evidence or an opportunity to respond. The discipline of pleadings remained important: AA (Afghanistan) v SSHD [2007] EWCA Civ 12.
3. Unfairness of the original process. The court considered that AB’s asserted bisexuality and circumstances in Cameroon made fast-track allocation inappropriate. The Secretary of State was chargeable with knowledge of R (JB) (Jamaica) v SSHD [2013] EWCA Civ 666, and the presenting officer should have drawn its relevance to the tribunal’s attention. The treatment of AB’s partner also created significant concern. Nevertheless, no individual matter amounted to a glaring or fundamental breach, the points were not pursued by appeal before removal, and a tribunal judge had refused a stay. The requisite knowledge was therefore not established.
4. Return and fresh evidence. The Nationality, Immigration and Asylum Act 2002 gave AB an in-country appeal right but imposed no express duty to bring him back. Consistently with R (YZ (China)) v SSHD [2012] EWCA Civ 1022, a mandatory return order was available in principle. The discretion was wide and fact-sensitive, with no presumption. Evidence of later conditions in Cameroon was irrelevant to the original lawfulness issue, though it could have been relevant to remedy. The duty in R v Secretary of State for the Home Department, Immigration Appeals Tribunal, Ex parte Robinson [1997] Imm AR 568 did not arise because no obvious Article 3 claim was disclosed.
5. Orders. Permission was granted to amend the grounds. The central ground was dismissed, and permission to appeal on all other grounds was refused.

• Court of Appeal (Civil Division): Appeal from the Upper Tribunal dismissed on 9 February 2017 under [2017] EWCA Civ 59.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Perkins dismissed the judicial review claim on 1 June 2016.