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

Further asylum or human-rights submissions made shortly before removal do not automatically prevent removal. The statutory protection applies only where the Secretary of State receives the material at a time and in a manner affording officials a viable opportunity to identify and consider the claim and stop the removal.

Applications for urgent injunctive relief must be made promptly and with as much notice to the Secretary of State as practicable. Those acting without the full immigration record must exercise especial care. They must disclose gaps in their knowledge and avoid factual assertions lacking a proper foundation. An injunction cannot stand where there is no serious issue to be tried or it was obtained through a fundamental mistake of fact.

The Secretary of State sought to remove an unsuccessful Afghan asylum-seeker under an existing removal window. Shortly before his flight, new solicitors submitted further representations based on allegedly new documents and press coverage said to create a sur place asylum claim. The documents had been found to be forgeries, and the Secretary of State rejected the representations.

After the claimant had left the United Kingdom, Morris J granted an urgent injunction preventing onward travel from Istanbul and requiring his return. The application mistakenly asserted that an earlier Article 8 claim had been certified and that the removal window had consequently closed. Jay J subsequently ordered the claimant's return on the mistaken footing that the first order had been breached. Lang J refused to set those orders aside.

The Secretary of State appealed against all three orders. The central issues concerned the effect of last-minute representations under section 77 of the Nationality, Immigration and Asylum Act 2002 and paragraphs 353 and 353A of the Immigration Rules, the requirements for urgent without-notice relief, and whether the injunctions had any sustainable basis.

1. Appeals allowed. The injunction made by Morris J rested on a fundamental mistake of fact. The claimant's Article 8 claim had not been certified, paragraph 6.2 of the relevant enforcement guidance did not apply, and the reason given for treating the removal window as suspended could not be sustained. The court therefore considered the other suggested grounds for relief itself.

2. Section 77 of the Nationality, Immigration and Asylum Act 2002 and paragraph 353A of the Immigration Rules operate within a public-law system of fair and proper immigration administration. Their obligations arise only where material is provided at a time and in a manner affording officials a reasonable and viable opportunity to recognise the asylum claim or further submissions, compare them with the previous material, and stop the removal. They are not strict obligations triggered by the mere receipt of a document immediately before departure. Voluminous late representations do not create an automatic bar to removal.

   The representations sent shortly before the scheduled flight gave no viable opportunity to digest the material and abort the removal. Once considered, they were rejected. There was consequently no duty to return the claimant from Istanbul. The Secretary of State was also entitled to conclude that the forged documents and insubstantial sur place allegation raised no new issue of substance.

3. The claimant had no serious issue to be tried under the approach in American Cyanamid Company v Ethicon Ltd [1975] AC 396. Questions concerning the appropriate merits threshold and the balance of justice and convenience therefore did not arise. The statement in the Administrative Court Guide that an applicant generally needs a strong case should not be treated as authoritative for removal claims founded on the Refugee Convention or articles 2 or 3 of the Convention.

4. Removal challenges must be brought promptly and with as much notice to the Secretary of State as practicable. Basic fairness ordinarily requires notice of an application for interim injunctive relief unless secrecy is specially justified or notice is practically impossible. Last-minute advisers lacking the full record must disclose that limitation, avoid unsupported factual assertions, and exercise especial care. In urgent removal cases it will usually be desirable for the judge to check the applicant's immigration position with the responsible Home Office unit.

5. Jay J's order was also set aside. The earlier order had been served only after the claimant boarded the onward flight and did not require his removal from the aircraft. A further penal obligation could not properly be implied. Jay J's order was also dependent upon the invalid order made by Morris J. Lang J's consequential refusal to set those orders aside was quashed for the same reason.

6. The injunctive relief in all three orders was set aside. The court provisionally considered that the related committal application should not continue and invited short written submissions on that issue.

1. Court of Appeal (Civil Division): The Secretary of State's appeal was allowed. The injunctive relief granted in each of the three orders below was set aside.

2. High Court, Lang J: Refused the Secretary of State's application to set aside the earlier orders and reiterated the requirement to return the claimant. The material parts of her order were set aside on appeal.

3. High Court, Jay J: Ordered the Secretary of State to procure the claimant's return and adjourned a committal application. The return order was set aside on appeal; the continuation of the committal application remained subject to written submissions.

4. High Court, Morris J: Granted urgent relief preventing the claimant's onward travel and requiring his return to the United Kingdom. The order was set aside because it rested on a fundamental mistake of fact and no alternative ground justified it.

5. Upper Tribunal: UT Judge Gill refused interim relief on the papers because the claim appeared academic after the claimant had left the United Kingdom.