PN v The Secretary of State for the Home Department

A fast-track asylum determination is not automatically unlawful because the fast-track rules were unlawful. The court must decide whether the procedure was unfair in the individual case and whether the unfairness was causally linked to the restrictive timetable. A detained claimant must have a fair opportunity to obtain material evidence, including evidence from abroad supporting a claim based on sexual orientation.

Historic abuse and medical evidence do not necessarily make a fast-track procedure unfair where they do not materially affect the core asylum issue. Detention pending appeal may be unlawful where it rests on an unlawful policy. Later quashing of an appeal determination does not retrospectively invalidate detention undertaken for the lawful purpose of removal.

The claimant, a Ugandan national, claimed asylum on the basis that she was a lesbian and would face persecution in Uganda. Her claim was refused and her appeal was dismissed by the First-tier Tribunal under the detained fast-track procedure. She was removed to Uganda before bringing these judicial review proceedings.

The amended claim challenged the First-tier Tribunal determination, the removal decision and detention during three periods. The central issues were whether the fast-track procedure had been unfair in the claimant’s particular case, whether she should be enabled to return to the United Kingdom to pursue her appeal, and whether her detention was lawful.

1. Scope of permission. Permission originally granted did not include a challenge to the First-tier Tribunal determination. Permission to amend was later granted, and the amended claim validly raised procedural unfairness.
2. Unfairness of the appeal procedure. Under [2018] EWCA Civ 2838, the use of the 2005 Rules required an assessment of unfairness in the individual case and a causal link between the fast-track timetable and what occurred. The claimant’s appeal depended materially on evidence from Uganda concerning prior lesbian relationships. The timetable did not give her a fair opportunity to obtain that evidence. The determination was therefore quashed. The subsequent affidavit from Rose showed that such evidence could have been obtained relatively soon after the hearing.
3. The absence of a medico-legal report concerning historic childhood sexual abuse did not establish procedural unfairness. That evidence did not materially affect the core issue of sexual orientation, and there was no proper basis for concluding that the claimant could not participate effectively in the hearing.
4. Remedy. The claimant’s statutory in-country right of appeal under sections 92(1) and 92(4) of the Nationality, Immigration and Asylum Act 2002 had been unlawfully denied. In light of the pending asylum appeal, the risk of persecution in Uganda if the claim succeeded, and the likely need for live oral evidence, the defendant was ordered to use his best endeavours to facilitate her return to the United Kingdom.
5. Detention. Detention from 22 July to 6 August 2013 was lawful. Detention from 6 August to 10 September 2013 was unlawful because it was materially influenced by the unlawful policy of detaining fast-track appellants pending exhaustion of appeal rights. The defendant could not show that she would in fact have been detained under the general criteria, so damages were recoverable.
6. Detention from 10 September to 12 December 2013 was lawful. There were reasonable grounds for suspecting that removal directions could be given, the defendant intended to remove the claimant, acted with reasonable diligence, and complied with the applicable policy and the Hardial Singh principles. The later quashing of the First-tier Tribunal determination did not retrospectively invalidate that detention.

This was a first-instance judicial review. The judgment referred to earlier decisions concerning the detained fast-track scheme, including [2018] EWCA Civ 2838 and [2017] EWCA Civ 59.