Gokhan Yilmaz v Secretary of State for the Home Department

Where a judicial review claim seeks public law relief that has become academic, the court should ordinarily dismiss those aspects rather than decide issues of wider significance. A damages claim may nevertheless remain live and, in unusual circumstances, be pursued within the existing judicial review proceedings. The court may remit it to the High Court and require a properly pleaded private law claim. Substantive claims should be pleaded in the claim form or grounds; they cannot be introduced for the first time in a skeleton argument. An earlier refusal of permission to seek judicial review does not, without more, bar a later private law damages claim.

Mr Yilmaz and Mr Arman, Turkish nationals deported to Turkey following criminal convictions, had human rights claims certified under section 94B of the Nationality, Immigration and Asylum Act 2002. Their appeals to the First-tier Tribunal remained unheard for almost five years. They sought judicial review principally to secure return to the United Kingdom so that they could pursue in-country appeals.

The High Court refused permission. Permission was later granted by Popplewell LJ. After disclosure revealed that the Turkish authorities objected to evidence being obtained by video-link through the British Embassy, the Secretary of State revoked both certificates. Mr Yilmaz returned to the United Kingdom; arrangements were to be made for Mr Arman when he could be traced. The central issues before the Court of Appeal were which claims remained live, whether the damages claims could continue in the existing proceedings, and the appropriate procedural orders.

The appeals were allowed in part. The public law claims were dismissed as academic, while the damages claims were permitted to continue and were remitted to the High Court.

1. Academic public law claims. Revocation of the section 94B certificates and Mr Yilmaz’s return meant that the declarations and injunctive relief sought to secure in-country appeals no longer served a live purpose. The court declined to determine the wider public law issues, including the late-raised challenge to the Secretary of State’s policy on obtaining foreign consent to video-link evidence. A court will not generally determine academic issues in judicial review, and exceptional circumstances did not justify doing so here.
2. Pleading. A substantive claim cannot properly be introduced for the first time by skeleton argument. It must be pleaded in the claim form or grounds. A late unpleaded issue may require amendment and an adjournment before it can be tried: R (AB) v Chief Constable of Hampshire [2019] EWHC 3461 (Admin), para 113, and Practice Direction 54A.
3. Damages. The damages claims were not academic. Although inadequately particularised, it was plausible that each claimant might have a viable claim arising from deportation and/or subsequent exclusion. In the unusual circumstances, requiring fresh proceedings would cause difficulty and delay, and there was no formal procedural obstacle to determining the claims within the existing judicial review proceedings. The claims were therefore remitted to the High Court, subject to permission to amend and proper pleading.
4. Previous proceedings and amendment. Earlier refusals of permission to seek judicial review did not bar the private law damages claims, even where issues overlapped: R v Secretary of State for the Environment, ex p Hackney LBC [1984] 1 WLR 92. Mr Yilmaz could amend to cover events before 17 June 2020, and could seek to add a false-imprisonment claim. Mr Arman’s proposed claim for pre-deportation detention remained subject to the High Court’s consideration because an earlier amendment application had been refused.
5. Remote evidence. The fairness of receiving evidence by remote means in out-of-country appeals is context-sensitive and should be assessed by the specialist tribunals by reference to the jurisdiction, the type of case and the nature of participation. Consent of the foreign state may be relevant. The court made no ruling on the criticism of the guidance in Agbabiaka (evidence from abroad, Nare guidance) Nigeria [2021] UKUT 286 (IAC). It also noted the obiter views in R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, [2017] 1 WLR 2380, and earlier observations in R (FB (Afghanistan)) v Secretary of State for the Home Department [2020] EWCA Civ 1338, [2021] 2 WLR 839.

The claimants were directed to file and serve amended damages pleadings within 42 days. A single case management hearing in the High Court was considered desirable.

• Court of Appeal (Civil Division) — The appeals followed refusal of permission by Mostyn J in the Administrative Court on 13 May 2021. Popplewell LJ granted permission on 30 September 2021 and retained the matters in the Court of Appeal. The court dismissed the public law claims as academic, permitted the damages claims to continue subject to amendment, and remitted them to the High Court.