This note was prepared by Robbie Stern (trainee, Matrix Chambers).
PN (Uganda) v Secretary of State for the Home Department [2020] EWCA Civ 1213
This appeal involved the detention and removal of a woman at risk of persecution on return to Uganda due to her sexuality. Last month the Court of Appeal rejected the Secretary of State’s attempt to overturn the ruling below that her original First-tier Tribunal (FTT) hearing had been unfair and her detention unlawful.
The Detained Fast Track scheme
The Asylum and Immigration Tribunal (Fast Track Procedure) Rules, known as the Detained Fast Track Rules (“the DFT Rules”), were brought into force in 2005. Under the DFT Rules, asylum seekers with apparently straightforward cases were compulsorily detained and strict time limits applied to their appeals.
Following their replacement with an updated scheme in 2014, the DFT Rules were subject to a series of challenges. In R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber) [2015] EWCA Civ 840, Lord Dyson held that the Rules were systematically unfair and ultra vires insofar as they related to hearings before the FTT.
Although the 2014 DFT Rules were quashed, the Court of Appeal did not make clear what should happen to those cases already determined under them. This question was finally addressed by the Court of Appeal in R (TN (Vietnam)) v Secretary of State for the Home Department [2018] EWCA Civ 2838. Singh LJ held that in order to invalidate appeal decisions it would be necessary to demonstrate that they had been influenced or infected by the ultra vires rules. This would require a careful assessment of whether there had been procedural unfairness on the facts of the particular case.
The facts
PN is a lesbian woman with Ugandan citizenship. It was common ground in the appeal that lesbians are persecuted on the grounds of their sexuality in Uganda. PN entered the UK as an accompanying child on a visitor’s visa in 2010 when she was 17. The following year, PN’s visa expired and she became an overstayer. On 21 July 2013, PN was arrested in London. When she was arrested, PN was in bed with a man; the various explanations advanced for that became an issue in the asylum claim. The day after arrest, PN applied for asylum.
The Court of Appeal divided her detention into three periods. The first period comprised 22 July to 6 August 2013. Following a screening interview on 29 July 2013, the Secretary of State decided to progress PN’s asylum claim within the DFT.
The second period of detention, from 6 August until 10 September 2013, included PN’s original hearing before the FTT. At the hearing, PN gave evidence of her sexual experiences with women in both Uganda and London, explaining that she had been in bed with a man at the time of arrest only because he had helped her home the night before. The FTT Judge found that the only issue in the appeal was whether PN was a lesbian. He ultimately rejected PN’s claim as to her sexual orientation and dismissed the claim for asylum. On 10 September 2013, the Upper Tribunal (UT) refused PN permission to appeal.
During the third period, from 10 September to 12 December 2013, PN was in detention as “appeal-rights exhausted”, pending her removal to Uganda. On 23 September 2013, the Secretary of State gave directions for her removal.
On 8 October 2013, PN made further submissions, including submission of an affidavit from a woman in Uganda named Rose. Rose confirmed that she had been in a relationship with PN. PN claimed that she had been unable to obtain Rose’s evidence at an earlier stage due to being in detention. Permission to apply for judicial review as a fresh claim was nonetheless refused on 14 October 2013. On 12 December 2013, following second and third applications for judicial review, PN was removed to Uganda.
The High Court
In a judgment of the High Court dated 24 June 2019 ([2019] EWHC 1616 (Admin)), Lewis J held that:
- the second period of PN’s detention was unlawful. PN could not lawfully be held in the DFT process because she was relying on the existence of foreign lesbian relationships to prove her case and more time was needed to prove that case. Consequently, from 6 August 2013 her detention was unlawful; and
- PN’s hearing before the FTT had been unfair under the 2005 DFT Rules. Her asylum claim necessarily involved obtaining evidence from external sources, including from those in Uganda. The DFT Rules did not provide enough time to enable such evidence to be obtained. Although PN did not seek to adjourn the appeal hearing, the DFT Rules had put her in an unfair position.
The judge ordered the Secretary of State to facilitate the return of PN to the United Kingdom.
Both PN and the Secretary of State appealed against the judgment. PN sought to set aside the findings of the judge that she was lawfully detained in the first and third periods. The Secretary of State sought to set aside the judge’s finding that the Court had previously granted PN permission to apply for judicial review to quash the decision of the FTT (submitting in the alternative that if permission was granted, the FTT hearing was fair in any event).
The Court of Appeal
In a judgment of 28 September, the Court of Appeal held (per Dingemans LJ) that:
- the High Court was entitled to find that the proceedings before the FTT were not fair [65], given the time limits contained in the DFT Rules – now quashed. In conducting a review, rather than a re-hearing [62], there was no basis for the Court of Appeal to interfere with that finding [63];
- whilst the FTT proceedings involving PN were unfair, unfairness arose only when it became apparent that there was a need to obtain evidence from abroad [82], i.e. from the 5 August 2013 asylum interview in which PN first mentioned her relationships overseas. In those circumstances, the first period of detention (up until 6 August 2013) was lawful [83]; however,
- the third period of detention was unlawful. The ‘public law failures’ of the case – i.e. the unlawful DFT Rules and the unfair FTT proceedings – were “relevant to and bore upon” the decision to detain PN after 10 September 2013 [86]. Properly analysed, there had not been a determination in the FTT, and it would not have been possible to complete such a determination within a reasonable period.
Takeaways
The judgment applies and endorses the approach set out by the Court of Appeal in TN(Vietnam): appeals of decisions under the DFT scheme will require “careful assessment of the individual facts”. It will not suffice to say simply that the 2005 Rules were ultra vires.
However, this principle may be subject to clarification when the Supreme Court hears the appeal in TN (Vietnam) next month. Is a decision based on a procedure imposed by ultra vires rules only vitiated where the rules caused unfairness in the individual case (per Singh LJ)? Or might be it enough that the rules were simply material, capable in principle of causing unfairness? This was the relevant test for the tort of false imprisonment in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12.
Counsel for PN argued at the Court of Appeal that the Lumba test applied to the PN’s first period of detention; it was irrelevant whether the DFT caused unfairness if the rules were indeed material to the decision to detain PN. The Court arguably dodged this tension between the tests in tort and public law.
Nonetheless, the PN judgment marks a significant victory for the appellant – a victim of sexual violence whose original claim now dates back some seven years. It can only serve to embolden others who suffered unfairness under the DFT scheme to bring further appeals.
Chris Buttler acted for PN. Robin Tam QC and Natasha Barnes acted for the Secretary of State for the Home Department.