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Reported Case

Duncan Lewis Achieves High Court Success, Emphasising Duty of Candour in Afghan Resettlement Case (16 December 2024)

Date: 16/12/2024
Duncan Lewis, Reported Case Solicitors, Duncan Lewis Achieves High Court Success, Emphasising Duty of Candour in Afghan Resettlement Case

Duncan Lewis’ Public Law team achieved a success in a judicial review in which, on Friday, 29 December 2024, Mr Justice Johnson highlighted critical principles of public law, including procedural fairness, transparency, and the role of disclosure. The judgment emphasises the importance of public authorities meeting their obligations under the duty of candour, ensuring accountability in judicial review proceedings. This outcome demonstrates how properly pleaded cases can lead to significant discoveries about the standards of fairness expected in public law.

 

Factual Background

The Claimant, QA, was resettled in the United Kingdom under the Afghanistan Locally Employed Staff Ex-Gratia Scheme on the basis of his role as former interpreter for the Foreign, Commonwealth and Development Office (FCDO). The basis of this challenge brought before the High Court is centred on the Claimant’s additional family members who are at risk of serious harm from the Taliban and face genuine ongoing threats to their safety and security in Afghanistan as a consequence of the Claimant’s previous FCDO employment.



QA’s applications were refused on five occasions, despite him presenting substantial evidence of risk, including detentions and disappearances of family members.

 

Issues with Disclosure

During the course of these proceedings, a number of disclosure requests were sought from the Defendant which included disclosure of the following:

  1. Panel minutes;
  2. Underlying documents referred to by the Defendant; and
  3. Requests for written explanation of redactions – including the names of the panel members for each decision.

 

The identity of the panel members were only disclosed as a result of QA’s solicitor’s, Mr Raman Kumar, determined pursuit of a disclosure application to require the Secretary of State to comply with the requirements set out by Swift J and the Court of Appeal in IAB that any reliance on redactions must be justified in writing, by way of a written statement.

 

Concerns were expressed as to the SSFCDA’s approach to disclosure and candour in the litigation, drawing attention to unexplained and material differences between different versions of documents that had been disclosed.

 

QA’s solicitor drew attention to the observation of Swift J in R (L1T FM Holdings Ltd) v Secretary of State in the Cabinet Office [2024] EWHC 386 (Admin) at [14]: “[t]he open versions of these documents ought not to have pretended to be something they were not.” QA’s solicitor also raised the concern that Ms Ferguson’s statement had given the misleading impression that she had not been involved in the case at all.

 

Considerations on Bias, unfairness Predetermination

The Test applied in this matter is the analogue of the Porter test for bias. That is, whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal had predetermined the issue: Miller v Health Service Commission for England [2018] EWCA Civ 144 [2018] PTSR 801 per Sir Ernest Ryder at [62]. In this matter, Mr Justice Johnson noted the following

 

  1. Ms Ferguson is a public servant with considerable experience and expertise.
  1. There was unwarranted secrecy about the identity of the panel members, which is inimical to open government and which fuels suspicion.
  1. The Secretary of State gave the impression that reviews were being conducted by newly constituted panels and sought to make a virtue of this. The summary grounds of defence in the first claim for judicial review said that the application would be “considered afresh by a new panel of officials.” The skeleton argument for the hearing in March 2024 said that the third decision had been taken by a Panel “comprised of different assessors to those who took the decision of December 2021.
  1. Ms Ferguson was (unknown to QA) a member of the Panel that made the third decision. That decision was challenged on grounds of rationality. In the context of that challenge, Ms Ferguson made a witness statement strongly supporting the rationality of the decision, and disputing the challenge, and did so in a way that wrongly gave the impression that she had not been involved in the decision.
  1. The Secretary of State, in the face of that rationality-based challenge, agreed that the decision would be retaken.
  1. Ms Ferguson was then a member of the panel that took the fifth decision. One of the other members of the panel had been a member of the panel that took the first and second decisions. Another member had been a member of the panel that had taken the fourth decision. The chair of the panel for the fifth decision had chaired the panel that had taken the fourth decision and had also been a member of the panel that had taken the first and second decisions. This was all in the context of QA being told that the third decision would be the result of the application being “considered afresh by a new panel of officials”. It was, but that was not the case for the fourth decision or the fifth decision.
  1. The Secretary of State maintained that it was unnecessary for Ms Ferguson, in her witness statement which comments on the decision, to have acknowledged that she was part of the panel that made the decision.
  1. The Secretary of State maintains that the purpose of Ms Ferguson’s statement was to set out the chronology, and not to set out her personal view of QA’s application. There was therefore no reason for Ms Ferguson to set out her personal view. Nevertheless, Ms Ferguson took it upon herself to do exactly that. She strongly supported the decision and expressed views about the further evidence on which QA sought to rely.

 

These points clearly demonstrate the practical application of candour standards and how the discharge of candour paved the way for discovery of unfairness.

 

Mr Justice Johnson went on further to state:

“The unnecessary secrecy around the identities of the panel members is likewise a factor that impacts on confidence in the decision-making process: as Bean LJ observed, it is inimical to open government. What has happened in this case demonstrates what the consequences may have been if IAB had been decided differently”

 

Mr Justice Johnson ruled “QA has been deprived of a fair decision. For that reason, the fifth decision must be quashed, and, regrettably, a sixth decision will be necessary”, it was further stated that the fifth decision was unlawful because a fair-minded observer would consider that it was possible that the decision was predetermined.

 

The judgment in QA v SSFCDA illustrates the judiciary’s role in upholding procedural fairness and transparency in public law and for Solicitors to understand and plead candour.

 

The Full case can be read here: QA, R (on the application of) v Secretary of State for Foreign, Commonwealth and Development Affairs

 

Raman Kumar, Lead Solicitor for the Claimant states “This judgement along with IAB, mark a pivotal moment in public law, reaffirming the duty of candour as a cornerstone of judicial review. Together, they send a clear message that transparency is not optional, and public authorities must ensure that procedural fairness and full disclosure are central to their decision-making processes. These cases will undoubtedly shape the landscape of public law challenges, setting a higher standard for accountability and fostering greater trust in administrative justice"

 

The Claimant was represented by Solicitor, Raman Kumar, Director, Nazia Khan, Trainee Solicitor, Jessie Shepherd and Senior Caseworker, Paviter Juss. The Counsel team instructed are Emma Daykin and Matthew Moriarty of One Pump Court Chambers. The Special Advocates in this matter were Tim Buley KC of Landmark Chambers and Bilal Rawat of 5 Essex Chambers.

 

About the Instructing Team

Raman Kumar is a solicitor in the immigration and public law department at Duncan Lewis Solicitors. He specialises in complex cases, particularly specialising in representing nationals of Afghanistan. Raman’s work, predominantly legally aided and occasionally pro bono, includes representing high-profile clients such as senior United Nations officials and former Afghan ministers.

 

Nazia Khan is a Director in the immigration department, with a focus also on civil litigation. She has expertise in a wide range of immigration-related cases and has represented clients at various levels of the legal system. Nazia joined Duncan Lewis in 2015 and qualified as a solicitor in 2014. She holds a Level 2 Senior Caseworker accreditation under the Law Society’s Immigration and Asylum Accreditation Scheme (IAAS)

 

Jessie Shepherd is a Trainee Solicitor in the Immigration department. She supports an experienced team of solicitors, trainees and caseworkers in the day-to-day casework, including asylum matters, protection claims, leave to remain applications and unlawful detention challenges

 

Paviter Juss serves as a Paralegal (Caseworker) in the Immigration Department at Duncan Lewis, operating from the City of London office. Under the supervision of Director Nazia Khan, Paviter is involved in assisting with a broad range of matters including human rights claims, asylum and immigration issues, and public law.

 

 

Our Public Law Team

Duncan Lewis’ Public Law team, ranked in Chambers & Partners and The Legal 500 UK directories, has a broad practice representing both privately and publicly funded (legal aid) clients in matters involving immigration; asylum and human rights and deportation matters, with a niche practice in immigration and civil liberties claimant judicial review matters. They have significant practice in challenging delays in Home Office decision-making, unlawful immigration detention cases with high net claims for damages and challenging immigration removal decisions, particularly third country removal cases.

 

About Duncan Lewis Solicitors:

Duncan Lewis Solicitors is one of the UK’s largest firms of solicitors, offering expertise across various fields including immigration, family, and public law. Headquartered in the City of London, the company is well-known for its excellence in people management, holding the Investors in People Gold Standard Accreditation. With a commitment to client-centred service and social responsibility, Duncan Lewis provides unparalleled legal support to clients nationwide.

 

Find full details of this case on Bailii’s website here.
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