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Court of Appeal dismisses the Secretary of State’s appeal concerning challenges to the Detained Fast Track Rules (28 September 2020)

Date: 28/09/2020
Duncan Lewis, Main Solicitors, Court of Appeal dismisses the Secretary of State’s appeal concerning challenges to the Detained Fast Track Rules

In a judgment handed down on 28 September 2020, the Court of Appeal has dismissed the Secretary of State’s appeal in which she sought to argue that the decision of Lewis J in the High Court which found that the claimant (‘PN’) had been subjected to an unfair asylum appeal and that she should be returned to the UK for the appeal to be considered afresh, was wrong in law. PN’s cross-appeal, which argued that she had been detained unlawfully for a period longer than what was found by the High Court, was also successful in part.

Background to the appeal

The appeal concerns a gay woman from Uganda who had claimed asylum in the UK in July 2013 based on her sexuality. Despite having an asylum claim that was too complex to be considered quickly, PN was detained under immigration powers so that her claim could be considered under accelerated time frames by the Secretary of State under the Detained Fast Track Process (a process which came to an end in 2015 as it was held to be ‘structurally unfair’ by the High Court). This meant that she had very little time in which to get evidence from her previous partner in Uganda to corroborate her claim to be gay and so this evidence was not obtained in time for her appeal hearing.

On 30 August 2013, the First-tier Tribunal (FTT) dismissed PN’s asylum appeal having applied the 2005 version of the Fast Track Rules, which were later found to be unlawful by the High Court in January 2017. Relying on the FTT decision, the Secretary of State removed PN to Uganda on 12 December 2013. On 2 November 2015, PN issued a claim for judicial review challenging her removal on the grounds that the FTT decision was unfair and unlawful.

On 24 June 2019, Lewis J allowed PN’s claim, holding that in the particular circumstances of her case, the FTT decision was unfair as she was prevented (because of the unlawful 2005 Rules) from being able to obtain evidence from Uganda that was central to her claim and as a result, directed the Secretary of State to return PN to the UK so that she could have her appeal considered afresh. PN was also found to have been unlawfully detained, but this was only found to be unlawful for the period of time that she was pursuing her right of appeal.

Court of Appeals findings

Both the Secretary of State and PN were granted permission to appeal Lewis J’s findings by the Court of Appeal earlier this year and the matter came before Lord Justices McCombe, Henderson and Dingemans for a 2-day hearing on 15 and 16 July 2020.

In determining the Secretary of State’s appeal, Dingemans LJ found, contrary to the Secretary of State’s submissions, that PN had been permitted to argue that the FTT determination of her appeal should be ‘quashed’ and that she had been unfairly disadvantaged by the Fast Track Rules as she was prevented from obtaining critical evidence relating to her sexuality claim from Uganda within the Fast Track appeal time frames. Whilst PN had not made an application to adjourn her appeal so that this evidence could be adduced, Dingemans LJ found that for PN to have done so would have highlighted the difficulties with her case.

In determining PN’s cross-appeal, Dingemans LJ found that PN had been unlawfully detained for an additional period than what was found by the High Court. It was held by the court that PN had been unlawfully detained from the point at which her asylum appeal concluded until she was ultimately removed from the UK. This was because the Secretary of State had detained her during this period on reliance of the unfair FTT proceedings which were subsequently quashed by the judge.

The Claimant is represented by Sulaiha Ali and Anna Spivak at Duncan Lewis Solicitors and Counsel Chris Buttler of Matrix Chambers.

Sulaiha Ali comments on the judgment:

“The Secretary of State’s Detained Fast Track process caused unfairness to thousands of asylum seekers who were subjected to extremely truncated time frames in which to put forward their asylum claims. This process has since been declared as unlawful and we are extremely pleased that the Secretary of State’s latest attempt to try and reargue matters that have already been determined by the court has been refused. We hope that she now turns her efforts to considering our client’s protection claim promptly, given that her actions caused our client to be subjected to a structurally unfair process that resulted in her being unlawfully detained and removed to Uganda where she was exposed to horrific rape and torture.”

PN comments on the judgment:

“I feel so happy for this decision. When you are fighting so long for something it feels like you will never win and that is very frightening. This journey has not been easy and it is amazing to win against the Home Office who have put me through so much torture - I was waiting for this day to come"

Read the full judgment here

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