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Successful judicial review of the Tribunal (14 October 2020)

Date: 14/10/2020
Duncan Lewis, Main Solicitors, Successful judicial review of the Tribunal

T, a vulnerable young man with poor physical and mental health, was a failed asylum seeker. He was facing deportation having been sentenced to four years imprisonment when he instructed the Dalston-based public law team, who were quick to pick up the many signs that he was in fact a victim of trafficking and forced labour.

The team helped T put forward his trafficking claim and simultaneously made representations that he had a fresh claim for asylum on the basis that he was a victim of modern slavery and that his vulnerabilities, and the lack of protection in his home country, gave rise to a real risk that if returned he would be re-trafficked.

Although it was swiftly accepted that there were “reasonable grounds” to consider that T was a victim of trafficking, he received a negative “conclusive grounds decision”. We immediately sought judicial review of that decision.

Shortly after that, although his asylum and human rights representations were not accepted, and his account of forced labour, repeated torture, and repeated trafficking was rejected wholesale, it was accepted that he had a further right of appeal, which he duly exercised.

As he was being supported through the kindness of strangers (including the charity Refugees at Home) who provided T with food and shelter, when they were unable to help further, he made an application for NASS support.

The Home Office rejected the NASS application on the basis that T was ‘not an asylum-seeker’. They claimed, that notwithstanding the acceptance that he had a fresh right of appeal, and the lack of any certification preventing a right of appeal of some or all of the decision, the right of appeal only lay on Article 8 grounds. As there is no legal aid for these matters, another charity helped T appeal the NASS refusal decision to the First-tier Tribunal (Social Entitlement Chamber).

The Home Office maintained its position, and the judge supported their position. We commenced a second judicial review, this time of the Tribunal decision (there being no right of appeal to the Upper Tribunal from these decisions).

That judicial review was stayed until after the First-tier Tribunal (Immigration and Asylum Chamber) had ruled on the question of whether T had a right of appeal on asylum grounds. At a case management hearing, it was held that T was ‘clearly’ able to appeal on asylum grounds. We then commenced pressing the Home Office - as an Interested Party in the judicial review of the First-tier Tribunal (Social Entitlement Chamber) to agree that the NASS appeal decision was wrong. (It is customary that the Tribunal, despite being the nominal defendant, makes no submissions and takes no part in a judicial review of its decisions).

In the meantime, following settlement of the trafficking decision judicial review on agreed terms that included the Home office paying the costs of the case, it was accepted that there were conclusive grounds that T was a victim of trafficking after all.

Eventually, after months of waiting for the Home Office to respond we looked to apply for an expedited hearing of the judicial review. The Home Office finally agreed to settle, though initially only on the basis that the judicial review was now “academic”. After further notifying that we would take the matter to a hearing, they finally agreed that the consent order would amend the decision of the Tribunal, to a finding that T had been entitled to NASS support as an asylum-seeker. Agreement was still not reached however, as they argued that as Interested Party they should not be responsible for the costs of the claim. Eventually they agreed that the question of costs should be settled on the basis of written submissions, and a consent order was filed on that basis.

Public law director James Packer now made detailed submissions. There was a rapid re-assessment by the Home Office, and they now requested that we sign a fresh consent order whereby they agreed to pay all of the Claimant’s costs. This fresh consent order was now filed at the Administrative Court - but without a second fee - with just a “request” that the fee to file the previous consent order (not yet sealed) be re-allocated to filing this consent order instead.

After further complaints, the SSHD finally agreed to pay the sums owed to our client T.

Galina Ward of Landmark Chambers has been T’s principal counsel in both judicial reviews, and her excellent work has been of huge assistance to the firm and to T.

James Packer has been the lead lawyer at Duncan Lewis Solicitors, with assistance from many others in the Dalston office public law team, principally previous team members Sarah Mills and Kate Newman.

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