The Court of Appeal has delivered a judgment in PN (Uganda) v Secretary of State for the Home Department [2020] EWCA Civ 1213 regarding unlawful detention under the Detained Fast Track system, which indicates that a fact sensitive approach must be adopted to each case. This judgment is likely to be particularly relevant in giving guidance to practitioners whose client has previously lost an appeal under the Detained Fast Track Rules who are considering or working on claims for damages for unlawful detention.
Legal Background
In July 2015 the Court of Appeal declared that the Detained Fast Track system, which provided strict time limits for preparing appeals alongside mandatory detention, was unlawful. This was primarily because “the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases” ([45], per Lord Dyson). It did not, however, say what would happen to appeals that had been decided under this system, where wrong results may have been reached owing to this unfair procedure.
In R (TN (Vietnam)) v Secretary of State for the Home Department [2018] EWCA Civ 2838 (‘TN (Vietnam)’), the Court of Appeal answered this question. Lord Justice Singh emphasised that whether a First-tier Tribunal decision must be quashed owing to unfairness will be a matter of fact based on how far the Detained Fast Track Rules touched on the decision. The Court of Appeal in PN (Uganda) summarised the principles established in TN (Vietnam) as follows:
35. … (1) a high degree of fairness was required in the proceedings; (2) the 2005 DFT Rules created an unacceptable risk of unfairness in a significant number of cases; (3) there was no presumption that the procedure was fair or unfair; (4) finality in litigation was important; and (5) a long delay in locating what was said to be critical evidence might suggest that the unfairness in the 2005 DFT Rules did not make the proceedings in the FTT unfair. The Court noted at paragraph 90 that whether the proceedings were in fact unfair and liable to be set aside would “depend on a careful assessment of the individual facts”.
The decision in PN (Uganda) provides a helpful application of these principles.
Factual background
This case has a complex procedural history, but the essential details are these. In September 2010, when she was 17 years old, PN entered the UK on a visitor visa, but overstayed, and was arrested on 21 July 2013. On arrest she was found in bed with a man. She gave a false identity to the enforcement officers. The next day she applied for asylum on the basis that she would be at risk of persecution if returned to Uganda on the basis of her sexuality as a lesbian. On 25 July 2013 her case was placed into the Detained Fast Track process. On 6 August 2013 her asylum application was refused.
The Court of Appeal split her detention into three parts. The first period of detention, from 22 July to 6 August 2013. The second period of detention ran from 6 August until 10 September 2013. During this second period, she was detained pending the First-tier Tribunal hearing, and following that, the determination of her case. The hearing was initially scheduled for 14 August 2013, but it was adjourned to 28 August 2013. The First-tier Tribunal rejected the claim for asylum at this hearing, and permission to appeal was subsequently refused by both the First-tier Tribunal and the Upper Tribunal.
PN was then in detention from 10 September to 12 December 2013 as “appeal rights exhausted”, which represents the third and final period of detention at issue in these proceedings.
Crucially, on 8 October 2013 PN made further submissions raising human rights and asylum grounds. These included an affidavit from “Rose”. Rose, still living in Uganda, confirmed that she had been in lesbian relationships with PN. PN stated that she had been unable to obtain Rose’s evidence earlier, because she had been in detention. PN had mentioned her intention to obtain evidence from Uganda at her asylum interview on 5 August 2013. Permission to apply for judicial review was refused on 14 October 2013 by Jeremy Baker J, a decision made in light of the adverse findings on credibility at her First-tier Tribunal hearing. On 12 December 2013, PN was removed to Uganda.
The present judicial review proceedings were commenced on 30 October 2015. Leaving out the irrelevant parts of what again was a lengthy procedural history, proceedings were stayed pending the determination of the appeals in TN (Vietnam), and on 24 June 2019, Lewis J gave judgment.
The High Court decision
First-tier Tribunal decision quashed
Lewis J quashed the decision of the First-tier Tribunal. This was on the basis that PN’s asylum claim required her to obtain evidence from external sources, in particular Rose who was in Uganda. He found that she was put in an unfair dilemma by the process, namely whether she should she seek an adjournment owing to missing evidence, thereby highlighting the missing evidence in her case, or whether she should do her best on the material available. Of course, many whose cases went through the Detained Fast Track system will have been caught on the horns of the same dilemma.
Findings on unlawful detention
Lewis J accepted that the first period of detention was lawful. However he considered that the second period was unlawful because PN was relying on the existence of foreign lesbian relationships to prove her asylum claim and more time was needed to gather the evidence. As for the third period, he concluded that it was lawful because “on the evidence before the Secretary of State that there were reasonable grounds for believing that she was someone to whom removal directions could be issued”.
Summary of key appeal grounds
Both the Secretary of State and PN appealed against this decision on various grounds. The Secretary of State’s main submission was that the decision should not have been quashed because proceedings were in fact fair to PN. If so, then the unlawful detention falls away. By contrast, PN’s main head of appeal was that that the third period of detention, when she was appeal rights exhausted, was unlawful.
The Court of Appeal decision
The Court of Appeal noted that the appeal was a review, not a rehearing. Accordingly, it was noted that in order to overturn the High Court decision, it would be necessary to identify “some gap in logic, lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion”.
As emphasised earlier in this article, judgments as to whether a First-tier Tribunal decision should be quashed are fact-sensitive. The submissions by the Secretary of State cogently laid out the reasons why the First-tier Tribunal hearing was, in her submission, fair. However, the Court of Appeal concluded that there could be no basis on the facts of the case to interfere with the judge’s finding, because he had legitimate and proper grounds for reaching his decision. Furthermore, PN’s case was not bound to fail so that the fairness of the proceedings would not be affected.
The Court of Appeal decided that the third period of detention was unlawful because the unfair First-tier Tribunal proceedings bore upon the decision to detain PN. Accordingly, the detention was unlawful because, properly analysed, there had been no determination in the First-tier Tribunal and it would not be possible to complete such a determination within a reasonable period of time. Furthermore, it was not the case that she would in any event have been detained.
Finally, as to PN’s appeal regarding her detention from 29 July to 6 August 2013 it was argued that this was unlawful because on 29 July the reason for detention became the Detained Fast Track process. However, the Court of Appeal accepted the submission of the Secretary of State that the First-tier Tribunal proceedings had not yet become unfair, because the unfairness arose only when it first became clear that there was a need to obtain evidence from abroad. This occurred at her asylum interview on 5 August 2013.
Conclusion and points for practitioners to note
There are three points arising from this judgment that I would highlight:
- This case provides an illustration of how courts are likely to approach applications to quash First-tier Tribunal proceedings under Detained Fast Track for unfairness. Decisions will be taken with a fact-sensitive approach, and accordingly they will be very difficult to appeal. Depending on the facts of the case, and in particular given that we are now in 2020, depending on any delay and/or limitation periods, claimants may find some success in arguing that their detention was unlawful owing to an unfair First-tier Tribunal decision.
- Decisions made under Detained Fast Track are not automatically unfair, this having been established in TN (Vietnam). Care needs to be taken in considering and itemising what factors make any particular case unfair when analysed in accordance with the principles quoted above.
- The Court of Appeal were quick to emphasise that where a First-tier Tribunal decision made under Detained Fast Track has been quashed for unfairness, detention may be, but will not necessarily be, unlawful. For detention to be unlawful, there must be something more: the reason why the FTT proceedings were unfair must touch on the decision to detain. For example, in PN’s case, detention was not unlawful before PN told the Secretary of State that she would need to rely on evidence from abroad, as this was the source of unfairness in the First-tier Tribunal hearing.
Paul Erdunast is a barrister at Temple Garden Chambers.
Robin Tam QC of Temple Garden Chambers and Natasha Barnes of 1 Crown Office Row were instructed by the Secretary of State for the Home Department in this case. Neither was involved in the writing of this post.
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