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Serious Breaches of Duties of Procedural Fairness and Candour by Home Office in Calais Children's Cases

Written by Asad Ali Khan, 07 September 2018

R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812 (31 July 2018)

These proceedings concerned Citizens UK's appeal against Soole J's decision that the expedited process adopted by the Home Office to assess the eligibility of 2,000 unaccompanied asylum-seeking children (UASC) to be transferred to the UK from the Calais Jungle had breached the common law duty of fairness because the reasons given for adverse decisions under the expedited process were inadequate. And the Court of Appeal unanimously allowed the appeal and also held that the Home Office had breached its duty of candour to and co-operation with the court and had even resorted to misleading the Administrative Court. The Calais Jungle or camp was demolished in October 2016 by the French authorities which together with the British established the expedited process. Citizens UK argued that the process breached (i) EU law, particularly because its failure to comply with procedural protections guaranteed under the Dublin III Regulation, (ii) the common law requirements of fairness, and (iii) the procedural protections afforded to the UASC by article 8 of the ECHR as set out within Schedule 1 to the Human Rights Act 1998. Intending to seek asylum in the UK, the UASC travelled to the camp and the so-called expedited process was supposed to be an accelerated version of the Dublin III procedure and the Home Office accepted that there were likely to be UASC who had close family links to the UK and would therefore be eligible for transfer under Dublin III.

But after conducting the assessments, between October and December 2016 the Home Office refused to transfer to the UK over 500 children who claimed to have family members in the UK. The refusal decisions were conveyed to the French authorities via a spreadsheet on 14 December 2016 with a short word or phrase explaining the basis of refusal. Over the next few days, the French authorities informed the children about their refusals. At first instance, Soole J dismissed Citizens UK's judicial review claim in its entirety. The Court of Appeal prefaced its judgment in light of the decisions in ZT (Syria) [2016] EWCA Civ 810 and R (RSM) [2018] EWCA Civ 18. In ZT (Syria) the Court of Appeal allowed the government's appeal from the Upper Tribunal's decision to allow the claims of three UASC in France seeking to join their siblings in the UK who had been granted refugee status. In RSM the applicant was an unaccompanied minor in Italy in whose case the UT held that there was a public law duty to consider exercising the discretion conferred by article 17.1 of Dublin III. The argument was rejected by the Court of Appeal and among other things Arden LJ held that "lodged" in article 17.1 means where an application has "actually been lodged".

Arden LJ held that article 8.2 of Dublin III is not "self-executing" with the result that the host state has to make a take charge request, to which the requested state must respond. Moreover, the Procedures Directive permits the member states to lay down where asylum applications are to be made. Her Ladyship took the view that Mengesteab (C-670/16, EU:C:2017:587) is not authority which decides that a requirement for an applicant to be present in the jurisdiction of the state when he lodges an application for asylum would not apply in EU law for the purposes of Dublin III, if that is what the receiving state's national law requires. The CJEU in Mengesteab was not concerned with that issue because the applicant was in Germany at all material times.

The Court of Appeal

Asplin, Hickinbottom and Singh LJJ were of the view that the expedited process breached the common law duty of fairness because the adverse decisions under the process did not provide adequate reasons. Delivering the court's judgment and allowing the appeal, Singh LJ addressed the issues in relation to the applicability of Dublin III, the common law duty of fairness, article 8 and the duty of candour.

(i) Applicability of Dublin III

The court concurred with the submission that an application for international protection was not the same as an intention to make such an application after a person had been transferred to another member state. An application usually had to be made in accordance with Dublin III and so an unaccompanied minor would have to make an application in France. If it subsequently transpired that the mandatory criteria for a transfer to the UK set out in article 8 of Dublin III were satisfied, that process would be followed.

In light of RSM, Singh LJ said that the expedited process was not a procedure under Dublin III. And the existence of Dublin III had not precluded the adoption of the procedure. The court accepted the government's argument that asylum lies within the shared competence of the EU and the member states and it is not an exclusive EU competence. So nothing stopped two member states from "adopting a process to sit alongside Dublin III" and Singh LJ upheld Soole J's interpretation of Dublin III and found that the UT was wrong in its decision in AM (Dublin – Unaccompanied Children – Procedural Safeguards) [2017] UKUT 262. The appeal on EU law was dismissed.

(ii) Duty of Fairness

The court's analysis on this point was much more elaborate and Singh LJ began his discussion by reminding us that the duty to act fairly or the requirements of procedural fairness (or "the rules of natural justice") will readily be implied into a statutory framework even when statute is silent and does not expressly require any particular procedure to be followed. The decision in Doody [1993] UKHL 8 remained a focal point because fairness warrants that someone affected by an adverse decision is entitled to make representations on his own behalf either before the decision is taken with a view to producing a favourable result or after it is taken, with a view to procuring its modification, or both. Equally, since the person adversely affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer.

Examining a raft of weighty authorities, Singh LJ reiterated Lord Bingham's point in Thirukumar [1989] Imm AR 402 – as echoed by Sedley LJ in Refugee Legal Centre [2004] EWCA Civ 1481 – that "only the highest standards of fairness will suffice". But the court distinguished Anufrijeva [2003] UKHL 36 because in the present case the British decision-makers always envisaged that notification of the decision would in fact be given to the UASC affected and that such notice was to be given by the French authorities. Nothing unfair arose out of the collaboration between the British and the French.

Yet the position in relation to the reasons to be given was different and the Supreme Court's ruling in Osborn [2013] UKSC 61 was contextually important for three reasons. First, as explained by Lord Reed, the test for whether or not there has been procedural fairness is an objective question for the court to decide for itself and the court's role is not merely to review the reasonableness of the decision-maker's judgment of what fairness required. Second, and equally importantly, the underlying rationales for why fairness is important include that procedurally fair decision-making must result in better quality decisions by ensuring that the decision-maker receives all relevant information and that it is properly tested. Third, fairness is conducive to the rule of law and it is procedurally sound for decision-makers to listen to those who have relevant information promoting congruence between decision-makers' actions and the law which should govern these actions. Lord Carnwath made the same point in CPRE Kent [2017] UKSC 79 in the context of planning law.

Elias [2006] EWCA Civ 1293 concerned an ex gratia compensation scheme for civilians who had been interned during World War II by the Japanese. Like the expedited process the scheme was discretionary and it was held that the duty to act fairly could not be dispelled simply because the scheme was discretionary. Therefore in the present case, the duty applied notwithstanding the expedited process being discretionary and as Singh LJ put it:

86. … It could be said that, because the expedited process was one which was entirely discretionary and which the Secretary of State had no obligation to introduce in the first place, the duty of procedural fairness did not apply. If that were the argument, I would not accept such a sweeping proposition of law.

87. Secondly, it seems to me clear that the context in the present case was one in which the duty to act fairly did apply as a matter of principle. It is difficult to see any material distinction from the sort of decision-making contexts in which the courts have imposed a duty to act fairly.

88. Accordingly, it seems to me, the critical issue which arises in the present case is whether the particular circumstances in which the Secretary of State was operating sufficiently modified the duty to act fairly so as to relieve her from the usual requirements of procedural fairness. In that context I agree with Soole J that the most important concern is the "sparseness" of the reasons which were given for an adverse decision.

The court noted that some cases fell outside the criteria for family reunification but equally there were cases where in principle, a person could have been a relevant family member, but the Home Office disbelieved that the relationship was established on the evidence after interviewing the minor in France and or interviewing the alleged family member in the UK by telephone. In such cases had the process been an ordinary administrative decision-making process, the law would require more than had been given. There was "no doubt" in Singh LJ's mind that "fairness would not have been complied with." The consequences were that those involved did not know what target to aim at and any affected persons could not know how to achieve a different outcome when the reconsideration process took place. The overall result was that they had no realistic prospect of being able to challenge the decision. The law imposes the duty to act fairly and the ability to challenge a decision's legality serves to "vindicate the rule of law."

The reasons provided were not made adequate by the fact that it was open to the UASC to proceed under Dublin III and avail its safeguards. Finding two flaws with the submissions made by the government, Singh LJ said that:

94. The first flaw is that it assumes that fairness is not required at an earlier decision-making stage simply because fairness is required at a later decision-making stage. I would not accept that as a matter of principle. In my view, in principle, a person is entitled to be treated fairly at all relevant decision-making stages.

His Lordship concluded that the Dublin III process could not be insulated from what happened in the expedited process. Among other things, some UASC could have given up and never made a formal Dublin III application after an adverse expedited decision. Practically, no impediment existed to giving more detailed reasons. The evidence demonstrated that the decision-makers had written down reasons which went beyond what was communicated to the UASC. The process failed to comply the requirements of procedural fairness as a matter of common law.

(iii) Article 8 of the ECHR

The court found it unnecessary to complicate and expand its already complex judgment by addressing the procedural requirements potentially arising under article 8 because they could not give greater rights than the common law in the context of the present case.

Singh LJ found Citizens UK's ability to rely on the 1998 Act far from clear because the NGO was not a "victim" of the alleged breach of Convention rights. The court reminded us that the test for standing in section 7 of the 1998 Act is much more stringent than in judicial review proceedings generally and is tied to the test in article 34 of the ECHR which does not allow an actio popularis, a concept which had been reviewed by Singh LJ himself in Pitt and Tyas [2017] EWHC 809 (Admin) and Adath Yisroel Burial Society [2018] EWHC 969 (Admin).

(iv) Duty of Candour

The court set out very large extracts of the correspondence between the UK and French authorities in relation to the UASC. The French authorities had wanted to know detailed reasons for the refusals so as to convey them to the UASC and to explain their future options to them and any next steps they could take. But the Home Office had taken legal advice which suggested that by providing detailed reasons the UK would be opening itself to further legal challenge.

The UK authorities did not want to see all the UASC it previously identified as ineligible under Dublin being referred to it again. This served as a good example of how the outcome of the earlier expedited process continued to have an impact on what happened later. Singh LJ said:

168. In my view, there was a serious breach of the duty of candour and co-operation in the present proceedings. An incomplete picture was left in the mind of the reasonable reader, including Soole J, as a result of the evidence that was filed below.

170. The most serious omission, in my view, was the failure by those presenting evidence on behalf of the Secretary of State to inform the High Court that the reason why the reasons for an adverse decision in the expedited process were "sparse" (to use Soole J's phrase) was not because of the urgency nor because the French authorities demanded that (as he thought and said in his judgment) but because the British authorities did not wish to give more reasons and that this was because of a perceived risk of legal challenge to the decisions.

While the failure was not deliberate, the present court had only learned about the reality of things by chance and the duty of candour and co-operation that applied to parties in judicial review proceedings had seriously been breached.

Providing the court with the full picture, revelations had been made in R (FH) v Secretary of State for the Home Department (JR/1256/2018) which left no doubt that ending the expedited process was a decision taken by the UK authorities. A trail of emails from governmental lawyers advised officials to avoid giving reasons for refusal to preclude the possibility of legal challenges. The French authorities would have preferred the expedited process to continue for the purpose of reviewing those cases. They requested reasons for decisions and indicated that there were difficulties in producing further evidence in order to seek a review of earlier decisions which were the outcome of the expedited process without knowing those reasons. But the Home Office refused to provide such reasons.

In Hoareau [2018] EWHC 1508 (Admin), Singh LJ had explained that disclosure of documents is not automatic in judicial review proceedings. Instead, the duty of candour and co-operation with the court, which is a "self-policing duty", applies. Moreover, lawyers acting for public authorities have a particular obligation to assist the court in ensuring that these high duties imposed on public authorities are discharged. His Lordship did not find any bad faith in this case but he made it clear that witness statements filed on behalf of public authorities must not either deliberately or unintentionally obscure areas of central relevance. Indeed, there is no place for "spin" and the duty of candour demands that all the material facts known to a party in judicial review proceedings must be disclosed.

Asplin LJ concurred with Singh LJ that, whilst not deliberate, the breach of the duty of candour in the present litigation was "very serious" and led to Soole J being materially misled. Her Ladyship was concerned that the relevant evidence only came to light by chance because of other proceedings and she thus stressed that the duty is a continuing obligation which needs be addressed throughout the course of judicial review litigation and not just selectively.

Hickinbottom LJ reiterated Laws LJ's observation in Quark Fishing [2002] EWCA Civ 1409 that there is "a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide." His Lordship thought that the present case was a timely reminder to public authorities regarding the scope and importance of the duty of candour in judicial review proceedings.

Comment

These are extremely complicated and specialised judicial review proceedings in respect of UASC and family reunification. But the analysis and commentary of the Court of Appeal has much wider application across the entire spectrum of cases where decision-making can only be challenged by bringing judicial review.

For example, decision-makers often refuse all types of immigration applications and they usually give very sparse reasons for their refusals. This is especially true of visit or other visas where there is no right of appeal, or for example family visit visas where there is a right of appeal under Mostafa [2015] UKUT 112 (IAC) but which has been unlawfully denied to the applicant.

Unfortunately, unlike these proceedings where the court was not deliberately mislead, it is true that in many cases the government's lawyers and servants will deliberately mislead the court. Often the government's lawyers will blatantly violate the duty of candour (examples include untruthfulness in pleadings about receiving the pre-action protocol correspondence and what was said in the telephone interview). From that angle, Singh LJ's reminder that the duty of candour is a "self-policing duty" is a timely one and should be helpful to practitioners in the testing field of immigration judicial review.

Specifically in relation to asylum and family reunion, a re-inspection of selected high volume/high refusal posts by the Independent Chief Inspector of Borders and Immigration has said that "it is important for the Home Office to listen to others" and David Bolt – whose office serves to improve the overall efficiency, effectiveness and consistency of Home Office decision-making – has concluded that the pace of progress is "too slow given the profound impact on the lives of families seeking to be reunited."

The vile tactic of refusing the applications of the Calais children without adequate reasons exposed them to even greater vulnerability because they were left with no alternatives in relation to how to proceed with their cases and be reunited with their families. Some 709 children who had been cleared from the Calais camp have gone missing from French care shelters. It was always clear to the Home Office that its unsavoury tactics would result in these UASC losing hope and abandoning the legal process.

That is exactly what seems to have happened and the missing children preferred to make their own way in order to be reunited with their families. France was eager to continue the expedited process but the UK unilaterally terminated it to prevent family reunification. Overall, the fact that the government's own lawyers were complicit in perpetrating these injustices tells everything we need to know about them.

About the author: Asad Ali Khan is BA, MSc, MA, LLB (Hons), BVC, LLM, Barrister-at-Law (Middle Temple), Advocate High Courts Pakistan. In addition to immigration, he works as international counsel in an English law firm and acts as a court expert in UK family law proceedings involving removal of children from the jurisdiction to Pakistan. He also writes frequently for The Company Lawyer on corporate conduct and governance related issues.

This blog post originally appeared on Asad Ali Khan's United Kingdom Immigration Law Blog and is reproduced here with permission and thanks.

Any views expressed are those of the author and do not necessarily represent the views of EIN