AM, R (on the application of) v Secretary of State for the Home Department

Introduction

1. This Note is served on behalf of the Defendant and addresses the Tribunal's decisions in the cases of AM, and SS, which were handed down very shortly before the start of the hearing in Citizens UK.

2. The Court is of course entitled to have regard to those decisions of the Tribunal, but for the reasons set out below, it is submitted that a particularly high degree of caution needs be applied when considering the Tribunal's views in these cases. Above all, the Defendant submits that the Citizens UK case in the High Court is the appropriate forum for careful consideration of the evidence and issues in this case, and that in the particular circumstances of this case the Court should consider these issues for itself, and it would be unsafe to make any assumption that the Tribunal's view of these issues was a fair or reasonable starting point.

3. The SSHD is actively seeking to appeal the Tribunal's decisions, and a copy of the application for permission to appeal is attached for reference. Submissions

4. The context in which the Tribunal made its decisions is important. This claim (Citizens UK) was issued in October 2016, and the Claimant's Amended Grounds (where they first sought to challenge the expedited process) were served in mid-January. At the hearing before Lang J on 28 February 2017, when permission was granted, there was substantial argument about the timetable. It was agreed by the Court that the case required expedition, but the necessity of the SSHD having a fair opportunity to present her evidence was also recognised. Expedition was ordered, and the timetable that was set provided for a three-day hearing (including a reading day) beginning 22 May. The SSHD has put in a very considerable amount of work to prepare the SSHD's response in that timescale, and the Court has as a result the detailed evidence before it from very senior officials responsible for the expedited process.

5. The Tribunal claims on the other hand were issued only after the grant of permission in Citizens UK, and not until 13 March 2017. The SSHD made an application to have them stayed pending the imminent hearing in this case, but by its judgment dated 29 March 2017, the Tribunal refused that application, considering that to wait until after the hearing in Citizens UK "would impose a limitation serious impacting on the Applicants' right of access to a court", and that the Tribunal "reject[s] the argument of substantial judicial overlap (paragraph 28 of the judgment on the stay). (i) The whole of the Tribunal’s decision refusing the Secretary of State’s stay application is available to be read. At [23] the Tribunal identified certain guiding principles. At [24] it stated: “A stay application will require especially compelling justification in a case qualifying for urgent judicial decision. The cases of unaccompanied, isolated teenagers marooned in a foreign land suffering from major psychological trauma and seeking, via litigation, the swiftest reunion possible with a separated family member will always, in principle, have a powerful claim to judicial prioritisation.” At [25] the Tribunal undertook the exercise of balancing “… the avoidance of excessive cost, the unnecessary expenditure of finite public resources, the right of every litigant to expeditious justice, the minimising of litigation delays, managing the interface and overlap between two judicial organisations, the allocation of limited judicial resources and, broadly, the convenience of all concerned …. [and] … the ages, vulnerability and plight of the two litigants …. Fairness, reasonableness and proportionality loom large in an exercise of this kind.” The Tribunal’s reasoning and conclusions are set forth in [26] – [28]. All of the above is blithely ignored by the Respondent.

6. However, despite the reasoning that there was not significant judicial overlap, the Tribunal then subsequently proceeded to admit into evidence (against the objection of the SSHD) all of the evidence from Citizens UK, and ultimately to decide the lawfulness of the decisions by reference to some of that material. Indeed the Tribunal made clear at the hearing of the AM case on 5 May 2017 that it wished counsel to address it on the procedural aspects of the claim. Given that this inevitably would involve the same issues at the Citizens UK claim, the SSHD renewed her application for a stay behind Citizens UK which the Tribunal refused. The Tribunal then heard submissions made almost exclusively with reference to the bundle in Citizens UK for the rest of that day and there was not time for Counsel for the SSHD to make any submissions on that day. (i) The Tribunal reasoned that it was seized of individual rights cases, in sharp contrast to the Administrative Court proceedings. Furthermore, the Tribunal made its ruling at a time of the Secretary of State’s choosing and when the Secretary of State’s evidence in Citizens UK was not available. (ii) This was a two day hearing, spread over 05 and 11 May 2017. The oral submissions of Counsel for the Secretary of State were made on the second day. There was no suggestion of lack of time. 2

7. The Tribunal also conducted its consideration of the cases in an extraordinarily compressed timetable. This had consequences which seriously disadvantaged the SSHD, and impaired the Tribunal's decision-making: (i) The hearings were listed without reference to availability of Counsel for the SSHD; (ii) The time available for oral submissions by the SSHD on the substantive issues (for all the Tribunal cases) was restricted to less than 4 hours on a single day. This was insufficient, especially as the Tribunal had not considered the SSHD's evidence or submissions prior to this point; (iii) A simple but obvious practical disadvantage was that the Tribunal considered the Claimant's Skeleton Argument from in the Citizens UK case, but did not have the SSHD's Skeleton Argument until part-way through the proceedings, as the date for service of the same had not occurred. Although subsequently provided with it, the Tribunal does not appear to have considered it before giving its decision. (iv) The Tribunal’s timetable was dictated by the factors summarised in [24] of its stay ruling and reiterated in [25]. The timetable was intensely context sensitive. It was compressed, but not “extraordinarily” so, particularly when compared with timetables in analogous previous cases. The broad margin of appreciation available to every court in cases management matters is disrespectfully ignored. (v) The listings followed upon the Upper Tribunal’s assessment of the need for expedition having regard to the factors identified in the stay decision – see [24] and [25] especially – which itself acknowledged expressly the need for “fairness to the Secretary of State” in the context of timetabling matters: see [34]. All parties were treated with absolute equality in all aspects of timetabling. The main exception to this was the specific accommodation which the Tribunal provided to counsel for the Secretary of State in respect of listing arrangements, both proposed and finalised, on 17/18 May 2017. The Secretary of State was at all times represented by the same Junior Counsel instructed in Citizens UK . (vi) The reference to the submissions of counsel for the SSHD occupying “less than four hours on a single day” is correct, as regards AM . The assertion that counsel’s oral submissions were “… for all the Tribunal cases … restricted to less than four hours on a single day” is disturbingly incorrect. Counsel for the SSHD made oral submissions to the Tribunal on all of the separate hearing dates relating to the other four cases. (vii) The uncompleted and undeveloped point relating to the Secretary of State’s skeleton argument in Citizens UK contains nothing of substance .

8. The Tribunal appears to have prioritised, at all costs, producing decisions in the individual cases prior to the hearing in Citizens UK. It is the Defendant's view that this has been at the expense of the opportunity of considering the material in this case with the care and detail that it required. (i) This unfortunately phrased mere comment airbrushes in its totality the Tribunal’s reasoning and conclusions in its stay ruling. The impropriety of the allegation of carelessness and what follows in [9] below require no elaboration. What follows in [10] – [12] simply erases large swathes of the Tribunal’s judgment in AM .

9. It may be the haste with which these cases were considered that have contributed to the errors made by the Tribunal. This is more disrespectful bare comment and an impermissible expression of the author’s personal opinion, which is irrelevant and inadmissible in a document of this kind.

10. The SSHD considers that the errors of law made by the Tribunal are clear: these are set out in the application for permission to appeal. The High Court is invited to consider the legal questions carefully and independently. Of necessity, the grounds of appeal in the Tribunal cases focus on the most important errors, and those which go directly to the Tribunal's conclusions, but it is emphasised that the SSHD fundamentally disagrees with the Tribunal's approach on almost all aspects of this case.

11. The SSHD does not set out here all of the errors in the Tribunal's decision: for the reasons set out above it is submitted that it is fundamentally important for the fair adjudication of these issues that this Court considers the issues for itself, rather than by way of review of the Tribunal's views. 3

12. It may nevertheless be helpful to give particularly obvious examples of where the Tribunal failed to consider the SSHD's evidence: The Tribunal appears to have entirely overlooked the fact that the process operated without prejudice to the Dublin Ill Regulation. The process fast-tracked a substantial group of children who could be readily and confidently identified as meeting the criteria in question, but that for all children remaining in France, they retained full access to the Dublin procedure, and were essentially in the same position as those unaccompanied asylum-seeking children elsewhere in France and Europe. This error then fed into the Tribunal's key conclusions. The Tribunal asserted, for example, that the standards of fairness that it required were because the decisions involved "the making of life changing and destiny shaping decisions for the children involved", seemingly unaware that the underlying position of the children not transferred under this process was not determined: the right to consideration of a take-charge request under the Dublin Ill Regulation from France being unaffected. (ii) The Tribunal refers to the SSHD's Summary Grounds of Defence (paragraph 36), seemingly without appreciating that at this point the Grounds were responding to the original, unamended, claim, and were not concerned with the expedited process, but rather with the Claimant's original case based on the Joint Declaration. (iii) There is no detailed acknowledgement or rebuttal of the arguments set out in the SSHD's Skeleton Argument and Detailed Grounds of Defence. (iv) In respect of the ''filter" process that was followed following completion of Operation Purnia Phase 2, the Tribunal apparently considered that there was no '(clear evidence" of the nature of this, seemingly unaware of paragraph 69 of Mr Cook's statement, and 70-77 of Ms Farman's statement. This is one of a number of instances where the Tribunal appears unwilling to engage with or accept evidence from "litigation statements". In general the Tribunal appears to have been unwilling to accept the evidence presented to it, for reasons that are largely unexplained in the Judgments. 22 May 2017