Background
PN, a 26-year-old Ugandan travelled to the UK on September 2010, at the age of 17. She was an accompanying child on a visitor’s visa. She remained in the UK after the expiry of her six months visa and it was on 21 July 2013 that UK government’s enforcement officers caught up with her. She was found upstairs in a bedroom. A male person was also present in the bedroom. She was then arrested as she had overstayed her visa.
A day later on her arrest, she claimed asylum. She claimed that she first realised that she was a lesbian at the age of 13 while in Uganda. And at a teenage age of 14, she was already in a relationship with Grace, a woman that was then about 20 years older than her. This relationship lasted only 3 months. She later moved on to have a relationship with a 22-year-old Justine at the time, with whom she met in a forest or at Justine’s aunt home. PN claimed that she encountered difficulties with her sexuality as people found her out. Her grandmother beat her and it was later that she left Uganda for the UK where she had other relationships with other women.
PN further claimed that she was sexually abused by her uncle from the age of 8 for at least two years and that her uncle had threated to kill her if she ever told anyone. When asked about why there was a man in her bedroom when she was arrested, she told the officers that she had met him at her birthday party, and she had had a few to drink and had brought him back home. She also indicated that she was thinking of having a child and is recorded as saying that this “about the man is just a recent thing because I wanted a child”.
The UK government’s Home Office which deals with asylum claims did not accept that PN was in fact a lesbian. In its decision, it noted that there was no evidence of her relationships in Uganda with Grace, Justice, Rose nor with a woman called Ruth, in the UK. PN was now considered for removal from the UK using the 2005 Fast Track process. These rules were established to quicken up the process of removing people from the UK as soon as possible. However, in the Court of Appeal, Lord Dyson in Lord Chancellor v Detention Action [2015] EWCA Civ 840 stated of the 2014 Fast Track Rules, which were similar to the 2005 version that was used in her case that:
“that justice and fairness should not be sacrificed on the altar of speed and efficiency” and that the rules did not strike the correct balance as they created a risk of systemic unfairness. After this judgement, this led to about 323 detainees to be removed from the Fast Track process. Later in 2018, the Court of Appeal went on to confirm that the 2005 Fast Track Rules that were used in her case were also unlawful for the same reason. It declared that the 2014 Fast Track Rules, which were similar to the 2005 version that was used in her case, were unlawful because they created a risk of systemic unfairness.
Again in 2018 the Court of Appeal in N (Vietnam) v Secretary of State for the Home Department [2018] EWCA Civ 2838 went on to confirm that the 2005 Fast Track Rules were also unlawful for the same reason. The court, in this case, held that this did not mean that all asylum appeal determinations made using the 2005 rules were a nullity, but rather that the courts must consider in each case whether the application of the Fast Track Rules rendered the appeal process unfair.
Unfair appeal
Using the 2005 Fast Track Rules, PN’s asylum application on the basis of her sexuality and that she had had lesbian relationships in Uganda was refused by the Home Office and later her appeal and stay of the removal from the UK failed before the Immigration Judge and she was removed from the UK on 12 December 2013. It was only two years later after her removal that her lawyers filed a claim for judicial review challenging not only her removal from the UK but also the use of the 2005 Fast Track Rules and illegal detention while she contested her removal from the UK through the courts. And on 21 September 2017, the matter came before a Deputy High Court Judge who ordered that permission to apply for judicial review be granted with a substantive hearing of her claim.
The Judge held that PN was the 2005 Fast Track Rules provided PN with a short timescale to bring evidence of her previous relationships in Uganda. The Court went on to state that her detention from 6 August 2013 till 10 September 2013 was influenced at least in part by the application of an unlawful policy, namely the use of detention for those within the fast track process who were appealing refusals of their asylum claim. The Court stated that not only did the Home Office’s 2005 Fast Track Rules lack clarity and transparency but they were in fact unlawful. The judge also stated that it was immaterial that PN failed to complain about the unfairness of the proceedings at the time because making such a complaint to the judge hearing her appeal would have forced her to identify the deficiencies in her case and therefore been fatal to the appeal if her complaint had been rejected.
Ordered to be returned to the UK
After ruling that the earlier decision in PN’s appeal was unlawful and that the procedure leading to that decision as unfair, the Court went on to determine whether the UK Government should be ordered to use her best endeavours to facilitate the return of the Ugandan asylum seeker to the UK to enable her to continue with her appeal. The Court was of the view that it was appropriate to make a mandatory order requiring the UK Government to use her best endeavours to facilitate the Ugandan asylum seeker’s return to the UK to pursue her appeal.
Firstly, because the Ugandan asylum seeker had a right of appeal which she is entitled to pursue from within the UK by reason of section 92(1) and (4) of the Nationality, Immigration and Asylum Act 2002 Act. Richards LJ held in R (YZ (China)) v Secretary of State [2012] EWCA Civ 1022 that where one has been unlawfully deprived of her statutory in-country right of appeal “is a strong factor in favour of return.”
Secondly, the Court reasoned that her asylum claim was based on the fact that she says that she is a lesbian and would face persecution if she were to live openly as a lesbian woman in Uganda. And that the UK Government accepts that, if she is a lesbian, she would face a real risk of persecution but denies that she is a lesbian. More so, that there is a strong interest in allowing her appeal to be pursued from within the UK rather than requiring her to pursue that appeal in Uganda where, if her claim for asylum is subsequently successful, she would face a real risk of persecution in the interim. Also that Section 77 of the Nationality, Immigration and Asylum Act 2002 Act provides that a person may not be removed from the UK whilst his or her claim for asylum is pending. The Court held that the 2002 Act reflects the importance of allowing a person to remain in the United Kingdom until the claim is assessed.
The Court was also of the view that the Ugandan asylum seeker’s appeal is likely to depend to a large extent on the assessment of whether she is a credible witness, therefore, she is needed in the UK to give oral evidence at the appeal hearing. The Court ruled out the possibility of video link evidence as it referred to the Supreme Court ruling in Kiarie v Secretary of State for the Home Department where it was held that evidence by way of video link may not be as satisfactory as live evidence given by a person at the hearing.
Damages
At common law, her false imprisonment is a civil wrong that gives rise to a claim for damages. The civil wrong "has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it" Therefore, the Court went on to state that the Ugandan asylum seeker is entitled to substantive damages because the UK Government was unable to establish that he would have lawfully detained the claimant anyway if the unlawful policy had not been applied.
Thomas Ddumba is a UK Immigration lawyer.
@tomddumba
[1] Lord Chancellor v Detention Action [2015] EWCA Civ 840 at 49
[2] Parliament, “Asylum: Detainees: Written question – HL1625" 28 July 2015
[3] Court of Appeal in N (Vietnam) v Secretary of State for the Home Department [2018] EWCA Civ 2838 at 47
[4] PN v Secretary of State for the Home Department [2019] EWHC 1616 (Admin) https://www.bailii.org/ew/cases/EWHC/Admin/2019/1616.pdf
[5] PN v Secretary of State for the Home Department [2019] EWHC 1616 (Admin) at 121-3 https://www.bailii.org/ew/cases/EWHC/Admin/2019/1616.pdf
[6] PN v Secretary of State for the Home Department [2019] EWHC 1616 (Admin) at 124 https://www.bailii.org/ew/cases/EWHC/Admin/2019/1616.pdf
[7] PN v Secretary of State for the Home Department [2019] EWHC 1616 (Admin) at 73 https://www.bailii.org/ew/cases/EWHC/Admin/2019/1616.pdf
[8] PN v Secretary of State for the Home Department [2019] EWHC 1616 (Admin) at 80 https://www.bailii.org/ew/cases/EWHC/Admin/2019/1616.pdf
[9] R (YZ (China)) v Secretary of State [2012] EWCA Civ 1022 at paragraph 49.
[10] PN v Secretary of State for the Home Department [2019] EWHC 1616 (Admin) at 82 https://www.bailii.org/ew/cases/EWHC/Admin/2019/1616.pdf
[11] PN v Secretary of State for the Home Department [2019] EWHC 1616 (Admin) at 82 https://www.bailii.org/ew/cases/EWHC/Admin/2019/1616.pdf
[12] Nationality, Immigration and Asylum Act 2002 Act http://www.legislation.gov.uk/ukpga/2002/41/section/77
[13] Nationality, Immigration and Asylum Act 2002 Act http://www.legislation.gov.uk/ukpga/2002/41/section/77
[14] PN v Secretary of State for the Home Department [2019] EWHC 1616 (Admin) at 83 https://www.bailii.org/ew/cases/EWHC/Admin/2019/1616.pdf
[15] Kiarie v Secretary of State for the Home Department [2017] 1 W.L.R. 2380
[16] PN v Secretary of State for the Home Department [2019] EWHC 1616 (Admin) at 98 https://www.bailii.org/ew/cases/EWHC/Admin/2019/1616.pdf
[17] per Lord Bridge of Harwich in R v Deputy Governor of Parkhurst Prison ex p. Hague [1992] A.C. 58 at 162CD and see R (Lumba) v Secretary of State for the Home Department [2012] A.C. 245 at paragraph 65.
[18] PN v Secretary of State for the Home Department [2019] EWHC 1616 (Admin) at 142 https://www.bailii.org/ew/cases/EWHC/Admin/2019/1616.pdf