Home Office in trouble with courts and tribunal
19 November 2017
Not for the first time, the Home Office is finding itself in trouble with the judiciary. In an extraordinary case concerning Mr Samim Bigzad, an Afghani national, the Home Office looked as though it might be in contempt of court, ie the High Court.
Mr Bigzad, an asylum-seeker, was removed to Afghanistan by the Home Office. The High Court had made an order that he not be removed to Afghanistan but it seems (although the facts are not clear-cut) that the order may have come too late. It also seems that the High Court had to make two further orders so as to sufficiently persuade the Home Office to bring him back to the UK and that Home Office was apparently trying to challenge the court’s orders.
It may be that the Home Office is in trouble about this and it may be that the Home Secretary herself, Amber Rudd, will have to appear before the High Court to explain matters. Some commentators have gleefully suggested that Ms Rudd might be sent to prison if the case goes against her (because the Home Secretary is ultimately responsible for all actions of the Home Office) but others have more soberly pointed out that this is extremely improbable - although the experience might perhaps be a highly informative one for her.
Those who are in the habit of receiving refusal letters from the Home Office will be well aware of the principle that, although the Home Secretary is unlikely to have taken a decision personally - extremely unlikely one would have thought - nonetheless the decision is taken on her behalf. And so, in an excruciating legal situation such as this one, the responsibility is hers rather than the official who made the decision (although one suspects that she might want to have a few words with them.)
And it seems that a few other Home Office officials and legal advisers are not "playing the game" as far as the Upper Immigration Tribunal is concerned. They came in for strong criticism from the President of the Tribunal, Mr Justice McCloskey, in a recent case called "AM & Others".
This was also an asylum case and it concerned four separate migrants with different histories. The case was about various issues in the mechanics of judicial review, as well as with the Home Office’s conduct with the individuals concerned. (The Upper Tribunal has amongst its functions that of hearing judicial review challenges against Home Office actions and decisions.)
Mr McCloskey’s judgement was peppered with strong words about the Home Office’s efforts: "hopelessly inadequate", "indecent haste, cutting corners", communications between the parties were "frequently inappropriately confrontational and defensive, resonant of a (hopefully) bygone era of private litigation trench warfare".
His damning summary was that "I conclude, reluctantly, that the Secretary of State's conduct of all of these cases has been inappropriate. It has failed to adhere to the high standards expected of government departments in judicial review litigation," and, furthermore, that "I am, reluctantly but unhesitatingly, driven to the conclusion that the Secretary of State has not taken either the Tribunal or its orders seriously enough."
Not surprisingly the case went against the Home Office/Secretary of State and finally, and perhaps a touch poetically, the President said: "This litigation saga hereby reaches its terminus, I trust."
As these cases indicate - and they are not by any means the first - the Home Office sometimes treats the courts in an inappropriately cavalier fashion. One sometimes gets the impression that this results from incompetence more than anything else but these cases seem to demonstrate something more purposeful. Could it be some kind of new policy?
Whether it is or not, if you find yourself in a situation where you are facing the Home Office in immigration legal proceedings you definitely want to get good and dedicated lawyers on your side.