Introduction

The case of AM & Ors v. Secretary of State for the Home Department ([2017] UKUT 372 (IAC)) is a pivotal judicial review in the realm of immigration and asylum law. Decided by the Upper Tribunal (Immigration and Asylum Chamber) on September 8, 2017, the case involves four applicants—AM, SASA, MHA, and SS—challenging the Home Department's (Secretary of State) compliance with mandatory orders issued by the Tribunal.

The central issues revolve around the scope and application of the "liberty to apply" mechanism under Section 25(2)(c) of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007), particularly in discharging mandatory orders related to the asylum claims of vulnerable individuals.

Summary of the Judgment

Justice McCloskey, President of the Upper Tribunal, presided over the case. The Tribunal examined whether the Secretary of State had unlawfully failed to comply with paragraph (2) of its principal orders, which mandated the commencement and completion of a fresh lawful decision-making process by a specified deadline.

The Tribunal found that the Secretary of State's subsequent decisions were inadequate, procedurally unfair, and failed to address the identified legal and procedural deficiencies. These deficiencies included incomplete application of the Dublin Regulation, unfair decision-making processes, and lack of procedural safeguards for the applicants.

Consequently, the Tribunal declared that the Secretary of State had unlawfully failed to comply with the Tribunal's orders and ordered the payment of reasonable costs to the applicants.

Analysis

Precedents Cited

The judgment references several key legal precedents that influenced its conclusions:

• Tweed v Parades Commission for Northern Ireland [2006] UKHL 53: Emphasized the importance of document disclosure in civil litigation to uncover the truth and ensure decisions are based on a solid factual foundation.
• R (Das) v SSHD [2014] EWCA Civ 45: Highlighted the duty of candour required from public authorities in judicial review proceedings, stressing that failure to disclose material facts allows courts to draw adverse inferences.
• R (Mahmood) v SSHD [2014] UKUT 439: Reinforced the duty of candour, requiring public authorities to cooperate fully and provide accurate explanations during judicial review.
• R (Khan) v SSHD [2016] EWCA Civ 416: Further elaborated on the duty of candour, affirming that public authorities must disclose relevant facts and reasoning behind decisions.

The Tribunal leveraged these precedents to underscore the obligations of the Secretary of State in ensuring transparency, fairness, and adherence to procedural safeguards in its decision-making processes.

Legal Reasoning

The Tribunal's legal reasoning was multifaceted, focusing on the following key areas:

• Scope of 'Liberty to Apply': Interpreted under Section 25(2)(c) of TCEA 2007, the Tribunal clarified that 'liberty to apply' allows for the pursuit of declarations regarding non-compliance with Tribunal's principal orders, especially mandatory ones.
• Overriding Objective: Emphasized that all Tribunal decisions and applications must align with the overriding objective, which seeks to ensure that case management procedures are just, expeditious, and cost-effective.
• Discharge of Mandatory Orders: Determined that mandatory orders can be discharged when they have fulfilled their primary purpose and their continuation would no longer serve a discernible end.
• Procedural Fairness: Highlighted the Secretary of State's failure to maintain procedural fairness, particularly in the expedited asylum process, thereby rendering their decisions unlawful.
• Duty of Candour: Criticized the Secretary of State's lack of cooperation and inadequate disclosure of material documents, violating their duty of candour and undermining the Tribunal's ability to render fair judgments.

Through meticulous analysis, the Tribunal concluded that the Secretary of State's actions were not only procedurally flawed but also failed to comply with the explicit directives issued, necessitating the declaration of non-compliance.

Impact

This judgment has significant implications for future cases involving mandatory orders and the use of the 'liberty to apply' mechanism:

• Strengthening Procedural Safeguards: Reinforces the necessity for public authorities to uphold procedural fairness and transparency, especially in high-stakes asylum cases.
• Clarifying 'Liberty to Apply': Provides a clearer understanding of the circumstances under which 'liberty to apply' can be invoked to declare non-compliance with mandatory orders.
• Encouraging Cooperation: Highlights the imperative for public authorities to cooperate fully with judicial bodies, promoting a partnership ethos in public law litigation.
• Judicial Oversight: Empowers tribunals to enforce compliance more effectively, ensuring that mandatory orders achieve their intended outcomes without unnecessary perpetuation.

Overall, the judgment underscores the judiciary's role in monitoring and enforcing compliance by public authorities, thereby safeguarding the rights and interests of vulnerable individuals in asylum proceedings.

Complex Concepts Simplified

'Liberty to Apply'

'Liberty to apply' is a legal mechanism that allows parties to return to the court or tribunal to address issues related to the implementation of previous orders. In this case, it enabled the applicants to seek a declaration that the Secretary of State had not complied with specific directives issued by the Tribunal.

Duty of Candour

The duty of candour requires public authorities to be honest and transparent in their dealings with the court. This includes fully disclosing relevant facts and the reasoning behind decisions. Failure to do so can lead to adverse inferences and undermine the fairness of judicial proceedings.

Overriding Objective

The overriding objective refers to a fundamental principle guiding tribunals to ensure that the administration of justice is efficient, fair, and accessible. It aims to make sure that case management practices do not obstruct the resolution of disputes and that resources are used judiciously.

Mandatory Orders

Mandatory orders are binding directives issued by a tribunal or court that require a party to take specific actions. Discharging a mandatory order means officially declaring that the required actions have been fulfilled or that continuing to enforce the order serves no further purpose.

Conclusion

The judgment in AM & Ors v. Secretary of State for the Home Department serves as a landmark decision clarifying the application of the 'liberty to apply' mechanism in discharging mandatory orders within asylum judicial reviews. By rigorously enforcing procedural fairness and upholding the duty of candour, the Tribunal reinforced the accountability of public authorities in their decision-making processes.

The case highlights the judiciary's commitment to ensuring that administrative actions conform to legal standards, particularly when dealing with vulnerable populations. It sets a precedent for future cases, emphasizing the importance of transparency, cooperation, and the effective implementation of judicial directives to protect the rights and interests of individuals seeking asylum.