August 22, 2022

AS1 and AS2 -v- Secretary of State for Defence and others (anonymity order)

Administrative Court High Court Queen's Bench Division Anonymity Order

Case no: CO/2643/2022

In the High Court of Justice
Queen’s Bench Division
Administrative Court

19 August 2022

Before:

The Honourable Mr Justice Freedman

Between:

The Queen on the application of

(1) AS1

(2) AS2

-v-

(1) Secretary of State for Defence

(2) Secretary of State for the Home Department

(3) Secretary of State for Foreign Commonwealth and Development Affairs

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the Claimant and the Joint Acknowledgement of service filed by the Defendants.

ORDER by the Honourable Mr Justice Freedman

IT IS ORDERED THAT:

Anonymity

1. Pursuant to Rule 39.2(4) of the Civil Procedure Rules, the identity of the Claimants shall not be disclosed to any person who is not a party to these proceedings without permission of the Court. The Claimants shall be referred to respectively as AS1 and AS2 in these proceedings. Nothing shall be published which may reveal the names or address of the Claimants or any other details liable to lead to their identification.
2. Pursuant to Rule 5.4C of the Civil Procedure Rules, a person who is not a party to the proceedings may obtain a copy of a statement of case, judgment or order from the court records only if the statement of case, judgment or order has been completely anonymised and all references which are capable of leading to the identification of the Claimants or any one of them have been deleted or otherwise redacted from those documents.
3. These restrictions will continue until further order but they may be reviewed by the Court on application by any person who wishes to set aside or vary the order for anonymity. Any request for reconsideration must be made in writing on not less than 14 days written notice to the parties and stating reasons in support.

Expedition

4. The claim is certified fit for expedition.

Permission

5. The application for permission to apply for judicial review is granted.

Directions

6. The following directions are given

a. The Defendants and any other person served with the Claim Form who wishes to contest the claim or support it on additional grounds shall, within 14 days of the date of service of this Order, file and serve (a) Detailed Grounds for contesting the claim or supporting it on additional grounds, and (b) any written evidence that is to be relied on. For the avoidance of doubt, a party who has filed and served Summary Grounds pursuant to CPR 54.8 may comply with (a) above by filing and serving a document which states that those Summary Grounds shall stand as the Detailed Grounds required by CPR 54.14.
b. Any application by the Claimants to serve evidence in reply shall be filed and served within 7 days of the date on which the Defendants serve evidence pursuant to (a) above.
c. The parties shall agree the contents of the hearing bundle and must file it with the Court not less than 14 days before the date of the hearing of the judicial review. An electronic version of the bundle shall be prepared and lodged in accordance with the Guidance on the Administrative Court website. The parties shall, if requested by the Court lodge 2 hard-copy versions of the hearing bundle.
d. The Claimants must file and serve a Skeleton Argument not less than 14 days before the date of the hearing of the judicial review.
e. The Defendants and any Interested Party must file and serve a Skeleton Argument not less than 7 days before the date of the hearing of the judicial review.
f. The parties shall agree the contents of a bundle containing the authorities to be referred to at the hearing. An electronic version of the bundle shall be prepared in accordance with the Guidance on the Administrative Court website. The parties shall if requested by the Court, prepare a hard-copy version of the authorities bundle. The electronic version of the bundle and if requested, the hard copy version of the bundle, shall be lodged with the Court not less than 3 days before the date of the hearing of the judicial review.
g. A hearing shall be listed on the first available date in the Michaelmas term, with a time estimate of 1 day, in conjunction with clerks for counsel for the Claimants and Defendants.
h. If the time estimate is not agreed, then the parties shall endeavour to agree a time before it is listed and with the liberty to apply in the event of disagreement.

7. Costs in the case
8. Liberty to apply to discharge or vary any part of this order on 48 hours’ notice during the working week.

Observations

1. The anonymity is required for the protection of the Claimants, having regard to the evidence before the Court, and in particular paragraphs 65-66 of the Statement of Facts and Grounds (“SFG”).
2. The claims are certified as fit for expedition having regard to the matters set out in paragraphs 61-64 of the SFG.
3. The application for permission to claim judicial review is granted on the basis that each of the grounds for judicial review is arguable with a realistic prospect of success.
4 In respect of Ground 1, there is at least an argument that there was a failure to follow a published policy and that the policy applies (a) to the respective Claimants, and (b) irrespective of whether they have yet been “assessed”
5. In respect of Ground 2, it is arguable that the delay is Wednesbury unreasonable. What is reasonable depends on all of the circumstances and the overall context. If it is the case that insufficient information has been given to justify the delay, it is arguable that this is relevant to Ground 2.
6. ln respect of Ground 3, it is arguable that the Defendants have failed to exercise their discretion to consider the Claimants’ eligibility and relocation on a case by case basis and/or that the Defendants have failed to consider alternative bases referred to in paragraph 58 of the SFG.
7. The reasons for giving permission are not only as summarised above but arise out of all the facts and matters contained in the SFG and the evidence in support and including the Claimant’s reply (to which the Court has also had regard). Despite the matters raised in the Summary Grounds of Defence, the Claimants have satisfied the threshold required in respect of each of the grounds for permission to apply for judicial review.