SH -v- Secretary of State for the Home Department (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim Number: AC-2024-LON-001927

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

11 June 2024

Before:

The Hon Mr Justice Chamberlain

Between:

The King on the application of
SH

-v-

Secretary of State for the Home Department

Order

UPON reading the Claim Form, Statement of Facts and Grounds and Application Notice dated 7 June 2024, seeking anonymity, joinder with the case of SM (AC-LON-2024-001789) and directions;

AND UPON hearing Susana Ferrín (Counsel) for the claimant and Mark Vinall and Mohammad Saley (Counsel) for the defendant;

AND UPON reading the written submissions of Charlotte Kilroy KC, Rachel Jones, Flora Robertson, Michelle Knorr and Zoe Harper (Counsel for SM) dated 11 June 2024;

IT IS ORDERED as follows:

1. Anonymity

a, Pursuant to the court’s inherent jurisdiction and s. 6 of the Human Rights Act 1998:
i. the claimant’s name is to be withheld from the public and must not be disclosed in any proceedings in public; and
ii. there is to be substituted for all purposes in these proceedings, in place of references to the claimant by name, and whether orally or in writing, the letters “SH”.
b. Pursuant to s. 11 of the Contempt of Court Act 1981, there must be no
publication of the identity of the claimant or of any matter likely to lead to the identification of the claimant in any report of, or otherwise in connection with, these proceedings.
c. Pursuant to CPR 5.4C(4):
i. the parties must, when filing any statement of case, also file a redacted copy of that statement of case, omitting the name, address and any other information which could lead to the identification of the claimant; and
ii. unless the Court grants permission under CPR 5.4C(6), no non-party many obtain a copy of any unredacted statement of case.
d. Any person wishing to vary or discharge this Order must make an application to the Court, served on each party.

2. The claimant’s application for joinder with SM is refused.

3. Grounds 2 and 3 are stayed pending determination of the claims in SM (AC-LON-2024-001789) and YXY (AC-LON-2024-001931), which are to be heard together at a rolled-up hearing starting on 9 July 2024.

4. In respect of the remaining grounds:
a. Time for the defendant to file and serve an AoS is abridged to 4pm on 17 June 2024.
b. Any reply by the claimant pursuant to CPR 54.8A must be filed and served by 4pm on Friday 21 June 2024.
c. Immediately thereafter, the papers are to be referred to Chamberlain J or another High Court Judge to decide whether to grant permission to apply for judicial review.

5. Costs reserved.

Reasons

The claimant was one of a number seeking directions that their cases be considered at the same time as the rolled-up hearing in SM, on 9 July 2024.

Ground 1 challenges unlawful detention which came to an end on 30 May 2024 (see Statement of Facts and Grounds, para. 28). This is not directly relevant to the issues to be determined in SM and is in any event not urgent. It can properly be considered on paper, once the defendant has had an opportunity to file and serve an AoS and Summary Grounds.

Grounds 2 and 3 substantially replicate SM’s grounds 2 and 3. Those grounds will be determined at the rolled-up hearing in SM. Nothing would be gained by joining another case raising the same grounds. It is accordingly appropriate for the consideration of grounds 2 and 3 to be stayed pending the determination of SM.

As to the remaining grounds:

  • Grounds 4 and 5 raise points which on their face appear similar to ones which were rejected by the Court of Appeal on the last occasion when the legality of the Rwanda policy was litigated: R (AAA) v SSHD [2023] EWCA Civ 745, [304]-[339]. The Statement of Facts and Grounds do not explain why the arguments are available now, though Ms Ferrín submitted orally that the answer lies in the conclusion of the Rwanda Treaty, whose effect is materially different from the Memorandum of Understanding. This is not a matter raised in SM or YXY.
  • Grounds 4 and 8 plead an entitlement to declarations that certain aspects of the Government’s policy are incompatible with unincorporated international law, but do not fully explain the court’s jurisdiction to grant such declarations. Again, this is not a matter raised in SM or YXY.
  • Ground 6 is a root-and-branch attack on the compatibility of the 2024 Act based on the contention that the effect of s. 2 of that Act is “to overturn the judgments of the Court of Appeal and Supreme Court” (Statement of Facts and Grounds, para. 53). The challenge is based on s. 1 of the Constitutional Reform Act 2005, which is relied upon as “explicitly recognis[ing] the jurisdiction of the courts to question the validity of an Act of Parliament” (Statement of Facts and Grounds, para. 54), Article 13 ECHR and the Refugee Convention. These arguments are constitutionally novel and go well beyond those pleaded in SM. They raise separate points, which are not well suited to joinder.
  • Ground 7 pleads the incompatibility of the 2024 Act with Article 14 ECHR because it treats the claimant less favourably than nationals of the Republic of Rwanda. It also pleads a breach of the public sector equality duty under s. 149 of the Equality Act 2010. It may be necessary to consider whether the duties owed by the UK in international law to Rwandan nationals are different from those owed to nationals of other countries and, if so, whether this difference means that Rwandan nationals are not in an analogous position for the purposes of Article 14 and/or any domestic discrimination provisions. In any event, these issues are quite distinct from the compatibility issues raised by SM and YXY.
  • Ground 9 pleads that the claimant should be given special dispensation from any inadmissibility rules on the ground that he is an Afghan national who may fall within the eligibility criteria of the ARAP and ACRS schemes. Again, the issues are distinct from those raised in SM and YXY.
  • Whilst it is necessary for these grounds to be considered, there is insufficient overlap between them and the grounds to be considered in SM to justify joinder. It is more appropriate for these grounds to be considered on paper, once the defendant has had an opportunity to file and serve an AoS. The directions given provide for this.