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

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: AC-2023-LON-000158

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

15 December 2023

Before:

Mr Alan Bates sitting as a Deputy Judge of the High Court

Between:

The King on the application of
TKK

-v-

Secretary of State for the Home Department

Order

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 Acknowledgement of service filed by the Defendant

ORDER by Mr Alan Bates sitting as a Deputy Judge of the High Court

Anonymity order / Reporting restrictions

  1. Pursuant to CPR Rule 39.2, and having regard to section 1 of the Sexual Offences (Amendment) Act 1992 read with section 2(1)(db) of that Act and section 2 of the Modern Slavery Act 2015, and to the Human Rights Act 1998 (including, in particular, Articles 8 and 10 of the Convention Rights):
    a. The Claimant shall have anonymity in these proceedings unless and until the Court orders otherwise. She shall be referred to in these proceedings (including in the title of this action henceforth) as “TKK”. There is to be no reporting of the Claimant’s name, the Claimant’s address, or any still or moving image of the Claimant, or the names of any of her children, in a way that links her or them to these proceedings, without the Court’s prior permission.
    b. Statements of case and skeleton arguments filed in these proceedings after the date of this order shall refer to the Claimant using the anonymising moniker assigned to her in this paragraph of this Order, and shall not include: (a) the Claimant’s name or address; or (b) the names of any of her children.
    c. Pursuant to CPR 5.4C any non-party who applies for a copy of any document in these proceedings from the court records may be provided with such documents only if they are versions that have been anonymised and redacted so that they do not contain any of:
    (a) the Claimant’s name or address; or (b) the names of any of her children.
  2. Liberty to any person to apply on notice to the parties to vary or discharge paragraph 1 of this Order.

    Application to rely on a Reply to Summary Grounds
  3. The Claimant’s application to rely on her Reply to Summary Grounds dated 7 November 2023 is granted.

    Decisions on permission to apply for judicial review
  4. The application for permission to apply for judicial review is granted in respect of all grounds of challenge (i.e. both Ground 1 and Ground 2).

    Substantive hearing – Expedition and listing
  5. Of the Court’s own motion, the hearing of the claim shall be expedited and shall be listed for hearing on a date between 12 February 2024 and 31 March 2024, or as soon thereafter as the court can accommodate the hearing, with a time estimate of 1 day. If the parties disagree with this time estimate they shall provide a written time estimate within 7 days of service of this order.
  6. Case to be managed and heard in London.

Observations

  1. I am satisfied that the claim is arguable. In that regard:
    a. On the Claimant’s account of the facts – which appears broadly to have been endorsed by the ‘conclusive grounds’ decision by the National Referral Mechanism – the Claimant has been a victim of modern slavery. Further, she appears (on the basis of the limited material placed before the Court at this stage) to have a reasonable fear that, if she returned to Indonesia at this time, she would be at risk of re-trafficking and/or being returned to modern slavery. On that basis, she appears to have a reasonable case that it is necessary for her to remain in the UK whilst her asylum claim is determined.
    b. From the papers placed before the Court, I am not certain that the Court has been provided with the full reasons given by the Defendant to refuse temporary leave to remain. But even based on consideration of the Defendant’s Summary Grounds alone, it appears arguable that the Defendant is taking an unreasonable approach in refusing to grant temporary leave. In particular, it is arguable that he is giving undue precedence to a general operational policy stance in relation to asylum applicants who did not raise the risk of re-trafficking explicitly at the time of claiming asylum, even where their factual account as to their personal circumstances has remained consistent and where, on the basis if that history, it may be reasonable for the applicant to be in fear re-trafficking.
    c. If (as appears may be the case) the Claimant is in fact in reasonable fear of being re-trafficked from Indonesia to the Middle East by her family, then arguably the Defendant needs to take a decision on discretionary leave based on this reality. It is arguably unlawful for the Defendant to ignore that reality by reason of a policy relating to the point in time at which the individual at risk of re-trafficking first expressly raises concern regarding that risk, during the asylum-claiming process
  2. I have granted permission for the Claimant to rely on her Reply to Summary Grounds. It is a short document (2 pages) which provides a succinct and proportionate response to the Summary Grounds. Admitting that document does not, in my view, cause any unfairness to the Defendant.
  3. I have granted the Claimant anonymity, as applied for within section 9 of her claim form. I do so notwithstanding that the grounds for that application, set out in section 9 of the claim form, are bland in the extreme and do not suffice to justify any exception to the open justice principle. The fact that the Defendant does not object to anonymity being granted does not suffice to justify the Court granting anonymity in circumstances where the Claimant has not presented a persuasive case as to why either: (a) anonymity is mandated by law; or (b) refusing anonymity could lead to her Article 8 ECHR rights being infringed or other harms which are said to outweigh the open justice principle. The fact that a claimant is seeking asylum is not in itself sufficient to justify anonymity: see Kambadzi v SSHD [2011] UKSC 23. Despite these failings in the claim form, I have ordered anonymity as it appears to me, based on the facts set out within the case papers, that identification of the Claimant could contravene section 1 of the Sexual Offences (Amendment) Act 1992 read with section 2(1)(db) of that Act and section 2 of the Modern Slavery Act 2015. The Claimant’s solicitors, Duncan Lewis Solicitors Ltd, are asked to ensure that, in future, judicial review claim forms in which anonymity is sought set out clearly the proposed justifications for anonymity, and expressly draw attention to any relevant statutory provisions (such as the aforesaid) which require that the claimant be anonymised.
  4. Although the Claimant has not applied for expedition, it appears to the Court from the circumstances to which the claim relates that it would be highly desirable for the claim to be heard before end March 2024. If it is right that the Claimant should have been granted temporary leave to remain whilst her asylum claim is being considered, then she may suffer material prejudice from significant delay in her being afforded such leave.

Case Management Directions

  1. The Defendant and any other person served with the Claim Form who wishes to contest the claim or support it on additional grounds shall, within 28 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.
  2. Any application by the Claimant to serve evidence in reply shall be filed and served within 8 days of the date on which the Defendant serves evidence pursuant to 1(b) above.
  3. The parties shall agree the contents of the hearing bundle and must file it with the Court not less than 10 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.
  4. The Claimant must file and serve a Skeleton Argument not less than 7 days before the date of the hearing of the judicial review.
  5. The Defendant and any Interested Party must file and serve a Skeleton Argument not less than 4 days before the date of the hearing of the judicial review.
  6. 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 2 days before the date of the hearing of the judicial review.