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

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Case No: CO/1470/2022

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

10 August 2022

Before:

The Honourable Mr Justice Freedman

Between:

The Queen on the application of
XYZ

-v-

Secretary of State for the Home Department


Following consideration of the documents lodged by the Claimant and the Acknowledgement of Service filed by the Defendant

ORDER by the Honourable Mr Justice Freedman

1. The application for permission to apply for judicial review is adjourned and will be listed for hearing in court, on notice to the Defendant, as soon as possible on or after 5 September 2022, time estimate 1 hour.
2. The parties are to provide a written estimate within 7 days of service of this Order if they disagree with the estimate at 1 above.
3. The Claimant must file and serve a Skeleton Argument not less than 7 days before the date of the hearing.
4. The Defendant must file and serve a Skeleton Argument not less than 3 days before the date of the hearing.
5. Pursuant to CPR rule 39.2(4) there shall not be disclosed in any report of the proceedings the name or address of the Claimant or any details leading to the identification of the Claimant. The Claimant, if referred to, shall only be referred to as ‘XYZ’. This order is made until reconsideration of it at the return date or earlier hearing.
6. Liberty to apply on 48 hours’ notice in writing to discharge or vary this order or any part of it.
7. Costs reserved.

Observations

1. There are aspects of the case on both sides which make an oral permission hearing desirable.
2. The Claimant’s case is light as regards medical evidence to support the submissions made about the intensity of treatment required, particularly as regards dialysis: see the submissions at paras. 8-12 of the Summary Grounds of Defence (“the SGD”).
3. This is important because if it is the case that there is type 2 Diabetes and chronic kidney disease stage 1, then that might be unremarkable bearing in mind the statistical evidence referred to at para. 8 of the SGD and in the public domain information at para. 9 of the SGD.
4. The question as to whether the Claimant was attending dialysis every two weeks might be of importance to the Claimant’s case. On the other hand, if she was in fact not attending for dialysis, as may be an inference from the absence of documentary evidence, then that might
be of importance the other way.
5. Insofar as the Claimant has a depressive disorder and anxiety, she has according to the Statement of Facts and Grounds (“SFG”) spent long periods outside London or far from the area where she was living at the time of the decision of the Defendant.
6. The Defendant’s case is light because of the paucity of information about the medical services available to the Claimant in and around Chatham, Kent and inquiries made by the Defendant prior to relocating her. It is also light in respect of documentary evidence as to the attention given by suitably qualified professionals in considering the position of the Claimant.
7. There are also questions as to the appropriateness of the tests adopted by the Defendant in rejecting the claim of the Claimant e.g. the extent to which medical necessity was adopted: see R (on the application of IO) v SSHD [2020] EWHC 3420 (Admin) and the ability to travel from Chatham to London to receive medical services.
8. The intersection between the positions of the Claimant and the Defendant upon which the Court would be assisted at the permission stage is upon whom is the evidential burden. It is for the Claimant to prove that the claim is arguable, but how does that relate to the issues which arise, including who is to prove
(a) the condition of the Claimant,
(b) the ability or inability to have suitable treatment from Chatham and
(c) the suitability or unsuitability of the Claimant travelling from Chatham to London for treatment?
9. One approach is to say that the foregoing issues can all be considered at a full hearing. However, they are so fundamental to an analysis of this case at the permission stage that they are better considered at this preliminary stage at an oral hearing.
10. The consideration of the above is in no sense comprehensive or prescriptive for the Judge determining permission. It is simply setting out the factors that have led to the decision to reserve this case to an oral hearing.
11. As regards anonymity, since this is a holding order at this stage, anonymity is ordered. On the one hand, the case involves discussions of he medical condition of the Claimant. On the other hand, some of this is in the public domain in the context of the asylum decision(s). It will be for the Court at the permission hearing to decide whether it is appropriate to continue the anonymity order.