The High Court quashed a second decision refusing an Algerian applicant’s application under section 3(11) of the Immigration Act 1999, after finding that the Minister had relied on an unusual country report without putting it to the applicant. The court did not decide at this stage whether the original deportation decision should also fall.
In a judgment delivered on 19 December 2017, Mr Justice Richard Humphreys dealt with Module I of the judicial review proceedings, concerning the validity of the second section 3(11) decision. The Supreme Court had previously quashed an earlier section 3(11) decision and remitted matters to the High Court. The Minister made the new decision on 27 September 2017, again adverse to the applicant.
The applicant challenged the decision on several grounds, including that he had not been given an opportunity to address the Minister’s views or evidence. The judge rejected most of those arguments. He said the process did not generally require the Minister to preview draft reasoning or proposed inferences based on material the applicant already knew about. He also rejected challenges to the Minister’s assessment of the risk of harm in Algeria, including arguments about country conditions, detention facilities, legislation and the dissolution of the DRS.
The court treated a Menas Associates blog article differently. The article, dated 28 January 2016 and accessed by a case worker, had been relied on by the Minister. The judge found it was unusual material, unlike regular annual country reports, and should have been shared with the applicant so submissions could be made. He held that the failure to give notice breached fair procedures and could not be treated as immaterial to the outcome.
The judge also criticised aspects of the applicant’s expert Professor Joffé’s supplementary report, describing it as vague and evasive about the blog’s author and the basis for the expert’s conclusions. However, he said the applicant could not be held responsible for failing to anticipate that the Minister would rely on the report. The judge added that unusual material of this kind intended to be relied on should be disclosed to an applicant with an opportunity to respond.
The court ordered certiorari to issue, removing the second section 3(11) decision for the purpose of quashing it. It then moved to Module II, which was to determine whether the original deportation decision should fall or whether the Minister should be directed to reconsider the section 3(11) application. No outcome on that question is stated in this judgment.