The High Court has indicated it will quash a third decision refusing to revoke a deportation order against an anonymised applicant, after finding flaws in the Minister’s assessment of the risk of ill-treatment on return to Algeria and a breach of fair procedures.
In a judgment delivered on 31 July 2018, Mr Justice Richard Humphreys said the Minister had failed to state or apply the required two-stage evidential test for assessing a claimed risk under Article 3 of the European Convention on Human Rights. The applicant first had to produce evidence capable of establishing substantial grounds for believing there was a real risk of prohibited treatment. If that threshold was met, the Minister had to examine the general country situation and the applicant’s personal circumstances to see whether the doubts could be dispelled.
The judge said the applicant had already been found to have crossed the initial threshold in an earlier stage of the proceedings, and the Minister could not reopen that issue at this point. He added that, even if it could be reopened, the Minister’s assessment appeared to have considered the full body of country information at the threshold stage, rather than focusing on the applicant’s evidence. The decision was therefore significantly flawed on a core issue.
The court also found that the Minister relied on two newspaper reports without putting them to the applicant. The reports were unusual material, and the applicant’s affidavit showed there was something he could say in response, the judge said. Their use without notice breached fair procedures.
On the applicant’s complaint that the Minister had not given adequate reasons, the judge found a further shortcoming: the decision did not explain why it reached a different conclusion from a comparable European Court of Human Rights judgment concerning expulsion to Algeria. However, he rejected irrationality as an independent ground of challenge, saying the Minister was generally entitled to weigh the factors and that the applicant had not established that the country reports were misunderstood.
The case concerns the third refusal under section 3(11) of the Immigration Act 1999, made on 11 June 2018 after the Minister reconsidered the matter following earlier court orders. The challenge to the original deportation order remains adjourned pending the outcome of this part of the proceedings.
The judge said he would, in principle, make an order of certiorari to quash the 11 June decision. He did not make a final order in this judgment. Instead, he directed further submissions on whether the decision should be quashed in full or part, whether the case should be remitted to the Minister, what procedures should govern any reconsideration, and what would follow for the original deportation order if there were no remittal.