Court of Appeal grants Emma Harris permission to appeal and finds it arguable that the Secretary of State for the Home Department breached her duty under Article 22 of the Procedures Directive

Court of Appeal grants Emma Harris permission to appeal and finds it arguable that the Secretary of State for the Home Department breached her duty under Article 22 of the Procedures Directive
February 20, 2020

Ms Harris’s client (the Appellant) is a Sri Lankan national who had claimed asylum in the UK on the basis of his fear of the Sri Lankan authorities because of his previous association with the Tamil Tigers or “LTTE”. Although the Sri Lankan civil war ended in 2009, it is known and accepted by the UK government that the Sri Lankan authorities continue to detain those who maintain an active interest in Tamil Separatism in Sri Lanka and that any person who is at risk of being detained in Sri Lanka is also at real risk of being tortured by the state.

Ms Harris’s client was not believed in his asylum claim in the UK and was unsuccessful in his appeal. In 2018, he was therefore detained in the UK for the purpose of removing him to Sri Lanka. During that detention, without any notice being given to the Appellant or his lawyers, the Appellant was taken to the Sri Lankan High Commission in London to be interviewed. This was an interview conducted by the Sri Lankan authorities that was not recorded, was not supervised by any Home Office officials and for which the Appellant had had no opportunity to obtain any legal representation.

The Appellant claims that during that interview he was asked about the asylum claim that he had made and, believing they already had all of his details, the Appellant answered truthfully that he had claimed asylum on the basis of his affiliation with the LTTE.

It is unlawful, under Article 22 of the Procedures Directive, for the Home Office to disclose to alleged actors of persecution information about an asylum claim or even the fact that an asylum claim has been made.

The Appellant sought to bring a judicial review, on the basis that the Home Office’s duty under Article 22 could be breached indirectly and that the Home Office had not only failed to follow due process by failing to give any notice before the Appellant was taken to the Sri Lankan High Commission for interview but also that the Home Office had breached its duty to the Appellant under Article 22 by placing him in a position, unsupervised with the Sri Lankan authorities, where it was reasonably likely that he would be questioned about the asylum claim that he had made.

The Upper Tribunal both on paper and at an oral hearing dismissed Ms Harris’s client’s application for permission to bring a judicial review.

The Court of Appeal has, however, found it to be:

properly arguable that compelling the appellant to attend such an interview at which it was foreseeable that he would be asked and give answers to questions which would disclose the fact that he had applied for asylum in the UK and the basis for his application amounted to a breach of article 22 of the 2005 Procedures Directive

The Secretary of State will now have to consider whether she will consent to this appeal being allowed and to permission to apply for judicial review being granted so that the Upper Tribunal can then proceed to hear legal arguments and determine the question.

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