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Home Office “misled” judge over Calais children, Court of Appeal finds

Home Office “misled” judge over Calais children, Court of Appeal finds

The Home Office has been found in serious breach of its duty to the court after submitting misleading evidence about how it handled the rescue of refugee children from the demolished Calais “jungle” camp. The judgment in R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812 was handed down today.

When the Calais camp was torn down at the end of 2016, the Home Office set up a temporary scheme for making quick decisions in cases where children claimed a legal right to come to the UK to claim asylum because they had family here. When Citizens UK challenged the operation of the scheme in the High Court, Mr Justice Soole found that it was lawful. He was persuaded that what would otherwise have been inadequate reasons for refusing were excusable because:

  • this was a requirement of the French authorities
  • there was time pressure in conducting the operation

Emails that emerged “purely by chance” in other litigation show that neither were true. In fact, French officials argued strongly for the children to be given proper reasons and wanted the transfer process to continue long beyond the cut-off imposed by the Home Office. This was essentially the opposite of what civil servants told the High Court. Lady Justice Asplin and Lord Justice Hickinbottom both concluded that Soole J had been “materially misled”.

Giving the lead judgment, Singh LJ found a

serious breach of the duty of candour and co-operation in the present proceedings. An incomplete picture was left in the mind of the reasonable reader, including Soole J, as a result of the evidence that was filed below. I dare say this was not deliberate… there is no reason to think that there was bad faith.

Others would not be so kind. The judgment continues:

Nevertheless, the effect, even if it was unintentional, was that significant evidence was not brought to the attention of the High Court… it also seems to have been done only once certain matters had become known (by chance it would seem) in an unrelated case: FH in the Upper Tribunal in early May 2018… the evidence now before this Court supports the fundamental submission made by Citizens UK that the process adopted in this case was unfair and unlawful as a matter of common law.

Instructing solicitor Sonal Ghelani of the Islington Law Centre said that “it is extremely disturbing that these emails show the government was advised by the Home Office’s own lawyers to act unfairly and unlawfully, in order to avoid legal challenges by the children concerned”.

Safe Passage, the arm of Citizens UK that launched the litigation, added that many of the children refused admission to the UK on what we now known to be an unlawful basis subsequently went missing.

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