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Home Office should not have special litigant status

Home Office should not have special litigant status

This determination was quietly released by the Judicial Office late last year. It is unusual for immigration cases to be publicised in this way. Presumably in this instance it was because of likely public interest in the final outcome rather than the procedural issues arising. It does seem to me, anecdotally, that the Judicial Office has recently released several cases where Home Office appeals against deportation orders were dismissed.

This case too ends with a good result for the appellant.

Inbox by khrawlings
Inbox by khrawlings

The judge in this case was previously the subject of a wholly inaccurate, intrusive and astonishingly political attack by The Daily Mail (the newspaper and Home Office said he had allowed an appeal that had in fact been conceded by the Home Office). He is to be commended for standing his ground and not being cowed by such blatant interference.

A passage jumped out of the decision as I read through, though, that I could not let pass without comment:

Those of us that are familiar with the ways of government departments understand without being told that tasks that have to be started late are rarely given priority lest other tasks are made late too. In organisations that are strained to their limits there is always a concern that taking special steps to deal with one piece of work that is late can cause other pieces of work to be late, and is not done.

What the judge says is true and unremarkable, in a way. But this type of ‘last in, first out’, allocation policy was actually found to be unlawful in the case of R (on the application of S) v Secretary of State for the Home Department [2007] EWCA Civ 546.

More importantly, it is as if that were not also true for hard pressed legally aided solicitor firms and law centres or indeed any other organisation large or small. Surely they too are ‘strained to the limits’ and are indeed closing down left right and centre.

Government and its genuinely hard pressed, over worked civil servants almost routinely attract this kind of special judicial sympathy and understanding. That is fine, as far as it goes. Government lawyers and civil servants are, no doubt, decent chaps doing their best in terribly trying circumstances. See the recent Singh case, for example. The problem is that pesky claimants and their upstart ‘legal aid gravy train’ lawyers do not attract this judicial empathy. We are instead routinely characterised as individually incompetent or even as being abusive of process by making deliberately late or incomplete applications. See the Hamid case, for example.

Anyway, the central procedural finding to the case is that, once granted, permission to appeal to the Upper Tribunal cannot be set aside.

Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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