A common feature of our everyday work is being confronted with poor decision-making on the part of the Home Office. Indeed, the decision-making is often so dismal that it is unlawful. To add to the frustration, such incompetence often comes hand in hand with a refusal by the Home Office to recognise its own failures until late in the day.
A case we very recently settled illustrates these problems. Our client, Zeynep, is a vulnerable young woman with mental health problems. Having escaped from a forced marriage in Turkey, despite heavy pressure from her family, she claimed asylum on the basis of her risk of honour killing upon return to her home country. Due to her fear of making contact with her Turkish family, she initially submitted very little evidence to support her claim.
We managed to obtain further evidence from those who had assisted Zeynep in her escape and we commissioned a country expert report which confirmed our client’s risk from her family, regardless of where she was in Turkey. The country expert report also set out further factors which aggravated the risk to her, including being a lone mother of two. A psychiatric report highlighting Zeynep’s mental health problems and resulting vulnerabilities was another key piece of evidence.
So, with this fresh evidence, Zeynep made a fresh claim for asylum on 13 January 2017. On 20 October 2018 it was refused, leaving her with no right of appeal.
However, the decision was characterised by a number of shortcomings including a failure by the Secretary of State for the Home Department (SSHD) to adequately consider expert medical evidence and failed to apply her section 55 duty to consider the best interests of Zeynep’s two children. The decision given by the SSHD in no way reflected the low standard of a fresh claim test (which merely requires an Applicant to show that there is a realistic prospect that a judge, applying anxious scrutiny, could reasonably find there is a real risk on return.)
Most strikingly, the decision failed to consider any expert or background evidence submitted on Zeynep’s behalf on the basis that it differed from aspects of the Respondent’s (Home Office’s) own views about Turkey! That, of course, was precisely why that evidence had been put forward in the first place.
We wrote a Letter Before Action outlining the shortcomings evident in the decision and further supporting our submissions with addendum reports from the country expert and psychiatric expert, which explained where the Home Office had gone wrong when considering their reports. We did not receive a response within the required 14 days period according to the Pre-action Protocol. A belated response simply reiterated the contents of the initial Reasons for Refusal letter and made no admissions as to any shortcomings in that decision.
Several weeks after the application for permission for judicial review was lodged at the Upper Tribunal however, the Home Office agreed to withdraw her decision and pay for the costs of the judicial review.
This is, of course, a positive outcome for Zeynep, but one really has to wonder why proceedings had to be taken to court in the first place in order for the Home Office to recognise the failings in the decision made in this case. Sadly this is in keeping with the general approach of the Home Office.
Naturally, there are cases, unlike this one, where there are genuine and difficult legal issues which need resolving and where it is quite right that the matter ends up in court. But so long as the Home Office fails to engage seriously with a case until it is in court, those without access to a lawyer will suffer serious injustice, as was recently exposed by the Windrush scandal. Meanwhile, millions of pounds are wasted in preparing and issuing cases in court, only for the Home Office to withdraw decisions which should never have been made in the first place.
Zeynep is not our client’s real name. We have changed her name to protect her identity.