Cleverly avoids contempt proceedings
But home secretary ‘stands rebuked’ for breaching undertaking and other errors
A High Court judge has stopped short of launching contempt of court proceedings against the home secretary James Cleverly despite his department’s “shockingly poor” handling of an entry clearance application by a Palestinian student that involved nine serious errors.
In a judgment published by the Upper Tribunal this morning, Mrs Justice Steyn said:
The secretary of state acknowledges that the list of errors is long and mutually exacerbating; the errors, for which there is no excuse, are serious. This description is apt.
The handling of this case from September 2022 until July 2023 was shockingly poor. This has had a detrimental impact on the applicant.
The result is also that the tribunal is seised of the question whether to initiate proceedings for contempt against the secretary of state for his admitted breach of undertakings given to the tribunal in a sealed order. That is a grave situation for the secretary of state to find himself in.
The responsibility for the mishandling of this case lies primarily with the secretary of state, but also to an extent with the government legal department.
Cleverly was appointed secretary of state for the Home Department, as the post is formally called, on 13 November 2023. Before him, the post was held by the following MPs:
Priti Patel 24 July 2019 - 6 September 2022
Suella Braverman 6 September 2022 - 19 October 2022
Grant Shapps 19 October 2022 - 25 October 2022
Suella Braverman 25 October 2022 - 13 November 2023
No secretary of state is identified by name in the judgment.
The applicant in the case is Amena El-Ashkar. She describes herself as a stateless Palestinian academic and journalist based in Lebanon. In August 2019 she was awarded the Foreign, Commonwealth and Development Office’s Chevening scholarship, enabling her to complete a master’s degree at the School of Oriental and African Studies before returning to Lebanon.
In April 2021 she was awarded a full scholarship to study for a PhD in international relations at the London School of Economics. She applied for a student visa on 20 August 2022.
The special cases unit of the homeland security group within the Home Office decided that her presence in the UK was not conducive to the public good. On 30 September 2022, the Home Office told her that her application for entry clearance as a student had been refused.
She filed an application for judicial review in the Upper Tribunal on 22 December 2022. Neither she, nor the Upper Tribunal, were informed that the secretary of state — presumably Braverman— had personally certified the decision under section 2F of the Special Immigration Appeals Commission Act 1997, which meant that the challenge should have been brought before the Special Immigration Appeals Commission rather than the Upper Tribunal.
The secretary of state — presumably Cleverly on behalf of himself and his predecessor — has acknowledged making nine serious errors, summarised thus:
Delay in certification of the 30 September 2022 decision [apparently because officials were ordered not to put “non-urgent” business before ministers for more than two months];
Failure to notify the applicant or the Upper Tribunal of the certification decision;
Provision of an undertaking with which the secretary of state should have known [he] could not comply with;
Positive visa decision made “in error”;
Revocation decision made on purported basis of “a change in circumstances”;
False statement in relation to service of refusal notice;
Breach of undertaking to provide a gist;
Breach of undertaking to make a fresh decision within two months; and
Failure to admit non-compliance with undertakings.
The judge said that Cleverly had given a “fulsome, sincere, unreserved and unqualified” apology to the applicant and to the Upper Tribunal. He had acknowledged the gravity of the matter, recognising that breach of undertakings given to the Upper Tribunal can give rise to a finding of contempt. He agreed to pay the costs of the judicial review claim, including any consequential matters, on an indemnity basis — the highest level of costs.
Steyn continued:
Any breach of undertakings given to the Upper Tribunal is a matter of grave concern. The secretary of state stands rebuked for his admitted breaches. Nevertheless, I have come to the view that it is not necessary or proportionate for the tribunal to initiate contempt proceedings.
She explained why:
Cleverly had acknowledged that he was in breach of the undertakings.
He had investigated how the situation had come about and given candid evidence to the tribunal explaining the serious errors that led to breaches of the undertakings.
He had apologised to the applicant and to the tribunal.
In making the mistake of entering into undertakings with which he considers he cannot responsibly comply, the home secretary did not receive the professional advice from the government legal department to which he was entitled. As the government legal department acknowledges, it bears some of the responsibility for what has occurred.
The breaches were unintentional.
Action has been taken to reduce the risk of recurrence.
The judicial review proceedings were settled on the basis that the home secretary would make a fresh decision; and that if he was minded to refuse the application he would provide the applicant with the gist of his reasons and give her an opportunity to make representations before making a final decision.
Cleverly applied to withdraw his undertakings on the ground that he could not responsibly disclose to the applicant the gist of his reasons for refusal because to do so would harm the public interest.
The tribunal granted the application, accepting the home secretary’s evidence that he could not responsibly comply. But Steyn emphasised that she had not been able to make an independent assessment of the risk to the public interest in disclosure as she had not seen the underlying material on which the home secretary relied.
Any further challenge will be made to the Special Immigration Appeals Commission.
Joshua – the 2nd paragraph of your blog begins: In a judgment published by the Upper Tribunal this morning, Mrs Justice Steyn said:
The secretary of state acknowledges that the list of errors is long and mutually exacerbating; the errors, for which there is no excuse, are serious. This description is apt.
After ‘Mrs Justice Steyn’ said there are no quotation marks. It is therefore difficult to know where Steyn’s quote ends, and your commentary begins. Is ‘The responsibility for the mishandling of this case lies primarily with the secretary of state, but also to an extent with the government legal department’ your comment or hers?
I was interested in the attribution of responsibility to the government legal department (GLD). My understanding of the role of the GLD was that their responsibility was to act in the best interests of their clients rather than uphold the principles of fairness and justice (in a disinterested way). Their clients are government departments like the Judicial Office and the Cabinet Office (and, I presume, the JCIO). These ‘clients’ pay these departments substantial fees to represent them. I’m a layman not a lawyer, but doesn’t this mean that if the Cabinet Office employed GLD lawyers to defend itself against an action brought by Leigh Day lawyers (on behalf of, say the campaign group openDemocracy) about the alleged unlawful activities of the CO’s Clearing House Unit in helping government departments evade and delay the Freedom of Information requests by investigative journalists, it’s the duty of those GLD lawyers simply to win the case for the government ‘client’?
Of course, my example actually happened. The legal proceedings lasted 3 years I think and the Judge found in favour of openDemocracy. The activities of the Clearing House unit were condemned by Judge Hughes, the ICO, and many MPs. I don’t know but I assume the CO lawyers were from the 1300 team of GLD lawyers whose boss is the Treasury Solicitor. Shortly after the Judge's ruling, the unit was disbanded - as was the CO's Rapid Response unit.
As a victim of highly questionable activities by the GLD and its boss, the Treasury Solicitor, you can imagine why I’m particularly interested to know why Joshua or Judge Steyn says: ‘The responsibility for the mishandling of this case lies primarily with the secretary of state, but also to an extent with the government legal department’. As Olivia Newton-Bomb would say: 'Tell me more, tell me more'.
Can anyone tell me if the GLD ever represented the Post Office? Finally if you want to know more about the way the Cabinet Office handles FoI Requests, my FoI Request to them is available to all on the whatdotheyknow.com site. Just look for In the last 5 years, how many times have Cabinet Office officials ....?
How acutely embarrassing, obviously for the Home Secretary- indeed Secretaries- and the in house lawyers concerned, but then also for us as a supposedly sophisticated and fair minded nation whose Department of State ought to be able to negotiate its way around the laws and rules it was responsible for having propagated. And yet deeper plummets the remaining respect other countries might even now harbour for us.