AC-2024-LON-001762 - [2025] EWHC 2293 (Admin)

So for all of these reasons, I reject Ms Cumberland’s argument that the terms and the scheme of the 2003 Act expressly or impliedly exclude a duty on the part of the SSHD to act fairly when making decisions under section 179. Nor do I accept that the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity. It follows that the SSHD’s refusal to consider representations on behalf of the Claimant in the present case, apparently pursuant to a policy never to permit or consider representations in the context of section 179, was contrary to the duty to act fairly and unlawful as alleged in Ground 1.

I therefore give permission and allow the claim on Ground 1.

I reach this conclusion without relying on the witness statement of Mr Mitchell which I decline to admit in evidence for a number of reasons. These include that the evidence could and should have been adduced in accordance with the timetable directed by the court, and therefore a good deal earlier than the eve of trial. The statement purported to respond to something said in the skeleton argument on behalf of the SSHD – an alleged claim by the SSHD that it was not her practice to consider representations in relation to analogous decisions under the 2003 Act - but in fact the skeleton did not say what it was alleged to say. Mr Mitchell was purporting to contradict something which had not been said and this therefore appeared to be a pretext for what was an afterthought on the part of the Claimant’s legal team. Moreover, it was no part of the Claimant’s pleaded case that the SSHD’s approach under section 179 of the 2003 Act was unfair because it was inconsistent with her practice in relation to analogous decisions under other provisions of that Act.

Mr Mitchell’s statement also adopted a somewhat unorthodox approach and, from the point of view of fairness, was inherently difficult for the SSHD to respond to. Apart from a reference to Halligen v Secretary of State for the Home Department [2012] EWHC 3769 (Admin) which related to section 208 of the 2003 Act, and a passing reference to “the case of Assange”, the statement purported to be based on an informal survey of three KCs as to their experiences in unnamed cases (which did not appear to have reached court), on unspecified dates and relating to other provisions of the 2003 Act.

In short, I did not consider that this evidence was helpful or relevant in relation to the issues in the case and, in any event, nor did I consider that it would be fair for the Claimant to be permitted to rely on it.

I also refuse the Claimant’s application dated 20 June 2025 to admit the further evidence referred to at [10(i)] above, save for the report of Henrique Salinas, Attorney, dated 11 June 2025. Apart from the report of Mr Salinas, which illustrated some of the points which might have been made had there been the opportunity for representations, the evidence which was sought to be adduced was essentially updating medical evidence. It did not materially add to evidence which was already before the court and it did not assist with the issues which I am required to determine. Given the issues in the case and the evidence which was already in, I did not consider that there was any significant prejudice to the SSHD if the report of Mr Salinas were to be admitted.