R (Ashkar) v Secretary of State for the Home Department

The Applicant in the claim, Ms El-Ashkar, is 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. In April 2021, she was awarded a full scholarship to study for a PhD at the London School of Economics.

The claim for judicial review concerned the Secretary of State’s decision to refuse the applicant’s student visa application for her PhD studies on the basis that her presence in the UK would not be conducive to the public good. The Secretary of State acknowledged that he made nine “serious” and “mutually exacerbating” errors in the conduct of the proceedings.

The judgment addresses issues arising as a result of the Secretary of State’s “seriously flawed” conduct of the judicial review proceedings, including the consequences of admitted breaches of undertakings given to the Tribunal to make a fresh decision within two months and, if minded to refuse the application on non-conducive grounds, to disclose the gist of the case against the Applicant.

Mrs Justice Steyn DBE described the handling of the Applicant’s case from September 2022 until July 2023 as “shockingly poor”, resulting in the Tribunal being 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.

The Upper Tribunal decided that it was not necessary or proportionate in the circumstances for it to initiate contempt proceedings against the Secretary of State, having regard to (among other things) the Secretary of State’s candid and fulsome apology, the remedial action taken, and the fact that the Secretary of State “stands rebuked” through the Tribunal’s judgment. The Tribunal also granted the Secretary of State’s application to withdraw the undertakings, whilst emphasising that it was unable to make an independent assessment of the risk to the public interest entailed by the disclosure of a gist of the case against the Applicant. Finally, the Tribunal determined that it was unnecessary to determine whether the Secretary of State had acted in breach of his duty of candour, in circumstances where he acknowledged the seriousness of his errors, had offered an apology which recognised the detrimental impact on the Applicant, and agreed to pay costs on the indemnity basis.

Jason Pobjoy and Rayan Fakhoury acted for the Applicant.

The judgment can be accessed here.