High Court judge lambasts Home Secretary’s seriously flawed handling of Palestinian academic’s visa challenge

In a highly critical judgment yesterday, the Upper Tribunal (Immigration and Asylum Chamber) severely criticised the Home Secretary’s flawed conduct in judicial proceedings brought by the Claimant, a Palestinian refugee, challenging the refusal to grant her a visa on the basis that her presence in the UK would not be in the public interest.

The original challenge concerned the Home Secretary’s refusal to grant the Claimant leave and refusing to give any reasons as to why. That claim settled by consent with the Home Secretary providing undertakings (a binding promise) that if he was minded to refuse the Claimant leave he would provide a summary of the reasons and allow representations to be made in response. Following the conclusion of the case the Home Secretary failed to comply with the undertakings given and instead applied to Court to be discharged from the promises made. It was also revealed that the then Home Secretary had personally certified the refusal to grant a visa, a fact never disclosed to the Claimant or the Tribunal, leading to the case being litigated in the wrong Court.

In a hearing on 23rd January 2023 leading counsel for the Home Secretary offered an “unqualified and unreserved apology” for what was described as a “litany of errors” that led to the Home Office failing to disclose material information in the first judicial review and giving undertakings to the Tribunal settling the claim that could not be complied with. This is yet another case, in a series of recent cases involving breaches by the Home Secretary of Court orders.

In the judgment, Mrs Justice Steyn DBE described the “grave” and “shockingly poor” conduct of the case by the Home Secretary, and the “grave situation” that the Home Secretary found himself in with the Tribunal seised of the question of whether to initiate proceedings for contempt of court. Mrs Justice Steyn DBE listed the “long and mutually exacerbating errors” of the Home Secretary and GLD, in particular she affirmed that the failure to notify the Claimant of the certification decision was a “deliberate decision” and it was unlawful. Ultimately Mrs Justice Steyn decided not to initiate contempt proceedings, though “through this judgment, the Secretary of State stands rebuked for his breaches of the undertakings”.

The Home Secretary’s conduct of the case also raises serious questions surrounding the refusal of visas on public interest grounds. Ms El Ashkar is a highly respected Palestinian journalist and past recipient of the UK’s Foreign, Commonwealth, and Development Office’s prestigious Chevening Scholarship. The decision to refuse her a visa now is difficult to fathom and raises questions as to whether it has been refused because of “the relationship between the United Kingdom and another country” in light of her work writing about the situation in Israel-Palestine and Palestinian refugees. Troublingly, without any reasons, Ms El Ashkar has not been afforded a fair opportunity to scrutinise the Home Secretary’s decision and the public cannot be certain that the Home Secretary has not made a visa decision based on unlawful political considerations.

Amena El Ashkar says:

As a third-generation Palestinian refugee born and raised in a Lebanese refugee camp, I’ve experienced firsthand the extremely difficult and challenging conditions prevalent in these camps. My acceptance into the PhD programme at a prestigious institution like the LSE was a source of immense pride, not just for my family and friends, but for the entire community in the camp. It was heartwarming to see residents, even those I did not know personally, stop me to offer huge congratulations on earning this scholarship. However, the inexplicable refusal of my UK visa, despite being granted one as a Chevening scholar, is both unfortunate and deeply unjust. This situation begs the question: why must a Palestinian refugee wage a battle for every aspiration, however justified? Why are our paths laden with obstacles unlike those faced by others? The fundamental right to freely move and pursue education seems to be an elusive privilege, rather than a universal right, for people like us”.

Alexander Hogg of Gold Jennings says:

“This is yet another case, in a series of recent cases, where the Home Secretary has failed to comply with its obligations to the Tribunal. The consequence of this “litany of errors”, 9 in total, are serious and have significantly and detrimentally impacted upon our client. We therefore welcome the Tribunal’s rebuke of the Secretary of State’s conduct.

It is also deeply concerning that the Home Secretary refuses to provide any detail as to why our client has been refused a visa. Our client was awarded a full scholarship to pursue a PhD at the LSE, and previously awarded the UK’s flagship Chevening scholarship which “enables outstanding emerging leaders from all over the world to pursue one-year master’s degrees in the UK”. By any measure, she is an exceptional student who will contribute to the UK’s status as a world leader in education. It is therefore perplexing that the Home Office has refused her a student visa and continues to maintain its position against providing reasons for the refusal. More importantly, it is deeply unfair to our client. She deserves to know why the Home Secretary has refused her entry to the UK, and the public deserve to know if visa decisions are being properly made.”

Ms El Ashkar is represented by Clare Jennings, Head of Public Law, and Alexander Hogg, Solicitor, at Gold Jennings – www.goldjennings.co.uk. Counsel for Ms El Ashkar are Jason Pobjoy and Rayan Fakhoury of Blackstone Chambers. Ms El Ashkar is supported by the European Legal Support Centre.

A copy of the judgment can be found here.

A copy of the press summary of the judgment can be found here.