The title fairly neatly sums up what has happened in this case, a case which even as a direct access immigration barrister of over 14 years experience in immigration is pretty unusual. The client in this case is from Eritrea. He had travelled via Italy to the UK and claimed asylum, the first time in or around 2007. He was returned to Italy under the Dublin Convention and made his way back to the UK where he again claimed asylum. He was removed to Italy on two further occasions having returned to the UK.
On the last occasion he claimed asylum in the UK and avoided removal by lodging, though the excellent Barnes Harild and Dyer solicitors (Shayela Khan acting on his behalf), an application for judicial review. This application was stayed pending the Supreme Court’s consideration of EM (Eritrea)  UKSC .
Following the Secretary of State’s loss the Secretary of State then withdrew the certificate on the undertaking that she would not take any steps against him until after she reconsidered his case. In addition to relying on the general country situation the Claimant sought to rely upon 2 expert reports of Loredana Leo.
In June, after the original decision had been withdrawn, he went to report. At this stage he had an outstanding human rights claim and could not therefore be lawfully be removed. He was detained and, he alleges, removed to Italy the following morning.
He next came to light when he contacted his solicitors while staying in Calais where he was trying to return to the UK. The solicitors took a statement from him, difficult given where he was, and that he was sleeping rough.
It was put to the Secretary of State that something had gone badly wrong as there was no way he would have voluntarily gone to Italy given that he had already entered the UK on 4 occasions and more importantly was married to someone with Discretionary Leave to Remain who is shortly able to apply for Indefinite Leave to Remain.
The Secretary of State denied removing him.
We made an urgent application to the High Court and Bean J ordered that he be returned.
The Claimant has now lodged a judicial review claim challenging the legality of his detention both prior to and during his removal. The Secretary of State contests it on the basis that there was no evidence he was removed. The Claimant is seeking disclosure of CCTV records as something has clearly happened.
The matter came before Richard Clayton QC sitting as a Deputy High Court Judge today who granted permission to apply for judicial review.
This is a highly unusual case, turning on a single issue, i.e. was he removed or did he go voluntarily. The Court clearly finds this an arguable issue and I will write an update as when this case concludes.
Paul Turner is a highly regarded direct access immigration barrister practising from Mansfield Chambers, the Chambers of Michael Mansfield QC, 5 Chancery Lane, London, WC2A 1LG and a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to provide advice and representation directly to the public.