Government lawyers' communications in relation to a group of immigration cases were resonant of a 'bygone era of private litigation trench warfare', the president of the upper tribunal of the immigration and asylum chamber has said in a damning judgment.
Mr Justice McCloskey, in AM, SASA, MHA and SS v Secretary of State for the Home Department, 'reluctantly but unhesitatingly' accused the home secretary of not taking the tribunal or its orders seriously enough.
In May, the home office was ordered to admit the four applicants to the UK and begin the process of making fresh lawful decisions, to be completed by a certain time. The applicants have since been admitted to the UK and claimed asylum. However, McCloskey ruled that the home secretary unlawfully failed to comply with the second part of the order.
Government Legal Department communications in many instances were 'antithetical to the ethos of judicial review', McCloskey said in his judgment. 'They were frequently inappropriately confrontational and defensive, resonant of a (hopefully) bygone era of private litigation trench warfare. Linked to this, there is an unavoidable concern that excessive time, effort and energy have been invested in communications of this kind when the focus should more properly have been on complying with reasonable requests for disclosure of documents and kindred requests.'
The home secretary's 'entrenched practice' of failing to spontaneously disclose material documents 'has been a matter of continuing concern' to the tribunal, according to the judgment. McCloskey said it should not have been necessary to order disclosure of one particular email exchange that was so heavily redacted 'that some of them were virtually unintelligible'. Reasons behind the extensive redactions should have been pro-actively provided in a witness statement, he suggested.
The home secretary's conduct in the cases was inappropriate and 'failed to adhere to the high standards expected of government departments in judicial review litigation', McCloskey concluded. He highlighted 'dogged resistance to frequent and proactive communication and cooperation with the applicant's legal representatives and agencies, charities et al with whom they typically interact and much time has been invested in purporting to justify this'.
A spokesperson for the Home Office told the Gazette: 'We are taking the decision of the tribunal very seriously and are considering the judgment carefully.'