COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS BENCH DIVISION
MR JUSTICE MITTING
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE LAWRENCE COLLINS
| HARMIT SINGH MADAN
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Miss Lisa Giovanetti (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent
Hearing dates : 11 July 2007
Crown Copyright ©
Lord Justice Buxton :
This is the judgment of the court.
The nature of these proceedings
Mr Kapoor's article 8 claim
Although the relationship with a Ms Adams on which in part the claim is based is said to be of five years duration, the claim formulated on Mr Kapoor's behalf on 25 July 2006 made no mention of that or any other relationship, but placed the claim not on Mr Kapoor's family life but on his own private life;
a claim under article 8 was withdrawn on advice in September 2006;
Mr Kapoor stated in his application for indefinite leave to remain in November 2006 that he had lost contact with the mother of the child (not Ms Adams) on the basis of whom he now places part of his claim; and above all
that the Secretary of State regards Mr Kapoor's removal as necessary for the maintenance of proper immigration control, not least because during the period when he had exceptional leave to remain here he was convicted on seventeen occasions, including one offence of robbery, one offence of racially aggravated assault, two offences of possession of controlled drugs and three offences of assault on a police constable; and had committed a further offence after his leave to remain expired.
Country Guidance cases
How this matter came before the court
Principles to be followed
i) CPR PD 54.18 makes provision for the hearing of judicial review applications in the Administrative Court against removal from the jurisdiction. Such applications must be made promptly on the intimation of a deportation decision, and not await the actual fixing of removal arrangements.
ii) The detailed statement required by PD 18.2(c) must include a statement of all previous applications made in respect of the applicant's immigration status, and indicate how the present state of the case differs from previous applications.
iii) Counsel or solicitors attending ex parte before the judge in the Administrative Court are under professional obligations (a) to draw the judge's attention to any matter adverse to their clients' case, including in particular any previous adverse decisions; and (b) to take a full note of the judge's judgment or reasons, which should then be submitted to the judge for approval.
iv) Those contemplating thereafter applying to this court should remember that they are most unlikely to succeed unless they can identify an error of law on the part of the judge.
v) This court has no jurisdiction to entertain any application for ancillary relief, such as an injunction against removal, unless an application has been made for permission to appeal against the decision of the administrative court. Any application for injunctive relief should either (a) only be made after an application for permission to appeal has been issued; or (b), in cases of real urgency, where the court office is not open, against an undertaking to issue the application (and pay the appropriate fee) at the first opportunity.
vi) The Treasury Solicitor should be promptly informed of the intention to apply for injunctive relief, in case he is able to and wishes to attend.
vii) The applicant should put before the Lord Justice (a) the papers that were before the judge in the administrative court, including the matter referred to in sub-paragraph (ii) above; (b) counsel or solicitors' note of the reasons or judgment of the judge in the administrative court, stating whether or not it has been approved by the judge; (c) a succinct statement of the error or errors alleged to have been committed by the judge in the administrative court, general claims that the judge erred in fact or law in taking a particular view, or in his decision as a whole, not being acceptable; (d) where there has been any delay in bringing the matter before either the administrative court or the Court of Appeal, an explanation of that delay.
viii) Counsel will remember that where the application is made ex parte there is a particular obligation to draw the court's attention to relevant authority, including in particular Country Guidance cases.