England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(UPPER TRIBUNAL JUDGE JORDAN)

		Royal Courts of Justice Strand London, WC2A 2LL
		5 September 2014

1. LORD JUSTICE PATTEN: I will ask Underhill LJ to give the first judgment.
2. LORD JUSTICE UNDERHILL: The application which is before us has come on very short notice. One consequence of this is that there has been no appearance from the respondent, the Home Secretary. The Treasury Solicitor was notified of this application earlier today but has not been able at such short notice to obtain counsel to appear. Another consequence is that we have had only a short time to consider the papers before the hearing; and this judgment will itself be correspondingly short and confined to essentials.
3. The background can be sufficiently summarised as follows.
4. The applicant is a Cuban citizen who in, I think, the year 2000 was sentenced by a court in Miami to 15 years' imprisonment. There is a strong body of opinion that his conviction, and that of four other defendants convicted at the same time, was a miscarriage of justice; and the case of the "Miami 5" is of some notoriety and has been the subject of a report by Amnesty International. The applicant is so far the only one of the Miami 5 to have been released.
5. The applicant was on 7 July of this year invited by a group of Members of Parliament interested in his case, and those of the co-defendants, to come to London next week to attend a series of meetings on that subject. I should say that the meetings are not, strictly speaking, meetings of any organ of Parliament itself; but they have, as I have said, been arranged by a group of MPs and it is proposed that they will take place in the Palace of Westminster.
6. In order to comply with that invitation the applicant applied to the entry clearance officer in Havana for leave to enter. His application was made on 14 August. On 27 August the entry clearance officer refused leave. He made his decision primarily on the basis of paragraph 320(2)(b) of the Immigration Rules, which states that entry clearance should be refused in the case of a person who has been convicted of an offence for which he has been sentenced to a period of imprisonment of at least 4 years. There appears, however, notwithstanding that paragraph, although it is not necessary to give the details at this stage, to be provision in the rules for entry clearance to be granted exceptionally. The officer purported to give consideration to that aspect, but he found that the circumstances relied on by the applicant did not constitute a sufficient reason for departing from the principal rule.
7. The applicant then applied for judicial review of the decision of the entry clearance officer. He also sought an interim order in the following terms:

(i)Quashing the decision of 27 August 2014.

(ii) Compelling the British High Commission in Cuba to grant a visa to the applicant forthwith so that he can attend the planned meetings and discussions with Members of the Houses of Parliament from the week starting Monday, 9 September 2014.

(iii)

(7) The defendant use her best endeavours to facilitate the admission of the claimant to the UK to attend the meetings at the Houses of Parliament."

8. It was made clear in the application that the decision of the entry clearance officer had only become known to the applicant on 31 August, which was last Sunday.
9. That application fell within the jurisdiction of the Upper Tribunal. On 3 September Upper Tribunal Judge Kekic refused permission to apply for judicial review and also therefore refused the application for interim relief. I need not set out his reasons. The applicant then sought an oral hearing, which took place the following day before Upper Tribunal Judge Jordan, but the outcome was the same. Again I do not propose to attempt to summarise the judge's reasons. He also refused permission to appeal to this court.
10. That was yesterday. Late this morning the applicant lodged an appellant's notice, including an application for interim relief in the same terms as those which had been sought from the Upper Tribunal.
11. That application was listed as a matter of great urgency before us this afternoon. Mr Mark McDonald of counsel appears for the applicant. I am grateful for his succinct submissions. What essentially he seeks is the interim relief which I have set out. There is of course also an application for permission to appeal which will require at some point to be disposed of, but the only urgent matter is the application for interim relief. I do not believe that it would be right for us to grant that relief. My reasons are as follows.
12. In substance, despite the interim label, what the applicant seeks is a final mandatory order to grant him a visa. I see two serious difficulties about that application. The first is that an order in such a form is, in my experience at least, unprecedented. Normally relief in a case of this kind would take the form of a direction to the proper decision taker to re-take their decision on the basis of the law as the court has made clear that it should be. Secondly, even if it were right to make an order in the form sought in some, albeit exceptional, circumstances there seems to me to be a grave difficulty here about doing so on a few hours' notice in circumstances where there has been no opportunity for the issues to be fully considered, or - crucially - for the respondent's submissions to be obtained.
13. Mr McDonald sought to overcome the first difficulty by inviting us to make an order for reconsideration on the basis that the entry clearance officer could be expected to re-take the decision on Monday and that if, as in those circumstances he would hope, the decision were to grant a visa, the claimant could still fly to this country on Tuesday in time for meetings in the second half of the week.
14. There may be grave practical difficulties about such a course, but even if it were possible it does not address the second difficulty, about which I can say little more. I would not be prepared to make an order on a matter of this importance without proper time for consideration and a proper opportunity, as I have already said, for the Secretary of State to put in her own submissions or indeed, if it were appropriate, evidence. I would only be prepared to take that course if the claim were both obviously well-founded - that is, so obviously well-founded that there was no realistic prospect that the Secretary of State could say anything to persuade us to the contrary - and if there was some overriding injustice which would be done if the order were not made now.
15. So far as the first is concerned, we have not invited full submissions from Mr McDonald on the substance of his case that the decision of the entry clearance officer was wrong in law, though of course we have his helpful written submissions. It is clear from the limited discussion that has taken place in this court that the issue is not, on any view, straightforward.
16. As to the latter point, I cannot accept that there is here any such grave injustice that the basics of due process can be dispensed with. In the first place it is not essential for the purpose of the meetings in question that the applicant should be physically present. It is accepted that he could attend by video link or Skype or the like. Evidence has been lodged as to why that would be unsatisfactory, and I do see the force of that evidence. Nevertheless, it remains the case that the meetings would be possible, albeit in a substantially less satisfactory form. In any event, if this were thought the better course then they could be rescheduled. Mr McDonald accepted that it would be possible to refix them as early as October, though of course it would be no doubt slightly easier if it were later. That too, I fully accept, is undesirable. Rescheduling the diaries of busy public servants is wasteful and disruptive. Other participants have been notified and have no doubt planned to attend, and such influence as the outcome of the meetings might be hoped to have - that is, in helping to secure the release of the others who are still in prison - would be postponed. All of that is, I repeat, regrettable, and I would so far as possible wish to facilitate the important work of Members of Parliament. However, for the reasons given it seems to me there is an imperative interest of justice here in not taking an important decision in the rushed manner in which we are invited to do, without the participation of the respondent.
17. I would also add, although this is not central to my reasoning, that it does seem to me that the urgency in this case could have been lessened or perhaps avoided altogether if things had been handled differently. The applicant had made a similar application for entry clearance in January 2014 which had been refused on the same grounds. It was accordingly known long before he made the present application that there were likely to be difficulties of the kind which have eventuated. It is not clear to me why the application could not have been made some weeks sooner than it in fact was, in which case matters might have come to a head in a way which would have enabled this issue to be resolved in good time.
18. For those reasons I would refuse the interim relief sought. As regards the application for permission, on my very provisional reading of the papers (and I should emphasise that there has not been an opportunity for full consideration or submissions) I do find difficulty with the analysis of the Upper Tribunal, and in particular of Judge Jordan. It may also be, though I put it no higher, that there are problems with the reasoning of the entry clearance officer, or at least with its adequacy. It seems to me that the appropriate course at this stage is to direct that the respondent lodge, within 14 days, written submissions in response to the application for permission to appeal. That is not the usual course, but it seems to me appropriate in a case where exceptionally, because of the course taken below, there have been no summary grounds of opposition to the primary application for judicial review.
19. That will mean that the case will be in a fit state for consideration by a judge on the papers by the end of the month. The single judge dealing with the application can make such directions as he thinks appropriate in relation to urgency, but that will not of course be in time to secure the claimant's attendance at the meetings planned for next week, but it might mean that the meetings could be refixed sooner than would otherwise be the case. The Lord Justice, however, would be unlikely to make such directions unless they are expressly sought and reasons for them given.
20. No other order seems to me to be appropriate at this stage.
21. LORD JUSTICE BEATSON: I agree. I would add only that it is, in my judgment, desirable, in the light of the history and the previous unsuccessful application, for this applicant to seek to have the position under rule 320(2) of the Immigration Rules clarified if he wishes to assist those in this country who wish to pursue the cases of those still imprisoned.
22. LORD JUSTICE PATTEN: I agree with both judgments.