England and Wales High Court (Administrative Court) Decisions

(ii) Was it necessary for the Claimant to seek leave to challenge the 1994 determination?

23. My instinctive answer to this question was "Yes". Otherwise, anyone in the position of the Claimant in this case could avoid the consequences of his inexcusable delay by putting forward matters requiring further consideration by the Secretary of State and then promptly seeking judicial review of the decision given on consideration of the new matters. To permit the original decision to be reviewed in such circumstances would wholly undermine both the policy behind, and the application of, section 31(6) of the Supreme Court Act 1981 and RSC Order 53 rule 4, which applied to these proceedings. It would result, as here, in decisions being investigated and having to be justified, and being liable to being set aside, years after they were made.

24. That my initial answer is indeed the law appears from the unreported judgments of Richards J in R v Secretary of State for the Home Department ex parte Foster (given on 13 October 1998), and of Lightman J and the Court of Appeal in R v Secretary of State for the Home Department ex parte Sheikh given respectively on 20 November 1998 and on 30 April 1999.

25. Furthermore, contrary to Miss Adedeji's submission, it makes no difference that the determination that the Claimant was an illegal entrant was a jurisdictional fact on which the decision of 27 March 2000 depended. A governmental decision is valid unless and until set aside, and is not to be treated as a nullity: see the authorities referred to in de Smith, Woolf and Jowell, Judicial Review of Administrative Action, at p 260, fn 18. In fact, both Foster and Sheikh were illegal entrant cases.

26. Furthermore, Order 53 rule 4(1) of the Rules of the Supreme Court, formerly provided:

An application for permission to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

The "grounds for the application first arose" in the present case in September 1994.

(iii) Did the leave granted extend to the challenge to the 1994 determination?

27. Given the general terms of the order on the application for leave the answer to this question must be found from the terms of the paper application before the single Judge.

28. In the Claimant's Form 86, the decision in respect of which relief was sought, which I have set out at paragraph [13] above, did not mention the determination that the applicant was an illegal entrant. In the space headed "If there has been any delay include the reasons here" the following statement appeared:

Messrs Howe and Co, solicitors to whom my file was transferred for further action applied for legal aid but got no answer. I had to seek help from the Eureka Law Centre.

This statement may have been appropriate to justify the delay after the service of the notice of removal dated 27 March 2000. It could not have referred to or sought to justify the delay since 1994.

29. Under the heading "Relief Sought" the Form referred to the Secretary of State's failure to implement the recommendation of the Special Adjudicator made in his decision of 24 September 1999, and the Secretary of State's decision in February and March 2000 to remove the Claimant. The 1994 determination was not mentioned or referred to.

30. The determination that the Claimant was an illegal entrant was referred to in paragraph 1 of the "Grounds on which relief is sought" under the heading "Legal Matrix". Even there, however, the date of the determination was not given, although the date of the interview was. The paragraphs of the form under the heading "Factual Background" referred to the service of "Illegal Entry" documents on 7 September 1994. Part C of the Grounds concerned the medical background to the application and part D referred to the Special Adjudicator's decision.

31. The "Submissions of Law" referred to the Secretary of States error in law in determining that the applicant was an illegal entrant, but again gave no date for that decision.

32. The applicant's affidavit in support of his application did refer to the service of illegal entry documents on him on the 7th of September 1994, but did not contain any facts on the basis of which it could be seen that he was challenging the determination that he was an illegal entrant. He did not depose to the facts or circumstances relating to his entry to this country in 1993 or to the facts and circumstances relating to the determination by the Secretary of State that he was an illegal entrant. He only deposed to the legality of his entry to this country by his affidavit sworn on 14 March 2001, 5 days before the hearing before me.

33. The application for judicial review in this case was an ex parte application. It is the duty of a litigant and those representing him, when making an ex-parte application to bring the full relevant facts clearly to the attention of the Court. In relation to the challenge now made to the decision made in 1994 that the applicant was an illegal entrant, his application failed to do so. It did not bring sufficiently to the attention of the Court that the Claimant was seeking to set aside a decision made by the Secretary of State in 1994. It could be, and probably was, read as being in substance an application to quash the decision made in 2000 to remove the Claimant, on the grounds of his family situation, his and his wife's ill health, and the recommendation of the Special Adjudicator; i.e., matters which arose after the 1994 determination.

34. Perhaps more basically, the relief sought did not include an order to quash the decision made in 1994 or an extension of time to apply for such an order.

35. It follows that in my judgment the leave given by the single Judge did not extend to an application to quash the determination made in 1994 that the Claimant was an illegal entrant.

36. I find support for this conclusion in the fact that it is highly unlikely that the Judge would have granted leave to apply to set aside a determination made in 1994.

37. An amendment to the Form 86 would be required if an order quashing that determination were to be made. Having regard to the delay since that determination was made, and the steps that have been taken by both the Secretary of State and the Claimant since then, and the absence of any justification for the delay, I would unhesitatingly refuse permission for such an amendment.

38. It follows that the Claimant is not entitled to any relief. However, in case I am wrong, I shall consider the remaining questions set out above.

(iv) Should the Defendant be permitted to apply to set aside the grant of leave on the ground of the Claimant's delay?

39. In the normal case, I should be extremely reluctant to grant such permission at the substantive hearing of an application. Such an application should be made promptly. At the substantive hearing, if no application to set aside the leave has been made, a Claimant is normally entitled to assume that he has an unchallenged leave to apply for judicial review. My reluctance has been fortified by the judgment of the Court of Appeal in R v Lichfield District Council and another, ex p Lichfield Securities Ltd (unreported, 8 March 2001), which came to my attention after the hearing of the present case. The Court of Appeal disapproved the investigation by a Judge (in that case, Turner J) on the substantive hearing of the issue of delay which had been argued before the Judge (Keene J) on the inter partes hearing of the application for permission to apply:

The critical question in this case, however, is at what stage or stages the prescribed tests may be applied or - importantly - reapplied. Here the Rules and the Act provide most of the answer. Regardless of whether it involves repetition of arguments on promptness already considered at the leave stage, undue delay is placed by s.31(6)(b) on the agenda at the substantive hearing. On this short ground it seems to us that, notwithstanding Keene J's finding of promptness, the related question of undue delay lay within Turner J's jurisdiction at the substantive hearing. Thus far we respectfully endorse Simon Brown J's conclusion in RSPB. But it does not follow, in our judgment, that the judge at the substantive hearing should proceed as if the issue had never previously arisen in the case, at least where it has been properly argued out between the parties at the leave stage. It is necessary to place beside Simon Brown J's example of a full divisional court being told that it is bound by a single judge's view of promptness the equally undesirable - and today more likely - situation of one judge of the Administrative Court effectively acting as a court of appeal from another, or (as happened here) deciding an issue without reference to a fellow judge's earlier decision inter partes on substantially the same question and upon the same materials. While ultimately it is a matter for the judge hearing the substantive application, we consider that the appropriate course in a situation such as arose both in RSPB and before Turner J is that the respondent should be permitted to recanvass, by way of undue delay, an issue of promptness which has been decided at the leave stage in the applicant's favour only (i) if the judge hearing the initial application has expressly so indicated, (ii) if new and relevant material is introduced on the substantive hearing, (iii) if, exceptionally, the issues as they have developed at the full hearing put a different aspect on the question of promptness, or (iv) if the first judge has plainly overlooked some relevant matter or otherwise reached a decision per incuriam. This is, today, no more than practical case management under the Civil Procedure Rules, in particular CPR 3.1(2)(k), which permits the court to exclude an issue from consideration, but more generally under CPR 1.4(2)(c) and the overriding objective set out in CPR 1.1. It also gives effect to the principle of judicial comity at first instance spelt out by Robert Goff LJ in R v Greater Manchester Coroner, ex parte Tal [1985] QB 67, 81A-C. The second judge, in addition, must have in mind the need to prevent circumvention of CPR 54.13, which provides:

"Neither the defendant nor any other person served with the claim form may apply to set aside an order giving permission to proceed."

Applying these principles to the present case, we consider that Turner J ought not to have embarked upon the issue of undue delay. Nothing in the short passage in which he dealt with it indicates any recollection that the issue of promptness had previously been considered on notice by Keene J, much less that any new material was now before him. Yet he concluded, in conflict with Keene J, that because time began running early in March 1999 and LSL then stood by for three critical weeks, undue delay had been established. For reasons which we have given, it is no more to the point that Turner J expressed his finding in terms of promptness (the leave test) than it is that Keene J did not refer in his judgment to s.31(6)(a). For practical purposes, both judges were dealing with the same issue on the same materials.

40. However, the present case differs substantially and significantly from Lichfield Securities Ltd. In this case, the Judge on the application for leave had no application to extend time, no material before him to justify an extension of time, and no sufficient reference to the 1994 determination. The issue of delay had not been canvassed before the substantive hearing.

41. Furthermore, I accept Miss Laing's submission that the case as opened by Miss Adedeji differed very substantially from the case presented by the Claimant's Form 86. Whereas the claim as set out in Form 86 focussed on matters subsequent to 1994, indeed on decisions in 1999 and 2000, the case as opened by Miss Adedeji was virtually confined to the 1994 determination. In my judgment, this transformation of the claim explains the Secretary of State's previous failure to apply (doubtless bearing in mind the guidance given by the House of Lords in ex parte A) and justifies Miss Laing's late application. It, and the fact that the relevant delay was not considered by the Judge at the leave stage, also distinguish the present case from ex parte A.

42. I should therefore have granted permission to the Secretary of State to apply to set aside the leave granted by the single Judge to challenge the 1994 determination, if I had held that such leave had been granted.

43. I shall consider questions (v) and (vi) together.

(v) Should the grant of leave be set aside?

(vi) Should relief be refused in the exercise of the Court's discretion under section 31(6) of the Supreme Court Act 1981, on the basis that it would be detrimental to good administration to grant relief?

44. The Claimant's delay is relevant at two stages: on the application for leave and the substantive decision to grant or withhold relief, by reason of the combined effect of section 31(6) of the SCA 1981 and RSC O 53 r 4, which applied to these proceedings. However, whereas RSC Order 53 rule 4(1) placed the onus on the Claimant to establish "good reason for extending the period within which the application shall be made", section 31(6) places the onus on the Defendant to establish relevant hardship, prejudice or detriment to good administration.

45. As I mentioned above, Miss Adedeji submitted that the Claimant's application for judicial review related to the Secretary of State's decision on 3 February 2000 and the notice of removal dated 27 March 2000, and that therefore there had been no delay on his part. That is so in so far as the Claimant relies on matters such as his or his family's then state of health, which could have given rise to a claim that the Secretary of State had failed to consider a material fact when making those decisions. But it cannot be so in relation to the challenge to the determination made in 1994 that the Claimant was an illegal entrant. The challenge to that decision would be over 5 years late.

46. No grounds have been shown for extending the time for applying to quash the 1994 determination that the Claimant was an illegal entrant so as to permit him to apply in 2000.

47. So far as section 31(6) is concerned, Miss Adedeji submitted that the only ground for refusing leave or relief under that section was detriment to good administration, and there was no evidence of any. Miss Laing submitted that after delay as long as that in this case detriment could and should be presumed.

48. Good administration requires that decisions be made speedily, and if challenged, challenged promptly. Government and citizen must be able to rely on the validity of governmental actions that have not been challenged. Furthermore, it necessarily becomes more difficult to investigate government action as time passes. Records may be lost or destroyed; civil servants and other staff move employment; memories fade. In this case, as the chronology set out above shows, step after step was taken by the Secretary of State and, it seems to me, by the Claimant on the basis that the determination of the Claimant as an illegal entrant was valid. In addition, the British High Commission in Lagos destroys its records after 5 years. In 1994, the High Commission informed the Immigration Service in Croydon that it was unable to trace the Claimant's file without either the date of issue of his alleged visitor's visa or its vignette number. However, as at the date of his application for judicial review, the Secretary of State would have been unable to check whether there was a file for his alleged visa application at Lagos even if he decided to have every visa application in 1993 checked for the purpose.