QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| R(Q) v Secretary of State for the Home Department
|R(D) v Secretary of State for the Home Department
|R(J) v Secretary of State for the Home Department
|R(M) v Secretary of State for the Home Department
|R(F) v Secretary of State for the Home Department
|R(B) v Secretary of State for the Home Department
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(1)(instructed by Ben Hoare Bell, Solicitors) for the Claimants "J" & "F"
(2) (instructed by The Refugee Legal Centre) for Claimant "M".
Mr Keir Starmer Q.C. & Mr Stephen Knafler
(instructed by Clore & Co, Solicitors) for the Claimants "D" & "B"
Mr Ben Hawkins (instructed by Ashgar & Co, Solicitors) for the Claimant "Q".
Mr Neil Garnham Q.C. & Mr Clive Lewis & Ms Samantha Broadfoot
(instructed by the Treasury Solicitor) for the Defendant
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Mr Justice Collins:
Section 95(2) provided:-
"In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded".
Destitution is defined in s.95(3) as follows:-
"… a person is destitute if –
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs."
Prior to the coming into force of the 1999 Act adult asylum seekers without children had been able to obtain support by being given accommodation if they would otherwise be destitute by virtue of s.21 of the National Assistance Act 1948. This resulted from the decision of the Court of Appeal upholding a decision of mine in R v Westminster City council ex p. M and Others (1997) 1 CCLR 85. Section 116 of the 1999 Act amended s.21 of the 1948 Act by adding a subsection (1A) which reads:-
"A person [subject to immigration control (which includes asylum seekers)] may not be provided with residential accommodation under subsection 1(a) if his need for care and attention has arisen solely –
(a) because he is destitute, or
(b) because of the physical effects, or anticipated physical effects, of being destitute".
Such persons would in future be subject to the regime set up by s.95 of the 1999 Act.
"Late claim for asylum: refusal of support
(1) The Secretary of State may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (2) if –
(a) the person makes a claim for asylum which is recorded by the Secretary of State, and
(b) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.
(2) The provisions are –
(a) sections 4, 95 and 98 of the Immigration & Asylum Act 1999 (c.33)(support for asylum-seeker &c), and
(b) sections 17 and 24 of this Act (accommodation centre).
(3) An authority may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (4) if –
(a) the person has made a claim for asylum, and
(b) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.
(4) The provisions are –
(a) section 29(1)(b) of the Housing (Scotland) Act 1987 (c.26)(accommodation pending review),
(b) section 188(3) or 204(4) of the Housing Act 1996 (c.52)(accommodation pending review or appeal), and
(c) section 2 of the Local Government Act 2000 (c.22)(promotion of well-being).
(5) This section shall not prevent –
(a) the exercise of a power by the Secretary of State to the extent necessary for the purpose of avoiding a breach of a person's Convention rights (within the meaning of the Human Rights Act 1998),
(b) the provision of support under section 95 of the Immigration & Asylum Act 1999 (c.33) or section 17 of this Act in accordance with section 122 of that Act (children), or
(c) the provision of support under section 98 of the Immigration & Asylum Act 1999 or section 24 of this Act (provisional support) to a person under the age of 18 and the household of which he forms part.
(9) For the purposes of this section "claim for asylum" has the same meaning as in section 18.
(10) A decision of the Secretary of State that this section prevents him from providing or arranging for the provision of support to a person is not a decision that the person does not qualify for support for the purpose of section 103 of the Immigration & Asylum Act 1999 (appeals).
Claim for asylum bears the same meaning as in s.94 of the 1999 Act.
Section 55 (10) provides that an adverse decision under s.55 is not appealable under s.103 of the 1999 Act. That section enables an appeal to be brought to an asylum support adjudicator if, in on application for support under s.95, "the Secretary of State decides that the applicant does not qualify for support under that section". S.103(3) provides:-
"On an appeal under this section, the adjudicator may –
(a) require the Secretary of State to reconsider the matter;
(b) substitute his decision for the decision appealed against; or
(c) dismiss the appeal".
The adjudicator is thus able to reconsider the facts and to reach his own decision on the application. I was informed that statistics showed that some 40% of appeals have been allowed, a figure relied on by Mr. Starmer Q.C. in submitting that there must be real concern at the standard of decision-making by NASS. Safeguards to ensure fairness are therefore needed.
"[T]he presumption of support for those who apply for asylum in this country, outside of airports or ports, unless they give a truthful and credible account of their circumstances and how they arrived here, and demonstrate that they are claiming asylum at the earliest opportunity (exceptions to this would be families with children, those with special needs or those whose home country situation had changed significantly since they came to the United Kingdom)".
Later on, in explaining why this policy was being adopted, it is said:-
"We will provide support if people can give a credible account of their circumstances – Claimants for all other benefits are expected to do the same, and there is not reason why asylum seekers should not do the same. We expect Claimants to be straight with us about who they are and how they got here.
It is wholly reasonable to expect (except in exceptional cases) that if an individual is genuinely fleeing persecution they ask for protection as soon as they arrive in this country. If they wait weeks or even months to do so it casts doubt on the credibility of their claim and we expect them to counter that with a credible account".
"..ends the presumption of support for those who apply for asylum in-country unless they give a truthful and credible account of their circumstances and how they arrived here and can therefore demonstrate that they are claiming asylum at the earliest opportunity". (See Hansard (Lords) 17 October 2002 Column 978).
At Column 1002, in answering a number of points raised in the debates on the amendment, the Minister accepted that anyone who could make a reasonably persuasive case that he did not know of the requirement to claim as soon as reasonably practicable would 'clearly not be caught by the provision'. He also said:-
"If [asylum seekers] are delayed in [claiming asylum and support] it will be open to them to provide full and complete information explaining why. If that explanation is credible, we shall accept it".
"The European Court has set a very high threshold for breaches of Article 3. The fact that a person is destitute does not inevitably mean that there is a breach of Article 3. the European court has held that homelessness does not necessarily reach the Article 3 threshold".
Submissions to much the same effect were made and developed by Mr. Garnham. The lack of appeal was said to be justifiable because:-
"An appeal to the asylum support adjudicators would be inappropriate since they have no expertise on the issue of whether the asylum claim was made as soon as reasonably practicable. If it is claimed the Secretary of State is adopting an unreasonable stance whether a claim is late then he can be judicially reviewed in the usual way".
Not surprisingly, Mr Garnham does not place reliance on the first sentence of the extract cited.
"The question is how reasonable we are regarding people who come here but do not claim asylum at the port of entry. We need to be reasonable and to take into account the trauma that people experience. We need therefore to allow a reasonable period before we presume that people have come into the country for another reason and have been sustaining themselves, and that when they could no longer do so they decided that the asylum system would sustain them, being more generous than the equivalent something-for-something welfare to work system.
We are saying to people, "If you have been here some time, by all means tell us how you got here, what your circumstances are, the means of entry and what you have been doing since you reached this country and we will provide you with support". That is what our proposals provide, and I think that that is reasonable. People with families will be sustained and those with special needs will be supported. That is in the proposal. People who have been in this country for some time and have decided to claim asylum can continue with that claim, but there is no reason on God's earth why we should sustain them. We should remember that those who choose to take part in the dispersal system receive not only sustenance, such as food and heating, but accommodation, equipment and other materials. As we do not automatically do the same for the indigenous population, it is not a lot to ask that we put these people on equal terms".
"From that date [8 January 2003], if an applicant for support from the National Asylum Support Service (NASS) makes an asylum claim immediately on arrival at the port then support will be granted provided the other criteria for support are fulfilled. If the person fails, without good reason, to make an asylum claim immediately at the port of arrival then support will be refused unless one of the exceptions applies …
But apart from these exceptions, we expect all single asylum seekers or couples without children who wish to claim asylum and who want NASS support to make an immediate application for asylum at the port of arrival. It will not be acceptable for an asylum seeker wanting NASS support to postpone making an asylum claim unless there is a very good reason for doing so. And even if there is a good reason for not claiming asylum immediately on arrival at the port, the person must claim asylum as soon as possible thereafter.
The Secretary of State is prohibited by statute from providing support unless he is satisfied that the person claiming support has made the asylum claim as soon as reasonably practicable after arrival in the United Kingdom. In most cases, for those not within the exceptions, that will mean claiming asylum immediately on arrival at the port".
"… In practice, if an applicant makes a claim immediately on arrival at the port then they will be able to access asylum support, provided they otherwise qualify. If the person fails, without good reason, to make an asylum claim immediately at the port of arrival then the expectation is that support will be refused".
There are other qualifications which relate to families with dependent children, those under 18 and breaches of human rights. It is said that the burden of proof is on the applicant to show that it was not reasonably practicable to have made his claim sooner. It is said that each case must be considered on its own merits 'taking into account the information provided by the applicant and that person's circumstances'. Examples are then given. Each example of a correct refusal is based on a claim made and known to have been made a significant time (the least being one week) after arrival in the United Kingdom. They are of course only examples, but it is interesting to note that they do not, as we shall see, cover the circumstances of any of the claims before me. In relation to human rights, the guidance requires vigilance to spot any health problems or pregnant women. Whether a Claimant is under 18 should be decided on physical appearance. If the decision is adverse, it is the practice of the Home Office to refer the matter to the local authority social services department to investigate. If that investigation shows the Claimant to be under 18, support from the local authority under the Children Act will be provided. In the meantime, the Claimant has nothing.
"If those arriving at ports know they must apply for asylum at the port than it will deter facilitators from bringing asylum seekers to the U. K. and thereby significantly reduce the incidence of this serious offence".
Whether that is well founded is not for me to decide. But it is a significant belief since, as will become apparent when I set out the practice of NASS and the circumstances of the claims, refusal of port arrivals has been on the basis that the claim could and should have been made at the port and that obedience to facilitators' instructions is no excuse.
"You have claimed asylum in the United Kingdom. The questions I am about to ask you relate to identity, status and travel route. At this stage you will NOT be asked to give details about your asylum claim, you will be provided with an opportunity to do this at a later date. I will write down what you tell me and this form will then be passed to officers in the Asylum Directorate of the Home Office. This form will also be passed to officers in the National Asylum Support Service (NASS) if you are a person to whom Section 55 of the Nationality, Immigration and Asylum Act 2002 applies, so that a decision can be made on whether or not you are eligible to be considered for NASS support. NASS officers may also request to interview you in respect of the information you have supplied on this form. You will not have to leave the United Kingdom while your case is under consideration. It is possible that the United Kingdom may not be the state responsible for considering your asylum application. If this is the case, you will be informed of any applications and decisions to transfer your case to another country. Information you give us, including biometrics data such as fingerprints, will be held in confidence, but may be disclosed to other government departments and agencies, local authorities, law enforcement bodies and international organisations and asylum authorities to enable them to carry out their functions. Information may be used for documentation purposes in the event of your application being refused".
There are then a number of printed questions with spaces for answers. The initial ones are concerned with personal and family details. There then comes a request to state the current address in the United Kingdom followed by a number of questions asking how and when he arrived, how he travelled to the interview, why there was a delay (if there was any) and what evidence can be produced to support his account of when and how he arrived. There are then questions about means. There then follow some questions asking what happened at the port or, if the arrival was in the back of a lorry, what was it carrying, what type was it and how long he was in it. More details of documentation are also requested. Because of the pressure of work at Croydon, an abbreviated form was provided which omitted the questions about documentation. On 17 January 2003 a new form was substituted. It does not apply to the initial decisions in the claims before me but there has been a fresh interview in some in which it was used. The only difference of significance is in the introduction which now includes these sentences:-
"It is VITAL that all relevant information you possess in connection with when, how and where you arrived in the UK, and how you travelled here today is given to us today even if you are not directly asked a question about it. Otherwise you may be refused support on the basis that you have given inadequate information to satisfy the Secretary of State that you made your asylum claim as soon as practicable after arrival in the UK. Do you understand? (Record answer).
J is a 26 year old man who comes from Iran. He arrived in the United Kingdom in the back of a lorry on 7 January 2003. He had fled Iran because he was being persecuted for having converted to Christianity. He was dropped off between 1 and 2p.m. in, he was told, London. He did not know what to do and spoke no English. Eventually by chance he came across an Iranian who lived in Newcastle but was visiting London for the day. This man, whom he named, took him to Newcastle, allowed him to stay with him overnight and gave him £40 in exchange for all the money J had on him, namely $50. J was taken by the man on 8 January to what transpired to be a solicitor's office. He was told to go to North Shields Immigration Office and given a letter explaining he wished to claim asylum. He went there on 8 January and was interviewed. He explained, according to the notes on the form, that he had not applied at port because:-
"I did not know what to do and the weather was very cold, I just wanted to go somewhere warm. K [the Iranian] said OK come to Newcastle and then go to the police tomorrow."
He had no money or valuables and no address in the United Kingdom. He described the lorry and its cargo somewhat vaguely and said the journey had been about 15 days.
"In particular, you claim to have met a solicitor within a very short time of coming in the UK. You also claim to have been too cold to do anything in connection with your claim for asylum. None of this seems credible. The Secretary of State is not therefore satisfied that you have provided an adequate explanation of when and how you arrived then in the UK. If you can produce credible evidence of those matters, or credible details of where, when and how you arrived, the Secretary of State will consider your case further …"
It also said that the Secretary of State was not satisfied that there were any circumstances which would exempt him from s.55: that presumably is a reference to s.55(5).
"[T]he Secretary of State is not satisfied that you could not have claimed asylum at the airport, mainly because (as you claim) your agent told you not to do so. Assuming you arrived at an airport as you claim, you could and should have claimed asylum there".
There then follows the standard paragraph which is intended to deal with s.55(5).
"… if you arrived in the UK by car (sic), you could have claimed asylum at the airport on your arrival. You said at the interview that the person you came with was calling the names off a paper to walk through immigration and you did not claim there. However, the Secretary of State does not consider this to be a satisfactory explanation for why you did not claim at the airport."
After the standard s.55(5) paragraph, the letter concludes with an encouragement to make further representations if any evidence can be provided to satisfy the Secretary of State that she 'did not have the opportunity to asylum at the port'."
"… you have provided an explanation of hour (sic) you arrived in the United Kingdom. However you have provided no evidence to substantiate this explanation and the Secretary of State cannot be satisfied that you arrived in the way and the time you claimed asylum as soon as reasonably practicable after your arrival."
The grammar may be curious but the meaning is apparent. The reasons are jejune in the extreme and in any event it is difficult to follow what evidence could reasonably be expected to be provided to substantiate the account given. It is hardly surprising that the intervention of the Claimant's solicitor led to a further interview and a reconsideration.
"You had the opportunity to claim asylum at the airport but you failed to do so. The Secretary of State accepts your account that you are suffering a degree of trauma in connection with things that have happened to you and your family as explained by you during your interviews. The Secretary of State accepts therefore that, if he could be satisfied that you arrived in the U.K. on the date and by the means you claim than it was reasonable in your case not to claim asylum at the airport and to make the claim as soon as possible in-country instead.
However, the Secretary of State remains very perplexed by your account of how you arrived in the U.K. At interview you admitted that your documents had been shown to an official at the airport, but you said that you had not spoken to the official yourself as you had been standing behind the agent with whom you had travelled. The Secretary of State does not find this account credible. It would not have been possible for you to pass through immigration controls on entry to the United Kingdom without showing your passport and without speaking to officials yourself. In addition, it would not have been possible for you to board an aeroplane in the country where you say you changed planes without showing your passport. In addition, when you were interviewed, you did not provide any information about the airline you came on or any other flight details, and you said you did not know what country you had stopped in to change planes on your way from Congo to the United Kingdom. All this seems difficult to believe.
Finally, you have not provided any materials or documentation to support your claim to have arrived in the United Kingdom on 8 January 2003.
Having regard to all the above, the Secretary of State cannot be satisfied that you arrived in the way and at the time you claimed, and, therefore, that have made your asylum claim as soon as reasonably practicable after your arrival in the United Kingdom. He must be satisfied of the date and means of arrival in the U.K. before he can be satisfied that an asylum claim has been made as soon as reasonably practicable. He is not so satisfied. He therefore does not have the power to grant you asylum support.
The Secretary of State is not satisfied that there are any circumstances in your case that would exempt you from section 55. You may not, therefore, be provided with support under sections 4, 95 and 98 of the 1999 Act.
There is no right of appeal to an Asylum Support Adjudicator against this decision.
Whilst you do not qualify for support from the National Asylum Support Service because the Secretary of State is not satisfied that you claimed asylum as soon as reasonably practicable after your arrival in the United Kingdom, it appears, because of what you have told us about your state of health, that you may have care needs. If you have care needs, you might qualify for support from your local authority. Therefore we would suggest that you contact them to seek support.
In the meantime, it is always open to you to attend your local hospital for treatment".
The last two paragraphs are said to have been intended to point him to the local authority on the basis that he might get some support under s.21 of the 1948 Act because he was not destitute only by reason of the refusal to provide support. Illness might be an added factor: see R(Westminster CC) v NASS  1 WLR 2956.
"The need to operate efficient, streamlined, intelligence-led port control procedures to facilitate entry to the U.K. of almost 90 million arriving passengers each year (of whom 12.2 million were non-EEA nationals subject to immigration control) meant that if the immigration service had to examine all passengers with the same degree of scrutiny there would inevitably be extensive delays at U.K. ports of entry".
He went on the explain that there was therefore considered to be a need to target nationals from particular countries where there was information that travel documents were being abused or there were concerted attempts to avoid controls. He noted:-
"During 2001, the Immigration Service detected more than 6,601 attempts by a wide variety of groups and individuals to enter the U.K. using forged or counterfeit travel documents or visas".
"You had the opportunity to claim asylum at the airport but you failed to do so. The Secretary of State is not satisfied by your account of an agent dealing directly with the Immigration Officer. The Secretary of State does not consider this to be an adequate reason for not claiming asylum at the airport. The importance of claiming asylum at the airport of entry in the U.K. is well advertised and generally understood".
It was said that Hillingdon's age assessment was accepted and that, if she wanted to maintain that she was under 18, she could apply to a local authority for support under the Children Act "although this is unlikely given Hillingdon's determination of your age".
"Although the statute does not require the Secretary of State to inform all would be asylum seekers of the change in the law, large posters in many different languages have in fact been placed at all departure points for the U.K. and arrival area in the U.K., making clear what is expected of asylum seekers".
However, to say that the requirement is well advertised and generally known goes too far. Furthermore, the letter did not make clear whether her account of how she obtained entry was accepted or not.
"You have not provided any further evidence to substantiated your account of your journey to the United Kingdom by air and how and when you arrived. We have enquired about the flights to Heathrow terminal 3 from Addis Ababa [via Rome on that day and Ethiopian Airlines have informed us that there is no record of anyone in the names of 'E' or 'B' having been on the flight, depute your assertion that the passport you travelled under was in the name E. You have therefore failed to satisfy the Secretary of State that you arrived on the date you claim, 10 January 2003.
Furthermore, you say you travelled on an Ethiopian passport. To gain entry to the U.K. in those circumstances, you would need to have entry clearance. We have enquired with the Vice-Consul in Addis Ababa and have been informed that no entry clearance has been granted to someone of your name. Had you presented at Heathrow, as a visa national, with no entry clearance stamp in your passport you would have not been admitted. The Secretary of State cannot accept your account of the circumstances of your arrival.
The Secretary of State cannot therefore be satisfied that you claimed asylum as soon as reasonably practicable after your arrival in the United Kingdom
Even if the Secretary of State were satisfied that you arrived on the date you claim, he does not consider the fact that Abdullah spoke for you to be an adequate explanation for not claiming asylum when you passed through immigration Control".
"On the basis of the lack of detail in your response to the questions which has (sic) been put to you in connection with your journey to the U.K. and when and how you arrived in the U.K. and then travelled to Croydon, the Secretary of State cannot be satisfied that you arrived on the dates you claim or therefore, that you have made your asylum claim as soon as reasonably practicable after your arrival in the U.K.".
Since the Claimant was not asked any questions of the sort referred to in the refusal letter, it is not surprising that an offer to reconsider following a further interview was made. Unfortunately, the solicitors representing the Claimant gave him very bad advice and declined a further interview on the ground that he had made a statement giving extra information. This led to a further refusal on 6 February.
"…that he did not know that a foreigner had a right to be maintained in any place to which he came; but that they might let him starve".
Lord Ellenborough CJ (hardly one of the most liberal of judges) stated:-
"We owe it to the memory of Lord C.J. Holt to believe that he never uttered such a sentiment",
In his judgment, in which the rest of the court (Le Blanc and Lawrence JJ) concurred, Lord Ellenborough said:-
"As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving".
"No one could dispute the desirability of these aims. There is, however, a problem. A significant number of genuine asylum seekers now find themselves faced with a bleak choice: whether to remain here destitute and homeless until their claims are finally determined or whether instead to abandon their claims and return to face the very persecution they have fled".
Simon Brown LJ concluded his judgment (with which Waite LJ agreed) with these words (at p.293):-
"It is not for this court to indicate how best to achieve this consistency with the Secretary of State's legitimate aim of deterring unmeritorious claims. I content myself merely with noting that many European countries, so we are told, provide benefits in kind by way of refugee hostels and meal vouchers; that urgent needs payments could be made at a significantly lower rate than the 90 per cent rate hitherto paid; and that certain categories of claim (perhaps, as suggested, in country claims brought more than four or six weeks post-arrival) could be processed under the "without foundation procedure". All that will doubtless be for consideration. For the purposes of this appeal, however, it suffices to say that I for my part regard the Regulations now in force as so uncompromisingly draconian in effect that they must indeed be held ultra vires. I would found my decision not on the narrow ground of constructive refoulement envisaged by the UNHCR and rejected by the Divisional Court, but rather on the wider ground that rights necessarily implicit in the Act of 1993 are now inevitably being overborne. Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain themselves as best they can but in a state of utter destitution. Primary legislation alone could in my judgment achieve that sorry state of affairs".
"… Parliament acted as it did in the belief that the result would be totally to deprive asylum seekers of access to public assistance of any sort so that, unless they could find charitable persons or bodies who were prepared to help, they would indeed be destitute and face the intolerable dilemma referred to Simon Brown LJ".
Mr. Beloff accordingly submitted that:-
"to allow these applications would be to frustrate the will of Parliament which has been so clearly and unequivocally set out in the 1996 Act".
I decided that if Parliament had really intended to cut off all means of support, it should have said so in terms. Only thus would it disapply the law of humanity expounded by Lord Ellenborough C.J. My decision was upheld by the Court of Appeal ( 1 CCLR 85). But it was made clear that s.21 did not apply except as a last resort for the truly destitute. Lord Woolf, M.R., said (p.95A-D):-
"Asylum seekers are not entitled merely because they lack money and accommodation to claim they automatically qualify under section 21(1)(a). What they are entitled to claim (and this is the result of the 1996 Act) is that they can as a result of their predicament after they arrive in this country reach a state where they qualify under the subsection because of the effect upon them of the problems under which they are labouring. In addition to the lack of food and accommodation is to be added their inability to speak the language, their ignorance of this country and the fact they have been subject to the stress of coming to this country in circumstances which at least involve their contending to be refugees. Inevitably the combined effect of these factors with the passage of time will produce one or more of the conditions specifically referred to in section 21(1)(a). It is for the authority to decide whether they qualify. In making their decision, they can bear in mind the wide terms of the Direction to which reference has already been made, as contrary to Mr. Beloff's submission the direction is not ultra vires and gives a useful introduction to the application of the subsection. In particular the authorities can anticipate the deterioration which would otherwise take place in the asylum seekers condition by providing assistance under the section. They do not need to wait until the health of the asylum seeker has been damaged".
"The Court recalls that in order to fall within the scope of Article 3, mistreatment must attain a minimum level of severity (see Ireland v United Kingdom 18.1.78). The Court does not consider that the applicant's suffering following his eviction attained the requisite level of severity to engage Article 3".
"The Court accepts the seriousness of the applicant's medical condition. Having regard however to the high threshold set out by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of Article 3. It does not disclose the exceptional circumstances of the D case [D v United Kingdom (1997) 24 E.H.R.R.423] where the applicant was in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts".
"I find the question whether a failure to support destitute asylum seekers constitutes a violation of Article 3 a difficult one. I do not think it is necessary for me to answer it and I do not propose to do so. The question in the present case is whether the withdrawal of support from destitute asylum seekers, who by definition lack the means of obtaining adequate accommodation or cannot meet their essential living needs, in consequence of their misconduct, may constitute inhuman punishment or treatment and so violate Article 3. The judgment of the Court of Appeal in the JCWI case indicates that other means of support principally by charities, are scarce. In my judgment, unless other means of support are available when support is withdrawn, there will be a violation of Article 3".
1. "Everyone has the right to respect for his private … life.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
In Bensaid at paragraphs 46 and 47 (pp 219 –220) the ECtHR said this:-
"46. Not every act or measure which adversely affects moral or physical integrity will interfere with the respect to private life guaranteed by Article 8. However, the Court's case does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity.
"47.Private life is a broad term not susceptible to exhaustive definition … Mental health must .. be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life".
The Court went on to decide there had been no breach because the risk of damage was speculative and it had not been established that the applicant's moral integrity would be substantially affected to a degree falling within the scope of Article 8.
"The Court must first examine whether the applicant's rights under Article 8 were violated on account of the decision of the authorities to evict him despite his medical condition. It further has to examine whether the applicant's rights were violated on account of the authorities' alleged failure to provide him with adequate accommodation. The Court considers that, although Article 8 does not guarantee the right to have one's housing problem solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a serious disease might in certain circumstances raise an issue under Article 8 … because of the impact of such refusal on the private life of the individual. The Court recalls in this respect that, while the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, this provision does not merely compel the state to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private life. A state has obligations of this type where there is a direct and immediate link between the measures sought by an applicant and the latter's private life".
"[T]he Administrative Court was able to review the facts of the case in that it could examine inter alia whether they had been incorrectly or incompletely established by the Provincial Government. While the purpose of the review was to determine any procedural defects leading to the unlawfulness of the decision, section 42(2)(3) of the Administrative Court Act did not restrict the Administrative Court in its power to review the facts. In particular, this provision sets no limits in respect of the assessment and supplementation of the facts".
Then in paragraph 73, it was stated that the Administrative Court had explained that it could 'take evidence … in order to control the assessment of evidence'.
"In any case, the gap between judicial review and a full right of appeal is seldom in practice very wide; even with the latter it is not easy for an appellate tribunal which has not itself seen the witnesses to differ from the decision-maker on questions of primary fact and, more especially relevant here, on questions of credibility".
But it is to be noted that the system in operation provided for a review of the initial decision by a reviewing officer who so far as possible (although not an independent tribunal) was impartial. There were thus built in safeguards which do not apply here.
MR JUSTICE COLLINS: Thank you all for the notification of the various typos that occurred in the draft and one or two more substantive suggestions. As you will see I have taken most of those on board, but not every single one. You have all had advanced copies of the judgment and essentially, as you know, I have found in favour of the claimants and certainly in relation to the decisions that were, in fact, under attack that in insofar as they have not been reconsidered, that they must be quashed and reconsidered. That is the relatively straightforward part of the exercise. Mr Hawkins, what has happened to Q?
MR HAWKINS: My Lord, there has been no fresh decision as I understand which I find rather strange because it would have made sense to know the position for today.
MR JUSTICE COLLINS: I agree. The interview was the Monday before last.
MR HAWKINS: The interview took place on the first day of the hearing.
MR JUSTICE COLLINS: Mr Lewis, can you help provide that?
MR LEWIS: The position is, my Lord, as you will remember they declined to do the interview and they eventually saw sense and on the first day of the hearing they agreed. Since your Lordship was in the middle of hearing the case it seemed to us entirely sensible to wait and get your Lordship's guidance --
MR JUSTICE COLLINS: When you can reconsider the reconsideration if you need to?
MR LEWIS: Not the reconsideration, we had the interview, we need to consider whether that interview is sufficiently robust; if not, we possibly needed to invite a second interview, but there seemed very little point after the first day of the trial in trying to sort matters out. Regrettably, had Mr Q complied with the request earlier on, we may not have been in that position --
MR JUSTICE COLLINS: That may be, but we will discuss that in due course, but so far as Q is concerned the only order required would be quashing the decision that in fact has been made?
MR LEWIS: No.
MR JUSTICE COLLINS: You say even that is not necessary?
MR LEWIS: No, my Lord. Can I take your Lordship to the judgment starting at paragraph 53 and 54 in relation to Q. If your Lordship remembers the sequence of events, there was a decision in relation to Mr Q, and we agreed to reconsider.
MR JUSTICE COLLINS: If you accept that the original decision is no longer a valid one, then we can deal with it without the need to quash.
MR LEWIS: Yes. I put a note in front of your Lordship on our position in relation to Q; does your Lordship have that?
MR JUSTICE COLLINS: Let me just look at that quickly.
MR LEWIS: If you look at 4 in relation to Q.
MR JUSTICE COLLINS: We will discuss costs in due course, but I take your point. The declaration is probably --
MR LEWIS: -- of the first decision, but there is a second decision, my Lord, that we took on 6 February and that is hardly a broad one because the basis of your Lordship's finding is that we were not robust enough in the questioning --
MR JUSTICE COLLINS: I do not think that will work, Mr Lewis, because it simply maintains the original decision, and if the original decision was flawed, the reconsideration was flawed. I accept that it was his fault to an extent.
MR LEWIS: With respect, that is not the case because he said that he wanted us to look at his written statement as well. So we reconsidered it and you cannot assume that it is flawed because the first one may have been flawed. The point is we took a second decision, he gave us all the material he said he was prepared to give is.
MR JUSTICE COLLINS: You did not give any further reasons.
MR LEWIS: I do not think you could find that our procedures were not robust and were unlawful in respect of the second procedure, we did all we could.
MR JUSTICE COLLINS: No you did not, you did not give sufficient reasons.
MR LEWIS: In relation to the second decision we did, we say.
MR JUSTICE COLLINS: You simply said that you have not turned up, we will maintain, did you not?
MR LEWIS: It was more elaborate than that, my Lord.
MR JUSTICE COLLINS: Not much.
MR LEWIS: We say that we considered the witness statement and we considered the earlier interviews so there was more there.
MR JUSTICE COLLINS: To say you considered something without giving further explanation is not reasons, Mr Lewis, is it?
MR LEWIS: You do not, in your judgment, expressly say that there was a fault in relation to the decision reasons on the second one, and we still say that it is very unfair to say that there has been a failure to adopt robust investigative processes when if the chap will not turn up and answer questions, how are we then supposed to comply --
MR JUSTICE COLLINS: I take your point.
MR LEWIS: So we would invite you to grant a declaration at best in relation to the original decision. We are reconsidering anyway and he is being provided with support so he does not suffer.
MR JUSTICE COLLINS: It is all a bit academic.
MR LEWIS: I know the Secretary of State would feel it is harsh to be castigated for procedural failures when he was not responsible for them.
MR JUSTICE COLLINS: It is not procedural failures, it is a failure to give sufficient reasons for reaching a conclusion which was, in the end, reached. You do not essentially add to the reasons. If you would like me to look at it again I am very happy to do so. I do not carry in my head the precise --
MR LEWIS: What your Lordship said about the reasons is in the judgment as well.
MR JUSTICE COLLINS: I do not suppose I needed to say very much in relation to that, but let me just remind myself of what the second letter did say. It does not add to the reasons at all.
MR LEWIS: We did not have a great deal more to add to it.
MR JUSTICE COLLINS: That may be, but since you failed to give proper reasons initially, you are perfectly entitled to say he did not help et cetera, but you have still failed to give proper reasons.
MR LEWIS: Your Lordship has our submission. We accept that it was merely academic and we would not oppose a declaration in relation to the first decision. We do maintain our position that if there has been a procedural failing here it is entirely the fault of the defendant and relief in relation to the second decision is inappropriate, and more to the costs which we come to later.
MR JUSTICE COLLINS: It is a reasons challenge, essentially, on the second refusal.
MR LEWIS: In that case your Lordship will probably want to quash the second decision rather than grant a declaration in relation to the first.
MR JUSTICE COLLINS: It does not matter which, does it?
MR LEWIS: No, but it is wise to identify the order that it is making --
MR JUSTICE COLLINS: I entirely accept that, all I am saying is that if there is, as there is in fact, a reconsideration which is being carried out, at most a declaration would probably be appropriate.
MR LEWIS: The declaration of the original decision of 8 January and the subsequent decision of the --
MR JUSTICE COLLINS: The alternative is to make no order because the judgment speaks for itself.
MR LEWIS: But I suspect an order would be sensible particularly in relation to appeal. My Lord, in the light of what you have said, given that there is a reconsideration under way, the appropriate relief is a declaration not to quash it, and a declaration in the light of what your Lordship has said in relation to the first decision and probably the second decision.
MR JUSTICE COLLINS: I would think so. Mr Hawkins, you would be, I imagine, content with the declarations, would you not?
MR HAWKINS: My Lord, at a push, I would ask for a declaration regarding the first decision and I would ask for the second decision to be quashed.
MR JUSTICE COLLINS: It does not need to be because it is being reconsidered.
MR HAWKINS: My Lord, so be it.
MR JUSTICE COLLINS: As long as they are not going to rely on it, and they are not, and they have indicated that they are not because they have agreed to a reconsideration then there is no point in quashing it. It is quashing something which is dead anyway.
MR HAWKINS: Indeed. I do not push that.
MR JUSTICE COLLINS: We will come to costs later. That is a different issue.
MR LEWIS: My Lord, looking at my summary of position, there will be four quashing orders and then there will be the declaration in relation to Q, and we accept that whilst it is academic that the court may want to grant a declaration in relation to J too --
MR JUSTICE COLLINS: I think it may be sensible just as you rightly say because I do not doubt there is going to be an appeal.
MR LEWIS: My friend, Mr Knafler, has put forward a draft provisional order and there is one minor quibble. We accept four quashing orders, a declaration in J and a declaration in relation to Q.
MR JUSTICE COLLINS: There is one major quibble as far as I am concerned on the minute.
MR LEWIS: That is the declaration of incompatibility?
MR JUSTICE COLLINS: Yes.
MR LEWIS: I will come to that in a moment, my Lord. The only area where we disagree with Mr Knafler is we would quash the latest decision in B because that superseded the first decision which I understand was to be quashed first. I do not really think it is a matter of great merit. Logically it is the second decision that needs to be quashed.
MR JUSTICE COLLINS: I think that is probably right, Mr Knafler, is it not; as a matter of form?
MR KNAFLER: I am not going to argue in relation to that matter, my Lord.
MR JUSTICE COLLINS: It is the existing decision that must go and since the decision of 7 February superseded that of the --
MR KNAFLER: I think our position is that two unlawful decisions were made, but your Lordship and Mr Lewis are right, it is the latter decision --
MR JUSTICE COLLINS: Can I go back to the proposed minute because I am going to ask you in any event, between you, after we discuss what is appropriate, to put to the court the order that is appropriate. Now I think so far as one is concerned, let us get that out of the way now. Are you going to apply for leave to appeal?
MR LEWIS: Definitely, my Lord. There are two grounds, my Lord. Firstly, it is a matter of great public interest --
MR JUSTICE COLLINS: You do not need to persuade me. I imagine that neither of you could think of any reason to oppose, can you?
MR KNAFLER: My Lord, I am instructed to say a few words about that. Your Lordship may well feel that it is appropriate to grant permission to appeal because of the importance of the case, but in our respectful submission, the Secretary of State's prospects at appeal are low. The reason for this, my Lord, is that for over 200 years the English common law has recognised the existence of a law of humanity, and the Court of Appeal has on several occasions found that the law of humanity means that it is not legally possible for somebody to be destitute upon the streets of this country. Now the government's submission to your Lordship is that they have repealed that law of humanity and replaced it with Article 3 of the European Convention on Human Rights, and in our submission, it would be very strange indeed if Article 3 and Article 8 of the European Convention on Human Rights offered a lesser degree of protection than the longstanding law of humanity because the promoters of that Act; namely, the present government, made various statements when it was enacted to the effect that the purpose of that legislation was to enhance and promote protection of fundamental needs in this country and not to diminish them. Therefore, in our respectful submission, the Secretary of State's prospects of success are low, although we do recognise the importance of the issues.
MR JUSTICE COLLINS: That may or may not be so, Mr Knafler. That is not for me to decide. Obviously I believe I am right, I would not have decided as I have if I did not. There are many occasions where one believes one is right and the Court of Appeal believes one is wrong. It has happened and it no doubt will happen again. No, that is not a ground for refusing leave to appeal. It might, I suppose, in some circumstances be relevant on questions of security, but that does not arise in the circumstances of this case.
MR KNAFLER: No, it does not, my Lord. Those were my submissions.
MR JUSTICE COLLINS: No. Mr Hawkins, anything you want to add?
MR HAWKINS: I have no further submissions, my Lord.
MR JUSTICE COLLINS: It is clear that this is a matter of some considerable importance. Apart from anything else, the court is still being inundated with claims for judicial review and so the matter must be sorted as soon as possible. I therefore will grant leave to appeal. I have been asked by the Court of Appeal to make the direction which I indicated I was going to make at the hearing; namely, that a notice of appeal -- I think this affects you Mr Lewis, although it will apply on the other side if there is any respondent's notice that they think --
MR KNAFLER: There will be none. There is a potential costs appeal on the (inaudible), but there will be none.
MR LEWIS: We are grateful for the indication that the Secretary of State has not acted in a way that constitutes unlawful discrimination. We are glad to see that the claimants accept that it is not discriminated against --
MR JUSTICE COLLINS: The claimants did not accept that, I did.
MR LEWIS: They accept that your Lordship was right to find that. We are grateful nonetheless, wherever it comes from, we are glad to know that we did not discriminate. The direction my Lord is --
MR JUSTICE COLLINS: Notice of appeal must be filed with the Court of Appeal by 4pm on Monday.
MR LEWIS: And the skeleton?
MR JUSTICE COLLINS: No, that is a matter for the Court of Appeal, not for me. In fact, Master Venne, I suspect, will make some very speedy directions in relation to service of skeletons and so on because the court intends, as I understand it, to hear the appeal on 3 March.
MR KNAFLER: My Lord, for that reason, at paragraphs 10 and 11 of the drafted order I have mooted some directions going a bit further than the direction your Lordship has made. Your Lordship has already dealt with one of the directions; namely, the skeleton argument, but we are concerned that we are coming up for hearing in 10 days -- something like that -- which is why I put in a direction for the skeleton, and I understood from the Secretary of State's representatives that there would be, or at the very least might very well be, further evidence coming in. So we are concerned with at least having the opportunity to look at it --
MR JUSTICE COLLINS: I understand that. Mr Lewis, I would have thought that in the light of the way it has been approached, there probably would not be any need for further evidence. On the other hand, it is possible the Court of Appeal may take a different view on that.
MR LEWIS: Yes, your Lordship was able to deal with the application by analysing the legal issues. It is theoretically possible that the Court of Appeal could take a different view -- that issue might arise. Can I simply say this, my Lord: this case has been conducted with a high degree of co-operation and very quickly. It is very unlikely that we would produce a witness statement on the Sunday before the hearing, but if we did that, we would know what the consequence would be. I think it is appropriate to give my client a little time to digest --
MR JUSTICE COLLINS: I am not going to make any order because I do not think it is appropriate for me to do so; that is a matter for the Court of Appeal. The only order that I was requested to make was in relation to the service of the notice.
MR LEWIS: If your Lordship leaves it at that and then by Monday 4pm there will be a notice of appeal and the parties will, I am sure, have discussions with their solicitors --
MR JUSTICE COLLINS: I think it would be sensible because if it looks as if you want to put in any further evidence -- you have had time to consider it by now, at least I imagine you have.
MR LEWIS: In terms of the evidence, we need time to consider whether it needs to be put in.
MR JUSTICE COLLINS: I follow that, but I meant that it should not take long to produce it if you decide that you need to. That is a matter that you can, as I say, raise and discuss because I think it is essential that the matter is dealt with as soon as possible -- essential for your client apart from anything else.
MR KNAFLER: Could I just indicate, I am perfectly happy with your Lordship's approach. Can I just indicate that if further evidence is filed later than 4pm on Monday, that will be an additional ground of objection.
MR JUSTICE COLLINS: I well understand. You have given ample warning of the position.
MR LEWIS: With regard to the order that Mr Knafler has drafted: (1) we are happy with --
MR JUSTICE COLLINS: Let me go back to it. That needs amending until the determination of the defendants -- again I think strictly speaking it should be for the Court of Appeal, but I do not think there will be any harm in my making the order until the court of appeal decides. There is always liberty to apply.
MR KNAFLER: Your Lordship has jurisdiction to grant relief pending appeal.
MR LEWIS: We are happy to undertake in any event.
MR JUSTICE COLLINS: In that case, going from your minute Mr Knafler, we simply delete everything from appeal onwards in (1) do we not?
MR KNAFLER: Yes.
MR LEWIS: If we could have, my Lord, so there is no doubt, that it undertakes to provide asylum support as defined by section 98 of the 1999 Act, that way there is no dispute as to whether or not it should be something else.
MR JUSTICE COLLINS: Certainly.
MR LEWIS: Within the meaning of section 98. It is just so everybody knows what the issue is. The position they are put in is like every other asylum seeker.
MR JUSTICE COLLINS: Because of course it is interim, rather than the full undenied asylum.
MR LEWIS: Strictly the position now, my Lord, is that because you have said the process in relation to the decisions was flawed, those decisions have been quashed, so we have reached the position now where no decision has been taken on section 55 and therefore section 55(1) does not apply; it is a concession we made earlier.
MR JUSTICE COLLINS: That is right.
MR LEWIS: We then get to (2) on Mr Knafler's list.
MR JUSTICE COLLINS: That is fine.
MR LEWIS: (3) is fine subject to the deletion in (b) of the 16/01 decision because that is irrelevant.
MR JUSTICE COLLINS: So decision instead of decisions of 7 February, that is fine.
MR LEWIS: We do not object to the decision, we see the force of your Lordship making it.
MR JUSTICE COLLINS: -- (5) you do not need argue. Mr Knafler, it was not raised. My judgment does not, in fact, require that it be said to be incompatible. I have merely said that as applied in the circumstances of these cases, it is a breach of Article 6. But I have indicated, and indeed the House of Lords case reported on Monday in the Times which I did not come back to because it did not seem to me that there was any need to do so --
MR KNAFLER: The Runa Begum case.
MR JUSTICE COLLINS: Yes. That indicates, as I have said that it may well be possible to achieve compliance provided that more is done at the earlier stage. Quite why the appeal was removed I do not know, but it was and in the circumstances there is no question of incompatibility and I am not prepared to make such a declaration.
MR LEWIS: My Lord, you deal with it at paragraph 86 of your judgment. The Secretary of State is very pleased that there is no declaration that the provisions of the Act are incompatible --
MR JUSTICE COLLINS: It cannot be because it has a built in compatibility in subsection 5.
MR LEWIS: It does have a built in capacity. The Secretary of State did not violate anybody's human rights, so we are very pleased --
MR JUSTICE COLLINS: The statute does not, the actions taken did.
MR LEWIS: That may have been the lack of robust consideration for the alternative procedures. Then in --
MR JUSTICE COLLINS: Hang on --
MR KNAFLER: In relation to the declaration of incompatibility, can I just say in defence of at least two of the pleadings -- in the case of D and B, if it was --
MR JUSTICE COLLINS: I agree. You raise it, but it was not pursued in agreement by Mr Starmer, was it? He specifically said that he was not arguing for a declaration of incompatibility. I appreciate that his junior may have wished him to do so, but he did not.
MR KNAFLER: We understood that he indicated --
MR JUSTICE COLLINS: He did not limit it in the course of argument. But in any event, even if it was still there it is not something I am prepared to do as I have indicated. In my view it is not incompatible with Article 6 if properly applied.
MR KNAFLER: I sense I might have a slightly uphill struggle.
MR JUSTICE COLLINS: More than slight.
MR KNAFLER: Yes.
MR JUSTICE COLLINS: That is deleted.
MR LEWIS: (6) we do not object to that, that is just an adjournment of their just satisfaction claim.
MR JUSTICE COLLINS: Which are those claims? Just satisfaction?
MR KNAFLER: There are certainly claims in B and D for just satisfaction. I am certainly not suggesting that those are damages claims. There is a spread of options potentially available to the court in the event that it is decided for the Secretary of State.
MR JUSTICE COLLINS: If there is no objection I will leave that as it is.
MR KNAFLER: I will make it clear that those are adjourned generally and no decision has been made about pursuing them and they may very well not be pursued.
MR LEWIS: Is liberty to restore on 7 days' written notice?
MR JUSTICE COLLINS: That is fair enough, Mr Knafler, is it not?
MR KNAFLER: Yes, it is.
MR LEWIS: In relation to (7), the Secretary of State cannot realistically resist --
MR JUSTICE COLLINS: You do not resist except in relation to Q?
MR LEWIS: Yes. In relation to D, J, M, F and B we will obviously cover this cost in relation to that. You see my proposal in relation to costs in Q at 4(2). My Lord, we say that we accept that we should pay Q's costs up to the date of the offer to reassess, but thereafter quite frankly, it was his own problem that he refused to co-operate and we say there should be no order for costs in relation to that. If he had co-operated and if there had been a decision, it may have been in his favour just like J was in his favour, and it may be that he would have good grounds for criticising us. It is very hard -- he did not agree until the very first day of the hearing to say that we should be liable for the costs.
MR JUSTICE COLLINS: The difficulty, I suppose, Mr Lewis is whether a favourable decision would have removed the claim. J remained because of the original decision. Q did, on the face of it, suffer because he had to spend a night, as he said, sleeping in -- I still have not quite fathomed what the tunnel was.
MR LEWIS: An underpass.
MR JUSTICE COLLINS: Perhaps an underpass by a telephone box on a cold January night --
MR LEWIS: Allegedly.
MR JUSTICE COLLINS: -- is not an altogether pleasant experience, is it Mr Lewis?
MR LEWIS: I have never done it, my Lord.
MR JUSTICE COLLINS: I do not suppose you have.
MR LEWIS: The position in relation to J is that the reconsideration was much later and we wanted to keep the lorry case in order to --
MR JUSTICE COLLINS: I know.
MR LEWIS: In relation to Q, the offer was made on 31 January and had he accepted that, there would have been no need for him to have separate representations before this court in arguing a particular point, if there was a just satisfaction damages claim that would have been dealt with separately. The only question is: is it right and proper that the costs incurred after 31 January, which were costs directed to the original position when we had offered to reconsider and when the claimant had unreasonably refused to co-operate in that reconsideration, that is an issue for your Lordship --
MR JUSTICE COLLINS: The trouble is you would be on stronger ground if you had decided that you would allow his application on reconsideration, but you have not. I can understand why you have not --
MR LEWIS: In terms of the costs (inaudible) the difficulty is it was only on the first day of the hearing that he finally saw sense and agreed to co-operate. By then there is no point in reconsidering, we needed your judgment. That fact of the matter is Mr Hawkins has been instructed to argue the case and has incurred costs, and we have had to focus right up until --
MR JUSTICE COLLINS: I think you have a good point that Mr Hawkins' presence would have been unnecessary.
MR LEWIS: No disrespect to Mr Hawkins.
MR HAWKINS: None taken.
MR LEWIS: All we are saying is that there should be no order for costs. We are not asking for our costs, just that there should be no order for costs after 31 January because had things gone on as they should have, either there would have been a fresh decision and it would have been necessary in order to challenge that, or it may have been conceded, but as it happened, right up until the very start of the hearing, all the costs that had been incurred should not have arisen and was the fault quite frankly of the legal advisers on the side of Q. So we do not think there should be any costs after 31 January; that is the only minor addition that we make.
MR JUSTICE COLLINS: Ideally, I suppose, the solicitors ought to bear it themselves, but it is a legal aid case and I cannot make that order.
MR LEWIS: That is not a matter for us, but it is difficult to see why we should bear the costs incurred in arguing about a decision which we wanted to reconsider and which he refused to co-operate in, that is the big problem they have.
MR JUSTICE COLLINS: Mr Hawkins, what do you have to say about that?
MR HAWKINS: My Lord, can I correct my learned friend, it was actually on 6 February that the claimant, Q, as it were, saw sense, so that is an additional factor to take into account.
MR JUSTICE COLLINS: What was the date of the hearing?
MR LEWIS: It may have said on the 6th, but it obviously takes time to arrange a hearing. We were ready on the 31st, the fact is this hearing could not be arranged until the (inaudible)
MR JUSTICE COLLINS: When were you briefed?
MR HAWKINS: My Lord, I have been briefed since the time of the injunction.
MR JUSTICE COLLINS: But when did you receive your formal brief?
MR HAWKINS: For the hearing on Monday?
MR JUSTICE COLLINS: Yes.
MR HAWKINS: My Lord, some time during the week before.
MR JUSTICE COLLINS: Not before the 31st?
MR HAWKINS: My Lord, it has been an ongoing brief, as it were.
MR JUSTICE COLLINS: I follow that, but at some stage you must have received an entitlement to a brief fee, must you not?
MR HAWKINS: My Lord it is not -- I am afraid I cannot answer that question. Can I make the further point that your Lordship has observed that the second decision which was made was far from satisfactory and perhaps my learned friend would be on stronger ground if it had been a satisfactory decision. I accept there are difficulties but, my Lord, the claimant did co-operate earlier than it is being contended. My Lord, I do make the submission that it would be helpful if the Secretary of State had actually promulgated a decision in the light of the second interview on Monday.
MR JUSTICE COLLINS: I can understand why he thought it better to wait unless there was an obvious -- as in J -- it was obvious that he got it wrong first time round. I imagine he does not concede that he obviously got it wrong first time round.
MR HAWKINS: It does not appear so, my Lord.
MR JUSTICE COLLINS: Thank you Mr Hawkins. Mr Lewis, I am conscious always in questions of costs that one is taking, and having to take, a broad brush approach. It may even be said that one is closer to sitting under a Palm tree, often. I think there should be some reflection of the mistake that was made, but I do not think it should be to the extent of depriving the claimant of all the costs that otherwise he would be entitled to. What I propose to do is to order that after 31 January, you should pay 75 per cent of the claimant's costs. Full costs up to 31 January, 75 per cent of costs thereafter. Of course there will have to be, in all cases, a detailed assessment of the claimant's publicly funded costs.
MR LEWIS: I think that is all that has been necessary in this case as far as we understand. We are very pleased your Lordship dealt with the matter so quickly.
MR JUSTICE COLLINS: All right, get the minute in as soon as possible to the court. It does not need to be initialled or anything by me.
One thing I meant to mention and forgot is the question of ongoing decision-making. Now Mr Lewis, what I have decided is, of course, unless or until the Court of Appeal say otherwise the law, and therefore any considerations from today onwards must reflect what I have decided. I repeat the suggestion I made last Tuesday and that is that for the time being until the Court of Appeal, unless the case is an obvious clear one and there may be some, the Secretary of State ought to grant interim relief, but make it clear that it is interim relief without prejudice to reconsideration if that is the view he takes. Effectively, I suppose it is what used to be called a "minded to refuse letter" in other circumstances. That keeps the position open.
MR LEWIS: Can I tell your Lordship what I understand the position to be: in the light of our concession, until a decision is taken on section 55(1) there is no prohibition on providing --
MR JUSTICE COLLINS: That is the other way of playing it, you simply do not make a decision.
MR LEWIS: Yes. Now if we do take a decision, my Lord, then obviously the legal advice would be that your judgment is the law of the land and unless the Secretary of State can be satisfied that he has adopted a robust procedure outlined in your Lordship's judgment, then he would be at risk of further applications. So he would have to decide, and really the judgment needs to be considered, whether he wishes, in effect, just to provide technical support under section 98 and await final decisions on section 55 after the Court of Appeal, or whether he thinks it would be robust enough in the interim.
MR JUSTICE COLLINS: There are only 10 days or so before one hopes the Court of Appeal will be able to hear this.
MR LEWIS: I am going to give your Lordship an indication of the scale of the problem -- I understand that it will be 10 days --
MR JUSTICE COLLINS: What concerns me is that I made that suggestion and if, judging by what has happened with the unfortunate duty judges, it has not been acted upon. I was informed that the weekend duty judge was in this building until 11 o'clock on Friday night as a result of a considerable number of these claims. The latest figure I have is that there are a 180 that have been lodged with the Administrative Court already. Now the duty judge is almost bound to make a holding order if he is faced over the telephone with an application by someone who falls into the sort of position that these claimants, and indeed all who have been refused, or many who have been refused support, will fall. It is possible, I suppose, that sufficiently robust investigations have been made, but it is going to be almost impossible to establish that over the telephone. All I am getting at is that you are asking for further costs, the waste of a judge's time, and orders being made which ought, in the public interest, to be avoided having regard to the shortage of time between now and when the matter is going to be decided by the Court of Appeal.
MR HAWKINS: Can we leave it like this my Lord: the position in law is that if no decision is taken under section 55 then section 55(1) does not prohibit it. Can I simply undertake to convey your Lordship's observations to the client because obviously the client does have a choice of trying to be more robust than he has been, or simply following the route that your Lordship has outlined, and if I could convey those to the Secretary of State --
MR JUSTICE COLLINS: Indeed, although I would have thought, I may be wrong, but I would have thought that it would be rather easier for him to adopt a course which is adopted in the hope that the Court of Appeal will decide that I am wrong, rather than changing the whole basis of interviewing for the next 10 days or so.
MR HAWKINS: I have heard what you Lordship says, but I want to make it absolutely clear that I am giving no undertaking whatsoever --
MR JUSTICE COLLINS: No, I am not expecting you to.
MR LEWIS: -- there can not be any confusion on the part of the claimants' side. I have heard what your Lordship has said, and I am certainly happy to convey that information to the clients and they will obviously take advice as to whether that is a sensible course of action.
MR JUSTICE COLLINS: If you want to keep the judiciary on side you will listen to what I have said very carefully.
MR LEWIS: That is a point that may have crossed my mind in mentioning the advice that I would give. I do not draw the distinct suggestion of undertaking for anything at this stage.
MR JUSTICE COLLINS: Also it is a complete waste of public money to require legal costs to be incurred when it could be avoided.
MR LEWIS: The counter-argument would be if a robust decision has been taken and if the person is not eligible for support then it will be a wrong use of public costs to provide support.
MR JUSTICE COLLINS: Then you have to change the whole basis upon which you have instructed your officers or your officials to make their decisions.
MR LEWIS: Clearly robustness would have to be the order of the day. I take what your Lordship says on board, there are considerations on either side. I certainly would convey your Lordship's observations.
MR JUSTICE COLLINS: I understand, that is why I make it clear I am not making any direction and I am not expecting any undertaking, I am merely indicating what I hope would be a sensible approach.
MR LEWIS: I will certainly convey those observations to the powers that be, my Lord.
MR JUSTICE COLLINS: Thank you, Mr Lewis.