QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF Q, D, KH, OK, JK, H, T AND S||(CLAIMANTS)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(FIRST DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR M HENDERSON (instructed by Figueiredo & Bailey) appeared on behalf of JK
MR C JACOBS (instructed by White Ryland) appeared on behalf of T
MISS R CHOWDURY (instructed by Clifford Coppock & Carter) appeared on behalf of S
MR J P WAITE, MISS S BROADFOOT and MISS K GRANGE (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
MR R LATHAM. Appeared on behalf of Shelter
Crown Copyright ©
"Before the coming into force of section 55 of the 2002 Act, asylum support cases accounted for a minute proportion of the work of the Administrative Court. That has now changed. About a quarter of all cases lodged in the Court this year have been asylum support cases. They account for approximately 800 cases in our current workload. Clearly they are having a significant impact on the ability of the Court to process cases in this and other areas. Since the decision of the Court of Appeal in Q in March, there has been some reduction in the number of arguable applications in relation to the "as soon as reasonably practicable" test, but neither Q nor the recent decision in T has reduced the number of arguable applications relying on Article 3. In T the Court of Appeal held that the threshold or boundary, "which is not a fixed or a bright line, lies somewhere between S and T". It is the experience of the judges of the Administrative Court that, factually, the great majority of cases fall somewhere between S and T. S was a strong case described by the Court of Appeal as "inexorable". The facts of T were not typical of most applications.
"In a typical current case the claimant has been supported for a short period pending the determination of his application for support but, following an adverse decision under section 55(1), the support has been withdrawn. Within a very short time he is sleeping rough with no money except for the proceeds of begging and in many cases there are health complications of various degrees of seriousness. He has no realistic recourse to charity. In such circumstances the judges usually grant interim relief on the papers. If, instead, they adjourn the application into court, the Secretary of State is usually not represented. We are told that if we abridge time for the Acknowledgment of Service, this imposes intolerable burdens on the Treasury Solicitor. In any event, when Acknowledgments of Service are filed they often amount to little more than an assertion that the Article 3 threshold has not been crossed. Rarely are the claimant's factual assertions about his circumstances contradicted. In some cases a judge refuses to grant the application for interim relief or for permission because he considers it to be premature. In many such circumstances he suspects that a further application before very long would succeed.
"Where interim relief is granted, the Secretary of State never avails himself of the liberty to apply for variation or discharge. We suspect that very few of the cases in which permission is granted will ever result in substantive hearings. Often the asylum application will have been decided before they could take place.
"Against this background it seems to my colleagues and me that a vast amount of public money is being expended on litigation, much of which ought to be avoidable and which is clogging up the processes of the Administrative Court. Accordingly, we express the hope that legal advisers on both sides will do all that they can to resolve these disputes without resort to the Court. Those representing claimants should ensure that they do not set unrealistic deadlines when writing to the Secretary of State or the Treasury Solicitor and that their applications to the Court are not made prematurely. They should not be made out-of-hours save in cases of extreme emergency. When in receipt of an application or an intimation of one, the Secretary of State should consider it expeditiously and objectively, in accordance with the decisions of the Court of Appeal. These may seem statements of the obvious but they do not seem to be routinely observed at the moment. It may assist practitioners to know that at present (ie since T) new applications are continuing to come in at about 60 per week, which is almost exactly the same as in the 7 weeks before T, and that the percentage which fail to attract interim relief is currently less than 10 per cent.
"It is the intention of the judges to try to avoid adjourning applications for interim relief and permission into open court. They will endeavour to deal with them on paper wherever possible. If the claimant is refused relief or permission on paper, it will be open to the Secretary of State to renew in open court. If interim relief is granted on paper, it will be open for the Secretary of State to apply for variation or discharge pursuant to the liberty to apply.
"When granting interim relief, judges will not now abridge time for the Acknowledgment of Service or otherwise order expedition unless persuaded to do so in a particular case. Whether or not an Acknowledgment of Service is filed, if permission is granted, the Treasury Solicitor should inform the Administrative Court Office within 14 days whether it is expected that a substantive hearing will be required. If it will not, the parties will be expected to submit a form of consent as soon as practicable. All this will apply whether the case is put under section 55(1) or by reference to section 55(5) and Article 3, or a combination of both."