QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| R (Mambakasa)
|- and -
|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)
for the Claimant
Steven Kovats and Jason Coppel (instructed by The Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice Richards:
Facts: the grant of asylum to the claimant
"[The claimant] has suffered from an acute psychotic episode and, although he made a good recovery, his mental state has recently deteriorated as a result of non-compliance with medication and continuing life stresses. He is now re-established on medication, and I hope will attend further outpatient follow-up. In view of his partial relapse, it is clear that [he] will have to take antipsychotic medication for the foreseeable future and that stressful life events are likely to have a prejudicial effect on his mental state."
"This is not a formal notification of the decision. That will follow from the Immigration Service.
You will not be eligible to apply for Home Office Travel Documents [i.e. for travel by the claimant himself rather than by his family] until you receive the letter from the Immigration Service containing official confirmation of your immigration status."
Facts: the grant of entry clearance to his family
Whether the delay in granting refugee status was unlawful
"In my opinion there is a clear duty on the Secretary of State to give effect to the special adjudicator's decision. Even if he can refuse to do so in the event of changed circumstances or because there is another country to which the applicant can be sent, there is still a duty unless and until that situation arises. It would wholly undermine the rule of law if he could simply ignore the ruling of the special adjudicator without appealing it …. Nor in my opinion could he deliberately delay giving effect to the ruling in the hope that something might turn up to justify not implementing. In my judgment, once the adjudicator had determined the application in the applicant's favour, the applicant had a right to be granted refugee status, at least unless and until there was a change in the position …. I should add that even if the applicant does not, properly analysed, have a right in the strict sense, in my view his position is sufficiently akin to a right (whether described as a legitimate expectation or not) for the same public law principles to apply" (518G-519A).
"In my judgment if someone has established the right to some benefit of significance, as the right to refugee status and indefinite leave surely is, and all that is required is the formal grant of that benefit (in the absence at least of a change in circumstances since the right was acquired or other exceptional circumstances), then it is incumbent upon the authority concerned to confer the benefit without unreasonable delay. The resources available to the authority will be part of the circumstances which can be taken into account when determining whether the delay is reasonable or not. However, if the authority fails to have regard to the fact that a right is in issue, it will have failed to take into account a relevant factor and will be acting unlawfully. In this case the respondent ought to have treated the applicant and those in a similar position differently to other categories of case. The failure to do so both rendered the decision unlawful in traditional Wednesbury terms and meant that the refugee status was not granted within a reasonable period" (522C-E).
"In at least the vast majority of cases the processing of asylum claims after a favourable adjudicator's decision is a purely clerical exercise. However, procedures have to be followed and that exercise takes time. Those who apply for asylum at a port have their files kept at that port. Their cases have to be referred to immigration officers at the relevant port for the grant of leave to enter. Successful asylum seekers who have entered this country illegally are processed centrally by the National Implementation Unit of the Home Office. They receive indefinite leave to remain, rather than leave to enter. Overall the system for issuing status letters has operated poorly in the past. Improvements have been made by the Secretary of State but, nevertheless, unacceptable delays do still occur in some cases. The Secretary of State's staff have many other tasks in addition to those which have come under scrutiny in the present case. The Home Office is tackling the instant problem as best it can with the limited resources which are available. Furthermore, in the case of successful asylum seekers who fall into the lacuna, these individuals are in practice allowed to benefit from the NASS support scheme despite the statutory prohibition contained in section 94 of the 1999 Act."
"There have been delays in implementing allowed appeals but additional resources have now been provided and the majority of cases should now be being processed within 24 days of determination."
i) The claimant's individual circumstances called for prompt consideration of his case following receipt of the IAT's determination. There had already been a long delay as a result of the drawn-out appellate process. It was known that the appeal would be allowed. It was known that the claimant was very concerned to be reunited with his family. The discussion that the Presenting Officer had with the claimant's solicitor at the hearing on 8 January indicated an appreciation on his part of the desirability of expedition.
ii) As to the claimant's mental health, there was no evidence at the time that it was liable to deteriorate if refugee status was not granted quickly. There is, however, later evidence that the overall delay did in fact have an adverse effect on him, which is of relevance when considering actual prejudice (see below). Thus in a report dated 22 March 2002 a consultant psychiatrist, Dr Coleman, states:
"Any delay in allowing him to be supported by his mother and children and any other close family member would certainly have had a damaging effect on his mental health. In particular given his history and his state on examination I have no doubt that his raised expectations in early 2001 combined with the delay since that time have had and continue to have a serious prejudicial [effect] on [his] mental health causing him severe stress and anxiety. It is inevitable that the delay hinders his rehabilitation and increases the likelihood of future relapses. "
iii) The relatively short period of 14 days or, with effect from 8 April 2002, 28 days prescribed for the purposes of section 94(3) of the 1999 Act, after which entitlement to NASS support comes to an end, is an indicator of the period within which it is reasonable to expect a decision normally to be taken. A person whose appeal has been successful ought not to be left for any lengthy period in the lacuna between the ending of NASS support and entitlement to mainstream benefits.
iv) Loss of benefits did not, however, cause substantial prejudice in this particular case since, owing to a separate error, the claimant continued to receive income support after the Secretary of State's refusal of his asylum application in October 1996 and through to late July 2001. He then had a relatively short period without support before his entitlement resumed, with retrospective effect, on the grant of refugee status at the end of August 2001. I have borne in mind his evidence as to the difficulty and distress that even this period caused him. In all the circumstances I think it unnecessary to resolve the further argument as to whether he would have qualified for support under section 4 of the 1999 Act or section 21 of the National Assistance Act 1948, as amended by section 116 of the 1999 Act, had he applied for it.
v) In terms of actual prejudice to the claimant, it is the delay in achieving reunion with his family, coupled with the effect on his mental health (see above), that carries particular weight.
vi) The grant of refugee status following the IAT's determination ought in this case to have been a simple administrative task. There was nothing in the circumstances of the case to require any substantial exercise of judgment. The discussion at the hearing on 8 January shows that the grant was expected to follow as a matter of course.
vii) Whether the circumstances of the claimant's case would have been sufficiently exceptional to justify queue-jumping does not need to be decided. His case was not placed in a queue at all, nor was any consideration given to whether it should be accelerated (at least, until the file was sent to the National Implementation Unit in July). It simply got lost in the system.
viii) In determining whether a delay has been unreasonable, it is right in my view to consider the reasons for the delay as well as the various other considerations to which I have referred. In this case those reasons consisted largely of human error, though substantial delay would have resulted in any event from the normal operation of the system at the material time.
ix) As to human error, although one might be reluctant to castigate as unreasonable a delay caused by an isolated human error, the number and nature of the errors in this case prompt a different reaction. The Secretary of State cannot in my view rely on such a catalogue of errors as providing a reasonable justification for the delay in dealing with the claimant's case. That consideration is reinforced by the fact that, as is clear from the Annual Reports of the Parliamentary Ombudsman (to which I make fuller reference in the context of damages), this was not an isolated case but errors of this kind, i.e. mislaid files and the like, were a widespread problem within the department.
x) As to the delay which would have occurred in any event for systemic reasons, I acknowledge that the Secretary of State had to deal with several thousand successful appeals each year, that the system had fallen into a state of crisis with serious backlogs, and that very considerable efforts and resources had been devoted to improving it. The period during which the claimant's case fell to be considered was one where a new system was in operation and was getting to grips with the problem, even though the inherited backlog meant that there were still substantial delays at the relevant time: only later was the backlog overcome. The existence of this historical problem and the fact that it was being tackled actively and with ultimate success are strong considerations in the Secretary of State's favour. They are not, however, a complete answer. In my view they cannot justify the delay from mid-July when, on the normal operation of the system at the time, a status letter should have been issued. I also take the view, though with greater hesitation, that they do not provide a justification for a delay right through to mid-July, given the combined strength of the other considerations to which I have referred.
Whether the family reunion applications were unlawfully impeded
"In addition to the grounds for refusal of entry clearance of leave to enter set out in Parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply:
Grounds on which entry clearance or leave to enter the United Kingdom is to be refused:
(3) failure by the person seeking entry to the United Kingdom to produce to the Immigration Officer a valid national passport or other document satisfactorily establishing his identity and nationality
(5) failure in the case of a visa national to produce to the Immigration Officer a passport or other identity document endorsed with a valid and current United Kingdom entry clearance issued for the purpose for which entry is sought …."
"It would also have been unrealistic to expect the family to obtain travel documentation from the Angolan authorities. This would again expose them to risk. In any event, my instructions are that the family have no formal documentary proof of their identity. I have also contacted the Angolan Embassy in London. On 1 July 2002, I spoke to Mr Moniz at that embassy. He explained to me that the Angolan Embassy in Kinshasa only issues one way travel documents valid for travel to Luanda, Angola. He went on to explain that if people in the Claimant's family's position want passports, they would need to produce identification to establish that they were Angolan. They would then need to complete forms and all the relevant documents would be sent to the authorities in Angola who would issue the passports and send them to the Embassy in Kinshasa. Mr Moniz said that the Angolan Embassies outside of Angola do not have the equipment or the resources to issue passports themselves. He went on to say that if the person/s did not have documents to establish that she/he were Angolan, then more forms would need to be completed. These would then need to be forwarded to the authorities in Angola for enquiries to be made to establish that the applicant was indeed Angolan before a passport could be issued. Given the numbers of Angolan nationals who are displaced due to the civil war in that country, he suggested that it would be better for the Claimant's family to approach an international agency such as UNHCR for assistance."
Whether there was a breach of Article 8
"(1) Everyone has the right to respect for his … family 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."
"The Commission recalls that there is no right for an alien to enter or reside in a particular country as such guaranteed by the Convention. However exclusion of a person from a country in which his close relatives live could involve a violation of Article 8 of the Convention ….
… The Commission finds it unnecessary to determine whether the relationships of the applicant with the various relatives concerned in the application fall in each case within the protection offered by Article 8 of the Convention as the application must in any case be rejected for the reasons set out below.
The applicant complains of the delay in the proceedings concerning his application to the Home Office for permission for his relatives to join him in the United Kingdom. He argues that having regard to the grave situation in which his relatives are living the matter should be dealt with urgently. The delay, from his first request of 15 July 1990 to date, is, he submits, excessive and disproportionate to such a degree as to disclose a violation of his right to respect for his family life.
The Commission recalls that delay in proceedings concerning matters of 'family life' may raise issues under Article 8 of the Convention. In the case of H v. United Kingdom, the Court found a violation of Article 8 in respect of proceedings concerning the applicant mother's access to her child which lasted two years and seven months. However, the Court had regard in reaching that conclusion to the fact that the proceedings concerned a fundamental element of family life (whether the mother would be allowed to see her child again) and that they had a quality of irreversibility, lying within an area in which delay might lead to a de facto determination of the matter, whereas an effective respect for the mother's family life required that the decision be determined solely in the light of all relevant considerations and not by mere effluxion of time ….
The commission finds that the present case is not comparable. The subject-matter of the proceedings concerns the granting of permission to enter the United Kingdom for members of the applicant's family, whom the applicant has not seen for at least six years and with some of whom the nature of his ties has not been specified beyond the fact that, pursuant to Somali tradition, the applicant has on the death of his father become head of the extended family group. Further, it is not apparent that the delay in the proceedings has any prejudicial effect on their eventual determination or that the effect of the passage of time is such as to prevent the proper and fair examination of the merits of the case.
Consequently, the commission finds that on the facts of this case the applicant's complaints fail to disclose a lack of respect for his family life."
"In the instant case the applicant complained in substance not of action but of a lack of action by the State. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to the negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves. However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation."
"(7) It will be rare for an error of judgment, inefficiency or maladministration occurring in the purported performance of a statutory duty, having application to the class or category or concept 'private and family life … home …", to give rise to an infringement of Article 8.
(8) For action taken pursuant to statutory powers having such application to constitute an infringement of Article 8, it is likely that the act or acts of the public authority will have so far departed from the performance of the public authority's statutory duty as to amount to a denial or contradiction of the duty to act.
(9) It is likely that the circumstances of the infringement will be confined to flagrant and deliberate failure to act in the face of obvious and gross circumstances affecting the Article 8 rights of an individual. (I take the decision of Sullivan J in Bernard v. London Borough of Enfield  EWHC 2282 (Admin) to be an example.)"
Damages for breach of Article 8
i) The power to award damages arises only where the award is "necessary" to afford just satisfaction (section 8(3) of the 1998 Act). Subject to that, it is a broad discretionary power. Section 8(1) confers a discretion to grant such relief or remedy as the court considers "just and appropriate". Where the Strasbourg Court awards compensation for non-pecuniary loss, it makes its assessment on an equitable basis. The domestic court should in my view adopt a similar approach. The very expression "just satisfaction" in section 8(3) suggests the Convention concept, and although the court is not bound by the relevant Convention principles it must take them into account (section 8(4)).
ii) Although the Strasbourg Court understandably conducts its assessment on an autonomous Convention basis and not by reference to the principles or scales of assessment used by domestic courts, I see no reason why the domestic court, when performing a corresponding exercise under national law, should not look for bases of comparison in national law in its search for an equitable result.
iii) In general I find the analysis of Sullivan J in Bernard very helpful. The relationship between awards by way of just satisfaction and tortious damages, and whether the underlying principle of restitutio in integrum compels the same result in both contexts, need not concern me in this case because there is no comparable tort and I do not think that any useful guidance is to be gained from personal injury damages. In particular, I would reject the analogy with awards for psychiatric damage. The claimant's psychiatric illness was caused by events before the delay complained of; and although there is some evidence that the delay had an adverse effect on his mental health, the case in this respect does not come near the situations dealt with in the JSB Guidelines.
iv) I have not gained a great deal of assistance from the actual awards made by the Strasbourg Court, or from its decision in certain cases to make no award at all. The cases depend so much on their particular facts, all of which are very different from the facts of the present case. The most directly comparable Strasbourg case is Askar, which did not get past the hurdle of admissibility let alone give rise to an award of compensation.
v) The examples of redress for maladministration that are found in the Annual Reports of the Parliamentary Ombudsman and the related framework for consolatory payments provide a much more useful basis of comparison. I bear in mind that such payments are ex gratia and do not purport to be based on a comprehensive assessment of the distress actually suffered, whereas an award under section 8 is by way of just satisfaction for breach of a right and should take full account of the non-pecuniary loss. I also take the view that an award at the level of, say, £100, would tend to undermine rather than reinforce respect for the rights protected by the Convention. Nevertheless I regard the awards made in the Ombudsman context as telling in favour of relatively low awards of compensation for breaches of the kind alleged in this case.
vi) The various circumstances that have led me to conclude that there was no breach of Article 8 at all would also tend towards a relatively low award of compensation if, contrary to my view, there was a breach of Article 8. The fact that there has been a clear apology, if a little late in the day, also helps the Secretary of State.
vii) If I had held there to be a breach of Article 8, I would have considered it necessary to make an award of damages. I do not think that a declaration would have sufficed. In my view, however, a sum in the region of £1,000 to £2,000 would have met the justice of the case. I regard the suggested figure of £12,000 as much too high.
MR JUSTICE RICHARDS: I am handing down the judgment in this case. In it, the claimant, an asylum seeker whose claim to asylum ultimately succeeded before the Immigration Appeal Tribunal, seeks damages against the Secretary of State under Article 8 of the European Convention on Human Rights for the delay in granting him formal refugee status and in processing his family's applications for entry clearance to this country with the result, reunion between himself and his family, were delayed. For the reasons given in the judgment, however, his claim for damages is dismissed.
MR SEDDON: My Lord, I have had an opportunity to discuss with my learned friend the orders that ought to follow your Lordship's judgment.
MR JUSTICE RICHARDS: Before you do that, Mr Seddon, can I apologise for the fact that my commitments on the circuit meant that you had to wait until now on my return to London to get judgment.
MR SEDDON: I think we are agreed that it should follow that the application for judicial review is dismissed. Your Lordship in his judgment canvassed the possibility of an application for a declaration being pursued. In our submission it would serve no purpose and we do not invite your Lordship to make any such declaration. We are of course grateful for the finding in the course of your Lordship's judgment part of the delay was unlawful. But it seem to us that that stood on its own and a further declaration was superfluous.
My Lord, as far as costs are concerned I again have had an opportunity to talk to my learned friend and we propose that the order that your Lordship should make is no order as to costs, save for legal aid assessment of the claimant's costs.
MR JUSTICE RICHARDS: Yes.
MR NICOL: My Lord, I indicated to your Lordship in advance that I anticipated being instructed to apply for permission to appeal, and I have those instructions now. Would your Lordship hear me on that at this moment?
MR JUSTICE RICHARDS: Yes, you indicated briefly in your helpful email to me, and a copy to Mr Kovats, the basis upon which you were going to apply. I am broadly sympathetic to the grant of permission, but perhaps you should just briefly outline what you are saying, then I will hear from Mr Kovats as to why I should not grant permission.
MR SEDDON: I am grateful. Your Lordship appreciates that the period for which complaint is made falls roughly into two parts, the first dealing with the delay in issuing what is known colloquially as status papers; and the second in the relations between the claimant, his advisors and his family, and the embassy in Africa. So far as the first period is concerned, your Lordship was with us in finding that the delay was unlawful as a matter of domestic law. Your Lordship was against us on the issue of whether that constituted an interference for the purposes of Article 8.1, but went on to say, we accept strictly obiter, but helpfully, that because of the finding of illegality the Secretary of State would not have been able to rely on Article 8.2. Your Lordship had been with us on Article 8.1; and this was not a case in which a finding of a violation of the Convention would have been sufficient just satisfaction that damages ought to be awarded. Your Lordship went on to consider if he had been with us in terms of liability, how much those damages would be, and indicated a relatively modest sum.
My Lord, as far as the Article 8.1 finding is concerned, your Lordship's judgment appear to rest on two bases. One was following the decision of the European Commission of Human Rights in Askar. As to that, we would wish to persuade the Court of Appeal that that was really a case decided on its own facts. Our facts are sufficiently distinguishable from it, and there is not an applicable statement of principle in what the Commission said that should determine adversely the decision in our case as to whether there has been a breach of Article 8.1. My Lord, I am not going to go into that in more detail, your Lordship heard from me in the course of the hearing itself.
On the second basis your Lordship turned to the position on the assumption that Askar did not determine the matter, looked at the matter broadly and decided, on a broad view, that there was not a lack of effective respect for family life. We would wish to persuade the Court of Appeal that whether or not individual officials had indicated sympathy for the claimant, the reality was that that was not sufficient to overcome systemic delays and multiple errors that had plagued the dealings with the claimant's successful asylum application; and that it would be wrong to convert the Article 8.1 issue into what effectively would become a requirement for showing intentional interference with the claimant's rights. Again I do not seek to argue those matters, but simply indicate to your Lordship where they would go.
My Lord, as far as the second period is concerned, your Lordship made a factual finding as to what to make of the incident in the embassy in Kinshasa in September 2001. My Lord, again with great respect to your Lordship, we would want to try and persuade the Court of Appeal to take a different view and to take a view that we submitted to your Lordship that it indicated to the claimant's mother that she had to have travel documents in order even to make the application; and if that were correct, it was an erroneous view of the law.
My Lord, your Lordship's reason also rested in part on a view of the immigration rules and in particular Immigration Rule 320.
MR JUSTICE RICHARDS: Whether or not it was necessary is a doubtful question, but I dealt with it.
MR SEDDON: You dealt with it, your Lordship did, and that is a matter of some general importance and we would wish to persuade the Court of Appeal to take the contrary view to that which your Lordship adopted.
Your Lordship also dealt with the failure of the claimant's family to seek passports from the Angolan Government via their embassy in Kinshasa, saying that that could have been done without risk to the claimant's family. We would wish to revisit that issue in the Court of Appeal, that the claimant's family did not have documents of identity in any formal sense, their links with the claimant himself would have to have been disclosed; and in our submission the trepidation that the family had for going down that route is a good reason for not seeking passports through the embassy.
MR JUSTICE RICHARDS: If this matter were to go on appeal I would hope that quite a lot of the factual detail which I had to grapple to do justice to the arguments before me would not have to be gone into again.
MR SEDDON: My Lord, we would of course seek to assist the Court of Appeal by explaining where exactly in your Lordship's very careful judgment we took issue; and where we did not take issue the Court of Appeal would have the benefit of your Lordship's review of the factual materials. I put it that way, rather than saying that there would not be a need for the Court of Appeal to go into some of the factual questions that your Lordship has put.
MR JUSTICE RICHARDS: I understand that.
MR SEDDON: They are called factual, but of course the whole essence of this jurisdiction is that it is a matter of law that the claimant is entitled to appeal on, although sometimes those issues of law could involve resolving questions of fact. My Lord, finally on the issue of damages ---
MR JUSTICE RICHARDS: That is plainly an area open to argument.
MR SEDDON: Yes.
MR JUSTICE RICHARDS: You mentioned in your email Silber J's judgment as involving a broadly similar matter.
MR SEDDON: Your Lordship is quite right. I supplied your Lordship with a copy. I hope your Lordship will not feel intimidated.
MR JUSTICE RICHARDS: Far from feeling intimidated I have no intention whatsoever of reading it.
MR SEDDON: My Lord, we for our part had to consider whether to send this to your Lordship a day before your Lordship was due to hand down a draft of his judgment. We looked at it and it is covering a broadly similar area; but we did not think that at that stage your Lordship would be helped by being presented with a 205-paragraph judgment. Nonetheless, it is in the broadly similar area; that is, it was an asylum-seeker who had suffered delay initially in dealing with the application for asylum itself. That is within the Secretary of State's Department. Secondly, delay in forwarding the appeal papers to the immigration appellate authority. The asylum-seeker was successful in establishing a breach of Article 8.1. The judge found no justification under Article 8.2, considered that damages for violation of the Convention right was required, adjourned the assessment and then gave the Secretary of State permission to appeal against the judgment as it has gone so far. I do not want to overstate the case; it is not an identical case by any means, but broadly similar issues are going to go to the Court of Appeal through that route.
MR JUSTICE RICHARDS: Thank you very much. Mr Kovats, your submissions are always characterised by a degree of realism. I have indicated a provisional disposition to grant permission. Are you going to seek to persuade me otherwise?
MR KOVATS: My Lord, my position is that I do not have the advantage of anybody sitting behind me, with the result that I do not have any express instructions whether to oppose permission to appeal or not. However, it is clearly right that your Lordship should deal with the matter now; and in the circumstances I would simply ask your Lordship to deal with it without the benefit of observations from the Secretary of State.
MR JUSTICE RICHARDS: I am very grateful to you. The order will be that the claim is dismissed; there will be no order as to costs, save legal aid detailed assessment of the claimant's costs; there will be permission to appeal. I take the view that the case raises important issues worthy of the attention of the Court of Appeal, and I cannot say that there is no real prospect of success. I would hope that if an appeal proceeds much of the detail on which I found it necessary to focus in order to lay the matter out and resolve some of the issues before me could be stripped away. But I leave that to the good sense of counsel. This is not a case where I would grant just limited permission. I grant permission generally.
MR KOVATS: Your Lordship having made that order could I on behalf of the Secretary of State ask for leave to cross-appeal, specifically on the issue of unlawfulness as a matter of domestic law and in order to avoid any argument about whether permission to appeal is required on the damages point as well?
MR JUSTICE RICHARDS: I doubt very much that you need permission to cross-appeal in respect of either of those points; they are merely part of the reasoning.
MR KOVATS: My Lord, to avoid any misunderstandings.
MR SEDDON: I would agree with your Lordship as far as the first point my learned friend mentioned. As far as damages is concerned if he wants to contend £1,000 to £2,000 would be too high, he might need leave to appeal, although it does not form part of your Lordship's order.
MR JUSTICE RICHARDS: I grant permission to the Secretary of State to canvass those matters on appeal. Whether it technically requires a notice of cross-appeal or not I leave to him to decide.
MR KOVATS: Your Lordship will appreciate this is to keep the Secretary of State's options open, I not having any express instructions.
MR JUSTICE RICHARDS: Yes, but plainly it is right that the matters on which I decided against the Secretary of State as part of the process of reasoning to my ultimate conclusion in favour of the Secretary of State should be open to be canvassed by the Secretary of State in the Court of Appeal.