England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		30 June 2004

1. MR JUSTICE BLACKBURNE: The claimants in this case who are husband and wife, a Mr and Mrs Veja, wish in these proceedings to challenge the decision of the defendant, the Secretary of State, dated 16th January 2003 and reaffirmed by a letter dated 4th May 2004 refusing to grant entry clearance to a Miss Karavadra from India whom the claimant's wished to employ as a nanny. There were reasons why they wished to employ that particular person in that it appears that the second claimant, who is a UK resident and the mother of two young children, suffers from a medical condition which, as I understand it, interferes with her ability to care for the two young children. There is medical evidence that supports her claim that she needs assistance from a nanny.
2. The claimants are Gujarati in origin and they claim to have a need for a Gujarati-speaking nanny who is fully conversant with their culture. They claim that despite advertising widely in the local Asian press and within the local community they were unsuccessful in securing an appropriate nanny, but following a visit to India they found a suitable candidate in Miss Karavadra for whom they have been trying ever since to obtain entry clearance for her to come to this country as a domestic worker.
3. Their claim is twofold in nature: first, that the defendant, the Secretary of State for the Home Office, has unreasonably refused consent to the grant to Miss Karavadra of the necessary entry clearance; and secondly, in any event, that consideration of the application has been flawed and is subject on that account to review. It has been accepted that the application for the necessary entry clearance was outside the immigration rules. The case, as I follow it, is based upon the contention that compassionate circumstances exist which justify a grant of the necessary entry clearance. As I say, an application was made which resulted in a refusal dated 16th January.
4. Alongside all of this, the claimants had been in touch with at least two members of Parliament who have taken up this case, one of them their own local MP and another a member of Parliament from a constituency in the north of England. The claimants, I should add, live in Uxbridge. The MPs in turn made contact with various ministers, including the parliamentary Undersecretary of State for the Foreign and Commonwealth Office, but more particularly the Ministry of State in the Home Office. What has been contended is that as a result of those communications, and in particular various assurances given by the Minister of State at the Home Office that she, because at the time it was a she, would be happy to meet the Member of Parliament for the northern constituency to discuss the claimants' case, there arose a legitimate expectation, enforceable by judicial review if necessary, that the minister would consider the matter personally.
5. In fact what happened, apart from the refusal letter of the 16th January, was that the minister, after having promised to meet the particular MP, wrote on 27th March to say that she was sorry that she had had to postpone a meeting to discuss the case. "However", she wrote,

"I have had the chance to review the case myself and, having considered the case thoroughly, I have to say I can see no compelling compassionate circumstances that would lead me to exercise my discretion and allow Miss Karavadra to come to the UK."

6. She then goes on to say:

"As it happens, I now have to be on the front bench on 1 April and will have to cancel our meeting again. In addition, I understand that Mr Veja is not a constituent of yours, as he lives and works in Middlesex. In the meantime, therefore, I'd be grateful if you could let me know the basis of your representations on Mr Veja's behalf."

7. That is a reference to what I understand to be the parliamentary protocol that a minister is happy to discuss a particular case with the MP for the constituency in which the person affected resides, but not with an MP from some other unrelated constituency.
8. On the basis of the refusal of the claimants' application, as communicated by the 16th January notice and the letter of the minister of 27th March, these proceedings were launched initially challenging the 16th January refusal. The matter came before Sullivan J on 20th February on the application for permission. On that occasion the judge granted permission and did so notwithstanding that there had been what he described as 'significant delay' in challenging the minister's decision. The judge in the course of giving permission said this:

"I can readily understand how, in the particular circumstances of this case, this claimant would indeed have been quite shocked by the content, and, indeed, the tenor of the minister's reply."

That is a reference to the 27th March letter.

"So far as the substance of the matter is concerned, since this is a permission application it is unnecessary to say very much, save for this. Firstly, I am satisfied that it is at least arguable that the claimant had a legitimate expectation that his application would be considered in accordance with the particular procedure that had been suggested to him, and that that procedure, for whatever reason, was not followed."

9. That is a reference to the communications which had been passing between MP and minister with the promise of a meeting and the understanding that the minister would personally consider the matter. Sullivan J continued:

"Secondly, it is arguable that, against the background of the suggested procedure, the reasons given in the minister's letter of 27 March 2003 are wholly inadequate."

10. He then went on to consider what he described as a "matter of concern", which is an apparent conflict on the face of the documents between the minister's assurance that she would give it her personal consideration, and the letter attached to the refusal of entry clearance which suggests that the minister had reviewed the case by that time and had been satisfied that compassionate grounds had not been shown. He then went on to say this at paragraph 5 of his judgment:

"I merely add this. All that the claimant wants, and indeed all that the claimant can achieve, even if he is successful in a substantive hearing, is a full and proper consideration of the exceptional circumstances of his case. He cannot expect that that consideration will lead to any particular outcome. He is entitled to expect, as I say, a full and proper consideration of his case and it will be for the defendant to consider whether it wishes to maintain that, in all the circumstances, that letter from the minister, dated 27 March 2003, can fairly be described as a full and proper consideration of the particular circumstances of this case. If courtesy and consideration were the hallmarks of good administration, the minister's letter would be sadly deficient. That said, I extend time to enable the application to be made and grant permission."

11. Following that, the matter was given fuller consideration, albeit not by the minister personally but by an officer of the Managed Migration Directorate of the Home Office who, in a letter of 4th May, made clear that it had been decided following the grant of permission to apply for judicial review that it would be appropriate to review the decision taken. The letter then proceeds to consider the merits of the application, but comes to the conclusion that exceptional circumstances do not exist.
12. The claimants, apart from criticising the initial refusal of 16th January, and also the minister's letter of 27th March, criticise the 4th May letter, not least on the grounds that, contrary to their expectation that was not a consideration of the matter by the minister personally.
13. The application for judicial review thus proceeded and was due to come on for hearing last week. However, very much at the last minute, a couple of days before the matter was due to come on for hearing, the Treasury Solicitor wrote to the solicitors for the claimants. The letter is dated 23rd June. (I should say that by now the identity of the minister had changed.) The letter stated:

"I have been informed that the Minister has agreed to meet with your constituency MP John MacDonnell ...

In view of the fact that the Home Office fully reconsidered granting entry clearance to Miss Rambhi Bhanu Karavadra by a letter dated 4 May 2004 and in the light of your recent compliance with the parliamentary protocol it has now been possible to arrange a meeting with your constituency MP and the new Minister Des Browne. It is considered that you can not obtain any further relief from the proceedings for judicial review and in order to avoid wasting significant costs in attending the hearing on Friday the application for judicial review should be withdrawn."

14. And then they enclosed a form of consent which they hoped the claimants, through their solicitors, would sign agreeing that the application for judicial review be withdrawn.
15. The claimants, however, were unhappy about that. Whilst welcoming the meeting between the minister and the local Member of Parliament they nevertheless persisted with their wish that the minister agree that the decisions of which they were seeking judicial review should be either withdrawn or that the Secretary of State should consent to an order whereby they be quashed.
16. The Secretary of State, however, was not willing to accede to that and, in the result, the matter has come on for hearing before me, initially at any rate on all issues. I, at an early stage, expressed the view that I could see no useful purpose in the court taking up time going through all of the circumstances and considering the legal issues in this case and, in particular, whether the refusal of the minister by her letter of 27th March of 2003 was capable of attracting the remedy of judicial review. I expressed the view that given that the minister, the current minister, was willing to meet the claimants' local Member of Parliament and, following that, embarking upon a full reconsideration of the claimants' claim, there seemed no point, since that in substance was the relief which the claimants were seeking.
17. The matter, after argument, has been left on the basis that the application for judicial review would be withdrawn, but on the basis that if the full reconsideration of the matter by the minister should not result in the grant of entry clearance for Miss Karavadra it will be open to the claimants to pursue an appeal against the original refusal of entry, the Secretary of State taking no point on time or in so far as is necessary agreeing to an extension of time to enable such an appeal to be pursued.
18. That being so, the only question is one of costs: who should bear the costs of the proceedings? My attention has been drawn to the decision of Scott Baker J (as he then was) in Alexandrina Boxall and Brian Boxall v Mayor and Burgesses of the London Borough of Waltham Forest. In paragraph 22 of his judgment Scott Baker J said that he was concerned with the case where (as here) the application for judicial review does not result in a concluded decision. He said this:

"Having considered the authorities, the principles I deduced to be applicable are as follows:

(i) the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.

(ii) it will ordinarily be irrelevant that the Claimant is legally aided;

(iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;

(iv) at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.

(v) in the absence of a good reason to make any other order the fall back is to make no order as to costs.

(vi) the court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage."

19. I, for my part, cannot say either that the judicial review application would clearly have succeeded, or that it would clearly have failed. I accept, in particular, the submission that although permission to bring judicial review proceedings on the basis of an arguable case of legitimate expectation was granted by Sullivan J, nevertheless the question whether in the circumstances of this case the communications between the minister and MP were capable of giving rise to a justiciable legitimate expectation is a difficult one. There are authorities which suggest that it is only in very rare circumstances that the court would entertain a review of correspondence or communications between minister and Member of Parliament, although, as Mr Gill has pointed out, that is not an invariable rule. I also consider that it is by no means clear that the original refusal is one which was clearly open to review or that the same can be said of the letter of 4th May.
20. What, I am bound to say, has somewhat troubled me is the fact that although in the result the minister has now agreed to a meeting with the local MP this concession has come very much at the last minute. I am also concerned about the relative absence of responses to communications from the claimants, or communications on their behalf, and about the delays that that has engendered. Looking at the matter in the round it seems to me that the fair course to adopt in this case, although I cannot and do not say what the result would have been if the substantive issues had been fought to a conclusion, is to say that justice will be done if the Secretary of State were to make a contribution to the claimant's costs, but certainly not they should have all of their costs.
21. In all the circumstances, in my judgment, the fair course, given the way in which these proceedings have been concluded, is to direct the Secretary of State to pay half of the claimant's costs.
22. MR GILL: May I just have one moment? My Lord, it may be treading on dangerous waters, but I suppose formally at least I ought to try to preserve my position by asking for permission to appeal. I say no more about it than that.
23. MR JUSTICE BLACKBURNE: This is very much a matter of discretion. You will have to go to the Court of Appeal if you wish to get permission to appeal.
24. MR GILL: My Lord. Your Lordship heard the terms in which I put it.
25. MISS ANDERSON: My Lord, I have no application.
26. MR JUSTICE BLACKBURNE: Right. Anything else? Can a form of order be drawn up?
27. MR GILL: My Lord, we will draw one up, yes.