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
		15 February 2006

1. MR JUSTICE BEAN: I have before me an application for judicial review of a decision of the Entry Clearance Officer of the British High Commission in Lagos, refusing entry clearance to six people, five musicians and one agent accompanying them in June 2005. The five musicians were contracted with the claimant company, R70 World Limited, to travel from Nigeria to the United Kingdom to play at a concert called "the Intro Summer Jam" at a club in London on 25 June 2005.
2. The company has been represented before me by one of its directors, Mr Ayo Shonaiya, who has put his case both in writing and orally to great effect. Mr Shonaiya tells me, and I accept, that other individuals contracted to play for the claimant company had appeared at the Intro Summer Jam event for the preceding three years and had obtained entry clearance from the British High Commission at Lagos without any difficulty. However, on this occasion the applications were refused. The Entry Clearance Officer, Mr Wright, refused all six individuals' applications on the 16 June, citing paragraph 41 of the Immigration Rules which concerns visitors. That, in fact, was only correct in respect of the sixth applicant, Mr Kingsley James, whose application was for a visit visa. The five musicians, however, were seeking work permits. The decision of 16 June 2005 in respect of them was therefore incorrect, and had it not been promptly withdrawn, there would be an obvious case for quashing it. In any event, I record that Miss Jennifer Richards, on behalf of the defendant, has accepted that the 16 June decision in respect of the five musicians cannot stand and it has been withdrawn.
3. A revised decision in respect of the five musicians was issued on 25 June, refusing clearance under paragraphs 128 to 135 of the Immigration Rules concerning applicants for work permits, which is what those five were. The Entry Clearance Officer interviewed the applicants, Mr Shonaiya tells me -- and I accept that he was present with them -- on 23 June. On 24 June a letter was issued addressed to Mr Sunny Neji (one of the five musicians) alone, though headed with five reference numbers, which it is common ground refer to the five applications for work permits. It enclosed a notice of refusal of entry clearance, and that notice of refusal is addressed to all five applicants for work permits (page 45 of the bundle). The letter headed, "Dear Sirs", informed the recipients of their entitlement to appeal against the decision. It referred to a repealed statute, which is unfortunate, but I think nothing turns on that. It enclosed a copy of an appeal form.
4. The appeal, of course, could not have been processed in time for a concert taking place on the evening of 25 June, the day after the letter was written, but that is partly a result of the application for the work permits having been submitted relatively late. In any event, the five applicants for work permits who were entitled to appeal under the statute did not do so. Mr Shonaiya informs me that that is because they had lost confidence in the system because of the way in which (they complain) the Entry Clearance Officer treated them. The sixth applicant, Mr James, had no right of appeal because an application for a visitor's visa does not attract one.
5. Permission was granted on the papers by Burton J on 27 September 2005. At the same time he extended time for an acknowledgment of service and gave the defendant permission to defend the case, notwithstanding late service of that pleading.
6. The matter now comes before me for substantive hearing. Miss Richards, on behalf of the defendant, takes three preliminary points: the first in respect of all six cases, the second which applies to all the cases except Mr James, and a third which applies to Mr James only.
7. The first preliminary point is that all of the applications are now academic because the application was to be allowed to take part in a concert on 25 June 2005: that date has passed and the matter need not be taken further. I reject this point. I accept, as Mr Shonaiya says, that the Intro Summer Jam is planned to be held again this June and quite possibly in subsequent Junes, and that the claimants perceive the refusal of entry clearance in 2005 as an unpleasant precedent -- a stain, in effect, on their record which they desire to have removed.
8. The second point in relation to the five work permit applicants is more substantial. Miss Richards argues that where a statutory right of appeal is provided, it must be exercised, save in the most exceptional circumstances, before recourse can be had to the Administrative Court on judicial review. The classic authority for that proposition is a decision of the House of Lords in R v Inland Revenue Commissioners ex parte Preston [1985] AC 835, and Mr Shonaiya did not dispute it. He submits, however, that this case is different because the claimant, R70 World Limited, could not appeal. It was the company which sought to hire the services of the musicians to perform at the concert. It therefore, he submits, is a party with a sufficient interest for judicial review purposes.
9. However, it seems to me that the Preston principle must apply to a case where an applicant for entry clearance, or another form of immigration decision such as leave to remain or asylum or anything else of this kind, is the natural claimant before the court. There is no good reason, as I see it, why the five musicians could not have exercised the statutory right of appeal, and the fact that they have not done so does not, in my view, enable someone else -- I accept, a company which sought to contract with them -- to challenge the decision by way of judicial review. As Miss Richards submitted, correctly in my view, it would wholly circumvent the Preston principle if someone else (on a more extended timescale than that provided by the Immigration Rules) could apply to the High Court to interfere where the person who is the direct subject of the immigration or visa or entry clearance decision has not chosen to do so.
10. So far as Mr James is concerned, the point about a statutory appeal does not apply. But Miss Richards submits that the claimant company simply does not have sufficient interest in the application by an individual who is not an employee of the company, but an agent accompanying musicians contracted to perform with the company. I accept that the company does not in those circumstances have sufficient interest to satisfy the requirement of standing to bring an application for judicial review. If anyone could challenge by way of judicial review the refusal of a visitor's visa to Mr James (and I make no findings about the merits) it would be Mr James himself. I therefore uphold the preliminary objections by the defendants to the substantive judicial review application and dismiss it.
11. I make it clear that I am making no findings whatever on the merits of the underlying dispute. Mr Shonaiya has emphasised, both before me and in the correspondence, the sense of grievance that the five musicians and Mr James feel at what they allege is the improper way they were treated and what they say is the unjustified rejection of their application, particularly when the claimants had made successful applications before. I make no findings whatever that these allegations are warranted. One simply does not get to that stage in view of the preliminary objection that has been raised. If we had got to the substantive hearing, the defendant would no doubt have argued that the very fact that successful applications had been made in three previous years at any rate goes a long way to meeting the charge that the individual Entry Clearance Officer, or the system as a whole, is biased against the claimants or those they hire. But whether his decision was or was not correct on the facts does not arise.
12. It is not for judges to advise parties on their future conduct, but I do express the hope that, if an application is to be made for entry for the 2006 concert, it is made in sufficiently good time that, if it proves to be unsuccessful, the right of appeal against the refusal of a work permit could be exercised in good time. But that is not a matter which can affect the decision today. This judicial review application is accordingly dismissed.
13. MISS RICHARDS: My Lord, I do have an application to make for costs. The point which your Lordship has found against the claimant on is a point that was drawn to the claimant's attention in correspondence back in November 2005, to which there was no reply. Therefore, I would like the court to make an order that the claimant pay the defendant's costs of the application.
14. MR JUSTICE BEAN: You do not seek a particular figure on a summary assessment?
15. MISS RICHARDS: I do not. I am sorry, I do not have that information to enable me to do so.
16. MR JUSTICE BEAN: Mr Shonaiya, what do you say to that?
17. CLAIMANT: As regards the costs, I just find it unbelievable that that will be requested by the defence counsel. But I want to quickly make your Honour, with respect, a correction. The previous application for the Intro Summer Jam on the three previous years were not for the same artists. They were for different artists. When I brought up the point to the Immigration Entry Clearance Officer in his interview with me, I asked them: does it not count for anything that I have applied for three years with other artists and that has been successful? His reply was: they do not find the event credible, especially with the bunch of people that I have now. So it was not like the same artists were granted visas before, and they were not granted. So it would not make it look as if they were not biased then, but they are biased now. It was not for the same artists; it was for other artists who have come to England to perform and then gone back to Nigeria. What we do is take different artists every year to expose them to the international stage as everyone else in every other country in the world tries to do.
18. MR JUSTICE BEAN: Well, thank you for making that clear. It does not affect the judgment which I gave earlier. But there it is. Now, what do you say about costs?
19. CLAIMANT: I would simply respond by saying I hope the court rejects the application for costs because the reason why I am here today, pretty much making a fool of myself, is because I could not afford to bring this case by getting counsel simply because of the refusal that had cost us financial hardship since last year. Effectively, if, as your Honour has stated, the application is dismissed, we would just go home. That is the end of our business. It is as simple as that. One man's mistake is the end of our business. It is quite regrettable that throughout the case the defence counsel has pretty much -- or the defendants -- have practised this selective amnesia, only focusing on some facts and not focusing on the real facts that brought about this original claim for judicial review, such as the fact that the Entry Clearance Officer actually said to me that he was going to send the work permits back to Work Permits UK in Sheffield. Those work permits should not have been issued in the first place, which effectively has prejudiced any future application for work permits. There will be no point in us applying for work permits now because I would imagine they have sent the work permits back with the same letter that says maybe they must have been obtained by deception. As far as I am concerned, we have suddenly become fraudsters in the face of Work Permits UK and the British High Commission in Lagos. So I do not think there would be a 2006 Intro Summer Jam. Effectively this pretty much ends our business. So the application for costs, if it is granted, we would pay and then we would just go home. But I hope the court will see to it that there is no insult upon injury, so to speak, after ending our business that we should pay for bringing a case against the British High Commission, which is clearly wrong. You know, the first refusal and second refusal is full of mistakes which happens every day, and my own contention about corruption is, your Honour, I do not know if this makes any difference to your decision, that a few months after our application was refused, a company wished to work (inaudible) before here and in partnership with the previous three shows applied to the British High Commission in Lagos for the first time -- first time application for musicians who have never travelled to the United Kingdom before, just like Sunny Neji and Ruggedman and the rest, and were granted visas to come and perform at an event here in the United Kingdom, which is exactly a carbon copy of what we used to do.
20. Although I am a British citizen, I come from a country that is full of corruption, and what I think has happened today is pretty much the same thing that happens in the country every few years where there is a coup in government. I do not mind competition if we do business and bring artists to perform here. But if it is a matter of where they kill us because they want to take our job, I think maybe I am in the wrong business and I should just go home. The way I feel about this now is the British High Commission has pretty much ended my business. I will go home, but to add insult by asking is to pay costs is just unbelievable. Thank you.
21. MR JUSTICE BEAN: It is unfortunate that the statutory appeal process was not pursued because there is no costs risk, unlike in the High Court. The defendant has succeeded on a point which was notified to the claimant in correspondence in November 2005, namely that the statutory appeal should have been pursued rather than the application for judicial review. However, I bear in mind, firstly, that Burton J granted permission on the papers, and secondly that the defendant's submission that the judicial review claim was academic, which was the subject of repeated attempts to persuade the claimant to withdraw the claim, is one which I have found to be unsubstantiated. In those circumstances, the claimant must pay two thirds of the defendant's costs, to be assessed in detail if not agreed.