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
		28 June 2007

Introduction

1. THE DEPUTY HIGH COURT JUDGE: On 3 April 2007, Forbes J ordered this case to be considered on a "rolled-up" basis at an expedited hearing. He also granted interim relief and made various other directions. When the case was heard before me, on 21 June 2007, I granted permission, without objection from counsel for the Secretary of State, and proceeded to a substantive hearing of this claim for judicial review.
2. The first claimant is a Turkish national of Kurdish origin who has been recognised as a refugee in the United Kingdom. The second claimant is his wife. The third claimant is their son, who was born on 19 September 1989 and is now aged 17. The fourth claimant is their daughter, who was born on 12 June 1996 and is now aged 11.

Background

3. The parties have helpfully provided the court with an agreed chronology and I can summarise the factual background largely by reference to that. On 19 July 2003, the first claimant arrived in the United Kingdom. In August of that year he applied for asylum and his claim was refused by the Secretary of State on 28 August. On 11 November 2003, his asylum and human rights' appeals were dismissed by the adjudicator. It should be noted that the adjudicator found him credible.
4. In February 2004 the second, third and fourth claimants claimed asylum in the Netherlands. On 16 April 2004, the second, third and fourth claimants travelled to the United Kingdom and applied for asylum here. On 6 October 2004, the Immigration Appeal Tribunal dismissed the first claimant's appeal. He then appealed to the Court of Appeal. On 2 September 2004, the Tribunal promulgated a country guidance decision in a case call IK. On 24 December 2004, the second and fourth, but not the third claimant, were transferred to the Netherlands under the Dublin Regulation Procedures.
5. In June 2005 the first claimant's appeal was listed to be heard in the Court of Appeal with several other cases. The appeal was remitted by consent to the Tribunal for reconsideration in the light of the decision in IK. On 13 December 2005, the Tribunal, by now known as the Asylum and Immigration Tribunal, allowed the first claimant's appeal against the adjudicator's decision. On 4 January 2006, it appears that the Dutch immigration authorities refused asylum to the second claimant, but without taking into account the positive decision of the United Kingdom's AIT decision to allow the first claimant's asylum and human rights' appeal. However, it is not clear precisely which claim the Dutch were considering on that date.
6. On 17 October 2006, the first claimant was issued with his refugee status documents. On 10 January 2007, the second claimant's Dutch lawyer wrote to say that a Dutch court had made a negative decision on 8 January, and that he required evidence of an application for entry clearance in order to prevent removal of the second and fourth claimants to Turkey. On 1 February 2007, the first claimant's solicitors wrote to the British Embassy in the Hague and asked that the second and fourth claimants be allowed exceptional leave to apply for entry clearance for a family reunion with the first and third claimants in the UK. I should go to that letter in more detail at this stage. I quote, so far as material:

"As Mr Barlas has now been granted refugee status you will no doubt be aware that he is entitled to family reunion with his wife and daughter. The couple were married prior to Mr Barlas coming to the United Kingdom to claim political asylum based on the fact that he has been granted refugee status you will no doubt appreciate that the application that Mrs Barlas makes for entry clearance to the United kingdom under the family reunion provisions should automatically be considered favourably.

We are aware that UK Consulates abroad are set up to facilitate and service British citizens and those who have legal residence of the countries where a High Commission/Embassy is based and therefore we would request on this occasion you exercise discretion and allow Mrs Barlas and her daughter to make an application for family reunion directly from the Netherlands. For the reasons set out below we are of the view that Mrs Barlas will suffer persecution upon her arrival in Turkey."

7. For present purposes I do not need to quote any more from that letter.
8. The matter was, in fact, taken up not by the embassy in the Hague itself, but by the British Consulate in Amsterdam and, on 5 February 2007, the Consul-General wrote to the solicitors for the claimants in the United Kingdom, so far as material as follows:

"I note that the dependants of Mr Barlas are currently illegally in the Netherlands, having failed their asylum claim. I note too your request that we accept their visa applications on an exceptional basis as they are not legally resident in the Netherlands. Furthermore, I take note of your threat to seek judicial review if the Consulate does not respond to your fax within seven days.

I am hereby responding formally to your fax. As you will appreciate this is a delicate matter for which there can be no hasty decision. I will therefore need to refer your fax back to UKVisas Policy Section and a more substantial reply will issue in due course."

9. That more substantial reply followed in a letter, again from the consulate in Amsterdam, on 13 February 2007. So far as material, the letter reads as follows:

"As you are aware, all long-term applications must be submitted in the country of residence or at a designated post adjacent to the country of residence. I pointed out to you in my original reply that Mr Barlas' dependants are not legally resident in the Netherlands and having consulted with UK Visas, I regret that we do not think there is a case for their applications to be accepted at Amsterdam on an exceptional basis.

Although the solicitors claim that Mr Barlas will suffer persecution if returned to Turkey, the Dutch authorities have not accepted this and have refused her claim for asylum. Moreover, the appeal courts in the Netherlands have upheld this decision. The matter has therefore already been fully considered by the appropriate authorities, who were in a much better position to assess the claims. Mr Barlas' appeal was allowed in the UK in December 05 and I have no doubt that this would have been taken into consideration by the Dutch authorities. We are confident that Mrs Barlas' asylum claim would have been given full and fair consideration, and accept the findings of the Dutch authorities.

As Mrs Barlas is not legally resident here, I regret that she will have to apply for family reunion from Turkey once she is returned there. I am sorry not to be able to give you a more favourable reply."

10. Subsequently, on 30 March 2007, the present claim for judicial review was received by the Administrative Court. I should say that there is a relative paucity of evidence in this case, for example, any relevant decision of the Dutch judicial system has not been placed before the court by either party. Nevertheless, I have to do the best I can in the light of the evidence that is before the court.

Relevant immigration rule and other materials

11. As is well-known, the Immigration Rules are made by the Secretary of State under section 3(2) of the Immigration Act 1971 and have to be laid before Parliament. For present purposes the relevant rule is contained in paragraph 28 of the Immigration Rules, which states that:

"An applicant for an entry clearance must be outside the United Kingdom and Islands at the time of the application. An applicant for an entry clearance who is seeking entry as a visitor must apply to a post designated by the Secretary of State to accept applications for entry clearance for that purpose and from that category of applicant. Any other application must be made to the post in the country or territory where the applicant is living which has been designated by the Secretary of State to accept applications for entry clearance for that purpose and from that category of applicant. Where there is no such post the applicant must apply to the appropriate designated post outside the country or territory where he is living."(emphasis added)

12. In a document entitled "Immigration Directorates' Instructions" (IDI), dated June 2002, in chapter 1, section 4 which is headed "Entry Clearance" there is a paragraph headed "Definition of "living"" at paragraph 7.2. This so far as material states as follows:
13. "There is no precise definition of the word "living" as contained in the Immigration Rules but the relevant rule has been so worded to allow posts to operate with a degree of flexibility, discretion and common sense. In general terms "country or territory where the applicant is living" refers to the place where a person is present in any capacity other than as a short-term visitor and has permission from the relevant authorities to be so."
14. There is another document which is relevant and which has been issued by an agency known as UK Visas, which, as I understand it from the hearing, is an agency of the Foreign and Commonwealth Office. This document is headed "Diplomatic Service Procedures-entry clearance". Volume 1, which is entitled "General Instructions", contains a Chapter 8 on how to apply for entry clearance. Paragraph 8.1, which has the heading "To which Post should an applicant apply" first sets out the text of paragraph 28 of the Immigration Rules and then contains this important subparagraph:

"This means that applicants may apply for visit visas at any full Entry Clearance Issuing Post (ECIP). They should apply to the ECIP in the country where they live, as a permanent resident or in other long-term categories with lawful status." (emphasis added)

The claimant's case in outline

15. As became clear from the helpful submissions of both counsel at the hearing, the claimant's case relies essentially on three grounds: the first and main issue raised by the claimant is the contention that the Secretary of State erred in law as to the interpretation of paragraph 28 of the Immigration Rules, in particular, the meaning of the phrase ""living" in a country". Secondly, the claimant also relies upon an alleged breach of Article 8 of the European Convention on Human Rights, namely the right to respect for family life. Article 8, of course, is one of the rights set out in Schedule 1 to the Human Rights Act 1998. Thirdly, the claimant contends that the decision of the Secretary of State was, in any event, irrational because he should have been prepared, in the circumstances of this case, exceptionally to permit the application for a family reunion to be made not in Turkey but in the Netherlands.

Interpretation of paragraph 28

16. In my judgment the Secretary of State has erred in his interpretation of paragraph 28 of the Immigration Rules. My reasons, in essence, are as follows. The words ""living" in a country" are ordinary words of the English language. It is inappropriate to seek to elaborate upon them or to add a gloss on them, which has the effect of cutting down their natural meaning. The IDI, at paragraph 7.2, rightly recognised that paragraph 28 is flexible and should be applied with discretion and common sense. In my view paragraph 7.2 of the IDI, when properly interpreted itself, is consistent with the interpretation of paragraph 28, which appears to me to be correct.
17. As paragraph 7.2 makes clear, the purpose of the requirement that a person should be living in a relevant country in paragraph 28 is essentially to focus attention upon the fact that this is the place where a person is present in any capacity other than as a short-term visitor, and has permission from the relevant authorities to be so. There is no suggestion in paragraph 7.2, correctly in my view, that the Immigration Rules require permanent residence, or some similar long-term status in the relevant country to be enjoyed, before a person can be said to be living there. In my view the UK Visas Manual on Diplomatic Service Procedures at paragraph 8.1, which I have quoted earlier, adds a gloss which is not there in paragraph 28 of the rules themselves and has the effect of cutting down its scope when correctly interpreted. The natural interpretation of paragraph 28 also appears to me to serve useful purposes without causing potential and unnecessary hardship to families for purely administrative reasons.
18. While a person, who is only on a short visit or a business trip to a country, will not qualify because they could not reasonably be said to be living in that country, others will be able to do so even if they are a long way away from their country of nationality or permanent residence. Although I can understand that the diplomatic post, to which an application is made, may not itself have access to relevant information or documents, which would more readily be found in a country of nationality or permanent residence, I do not regard this as a sufficiently weighty point to outweigh the natural meaning of paragraph 28.
19. In modern conditions it should often be possible to communicate quickly with a diplomatic post in another country in order to obtain relevant information, or documents. Certainly there is no evidence before the court that there would be insurmountable practical difficulties if my interpretation, which, as I see it, is the same as the interpretation given at paragraph 7.2 of the IDI, is placed upon paragraph 28 of the Immigration Rules. Furthermore, it is important to bear in mind that all that the natural interpretation of paragraph 28 means is that the application would have to be considered, not that it would have to be granted. If, for practical reasons, the diplomatic post could not properly grant the application because it lacked the relevant information or documents, that would rebound to the disadvantage of the applicant, not to that of the Secretary of State. It would be in the interests of the applicant to try to ensure that all relevant information and documentation could be placed before the diplomatic post in that country in order to succeed in their application.
20. I have also considered the other arguments ably made by counsel for the Secretary of State. In particular, I have borne in mind the risks which it is suggested would arise of abuse of immigration control, not only in the United Kingdom but in other European states, and potentially the breach of the Dublin Regulation system. It may well be that as was submitted, on behalf of the Secretary of State, paragraph 28 should not be interpreted in a way which would benefit a person who was illegally in a country, for example, a clandestine entrant, or one who has gone underground having perhaps been admitted as a lawful visitor. Even then it might be said that such a person was in fact "living" in a country, albeit illegally, but it is unnecessary for me, on this occasion, to go into that. For I accept the submission, on behalf of the claimant, that that is not the present case.
21. While an asylum claim application is being considered and potential appeal or other avenues are being pursued, in accordance with well-established international standards, their presence in a country is not unlawful. Indeed, in a case such as the present, the second and fourth claimants were deliberately removed from the UK to the Netherlands under the Dublin regulation system precisely so that the Dutch authorities could consider their claim for asylum there. It is unfortunate that there is a paucity of evidence as to the precise state of affairs at present in the Netherlands. Nevertheless, the claimant's counsel is entitled to point out, as he did, that there is no positive evidence on behalf of the Secretary of State that a decision has yet, finally and irrevocably, been taken by the Dutch authorities to remove the second and fourth claimants to Turkey.
22. In that context I should quote from a letter which was placed before me at the hearing from the Dutch lawyer acting for the second claimant, dated 14 May 2007:

"The Dutch authorities are not forcing Miss Barlas to leave to Turkey at this moment. On one hand they are waiting for the results of the proceeding that I had defended before the court of Amsterdam on April 18^th 2007. In this case the court informed me that they are in no hurry to make a decision in a short time. On the other hand, the Dutch authorities received the information about the proceedings before the High Court of Justice Queens Bench Division Administrative Court, and your information that the court has been listed for a full day hearing on 21st June 2007. As far as I have understood from IND in the Netherlands there is a warning booked in this file, also to wait for the result of this procedure in the United Kingdom."

23. Before leaving the question of interpretation I should mention some other points that were made at the hearing. Counsel for the Secretary of State submitted that a person could not be said to be living in a country if the only reason why they were living there was because they had made the application for family reunion. Although he did not use that phrase, this might be described as a "boot-straps" argument. Were the history of this case different I could see some force in that argument, but for reasons I have outlined already, that does not appear to be an accurate and complete reflection of the factual history of this case.
24. Another point made by the Secretary of State's counsel was that the interpretation, which the claimant advances, would have the effect of undermining the Dublin regulation system. In my view that cannot be taken to its logical conclusion. If it were it would leave no room for even the exceptional exercise of discretion to make an application for family reunion in a case of this kind. Yet the Secretary of State accepts that he does have that discretion and indeed submits that he properly and lawfully considered, in the circumstances of this case, whether to exercise it.
25. Finally, both parties after the hearing drew my attention to the recent Court of Appeal decision in AI v the Secretary of State for the Home Department [2007] EWCA Civ 386, which was delivered on 26 April 2007. The main judgment was given by Dyson LJ. The case concerned a very different aspect of the Immigration Rules to do with domestic violence, and I need not go into the case in detail for that reason.
26. In my view, important though the decision of the Court of Appeal is in its particular context, I do not regard it as decisive in favour of either party to the present case. However, on balance I do consider that it adds some weight to the claimant's interpretation in that it is a helpful and authoritative reminder that what has to be construed, first and foremost, is the Immigration Rules themselves. While, of course, the Secretary of State is entitled in law to give guidance on the application of the rules, what he is not entitled to do is to cut down the scope of the rules when properly interpreted according to law.

The claimant's other grounds

27. In the light of my conclusion on the first and main issue in this case, it is strictly unnecessary for me to say anything about the other two grounds relied upon by the claimant, as I outlined earlier. If it were necessary to address those grounds it would have to be on the basis that the interpretation placed upon paragraph 28 was correct: see paragraph 8.1 of the UK Visa Services Manual that I have already referred to.
28. For practical purposes, in the present context, that would mean that the rule did require a person to have the legal right of permanent residence or similar long-term status in a country before they can make an application, which is relevant.
29. Upon that basis, suffice it to say that I would have had difficulty in seeing how the refusal by the Secretary of State to commit an application to be made to the Consulate in Amsterdam, as an exception to his normal policy, would either have breached Article 8 or been irrational. I need express no final view on those matters in view of my conclusion on the main issue "interpretation", which has arisen in this case.

Conclusion

30. For the reasons I have given, this claim for judicial review is allowed on the ground that the Secretary of State erred in law in his interpretation of paragraph 28 of the Immigration Rules. What the outcome would be if the Secretary of State had interpreted the rule correctly is, strictly speaking, not a matter for the court. However, the decision on any reconsideration will naturally have to be both in accordance with the judgment of the court, subject to any appeal, and rational. I will hear counsel on the terms of the exact order which the court should make.
31. MR GILL: I am grateful for the judgment. May I suggest, so far as the relief is concerned, that your Lordship consider ordering the following relief: firstly, the decision of 13 February 2007 be quashed and then secondly, that the defendant be ordered to accept the application for entry clearance as a valid application for entry clearance, and then to determine it in accordance with the rules. Other than that, costs.
32. THE DEPUTY HIGH COURT JUDGE: Could I just ask you about that? The first of those - obviously I will hear Mr Payne in a moment - I can see naturally follows from the terms of the judgment. The second I am not sure does follow naturally from the terms of the judgment. In fact, I was quite careful, in the concluding paragraph, to suggest that it is not strictly speaking a matter for the court to order.
33. MR GILL: The defendant will have to, at the very least, consider the application made to him on 1 February 2007 again. At the very least he will have to do that. That was an application that he should receive an application for entry clearance, and if it be that the effect of your Lordship's judgment is that the defendant is now to be ordered to reconsider that application of 1 February 2007, I will be content with that.
34. THE DEPUTY HIGH COURT JUDGE: You are content with that? Would that not be the logical effect if I granted you a quashing order?
35. MR GILL: It may be that the only thing one needs is the quashing order and if your Lordship feels it does not really add much to go beyond that, the natural consequences will follow. I will not press the second of the two matters that I first pressed upon you.
36. THE DEPUTY HIGH COURT JUDGE: You ask for costs in addition to that?
37. MR PAYNE: My Lord, I do not have any submissions to make contrary to my learned friend's suggestion as to the nature of the order. It seems to me that especially, although you did not make a finding in relation to the other aspects in relation to the doubts that you voiced, that the Secretary of State must be entitled to reconsider in the light of the IDI issue. In my submission (inaudible).
38. THE DEPUTY JUDGE: That is correct.
39. MR PAYNE: So, in those circumstances, it is still a matter for the Secretary of State and it goes back to him.
40. THE DEPUTY HIGH COURT JUDGE: Rightly or wrongly that is how I see it. That is what I hoped to express in the terms of my judgment.
41. MR PAYNE: I am not entirely sure, but when it is appropriate we will be seeking permission to appeal. Would you like me to make an application now or not?
42. THE DEPUTY HIGH COURT JUDGE: Shall I just deal with the Order? Do you want to say anything about costs? Do you accept that it follows from the judgment that, therefore, the decision by the Consul-General in Amsterdam, dated 13 February 2007, be quashed.
43. MR PAYNE: If I can just say I do have a slight difficulty with it. Whilst I understand the position that you have taken, my Lord, if you go back to the actual application that was made what was sought was an exceptional exercise of discretion.
44. THE DEPUTY HIGH COURT JUDGE: I know.
45. MR PAYNE: Why I was originally making the submissions, and why I suggested that you go on to make that finding, was that it seems to me that although my learned friend has developed submissions in contempt of the ground, in terms of the nature of the application, the Secretary of State was fully entitled to refuse to exercise his discretion exceptionally. There was no application made to the Secretary of State to not apply the IDIs or not apply --
46. THE DEPUTY HIGH COURT JUDGE: I understand.
47. MR PAYNE: If you look at the letter there is no reference to the Foreign Office guidelines. In those circumstances, I mean I would have thought, to be honest, if you were minded to come to a more of a definitive decision on the exceptional point, the Secretary of State would be entitled really to rely on that letter.
48. THE DEPUTY HIGH COURT JUDGE: This is why I would like assistance from both of you. I wonder if the right course is to make a declaration that the Secretary of State has erred in his interpretation of paragraph 28 of the Immigration Rules.
49. MR PAYNE: With respect, I think that would probably be the better solution because, first of all, it clarifies the IDIs. I am not criticising the Office. In so far as in future applications the Foreign Office (inaudible) are relied and make that clear. Looking at the decision under challenge it is not referred to in the guidelines. As I have said, what the Secretary of State was looking at was the exercise of the exceptional discretion and that is the--
50. THE DEPUTY HIGH COURT JUDGE: I am not sure that is right because the letter did refer to the fact that they were not legally resident in the Netherlands, which, as I understand it, was reference to the normal requirement in the UK Visas' guidance that they do have to be.
51. MR PAYNE: I think even under the IDIs permission is required from the State. I appreciate that there is a difference between legally resident and permission. I think we are entitled to say from the position it seemed at the material time, even on the claimant's case, that they had no entitlement to be there and that is why they made the application. That is what the Dutch authorities--
52. THE DEPUTY HIGH COURT JUDGE: Are you inviting me to make a declaration rather than a quashing order?
53. MR PAYNE: Yes.
54. THE DEPUTY HIGH COURT JUDGE: I will hear what Mr Gill has to say about that. At the moment I am sympathetic, subject to what he says and subject to the terms of that being formulated.
55. MR PAYNE: Then I will make submissions on the costs.
56. MR GILL: With respect I think that submission has a fundamental law in it. The decision letter of 13 February 2007 is a letter that is based upon an assumed validity of the rules. It contains within it an inherent application of the rules, in effect, unstated (not just unstated practice in effect stated) assertion that the rule means "X" is legally resident. Therefore, it is simply not good enough to say that because the application was put in the way that it was that the letter is simply replying to an argument to the realm of exceptionality, and that is the remit. The proper analysis of any such decision, be it in any field, is: (1) to look to see what it is that the defendant was applying -- he was applying the rules and then (2) look to see how far he moved outside of that exceptionality point. The rule is an essential part of the decision. The judgment itself has declaratory effect and I would seek a declaration, in any event. A quashing order must follow on that letter.
57. THE DEPUTY HIGH COURT JUDGE: I understand what you are saying. Mr Payne, I have to say, on reflection, looking at page 23 of the bundle, which is the letter of 13 February, I think it would achieve greater clarity in this case if I were to quash that decision. I will hear anything further you want to say to me. It seems to me that to make it clear that, as I said in my concluding paragraph of the judgment, what I am expecting to happen is that the decision, whether or not to consider this application for family reunion in the Netherlands, must be re-taken in accordance with law, as set out in my judgment, subject to any possible appeal. That is the result I am hoping practically will be achieved, without necessarily pre-empting what the outcome of that will be, as I have explained to Mr Gill.
58. It does seem to me, on reflection, that Mr Gill is entitled to say that the letter does, in a couple of places at least, make reference to the requirement, implicitly at least, in the UK Visas' interpretation of the rule, namely that Mr Barlas is not legally resident.
59. MR PAYNE: If I can turn to that quickly? If you turn to page 25 and you turn to the bottom paragraph that you read out.
60. THE DEPUTY HIGH COURT JUDGE: That was the basis on which they understood the position at the same time?
61. MR PAYNE: The Secretary of State is answering that application. If the claimant himself is saying, "We know we are not legally resident, but want an exceptional exercise of discretion", the Secretary of State quotes the precise words we use in the application and says "We are not going to exercise it exceptional". Why are we not entitled to look for the court to consider the rationality of that exercise of the discretion?
62. THE DEPUTY HIGH COURT JUDGE: Is there anything else you want to say? My decision on this point then is: having considered the argument from both sides I conclude that the clearest way to express the outcome, which is intended by the judgment, is to make a quashing order in relation to the decision of the Consul-General in Amsterdam, dated 13 February 2007. That will have the practical consequence that the matter can be reconsidered and must be reconsidered in accordance with law. That law, subject to any possible appeal, is as set out in the judgment, which I have just delivered. Do you want to address me on costs?
63. MR PAYNE: I do not think I can say much more than the Secretary of State addressed the application that was put before him. In terms of the substantive merit of the decision, there does seem to be a suggestion, at least in your judgment, that the Secretary of State reached a decision that was open to him.
64. THE DEPUTY HIGH COURT JUDGE: Yes, although you did resist the application and a large part, although I accept not the entirety of the case, did focus upon this issue of interpretation and the Secretary of State has lost.
65. MR PAYNE: I accept that. Certainly my understanding of my learned friend's grounds were more to the issue of whether we were entitled to say something was lawful and rely on lawfulness. If I remember correctly how the hearing went my Lord raised, fairly early on, the issue of living, which I do not think I had addressed in my grounds. I am not sure whether it is the issue you relied on in your judgment. I am not sure whether it was flagged up as a primary issue.
66. THE DEPUTY HIGH COURT JUDGE: I understand. Mr Gill, do you want to say anything else on costs?
67. MR GILL: My Lord, simply with respect to the issue about the meaning of paragraph 28, what it meant was clearly flagged up in the grounds. It is mentioned at the bottom of page 14 that the construction is erroneous. They have chosen to defend it and fight all of the case and they should pay the costs.
68. THE DEPUTY HIGH COURT JUDGE: My order in this case is that the defendant will be ordered to pay the costs of the claimants, to be subject to detailed assessment, if not agreed.
69. MR GILL: Detailed assessment of our publicly funded costs?
70. THE DEPUTY HIGH COURT JUDGE: Detailed assessment of the claimant's publicly funded costs in the normal way. Is there anything else?
71. MR PAYNE: Can I ask for permission to appeal?
72. THE DEPUTY HIGH COURT JUDGE: I am minded to grant that, subject to anything that Mr Gill may want to say about that.
73. MR GILL: In view of the indication, no, there is nothing else I want to say.
74. THE DEPUTY HIGH COURT JUDGE: I will grant permission to the defendant to appeal in this case. It seems to me to be the case that although I have reached a clear view myself, I cannot say that there are no real prospects of success in the Court of Appeal. In any event, it appears to be a novel point of interpretation on which a higher court ought to have the opportunity to give guidance. Is there anything else?