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 WC2A 2LL
		10 July 2007

1. MR JUSTICE MITTING: The claimant, who is now aged 57, is a Jamaican national. On 24 November 2005 she applied for entry clearance to the United Kingdom. Entry clearance was refused on 29 November 2005 because the entry clearance officer did not consider that the claimant had met the requirements of paragraph 41 of the Immigration Rules. In a nutshell, he was not satisfied that she would return to Jamaica on completion of her visit.
2. The claimant appealed to the Asylum and Immigration Tribunal. By a decision promulgated on 11 August 2006, her appeal was allowed. It was allowed by the immigration judge in trenchant terms. He said that he was impressed by her sponsor, Mr Lang, and by the references which had been produced for her. He concluded:

"There is nothing before me that shows how the entry clearance officer came to his conclusion, only that on balance of probabilities that this was an appellant who would not leave the United Kingdom at the conclusion of her visit."

He went on to explain why he reached that conclusion. He took into account the unblemished record as regards immigration matters of her sponsor, Mr Lang, a solicitor who had frequently in the past sponsored visitors, all of whom had stuck to the letter of their visas. Unsurprisingly Mr Lang and the claimant thought that they had won.

3. There is something of a trap for the unwary in the Nationality, Immigration and Asylum Act 2002 because of the provision that Section 87 makes for what is to occur in the event of a successful appeal. Sub-section (1) provides:

"If an adjudicator allows an appeal under Sections 82 or 83, he may give a direction for the purpose of giving effect to his decision."

In the light of his conclusions, it is perhaps surprising that the immigration judge did not give a direction to the entry clearance officer that he issue the claimant with a visa on the facts stated and found by him. It was at the very least highly improbable that the circumstances would have changed so that the entry clearance officer could thereafter properly conclude that this claimant would not fulfil the requirements of paragraph 41 of the Immigration Rules. The Home Office was represented by a presenting officer. There is nothing in the promulgated determination to indicate that the presenting officer made any representations about what, if any, order should be made or what, if any, directions given should be given under Section 87. The probable conclusion to be drawn from this is that both overlooked the possibility of giving directions under Section 87.

4. What then occurred is most unfortunate. The claimant was informed on 23 August 2006 that the entry clearance officer in Kingston had been informed of the successful outcome of her appeal and the officer would now "reconsider the application in the light of what the appellate authorities had said and on the basis that there had been no material change in the circumstances since the application was refused". She was contacted by telephone and asked to come to the visa section of the High Commission with up-to-date evidence of her circumstances such as a bank statement and an up-to-date letter from her sponsor and employer. She and Mr Lang took umbridge at that. He, at least - perhaps she also - concluded that she was now being required, in a manner that was discriminatory and unfair, to produce that which she had already produced to the satisfaction of the immigration judge. In fact the entry clearance officer was doing no more than fulfilling long established rules.
5. Chapter 27.11 (2) of the Diplomatic Service Procedures Entry Clearance provides:

"When the Home Office informs the ECO that an appeal has been allowed but no appeal has been lodged in the Tribunal and the adjudicator has not given directions, the ECO should interview the appellant to ascertain whether she still wishes to travel ..... and whether there has been any change of circumstances. This should generally not be a detailed interview. The entry clearance should be issued unless there has been significant material change of circumstances since the refusal decision of which the adjudicator would be unaware or a material circumstance has come to light of which the adjudicator would be unaware."

The guidance has not been up-dated to substitute "adjudicator", "immigration judge"; otherwise it remains in force. The entry clearance officer was doing no more than fulfilling that which he was reasonably directed to by established rules.

6. It is most unfortunate that Mr Lang and perhaps the claimant have taken it amiss. The sensible thing for them to have done would have been to have complied with the entry clearance officer's wish and to produce, as the claimant undoubtedly can produce, up-to-date evidence confirming that which has never really been in doubt. Mr Lang has exhibited in a recent witness statement exactly the sort of information which the entry clearance officer seeks.
7. If it is of any reassurance to the claimant, she can be reassured that the entry clearance officer is doing no more than following established procedure and that the requirement for her to produce these additional documents and to attend for the briefest of interviews to confirm that the circumstances have not changed is no more than a bureaucratic procedure established for good reason which in no way discriminates against her. Her remedy is to fulfil the entry clearance officer's request.
8. Accordingly, there being nothing irrational or unlawful in the request issued to the claimant by the entry clearance officer, this claim for permission must fail. I refuse it.
9. MISS OLLEY: I am grateful for the judgment. I have an application for the Secretary of State's costs. An application was made in respect of the costs of filing the acknowledgement of service in any event. In view of what has happened this morning, the production of information which shows that the claimant's sponsor was quite capable of providing the sort of information, we wish to apply for costs of today as well. I do not have a schedule. I would have to work out what that sum would be. I would suggest perhaps to make a short initial application in writing and the claimant given a chance to respond given that the claimant's sponsor is not here.
10. MR JUSTICE MITTING: Formally, your claim is against the claimant.
11. MISS OLLEY: It is, yes, and in view of the way it has been conducted, and this should never have come to court, we feel we have to maintain the application.
12. MR JUSTICE MITTING: Unusually I am more sympathetic to your application for costs of the hearing than I am on the costs of the acknowledgement of service, because in the acknowledgement of service you explained matters with perfect clarity to Mr Lang and the claimant. The sensible thing to have done then would have been to have accepted that and gone back and made a fresh application. But until and unless that was done, I am not convinced that the Home Office has covered itself in glory. I think that in clear cases like this the presenting officer ought to remind the immigration judge of the power to give directions. Had that been done in these proceedings, I am certain it would not have been necessary because he would have directed that the visa be issued.
13. MISS OLLEY: I hear your Lordship. I am certainly not going to press the point in view of the relatively small amount of money claimed for the acknowledgement of service. Obviously sometimes there are grounds - - the Diplomatic Service procedures are addressed to exactly that scenario. As your Lordship has found, that was the very reason why the entry clearance officer in this case should not have asked for information.
14. MR JUSTICE MITTING: I suspect he is entitled to. It was not irrational for him to do so. But I do think that had the immigration judge been reminded of his power to give directions by the presenting officer none of this would have been necessary. Consequently I can well understand the claimant and Mr Lang feeling aggrieved about what had occurred until it was explained. But once it was explained to them, then the continuation of litigation was not sensible and, one can say, in principle, the costs in that part - - if you tell me what your costs today are I may be able to assess them.
15. MISS OLLEY: The application would be costs as from the filing of acknowledgement of service.
16. MR JUSTICE MITTING: Yes.
17. MISS OLLEY: I would just say one thing, and I hope not to incur judicial irritation. Obviously it is clear from the correspondence which predated the resolution of the acknowledgement of service that the claimant's sponsor simply took the view that it was outrageous that she should have to provide any further information, and so that - - - - -
18. MR JUSTICE MITTING: I understand his irritation at that for reasons I have explained. I am not going to go through it again.
19. MISS OLLEY: I will work out the sum.
20. MR JUSTICE MITTING: Would you do that? I have another matter to deal with, and if you would like to take instructions on that what I will make is a conditional order. I will assess your costs in a sum unless, within 14 days, the claimant or Mr Lang puts in a written submission as to why she should not pay the costs for some amount.
21. MISS OLLEY: I am grateful.

(Short Adjournment)

22. MISS OLLEY: The sum we would like to claim is £1,030 plus VAT, so it is £1,126.25 and that is this hearing, preparation and advice.
23. MR JUSTICE MITTING: Made up how?
24. MISS OLLEY: Three hours in respect of those instructing myself.
25. MR JUSTICE MITTING: At what rate?
26. MISS OLLEY: £160 per hour; that is £480. There is no VAT on that obviously. My fee for the hearing would work out at three hours. That includes a "conservative" estimate for advice I had given previously along the way, and 2.5 hours for general preparation, a short skeleton argument - - - - -
27. MR JUSTICE MITTING: So your brief and advice fee amounts to what?
28. MISS OLLEY: My total is £550 and VAT on that is £96.25.
29. MR JUSTICE MITTING: That is £100 an hour.
30. MISS OLLEY: Yes.
31. MR JUSTICE MITTING: I am satisfied that those are reasonable costs for the stage of the proceedings in respect of which I indicated I would make an order for costs. The order for costs that I make is that the claimant will pay the defendant's costs which I assess at £1,030 plus VAT, grand total £1,126.25, unless within 14 days the claimant or her sponsor submits in writing reasons why she would not pay that sum either in principle or as to its amount, in which event I will determine the matter on the papers. There will be no need for the defendant to serve any further written material.
32. MISS OLLEY: I am grateful.