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 2008

1. MR JUSTICE COLLINS: This is an unfortunate case in that it involves a six year-old child, who is in name the claimant, although there is no litigation friend appointed, albeit the matter came before the court in April, and the solicitors who were then, and apparently still are, on the record as representing the claimant were advised that one was indeed required.
2. The claim is that there should be indefinite leave to remain as the child of parents settled in the United Kingdom. What happened here was that mother and father apparently separated, or at least no longer wished to live together. The daughter, who was born in September 2001 and therefore is now six years old, was staying with her mother in Nigeria. However, it seems that it was decided that it would be better for her if she were able to be brought up in this country. Accordingly, she came with her mother as a visitor to this country in March 2006. She was granted the usual six months leave to remain, and although the leave expired in September 2006, it seems that no application was made to extend it until February 2007 when an application was made for indefinite leave to remain on the basis that I have indicated.
3. I do not need to go into the details of the rules because there can be no question but that there was no compliance with the rules, and thus the Secretary of State was entitled to take the view that the claimant did not qualify. The main reason for that is that, on the facts, it is apparent that her father was not actually directly looking after her because she was put into the care of an aunt or a cousin (it is not entirely clear what the relationship is). It may well be that for her purposes that is a not unsatisfactory situation, but it does mean that father cannot claim that he has sole responsibility for her upbringing, and thus there is no question of being able to qualify under the rules. The question therefore depends on whether there can be said to be a breach of the child's human rights in returning her to her mother in Nigeria.
4. What concerned me was that this child was clearly being used by her parents. It was believed, it seems, by her mother that she would get a better life in this country, albeit there is evidence that her mother is missing her, and that is not at all surprising. It may be that she would in some respects get a better life in this country, but that in itself is no good reason for her to be able to remain here. It is, in my judgment, difficult to see that her human rights are breached by requiring her to return to her mother in Nigeria, having regard to the circumstances which I have described. She has of course been here now for some two years, part of that time as a result of the overstaying by her mother. On the other hand, she is only six and a half and is in a position to commence her education and her formal upbringing in Nigeria, she being, as I understand it, a citizen of Nigeria. In those circumstances, it is difficult to see that there could be any valid claim based upon human rights. In my judgment, the Secretary of State was correct in taking the view that there would be no breach by requiring her to go back to her mother in Nigeria.
5. Permission was originally refused on paper by Irwin J in November last year. There was a renewal, which was supported by solicitors and counsel -- certainly the original claim was supported by counsel. Quite how competent counsel could have believed there was a claim is beyond me. The claim is, I am afraid, entirely without merit. But more importantly there is a total failure to comply with the rules because a litigation friend is required, and it is clear that father, who is running this claim on behalf of his daughter, is not an appropriate person to act as a litigation friend because he has his own axe to grind in the circumstances of this case. The solicitors were in grave breach of their duty to the court in failing to ask the court to appoint a litigation friend, and they, in due course, may well find themselves having to explain why they have failed to comply with the rules.
6. Furthermore, I am told that when the matter came before Irwin J in April, there was, as there has been today, non-attendance by the claimant's father and by the solicitors, who remain on the record. I have received a letter from the solicitors which says that they did not receive the hearing notice which was sent to them in June, and they had only just learnt of it because of a telephone call from the office, which was made yesterday informing them. They go on:

"We can also confirm that we have [not] received any message from the clerk to ... counsel as to the fixing of this matter, and that the client ... has not given us further instructions."

They therefore requested that the matter be fixed for another date. I am told that a similar state of affairs was alleged to have existed in April, and although it is possible for post to go astray, and I think it is everyone's experience that the Post Office is not as reliable in all respects as it once was believed to be, nonetheless it is a little strange that letters should have gone astray in the way that is alleged on more than one occasion.

7. I have indicated that this claim is bound to fail, for the reasons that I have stated. But obviously since there has been no attendance, and I am not in a position to find as a fact that the solicitors are not being truthful in what they say, what I propose to do is to order that permission be refused for the reasons that I have given, but that the order will not have effect until, first, it is served upon the solicitors and upon the claimant's father at the address that is in the claim form; that a transcript of what I have said is obtained at public expense and that that transcript is included in the notification to the solicitors and to the claimant's father; that the order will then come into effect unless within a period of 14 days after service the solicitors notify the court that the matter is to be pursued. If they do so notify the court, they must at the same time make an application for the appointment of a litigation friend and the matter will then be reconsidered because, as I say, I do not think that I can make a final order in the circumstances without giving them a chance of making an explanation or making the necessary application.
8. I would only add this. In my view, this is a case where the solicitors are at the gravest risk of having to pay the costs personally because they have been in breach of their duty to the court in failing to have a litigation friend appointed, and they have pursued a claim which is manifestly hopeless. Thus, I am minded to make an order against them under rule 44.14 that they pay the costs of the Secretary of State personally. However, obviously again that is not an order which will be made final, but I simply indicate that they should think very carefully whether they feel able in the circumstances to maintain the claim when they receive the order which I have made.
9. On that basis, I will refuse permission, but it is in the form of what I suppose can be called an order nisi.
10. MISS OLLEY: My Lord, I am grateful. I imagine those instructing me would be grateful for an expedited transcript.
11. MR JUSTICE COLLINS: It will be done very quickly. You will get the transcript and order next week. But I think it is important that it goes with what I have said, rather than simply the order.
12. MISS OLLEY: Yes, my Lord.
13. MR JUSTICE COLLINS: Thank you.