England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		8 August 2008

Friday 8 August 2008

THE DEPUTY JUDGE:

1. This is an application for permission to apply for judicial review made on behalf of Mr Bradman Sujanthan Emmanuel. At the outset of the hearing I sought to clarify the grounds which are being pursued because the case has developed somewhat over time as a reaction to events. The grounds are helpfully summarised at paragraph 10 of the amended grounds which were served on 7 August 2008 following the decision of the Secretary of State for the Home Department on 31 July 2008. That decision sought to deal with alleged fresh claim matters raised in the original grounds of challenge.
2. At the outset of the hearing we debated whether or not there should be a decision just on the question as to whether the stay which had previously been ordered by Silber J until 6 August should be continued. Counsel both agreed that that issue in effect raised the same issue as would fall to be determined on an application for permission and therefore it would be sensible to deal with that aspect in any event. There has been no consideration on paper to date of the application for permission. I am satisfied that the rules do not prevent me from considering the matter in open court with the advantage of oral submissions. I apologise at this stage if I do not do complete justice to the submissions, the way in which they have been put forward and the way in which the argument has developed. Because of the lateness of the hour I propose to give my reasons in summary form.
3. Ground 3, which is set out in paragraph 10 of the amended grounds, has not been pursued on behalf of Mr Emmanuel. I think that decision was entirely correct.
4. In ground 2 it is said that significance of the long delay in the context of an article 8 claim has changed in the claimant's favour and that the first appeal decision which has allowed the article 8 claim would now be justified. The argument which was developed orally this afternoon was that the issue of delay in the decision of Immigration Judge Walters on 19 November 2007 had been dealt with at paragraph 25 (and following), applying the law as then set out in the Court of Appeal decision of HP (Ethiopia) [2006] EWCA Civ 1713, and in particular paragraph 24 of that judgment to which I was taken; whereas now we have the recent decision of the House of Lords in EB (Cosovo) v Secretary of State [2008] UKHL 41, and in particular paragraph 16. Putting to one side for the moment the differing shades of opinion in the House of Lords (and paragraph 16 certainly is part of the majority opinion), attention was placed upon the words:

"Delay may be relevant certainly in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control if delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes."

The facts in EB (Cosovo) were very striking and I do not need to dwell further on that case.

5. In this case I asked whether the application of that paragraph could sensibly have made any difference to the outcome so far as this claimant is concerned, and in particular how would the delay relied upon in this case have affected matters? The delay spoken of concerns the period between the year 2000 and 8 August 2005. It was not an initial delay in dealing with a decision on the asylum application itself. Instead it related to the four-and-a-half year delay in the transmission of the appeal papers to the tribunal. In terms of the assessment of the merits of the claimant's case, I was told unequivocally that that passage cited from the EB decision would not have made a difference in relation to the positive case being put forward on his behalf. I note that the House of Lords has recognised that it is open to decision-makers to give less weight than might otherwise have been accorded to the requirements of firm and fair immigration control. However, given the concession by the claimant I am not persuaded that any arguable point of law has been raised in relation to this very generalised submission.
6. I next turn to grounds 1 and 4 and the asylum arguments. Both sides have presented their arguments on the basis that these grounds are linked. Ground 4 alleges that material considerations were not taken into account by the Secretary of State in the recent decision of 31 July 2008 which dealt with the fresh claim matters put forward on behalf of the claimant. This argument proceeds on the basis of the earlier decision of the Secretary of State which appears at page 25 of the bundle in a letter dated 23 November 2000. Attention is drawn to these words in paragraph 6:

"With regard to your fear of persecution by the Sri Lankan authorities because of your connections with the LTTE, the Secretary of State accepts that you may be detained and questioned on your return."

It is pointed out that in the most recent decision of 31 July 2008 at page 2, paragraph 3, the Secretary of State said this:

"As you have not provided any additional evidence or information to show that your client will be of adverse interest to the authorities, we have decided to maintain our decision of 23 November 2000 that was upheld at appeal."

It is said that there has been a failure to take into account the finding made in paragraph 6 of the letter dated 23 November 2000.

7. On behalf of the Secretary of State it is said that that is not a material consideration; it is not actually a finding because the Secretary of State in the rest of paragraph 6 went on to explain in effect why she did not propose to go any further into that matter because the claim then being put forward failed on other grounds, as set out in the rest of paragraph 6 and also in paragraph 7. I do not propose to say any more about that.
8. However, I note that the sum total of the evidence being put forward in relation to this matter was summarised in paragraph 3 of the decision letter of 23 November 2000. In fairness counsel for the claimant has accepted that that was as far as it went. It is pointed out on behalf of the Secretary of State that in a period of about eight years since asylum was originally claimed, the Secretary of State was not given anything more to work on than that.
9. It is also said that the Secretary of State in the decision letter of 31 July 2008 (page 2) directed herself in accordance with current case law and in particular the decision in LP v Secretary of State for the Home Department [2007] UK AIT 00076 (a Sri Lankan Country Guidance case), and also in accordance with NA v UK (judgment given on 17 July 2008 in the ECHR). I was carefully taken through the relevant passages of that decision, including paragraphs 101, 125, 128, 129 and 131. In short, those passages confirm the following propositions: first, that the Court perceives there to be no general risk to Tamils (that is not in dispute); secondly, a careful and detailed assessment of the factors listed by Collins J is required; thirdly, those factors are not all of equal importance; and fourthly, one important consideration is to see whether or not the claimant would be of serious interest to the authorities so as to warrant detention. One aspect which would fall to be taken into account would be whether or not the authorities in Sri Lanka already had a record of the claimant's involvement with LTTE.
10. But the more important point which is made on behalf of the Secretary of State is that it is the extent of involvement with the LTTE which is of importance. In that context it is said on behalf of the Secretary of State that the claimant is somebody who was involved with the LTTE in October 1997. Although he was forced to be involved, he was involved for only one-and-a-half months and then because of severe chest pain was allowed to go home. It is therefore said on behalf of the Secretary of State that these matters were all properly taken into account in the recent decision letter of 31 July 2008.
11. The appropriate test which has to be applied in cases such as this is set out by the Court of Appeal in WM. It is submitted that at stage 2 of the exercise the Secretary of State was entitled to reach the conclusion that she did as regards the prospects of a different decision being reached in the event of a fresh appeal proceeding.
12. The real question is whether or not an error of law can be detected in the way in which the Secretary of State has reasoned matters in the decision letter. Having been carefully taken through the arguments by both counsel, I do not see an arguable point on that matter. Nor do I think that there is any significance to be attached to the sentence in paragraph 6 of the 2000 decision upon which the claimant relies, given the very careful findings made by the Secretary of State in the 2008 decision and the express application of the case law to which I have referred. I do not see any inconsistency between the two decisions.
13. The other aspect which was referred to was article 8 and the right to respect for private and family life. Again this is something which is dealt with in the letter of 31 July 2008. At the foot of the first page it says:

"You explain that you are in the process of obtaining counsel's advice in relation to your client's asylum and article 8 claim because his former representative failed to raise important matters at the time of his appeal and failed to provide supporting evidence."

It is pointed out that that evidence has not been provided. Not surprisingly, that matter is not taken any further forward in the decision of 31 July 2008 (at least as regards new material). The article 8 issue is returned to at the foot of the third page. At this stage it is not appropriate for me to set out the matter in any detail. It is covered extensively at the foot of the second page and throughout the third page. I cannot see nor have I been given any grounds upon which to allow a judicial review to go forward in order to deal with article 8 matters. Those last remarks were directed to any wider point that might have been made about the relationship between the claimant and his family.

14. For all those reasons I refuse permission. It also follows, as was agreed by the parties at the outset, that the stay which was originally granted by Silber J should not be renewed or reinstated.

MISS JEGARAJAH: My Lord, could I just ask for the stay to remain in force to provide us with time to advise the claimant of the consequences of today because he is in detention and my client does need to understand what has happened?

THE DEPUTY JUDGE: How long would you need?

MISS JEGARAJAH: I would ask for five working days?

THE DEPUTY JUDGE: So that would take us until next Friday?

MISS JEGARAJAH: Yes.

THE DEPUTY JUDGE: Where is he being detained, please?

MISS JEGARAJAH: Tinsley House.

THE DEPUTY JUDGE: Sorry, where is that?

MISS JEGARAJAH: It is near Gatwick.

THE DEPUTY JUDGE: What do you say about that, please? One is the principle, the other is the length of time?

MR LASK: My Lord, I am told that at this stage of course there are no removal directions in place. It will take some time to set removal directions --

THE DEPUTY JUDGE: There is nothing to stay at the moment.

MR LASK: There is nothing to stay at the moment, no, but the Secretary of State is now free, subject to anything further you have to say --

THE DEPUTY JUDGE: What do you say, wearing your Treasury hat, is the right approach in a situation like this? The order of Silber J was simply the stay of removal granted until 6 August. It was not particularly contingent on any particular removal directions. Is it wrong, do you say, to allow a modest period of time within which advice may be given?

MR LASK: My Lord, it seems to me that there is a degree of imprecision in the request. If the purpose of the advice is to consider whether an appeal might be appropriate, then --

THE DEPUTY JUDGE: It would not be an appeal, it would be a further application to the Court of Appeal.

MR LASK: A further application, I apologise. But there would presumably be some scope for extending that five day period.

MISS JEGARAJAH: Only if we had an injunction to the Court of Appeal.

THE DEPUTY JUDGE: Yes.

MR LASK: My instructions are that we oppose any application to extend or renew the stay but on a practical basis it would be a few working days in any event before any removal directions could be given.

MISS JEGARAJAH: My Lord, the only reason I make this application is that just from experience -- for example, when permission is refused on the papers, the judge orders that renewal is not a bar, then the Immigration Services move really fast.

THE DEPUTY JUDGE: Yes, there is a window of opportunity.

MISS JEGARAJAH: Yes, and that is the reason I am very concerned to be able at least to explain what has happened.

THE DEPUTY JUDGE: Yes. I think if I am going to do anything you will have to move quickly. He is at Gatwick. Is there any reason why somebody could not give him advice by Monday?

MISS JEGARAJAH: Well, we have families, my Lord, and it is the weekend.

THE DEPUTY JUDGE: I did not mean first thing Monday. I meant be 4pm. Why not, if it is that urgent?

MISS JEGARAJAH: There is a procedure, my Lord. To visit you have to book an appointment with the Immigration Services and you have to give them 24 hours' notice.

THE DEPUTY JUDGE: But you could see him, say, by midday Tuesday?

MISS JEGARAJAH: Yes.

THE DEPUTY JUDGE: I am prepared to order a stay of removal until 1pm on Tuesday 12 August for the purpose of enabling advice to be given to the claimant on the outcome of this decision. That is the only purpose of the stay and I would not otherwise countenance it.

MR LASK: My Lord, if I might just clarify that? It does not, as I understand it, prevent the Secretary of State from setting the removal directions? But they cannot take effect before 1pm on Tuesday?

THE DEPUTY JUDGE: That is the implication, yes.

MISS JEGARAJAH: I am much obliged, my Lord. This is a publicly funded matter as well.

THE DEPUTY JUDGE: So you need an order in what terms?

MISS JEGARAJAH: Detailed costs assessment.

THE DEPUTY JUDGE: Detailed costs assessment for the Community Legal Services funding.

MISS JEGARAJAH: Yes.

THE DEPUTY JUDGE: In fact, the associate, who has had to leave, asked if you would be kind enough to e-mail a minute of order, which could include that point, and should include the stay as well as refusal of permission.

MR LASK: My Lord, there is also an application for costs of the Acknowledgement of Service, but the claimant is publicly funded. I confess I do not know --

THE DEPUTY JUDGE: Do you want a "football pools" order? We had the Treasury trying to claim £350 this morning and I raised the question of proportionality then. Is it worth it?

MR LASK: My Lord, I am told that the presence of a publicly funded claimant may affect the defendant's decision not to enforce any order for costs, but nonetheless if I have the order, not least in case there are any further --

THE DEPUTY JUDGE: How much are you asking for?

MR LASK: I think the total sought in the Acknowledgement is £1,051.25, which comprises £480 for preparing the Acknowledgement of Service, £160 for solicitor's attendance today and £350 for counsel's attendance.

THE DEPUTY JUDGE: Yes. Following Mitting only the Acknowledgement of Service costs would be recoverable. You do not get costs for attending to deal with an application in court -- certainly on a renewal basis.

MR LASK: It is slightly different --

THE DEPUTY JUDGE: It is slightly different because here there was an application for a stay. How much do you say the costs were of the Acknowledgement of Service?

MR LASK: £480.

THE DEPUTY JUDGE: £480, which is a figure I have heard before. What do you say about the £480?

MISS JEGARAJAH: I do not understand. Who will pay this?

THE DEPUTY JUDGE: It is an order for costs that is being sought against the claimant but effectively there is a bar on enforcement because of the legal aid funding. It is what we would have called in the old days "the usual order". I do not have to hand a form. I think the fair way to deal with it -- there are two options. Either you can draw up a minute of order showing £480 which is not to be enforced unless the claimant has the means to pay. There is a form of words which is used to deal with the modern form of public funding. I do not have that to hand, but I am sure that you can find it and incorporate it in a minute of order. If necessary you can talk to the Administrative Court Office because this happens quite often. But would you please draw up minutes of order and agree them -- and I stress the word "agree" -- and then if you like you can submit it to my chambers. I am available until close of play Wednesday, but I would like this tied up on Monday, please, and then I can deal with it overnight on Monday and approve the order. If there is a dispute, then submissions in writing to the court within 14 days. Identify what the issue is, then both make your representations on it -- and then it is to be dealt with on paper. But I hope that that elaborate procedure should not be necessary.