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
		7th October 2008

1. MR JUSTICE WILKIE: This is a singularly unfortunate matter. It takes the form of a renewed application for permission to seek judicial review. Initially the proceedings were initiated against the Administrative Court itself but, as a result of a hearing before Collins J, the proceedings were amended so as to make the defendant the Asylum & Immigration Tribunal. The defendant has not submitted an acknowledgment of service. However, the interested party, the Secretary of State for the Home Department, has, although they have not attended today. I am going to direct that a transcript of this judgment be furnished to the Secretary of State for her particular consideration.
2. The facts of the matter can be set out reasonably succinctly. The claimant, Sung Yoon, entered the United Kingdom with his family, having been granted leave to remain as a student. That leave to remain expired on 30th March 2004. On 18th March 2004 he applied for a work permit under the defendant's Highly Skilled Migrant Programme. At that stage he was represented by a firm of solicitors who made the application for a work permit on his behalf. Through an oversight on the part of the solicitors, a matter which had nothing whatsoever to do with the applicant, and had nothing to do with the merits of his substantive application, his solicitor failed to make any application to extend his leave to remain in the United Kingdom and as a consequence he and his family, wholly innocently, technically became overstayers with effect from 30th March 2004.
3. Unfortunately the error of the solicitor was compounded by errors and omissions on the part of the Secretary of State. His initial application for a work permit under that scheme was erroneously refused by the interested party on 12th July 2004. A second application was submitted on 5th April 2005 in respect of which no decision has ever been made. A third application for a work permit was submitted on 21st November 2005 and on 24th May 2006 a work permit was approved. Accordingly, it is plain that Mr Sung Yoon is a person who does have a high level of skills which this country has decided it wishes to take advantage of.
4. In November 2005 the claimant made an application for further leave to remain, but the interested party refused that application by letters of 31st October and 1st November 2006, on the basis that the claimant had been an overstayer since 30th March 2004.
5. The position which the interested party has taken in this litigation is that, whilst she accepts that her initial refusal of a work permit was made erroneously, she accepts that she has since granted a work permit and has offered to carry out what she has described as "a full reconsideration of the claimant's entire file". However, the position which she takes is that after the expiry of leave to remain on 30th March 2004, the claimant and his family were overstayers and therefore the Secretary of State was obliged to refuse to grant him leave to remain. That decision, being an immigration decision, was one which the claimant sought to appeal.
6. On 21st February 2007, before an Immigration Judge, his appeal was refused on two bases. Firstly that, given his status as an overstayer, the decision of the Secretary of State to refuse to grant him extended leave to remain could not be said to have been wrong in law. In any event, the Immigration Judge concluded that the claimant was not entitled, by reason of his being an overstayer, to avail himself of an in-country right of appeal.
7. The claimant then sought to appeal that decision to the Asylum & Immigration Tribunal. By a decision dated 20th March 2007, the AIT refused him permission to appeal, essentially citing the statutory provisions and the relevant case law. The conclusion of the Senior Immigration Judge was that the appellant's claim does not carry a right of appeal, there was no valid appeal before the Immigration Judge and there is no real possibility that the tribunal would decide the appeal differently on reconsideration. Once again, and having regard to the strict technicalities, that decision of the AIT cannot be faulted.
8. The claimant then sought to have the matter considered by the High Court, with a view to an order that the AIT reconsider the matter. He sought to do so under section 103A of the Nationality, Immigration and Asylum Act 2002. That matter was considered by King J on 17th August 2007. The order which he made was to dismiss the application for reconsideration, and he said so in the following terms:

"An order for reconsideration will only be made if the court thinks that the Tribunal may have made an error of law and there is a real possibility that the Tribunal would make a different decision on reconsidering the appeal.

In this case the Tribunal was dealing with an appeal against the decision of the Home Office refusing the application of the 26^th of September 2006 made on behalf of the Applicant and his wife and child for leave to remain. As at the date of the application the Applicant had no existing leave to remain. In these circumstances no error of law is apparent in the Tribunal's decision, concluding there was no right of appeal to it under section 82 of the Nationality, Immigration and Asylum Act 2002.

I have read the letter from the Applicant dated the 9^th of August 2007 but nothing contained in the letter provides a basis for thinking that an error of law is disclosed in the Tribunal decision. I agree with the Senior Immigration Judge."

9. It was that decision of the Administrative Court which was the initial focus of the claim for judicial review. That matter came before Black J on 19th March 2008, when she considered the question of permission on the papers. In that decision she cited the relevant authorities, which are to the effect that, absent gross procedural unfairness, a decision of the High Court pursuant to section 103A of 2002 Act was not subject to appeal and not amenable to judicial review. She says as follows:

"It is clear that he has suffered from mishandling on the part of both his solicitors and the Home Office. However, he has not produced any material to establish that Mr Justice King failed to give his claim anxious scrutiny or to deliver a high standard of justice or that, as the claimant alleges in his detailed statement of grounds, he 'deprived me of my appeal right for the purpose of ignoring my reasonable submissions and burying previous unfair decisions by Secretary of State and AIT' or that there has been 'a flagrant denial of a fair trial'."

She then gave the following directions:

"Should this application be renewed orally, the papers should be put before a judge for preliminary directions so that he can consider any question that may arise by virtue of the Administrative Court itself being the defendant and whether steps should be taken to ensure that such arguments as there may be in reply to the claimant's arguments can be properly put before the judge who ultimately hears the oral permission application."

10. It was in connection with those directions that the matter then came before Collins J on 9th June 2008, where he observed that neither the Administrative Court nor King J is amenable to judicial review. He observed that the complaint was really against the Immigration Judges and that the claimant should amend his claim to substitute the AIT or the Immigration Judge. If he could show that there was a serious procedural impropriety, he may be able to pursue a claim. That was the course which was adopted.
11. In my judgment, notwithstanding his substantial and able submissions in writing upon which Mr Yoon, who has appeared in person today (assisted by a friend), essentially relies, there is nothing that I can see which even begins to establish any impropriety, procedural or otherwise, let alone serious procedural impropriety on the part of the Immigration Judge or the AIT. In my judgment, therefore, this application for permission to seek judicial review of the decisions of the AIT or the IJ are simply unarguable and must be dismissed.
12. However, it would be remiss of this court were it not to make certain observations as to the unhappy position in which the claimant finds himself through absolutely no fault of his own, being a person who initially was lawfully in this country, who has successfully applied for a work permit under the defendant's Highly Skilled Migrant Programme and in respect of whom, it would appear, the Secretary of State seems to be insisting that he should leave the country in order to resubmit his various claims for permission to enter and to remain in order to carry out his highly skilled function. In my judgment, if ever a case called out for the Secretary of State to exercise the discretionary powers which she has in order to reach a sensible conclusion by permitting Mr Yoon and his family to remain whilst he performs the work which his work permit enables him to perform, this certainly is it. I note that the Secretary of State has undertaken to perform a "full consideration of the claimant's entire file". I assume that that means that it will include consideration of whether to exercise her discretion to achieve that sensible end, and I certainly urge upon her that she give serious consideration to taking such decisions.
13. Mr Yoon, you have heard what I have said in my judgment. A transcript will be made available to you and will be sent to the Secretary of State so that she may consider what I have said. Thank you.