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
		23 April 2009

1. MR JUSTICE NICOL: I am proposing in this matter both to grant permission and to grant permission to amend. I have been assisted by the oral submissions that I have heard this morning, which have persuaded me to take a different view to those which I took in writing on 15 April.
2. Primarily I have to say because I had not read the letter from the Tribunal, dated 12 February 2009, carefully enough and understood that there were two grounds to the Deputy President's decision to accept that there was an outstanding right of appeal. One of those grounds was that Regulation 26 appears to contain no restrictions applicable to extended family members other than relatives of the EEA national. The Deputy President is quite right to say that that was not a submission that had been previously made by the claimant or his representatives.
3. Indeed Miss Chapman, on behalf of the claimant this morning, expresses some diffidence about adopting that argument, notwithstanding the support that appears to have come from the Deputy President. So it is right that that argument had not been previously canvassed by the claimant or his solicitors.
4. However, the Deputy President went on:

"In addition it is not at all clear where the specific exclusion of the right of appeal by failure to produce independent evidence of two years relationship is to be found in the regulations."

(Quote unchecked)

As to that the Deputy President, with respect, was not right to say that this has not been canvassed by the claimant's solicitors. Miss Chapman has taken me to passages in the earlier correspondence where exactly that point had been taken.

5. The significance of that is that whereas, when I looked at the matter on the papers, it seemed to me that the decision of the Deputy President was based on something that was completely new; and, in the opinion that I formed at the time, it seemed to me that it was in those circumstances, and in the circumstances where permission had been refused on the papers (characterised as wholly without merit and with an injunction to prevent the removal that the claimant had been refused) it was wholly unrealistic to expect discretion to be exercised by the court in ordering the Secretary of State to bring the claimant back to the United Kingdom.
6. I have been helped by Mr Barnes' submissions this morning and what they show is that there are serious issues that are going to be needed to be canvassed on the substantive hearing of this application for judicial review. However, in my view, the claimant's arguments have reasonably arguable merit and the proper forum for going into the ultimate decision on those competing arguments is a substantive hearing for judicial review.
7. MR BARNES: Might I ask, if possible, for there to be expedition given the delay already that has taken place in this case? Obviously given the AIT may decide to list the appeal?
8. MR JUSTICE NICOL: I cannot on the matter that is before me this morning do anything to control the AIT's proceedings, save to say that the whole purpose of this application for judicial review is to try to establish that the Secretary of State should take steps to return the claimant to the United Kingdom so that he can be present for the appeal. In those circumstances it seems to me that it would be unfortunate, to put it no higher, if the AIT were to proceed with the hearing in advance of the resolution of this application for judicial review.
9. I agree that in order to minimise the inconvenience to the AIT and its listing of appeals this application for judicial review should be expedited. Do you want any consequential directions as a result of that in terms of service? The next stage, Mr Barnes, is for your client to serve detailed grounds of opposition.
10. MR BARNES: Yes, my Lord, the usual 35 days. I would ask for those 35 days because there are some issues that instructions are going to have to be taken on in a case such as this.
11. MR JUSTICE NICOL: While I am prepared to order expedition, there are some knotty points that are going to have to be worked out here. If the Secretary of State wants the usual time to prepare the detailed grounds then I am not going to abridge those, but simply say once those have been served the hearing should be expedited. (Discussion with Court Clerk) I am asked about a time estimate for the substantive hearing. Do either of you want to say anything about that?
12. MISS CHAPMAN: If it is just going to be about the question, "Was it lawful to remove without detailed reference to Article 8?" and all the rest of it, and then the question of bringing back, I would have thought a day. If Article 8 and the right to the residence card is going to be argued with any force at the hearing, then I would suggest longer.
13. MR JUSTICE NICOL: The shape that I would anticipate is that there are two issues: the ultimate question is: was it lawful to remove? Secondly, I suppose questions of relief. We have been an hour and a quarter this morning. I should think half a day is a little optimistic. Three quarters of a day: four hours.
14. MR BARNES: I ask for costs to be reserved.
15. MR JUSTICE NICOL: Unless you want to say anything?
16. MISS CHAPMAN: No, my Lord.