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
		14th May 2009

1. MR JUSTICE BURTON: This is been an interesting hearing because it has related to a point of law. I have not had to consider the factual situation of the three claimants before me for two reasons. The first is because they were only given permission to apply for judicial review by reference to the point of law which I shall describe, and secondly, because at least two of them have indicated that they may yet have other bases of claim which have not yet been considered by the Secretary of State, which might lead to their being permitted to remain in this country.
2. The three claimants have been separately represented by counsel before me. Miss Aiyegbeni, who comes originally from Nigeria, has been represented by Mr Tattersall, and I shall call her the first claimant. Miss Awosanmi, who also comes originally from Nigeria, has been represented by Mr Jacobs of counsel, and I shall call her the second claimant. Mr Rashid, who is from Pakistan, has been represented by Mr Nasim, and I shall call him the third claimant. The defendant in all three actions is the Secretary of State for the Home Department, who has been represented by Mr Edwards of counsel.
3. I need only refer very briefly to the facts of the cases, which are now quite old because the cases have taken time to come on and, in the meanwhile, each of the claimants has remained in this country.
4. The first claimant had entry clearance and was subsequently given leave to enter on the basis of being a student. The third claimant similarly. The second claimant was given entry clearance and leave to enter as a visitor. All three of them subsequently left the country and then came back in again, and, on their return to the jurisdiction, were examined by immigration officers pursuant to their power to do so under Schedule 2, paragraph 2A of the Immigration Act 1971. In relation to all of them, it was concluded that the bases upon which they had originally been allowed to come into this country, if they had ever applied, no longer applied. In relation to the first and third claimants, who had originally come in and wished to come back in again as students, it was concluded that in fact they were and had been employed, and consequently were either not genuine students or in breach of the conditions upon which they were supposed to be carrying out their studies. In relation to the second claimant, it was concluded that she was not coming back as a visitor but rather with a view to a permanent or long term stay.
5. As I have indicated, all three wish to challenge those findings and conclusions, but none of those facts are before me today. The issue is whether they have a right of appeal and, if so, how. It is that issue which has been permitted to be tried before me.
6. The stance taken by the Secretary of State has been that there is, in each case, no right of appeal at all, save on what has been called a limited basis, to which I will return. That limited basis would be outside the jurisdiction, that is an out-of-country appeal. The fall back argument for the Secretary of State, which has been primarily pursued today by Mr Edwards, is that there is, in any event, no in-country appeal and that any appeal, limited or otherwise, must be out of country. Each of the claimants assert that there is an untrammeled right of appeal, alternatively that it is, in any event, if out of country, unlimited.
7. The statutory question, on the face of it, has revolved round the construction of section 89 of the Nationality, Immigration and Asylum Act 2002. But before I come to that section, I should begin with section 82 of that 2002 Act. Section 82 provides, under the heading "Right of appeal: general":

"(1) Where an immigration decision is made in respect of a person he may appeal to an Adjudicator.

(2) In this Part 'immigration decision' means --

(a) refusal of leave to enter the United Kingdom,

(b) refusal of entry clearance . . .

(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,

(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain . . . "

Thus, an immigration decision, such as the immigration decision that was taken in this case, on the face of it falls within section 82 so as to provide for an appeal. It is there that section 89 triggers in. That provides:

"(1) A person may not appeal under section 82(1) against refusal of leave to enter the United Kingdom unless --

(a) on his arrival in the United Kingdom he had entry clearance, and

(b) the purpose of entry specified in the entry clearance is the same as that specified in his application for leave to enter.

(2) Subsection (1) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b),(c) and (g)."

8. It is that latter subsection, subsection (2), to which I referred earlier when I said that the Secretary of State does not contest that there could be a limited appeal, whatever the proper construction of section 89(1), albeit one that must be brought out of country, namely an appeal on any or all of the grounds referred to in section 84(1)(b),(c) and(g). I can summarise those grounds by indicating that they relate to an allegation that the decision in question is unlawful by reference either to race discrimination, or non-compliance with human rights, or a failure to consider asylum in the sense of being unlawful under the Refugee or other relevant Conventions. The claimants in this case would not be satisfied by such a limited right of appeal, which it is conceded would be out of country, and assert that they have a full right of appeal to challenge the immigration decision in this case.
9. Before I turn to the next and last most relevant section, section 92, I should deal briefly with the circumstances in law in which this immigration decision was taken, to which I have briefly referred when I said that there was interrogation by the immigration officer. This occurred under Schedule 2 to the Immigration Act 1971, as amended, and in particular paragraph 2A of that schedule. Paragraph 2A reads:

"(1) This paragraph applies to a person who has arrived in the United Kingdom with leave to enter which is in force but which was given to him before his arrival.

(2) He may be examined by an immigration officer for the purpose of establishing --

(a) whether there has been such a change in the circumstances of his case, since that leave was given, that it should be cancelled;

(b) whether that leave was obtained as a result of false information given by him or his failure to disclose material facts . . .

(2A) Where the person's leave to enter derives, by virtue of section 3A(3), from an entry clearance, he may also be examined by an immigration officer for the purpose of establishing whether the leave should be cancelled on the grounds that the person's purpose in arriving in the United Kingdom is different from the purpose specified in the entry clearance."

Section 3A(3) I do not need to discuss in any detail. That simply gives the Secretary of State power to describe or specify the very wide nature of entry clearance. I continue with further consideration of the subparagraphs of section 2A:

"(8) An immigration officer may, on the completion of any examination of a person under this paragraph, cancel his leave to enter.

(9) Cancellation of a person's leave under sub-paragraph (8) is to be treated for the purposes of this Act and Part 5 of the Nationality, Immigration and Asylum Act 2002 (immigration and asylum appeals) as if he had been refused leave to enter at a time when he had a current entry clearance . . . "

10. It is clear that the immigration officers in each of these cases cancelled the claimants' leave, and consequently there was a deemed application of leave to enter on the basis of a current entry clearance which was refused; even though on the face of it what each claimant was seeking to do was to exercise his or her right to return after a pre-existing leave to remain which had itself resulted from an original entry clearance and leave to enter.
11. I turn then, against that background, to section 92 of the 2002 Act. That reads as follows:

"Appeal from within United Kingdom: general

(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies . . .

(3) This section also applies to an appeal against refusal of leave to enter the United Kingdom if --

(a) at the time of the refusal the appellant is in the United Kingdom, and

(b) on his arrival in the United Kingdom the appellant had entry clearance.

(3A) But this section does not apply by virtue of subsection (3) if subsection (3B) or (3C) applies to the refusal of leave to enter.

(3B) This subsection applies to a refusal of leave to enter which is a deemed refusal under paragraph 2A(9) of Schedule 2 to the Immigration Act 1971 resulting from cancellation of leave to enter by an immigration officer --

(a) under paragraph 2A(8) of that Schedule, and

(b) on the grounds specified in paragraph 2A(2A) of that schedule.

(3C) This subsection applies to a refusal of leave to enter which specifies that the grounds for refusal are that the leave is sought for a purpose other than that specified in the entry clearance."

12. Mr Edwards' first submission -- which is based upon a skeleton argument produced by counsel who was originally, until the very last minute when illness took her away from us, Miss Patry-Hoskins -- is a case by reference to construction of section 89(1)(b). His success on the argument that there is no appeal at all depends upon construction in his favour of that section. I have already read the section. It is accepted that there are circumstances in which there can be an appeal against refusal of leave to enter the United Kingdom, being one of the immigration decisions. That is, however, expressly limited to the words which follow on from the word "unless", because the main thrust of section 89(1) is to say that there should be no appeal against refusal of leave to enter the United Kingdom. "Unless" creates an exception, over and above the limited rights to which I have referred, when such an appeal does lie.
13. Such a position is that on arrival in the United Kingdom the proposed appellant had entry clearance. That applies in the case of all these three claimants on any basis. First of all, when they originally came into this country they all had entry clearance. Secondly, as I have read, for the purpose of the cancellation which took place in each of their cases under section 2A(9) of Schedule 2 to the 1971 Act, they were all deemed to have been refused leave to enter at a time when they had current entry clearance. So it is subsection (b) to which our attention is drawn for the purposes of this argument.
14. On the face of it, the claimants urge, the purpose of entry that was specified in their entry clearance (in the case of two of them, students, and in the case of one, a visitor) was the same as that specified in their deemed application for leave to enter; ie, all three of them, when they returned to this country after being abroad, intended to and asserted an entitlement to come back to carry on where they had left off: in the case of two of them, as students and in the case of the other, a visitor. Their assertion to that effect was rejected on strong grounds that appear in the papers by the immigration officers, and it is that decision which they seek to appeal. They say that they qualify, consequently, for an appeal because the purpose of entry specified in the entry clearance is the same as that specified in their application for leave to enter, albeit it was rejected by the immigration officer.
15. The submission in her skeleton argument by Miss Patry-Hoskins was as follows:

"15. It is not accepted that the wording of section 89(1)(b) . . . means that the words 'specified in his application for leave to enter' must relate solely to the purpose specified by the claimant when making her application for leave to enter on arrival.

16. This interpretation would make a nonsense of the statutory scheme, as it would ensure that a person who continued to maintain a charade (that is, in the face of evidence to the contrary, lied about the purpose of their application for leave to enter on arrival in order to retain consistency with their entry clearance) would be in a better position [in the way of having a right of appeal] than someone who arrived and truthfully acknowledged that the purpose specified on arrival was different."

16. It is forcefully pointed out by the claimants that the latter scenario is wholly unrealistic. Of course, the person is not going to say, on arrival back in the country, "What I said in my entry clearance is untrue", because they would not be admitted. We are faced here with a situation in which there is an assertion by the claimants that what they said in their entry clearance was true and they have then been disbelieved, a scenario in which all of them say that they should have the right to appeal, by way of challenging what they say to be the unjustified conclusion by the immigration officer. A better question, with respect, is whether there is any statutory purpose in the present formulation of section 89(1)(b) if it is to be interpreted in the way that the claimants assert, and I shall return to that.
17. But the real difficulty in the way of the argument which Mr Edwards has valiantly sought to support in front of me, is the fact that the words are so clear. The word "specified" is used twice: "the purpose of entry specified in the entry clearance is the same as that specified in his application for leave to enter". What has to be concluded is either that the word "specified" means something different the second time, when it is repeated within the same sentence, or that the words "in his application for leave to enter" must be interpreted as meaning in the refusal of his application for leave to enter, or in the rewriting of the application for leave to enter which has occurred by virtue of the application being rejected and the applicant being disbelieved.
18. What Mr Edwards submits is that this is plainly what the purpose of Parliament was, namely to rule out an appeal in such a case. I find that very difficult to accept. I shall turn in a moment, as I have said, to what purpose this clause serves. But I must consider the important question, which is the question of statutory interpretation.
19. What is really here suggested is that the appeals should be ruled out in the situation in which the purpose of the applicant, as specified in the entry clearance, is determined by the immigration officer no longer to be that person's real purpose. A form of words which would, in those circumstances, arise and be relevant would be something such as: "the purpose of entry specified in the entry clearance is the same as that specified by the immigration officer in considering his application for leave to enter", ie, that the appeal will be preserved where the application for leave to enter survives scrutiny, but ruled out where it is to be rejected or rewritten.
20. The difficulty is that it would have been so very easy for Parliament to make that clear if that was what was intended. I have already read two such provisions. Paragraph 2A(2A) of Schedule 2 to the 1971 Act expressly provides for circumstances in which the leave can be cancelled. That is "that the person's purpose in arriving in the United Kingdom is different from the purpose specified in the entry clearance". I have also read the circumstances in which an appeal is restricted to an out of country appeal, which appears in section 92(3C). This subsection applies to a refusal of leave to enter which specifies that the grounds for refusal are that the leave is sought for a purpose other than that specified in the entry clearance. Even section 92(3B) itself, which does not attempt a definition, comfortably bases itself upon a cross-reference to paragraph 2A(2A) where that definition appears.
21. I am wholly unpersuaded that I should do any kind of exercise of rewriting section 89(1)(b) so as to reflect, as Mr Edwards says it ought to, some kind of statutory purpose, not only when it could so easily have been done by Parliament but, in particular, where it could so easily have been done by Parliament very recently indeed when the words of section 92(3B) and (3C) were specifically incorporated by amendment into the legislation. If, at that stage, it had been intended that section 89(1)(b) should be in line with and to the same effect as those other clauses, that was the moment to amend, if the section otherwise did not reflect the intention of Parliament. It did not occur.
22. As to what is intended by section 89(1)(b), I find it difficult to see why, as Mr Edwards submits, section 89(1)(b) should be regarded as not reflecting the intention of Parliament. Section 89(1)(b) plainly has to mean something. It allows, apparently, an appeal where, on any basis, the purpose of entry specified in the entry clearance is the same as that specified in the application for leave to enter, but nevertheless there is a refusal, presumably in circumstances in which, for example, a person is considered no longer to comply with some specific requirements of being a student; for example, financial. But why it is to be assumed that an appeal is to be allowed in such a circumstance but not allowed where the applicant in question is to be regarded as having lied, is difficult to see. I find it persuasive that, in a slightly different context, Mr Ockleton, Deputy President of the Asylum and Immigration Tribunal, in the case of GO [2008] UKAIT 00025, said that if there is any ambiguity in section 89(1) it should be construed in order to preserve rather than remove a right of appeal.
23. In those circumstances, I have no doubt that the section should be construed so as to allow a right of appeal in respect of the circumstance such as those here occurred.
24. But the next question is whether in the case of any of these three claimants that means that the appeal must be out of country, and out of country only. Section 92(3B) and (3C), which I have read, are wholly clear. In the recent Court of Appeal decision of R (on the application of RK (Nepal)) v Secretary of State for the Home Department [2009] EWCA Civ 359, the Court of Appeal made it quite plain that there is nothing in principle wrong with legislation which limits an appeal to an out-of-country appeal.
25. Various arguments have been mustered by the three able counsel for the claimants before me. Mr Tattersall drew my attention to the words of Sedley LJ in R (on the application of Lim and Another) v Secretary of State for the Home Department [2007] EWCA Civ 773, which were themselves referred to in paragraph 32 of RK (Nepal), namely:

" . . . it would only be in cases with 'special or exceptional factors' that the High Court would exercise a discretion in favour of judicial review and against the ordinary process of appeal from abroad that was laid down in the 2002 Act."

That appeal was dealing with a different section (section 10 of the 1999 Act) and there may have been room for such special or exceptional factors in that case, although none were in fact identified. But I can see no room here for any deviation from the clear provisions of the statute. The only area where there might be said to be some scope for special and exceptional factors is that which was suggested -- but not, in the event, for good reason, pursued by Mr Jacobs -- namely, if there were a pending human rights claim in the United Kingdom which, if it did entitle an in-country appeal, might be a ground for finding some residual discretion somewhere not to follow what is otherwise the statutory process. But there is no such pending human rights claim as referred to in section 92(4) of the 2002 Act.

26. The second basis, which was floated by Mr Nasim, was by reference to the decision of Mr Ockleton in the Immigration Appeal Tribunal, to which I earlier referred. In circumstances with which I do not need to deal, he concluded, on the facts of that case, that a particular immigration decision fell outside section 89(1) of the Act. Even if that were capable of being pursued -- and in the event none of the counsel for the claimants did pursue the argument -- it was recognised that that would not, in fact, do any good (subject to a possible argument by Mr Tattersall to which I will refer) because in this case once the Secretary of State has lost on his argument, as he has, on section 89(1), section 89 becomes irrelevant. Section 82 would provide that there is an immigration decision, being a refusal of leave to enter the United Kingdom, and from there one goes straight to section 92. Unless there is any basis of ousting section 92 -- to which I shall return in a moment by reference to an argument of Mr Nasim -- that means that such an appeal must be out of country. So section 89, in fact, even if in some way Mr Ockleton's case could affect it, would not be a part of the relevant argument.
27. The argument of Mr Tattersall, to which I referred, was that in some way we are not here dealing with an immigration decision, being a refusal of leave to enter the United Kingdom, but that we are dealing with a variation of a leave to enter or remain in the United Kingdom, to the intent that that variation amounts to a refusal. I am afraid that I am not persuaded that this is anything other than a straightforward refusal. It was not a variation. There is some basis upon which I could rely upon the decision of RK (Nepal) in this case, which would assist me to say that if one is looking at one kind of immigration decision, one does not seek to interpret it in more than one way in order to find different appeal routes. I do not need to deal with that. I am satisfied that we are not here dealing with a decision to vary, but with a straightforward cancellation which amounted to a refusal.
28. I turn then, finally, to Mr Nasim's point, which, if right, might be capable of being used by Mr Tattersall in addition. He submits that section 92(3B) does not apply here, because this was not a cancellation of leave to enter by an immigration officer on the grounds specified in paragraph 2A(2A) of the Schedule to which I have referred. He submits that paragraph 2A(2A) related only to "where the person's leave to enter derives . . . from an entry clearance", and he submitted that in his case the leave to enter did not so derive. His client had a pre-existing limited leave to remain which was converted into a leave to enter by virtue of the claimant's departure from the country. He refers to paragraph 13 of the Immigration (Leave to Enter and Remain) Order 2000 which, in particular, provided at subsection (4):

"Leave which does not lapse under paragraph (2) shall remain in force either indefinitely (if it is unlimited) or until the date on which it would otherwise have expired (if limited) but . . . "

Then there are provisions for what occurs if the applicant leaves the country. Then under subparagraph (5):

"For the purposes of paragraphs 2 and 2A of Schedule 2 to the Act (examination by immigration officers, and medical examination), leave to remain which remains in force under this article shall be treated, upon the holder's arrival in the United Kingdom, as leave to enter which has been granted to the holder before his arrival."

29. I am entirely satisfied that the success for this argument would depend upon a construction of paragraph 2A(2A) which would need to read as follows: "where the person's leave to enter [immediately] derives . . . from an entry clearance". I am satisfied that by reference to the structure of the Immigration Act 1971 and all statutes deriving therefrom, in the case of claimants such as these (of course there are always exceptions in other situations, but in the case of students or visitors or other similar applicants), immigration history begins with entry clearance, it leads to a leave to enter, it is followed up by a leave to remain. But, in my judgment, absent some change of circumstances, to which I will return, the leave to remain derives from a leave to enter which derives from the entry clearance. In this case, what occurred was a conclusion that the purpose in the entry clearance was different from the purpose as concluded to be the case at the time of the attempted exercise of the right to enter after the previous right to remain, the applicant having left the country for a short period.
30. There might be circumstances in which the original entry clearance was, for example, to become a student and that right to enter was on the same basis, but that right to remain thereafter had, by virtue of some fresh consideration, changed to right to work, and then there was some problem about that. It would certainly then be arguable that the issue no longer was relevant as to a difference or a contrast or a change from the terms of the original entry clearance. But where, as here, the very assertion that was being made, on the basis of which the leave was cancelled, was that the original purpose of the entry clearance was no longer the case, and was required still to be the case for a continued right to enter/remain, in my judgment paragraph 2A(2A) expressly governs.
31. Even if that were not the case, I would be satisfied by Mr Edwards' other arguments, first, that even if this was not an examination under paragraph (2A), but under paragraph 2A(2), it could have been. The words of section 92(3B) are wide enough to cover that situation, or, in any event, that he could rely, and does rely, in the alternative on section 92(3C) which would not require specific compliance with paragraph 2A(2A) of the Schedule, but would simply be on the basis that the leave is sought for a purpose other than that specified in the entry clearance.
32. I am consequently satisfied that, on the facts of this case, there is only an out-of-country right of appeal, and that therefore any right that the claimants have by way of challenge to the immigration officer's decision must fall. I am told that in relation to two of the claimants there may be some ground, as I indicated at the outset of the judgment, for some other basis upon which they can stay in the country or make other claims. That will be a matter for them and for further consideration, if those claims are made, by the Defendant. But, as of today, there is no basis for any right for any of these claimants to continue to remain in this country.
33. MR JACOBS: My Lord, am I to understand that these applications have been allowed?
34. MR JUSTICE BURTON: Well, Mr Edwards.
35. MR EDWARDS: My Lord, first of all, I am seeking permission to appeal limited to the section 89(1)(b) point.
36. MR JUSTICE BURTON: You cannot have that. I think it is completely unarguable.
37. MR EDWARDS: As to the order, that is a complicated matter because the three claims have to be dealt with. Subject to taking instructions, I would have thought our opening position would certainly be that on the first and third --
38. MR JUSTICE BURTON: Let us take this slowly. You are quite right, I think we should take them separately and work out what I was deciding. First of all, Mr Tattersall's case.
39. MR EDWARDS: The whole thrust of that case was about obtaining an in-country right of appeal. When permission was granted -- in fact, I was at the permission hearing and it was over in five minutes, because on the morning we learned of Rashid and we considered, in light of permission having been granted in Rashid a month earlier, I then conceded, that permission should be granted, which duly happened.
40. MR JUSTICE BURTON: There is no doubt that Mr Tattersall's skeleton begins: "The issue in question is whether the claimant has an in-country statutory right to appeal her case". Of course, underlying that was the fact that you had accepted that there was a limited out of country statutory right. They knew perfectly well you were not saying that it was unlimited. That is what they represented to be the issue. If that is the issue, you have won it.
41. MR EDWARDS: That would be our position on that. They wanted an in-country right of appeal on any grounds.
42. MR JUSTICE BURTON: And they have lost.
43. MR EDWARDS: They have lost on that point. Indeed, the section 89 issue has only arisen, I suspect, in light of your Lordship's grant of permission.
44. MR JUSTICE BURTON: I have not been involved at all in this.
45. MR EDWARDS: I thought you had.
46. MR JUSTICE BURTON: No. I am completely fresh to it.
47. MR EDWARDS: The judge who granted permission in the second claimant's case, I think --
48. MR JACOBS: Burnett J.
49. MR EDWARDS: It was he who raised the section 89 issue in that case, was it not?
50. MR JACOBS: No, it was raised by me.
51. MR JUSTICE BURTON: Let us take this slowly. On the Tattersall case, you say, on the basis of what Mr Tattersall said himself, "The issue in question is whether the claimant has an in-country right of appeal", you won, so the claimant's application should be dismissed. We will not deal with costs at the moment. In relation to --
52. MR EDWARDS: Might we take Rashid next, because it is the same, in my submission, as the first. If we were looking just at the skeleton arguments, and I appreciate we might have to look at the grounds --
53. MR JUSTICE BURTON: I am looking at Foskett J's order. Permission was granted on the ground that the claimant should have a right of appeal against the defendant's decision in the light of -- something which I have only just noticed and I do not think I knew anything about, CD (India).
54. MR EDWARDS: This is the case where Mr Ockleton had granted an in-country right of appeal by saying that the grounds in s82 for immigration decisions can coalesce; the same decision can give rise to two different types of immigration decision. That was knocked out.
55. MR JUSTICE BURTON: Right. At any rate, this looks like it is a right of appeal generally. Let us look at the skeleton.
56. MR NASIM: My Lord, there was a skeleton argument prepared for the permission hearing.
57. MR EDWARDS: I think we should look at the grounds.
58. MR NASIM: In the grounds we were arguing that the Secretary of State's position that we had no right of appeal at all was irrational and we also relied upon section 89(2).
59. MR JUSTICE BURTON: Section 89(2) was not really an issue between you, was it?
60. MR JACOBS: My Lord, no, but they were not going as far as even to say that we had a limited right of appeal.
61. MR JUSTICE BURTON: Yes. Proposed grounds: "Defendant's decision to restrict the claimant's right to appeal is irrational and unlawful".
62. MR EDWARDS: They may have prevailed on ground one, but they have not prevailed on the other grounds.
63. MR NASIM: My Lord, we have not pursued them at all.
64. MR EDWARDS: You have pursued an in-country right of appeal. At the top of the next page: "Furthermore, the appellant has a country right of appeal". That must mean an in-country right of appeal.
65. MR JUSTICE BURTON: Where is that?
66. MR EDWARDS: That is the first full paragraph at the top of page 9 of the grounds.
67. MR NASIM: My Lord, that was on the basis of the authority at that time, the Tribunal's reported decision of CD (India). It was not by Mr Ockleton, it was by a Senior Immigration Judge, P R Lane. What that said was that if you have a decision and you cancel the leave, that could also amount to variation of leave.
68. MR JUSTICE BURTON: That was Mr Tattersall's argument.
69. MR NASIM: My Lord, yes.
70. MR JUSTICE BURTON: I was obviously therefore right, to an extent, in thinking it had been over taken by RK.
71. MR NASIM: It was August of last year --
72. MR JUSTICE BURTON: I see that. But you are saying that you wanted --
73. MR NASIM: My Lord, just to add, those instructing me had been corresponding with the Treasury Solicitor. If I could hand up this letter where we had asked for an out-of-country right of appeal, and the claimant was willing to return to Pakistan. They refused to do that. (Handed).
74. MR JUSTICE BURTON: Well, that is rather important.
75. MR EDWARDS: I do not know about that, my Lord. I would say in the claim form the details of the decision to be judicially reviewed were the defendant's decision to remove the claimant to Pakistan and cancelling his leave to remain as a student. That was what they were wanting. I have not seen this.
76. MR JUSTICE BURTON: This may go to costs, perhaps. The basic part of the relief was to stop your client being removed and you have lost that.
77. MR NASIM: It was also to give him some sort of remedy. If one looks at the refusal of leave to enter --
78. MR JUSTICE BURTON: I have to say, I am awfully hostile to any kind of technical points. Would it not be right for the order simply to say -- never mind who has won and lost, we will come to that on costs -- on the three applications it is declared that the claimants have, and only have, an out-of-country appeal, pursuant to section 92(3B) and (3C).
79. MR TATTERSALL: I think that would be acceptable, my Lord. Again, in our skeleton argument it appears from what we have been told that the Secretary of State accepted at some point -- and it is in the correspondence -- that there was an out-of-country appeal. So that surely has to be the case that there is an appeal and it has to be out of country. Of course, in my case and my learned friends' that may be academic at any rate. I think that reflects better the situation.
80. MR JUSTICE BURTON: That is what I feel at the moment. I do care when it comes to costs, but I do not really care, at the end of the day, who has won and who has lost. All I know is what I am deciding, and that is that the only relief I am granting on the three applications is a declaration that each claimant has an out-of-country right of appeal pursuant to section 92(3B) and/or (3C). Is that all right?
81. MR EDWARDS: The problem is that when we come to costs we need to know whether the claim has been dismissed or --
82. MR JUSTICE BURTON: Of course, but let us get over the hump as to whether the application should be dismissed.
83. MR EDWARDS: On the basis, that order is neutral at the moment as to costs.
84. MR JACOBS: I am probably in a different position.
85. MR JUSTICE BURTON: You are going to be in a stronger position on costs. Why does it matter whether the application is allowed or not? Whatever you may have done before, you were arguing today that you could have an in-country appeal. You have lost on that.
86. MR JACOBS: My Lord, the skeleton argument before Burnett J was on two points. The first point was whether the decision of the immigration officer in refusing leave to enter was irrational. We did not get permission on that. The second point was entirely this right of appeal point, entirely the specified --
87. MR JUSTICE BURTON: Yes, that is right, but you argued that it was in-country.
88. MR JACOBS: I certainly said, and I have --
89. MR JUSTICE BURTON: I have to decide that point, do I not?
90. MR JACOBS: I have not succeeded on that point.
91. MR JUSTICE BURTON: I do not care whether you have succeeded or not, for the moment. You argued that it should be in-country and I have to resolve that.
92. MR JACOBS: My Lord, yes. In my submission, certainly when one looks at the skeleton arguments from both sides in my case, and when one looks at the order of Burnett J, the sole issue upon which permission was granted was whether there was a full right of appeal or whether it was a limited right of appeal.
93. MR JUSTICE BURTON: Let me try and get the argument where it should be. I am firmly of the view that I should grant the relief which reflects the fact that your extreme desires to have an in-country appeal have not been realised and their extreme position that there was no appeal at all has failed. I want to say, on the three applications, a declaration that there is only an out-of-country appeal pursuant to those sections. No other order is to be made on your application, so I do not really care about dismissing them or allowing them.
94. Costs is quite a different matter. Can we deal with it on the basis that we have this argument on costs and not on the order, so everybody's position is preserved so far. How are we going to deal with the costs position? There is no doubt you came along here, Mr Edwards, and right the way through pursuing the case that there should be no appeal at all. On the other hand, they have not won either. What about your getting a half costs order?
95. MR EDWARDS: I do not think I would be happy to accept that in the Rashid and Aiyegbeni cases, because I say the thrust of those cases was an in-country right of appeal.
96. MR JUSTICE BURTON: Let us deal with it slowly. What about Mr Jacobs' case?
97. MR EDWARDS: I am in more difficulty there. In light of what your Lordship has said, we have not taken instructions, but on the basis that --
98. MR JUSTICE BURTON: Let us clear Mr Jacobs out of the way.
99. MR EDWARDS: Having looked at his pleadings, the defendant is going to be in a little more difficulty, because the focus of his claim was 89(1). He has prevailed on that. But obviously part of his purpose was also to get an in-country right of appeal, so on that case, subject to instructions, a half order is appropriate.
100. MR JUSTICE BURTON: A half order is right.
101. MR EDWARDS: Yes.
102. MR JUSTICE BURTON: I need not trouble you at the moment, Mr Jacobs. I might come back to you. Let us look at the other two.
103. MR EDWARDS: I am instructed to submit in Mr Jacobs' case that that is what we would propose.
104. MR JUSTICE BURTON: I am sure he wants more than that, but that is your position. What about the other two?
105. MR EDWARDS: In Aiyegbeni, the whole thrust was to have an in-country right of appeal. She has not prevailed on that point. As the wagon has rolled on, other matters have come on board, but at the end of the day she has not got what she set out with.
106. MR JUSTICE BURTON: And Rashid?
107. MR EDWARDS: He equally has not got what he set out for. The letter that my learned friend passed up I have now had a look at. There were conditions in that letter, notably that he return to Pakistan and the upshot was that there was no bar to his application to return. The Secretary of State was not prepared to accept that in terms of someone who has breached the conditions of their stay. So I say that letter is irrelevant, and he has not got what he wanted either, despite the reasoning of your Lordship's judgment. He certainly should not get his costs.
108. MR JUSTICE BURTON: I just ought to clarify, while I am at it, the position so far as the Secretary of State is concerned about enforcement. As of now, there is nothing to stop you moving all these three. Presumably as soon as possible Mr Tattersall is going to have to make his EEA application and Mr Jacobs' client is going to make his human rights application. If they make those in the next seven days, will you stay removal?
109. MR EDWARDS: I would not have thought I was in a position to give that undertaking.
110. MR JUSTICE BURTON: Of course, but something has to be done to put some pressure on them. If I say that it should be done in seven days, it might help you.
111. MR EDWARDS: If they put their submissions in in seven days. But I cannot promise that --
112. MR JUSTICE BURTON: I am asking you to promise that if they get their application in in seven days, you will not take any steps to enforce.
113. MR EDWARDS: If the applications are in seven days, we would stay enforcement action.
114. MR JUSTICE BURTON: There we are.
115. MR NASIM: My Lord, can I just add to protect Mr Rashid's position as well. I have not taken further instructions on that issue but he does have --
116. MR JUSTICE BURTON: Let me make it absolutely clear that if I extend this to your client as well, nothing I have seen -- I know nothing about the EEA application, that is a different matter. Nothing that I have seen supports a human rights case in your client's case, so do not think that what I would be doing would give any comfort to your client at all. He has had an extra year while this case has ploughed on.
117. MR NASIM: There are ongoing studies. You may have seen the case of OA (Nigeria) which is in the bundle, a Court of Appeal authority in terms of interference with private life. He has been in the United Kingdom for three or four years studying. Notwithstanding, I want to protect his interests.
118. MR JUSTICE BURTON: Seven days for him as well?
119. MR EDWARDS: I thought the undertaking was being given in relation to all three.
120. MR JUSTICE BURTON: There you are. You have it. Now, is there anything either of you two want to say about costs. For both of you, it is right, is it not, that the bulk of the claim was on the in-country appeal.
121. MR TATTERSALL: My Lord, although we have not won on the in-country point, it has always been conceded, as far as I can see, for my client, when I look at s92, it says you may only bring an appeal against a decision from outside the United Kingdom. It is already conceded. Although we have not won our point, there is no question that we do have an out-of-country appeal. I would submit that the half costs is a reasonable matter. This, after all, has been three complicated cases.
122. MR JUSTICE BURTON: Is that what you are asking?
123. MR TATTERSALL: Yes.
124. MR EDWARDS: That we get half our cost?
125. MR JUSTICE BURTON: Yes.
126. MR NASIM: My Lord, in relation to Mr Rashid, your Lordship has seen a copy of the letter where there was correspondence between my instructing solicitors and the Treasury Solicitor about whether or not the claimant would be granted an out-of-country right of appeal. There was discussion about withdrawing the judicial review application in January 2009. The letter states that the Treasury Solicitor had taken instructions from their client and:

"The Secretary of State is not willing to agree to the withdrawal of the judicial review application on the above terms. That included your client be given an out-of-country right of appeal."

That is what their position was in January 2009. In addition to that, the refusal of leave to enter, at page 10, clearly indicated there was no remedy at all for the claimant, in fact that he had no right of appeal at all. The grounds make that clear also; that what we were asking was some sort of remedy. The letter sums it up, setting out what has happened after the judicial review application was lodged and permission was granted. There was some correspondence and we always asked for an out-of-country right of appeal.

127. MR JUSTICE BURTON: Thank you.
128. MR EDWARDS: I am afraid that our position on that is that the thrust particularly of Rashid, if you look at the order --
129. MR JUSTICE BURTON: What do you say about half costs?
130. MR EDWARDS: We want all our costs in Rashid and Aiyegbeni.
131. MR JUSTICE BURTON: And in Aiyegbeni?
132. MR EDWARDS: Yes, because the real thrust of it was the in-country point.
133. MR JUSTICE BURTON: Mr Jacobs, you want more than half your costs?
134. MR JACOBS: Yes.
135. MR JUSTICE BURTON: But you argued vigorously that you should have an in-country right of appeal.
136. MR JACOBS: My Lord, indeed. I am not saying I should have all my costs because I did make that argument, and I did not succeed on that. With regard to the skeleton argument that was before Burnett J, the point is set out clearly as I have argued it today, as I argued it in my current skeleton. Certainly Miss Patry-Hoskins' skeleton argument engaged with that issue, as far as I was concerned. The order of Burnett J granting permission limits it to the statutory construction of section 89. It was the substantial issue to be resolved. In my submission, I am not saying I should have all my costs but I would certainly ask for 75 per cent.
137. MR JUSTICE BURTON: Anything else you want to say, Mr Edwards, on that one?
138. MR EDWARDS: No.
139. MR JUSTICE BURTON: The reality is today that the Defendant came in order to get a decision of no appeal, and indeed has sought leave to appeal against my conclusion in that regard and lost on it. But, equally, I think that the other parties have lost on their vigorous submissions also. I think the appropriate order here is that in the cases of Rashid and Aiyegbeni, the claimants should pay half the costs of the defendant, and in the case of Awosanmi the defendants should pay two thirds of the costs of the claimant. I make that differentiation because it seems to me quite plain that the permission in that case, albeit other matters were relied on, was primarily, if not wholly, restricted to the point on which the claimants have won.
140. Thank you. I am sorry for sitting late. I do not know who is going to do it. Mr Edwards, would you prepare an order? I think it is not quite the straightforward judicial review order. I have indicated what it would be. Whichever of you has the grasp of what it is. It is "save that there be a declaration that" and mentioning both the two subsections out of country, no other order, and then the costs.
141. MR JACOBS: Are those to be assessed if not agreed?
142. MR JUSTICE BURTON: Yes. Nobody has asked me for a summary assessment.
143. MR EDWARDS: I will take the associate's email, but I do not think I will be able to get to it until tomorrow afternoon.
144. MR JUSTICE BURTON: May I suggest you take my clerk's email.
145. MR EDWARDS: I have that.
146. MR JUSTICE BURTON: That is if the best thing to do. If you can get it to me by lunchtime.
147. MR EDWARDS: That might be ambitious. I will do my best by the close of the day.
148. MR JUSTICE BURTON: Unless you can persuade one of your colleagues to take the burden.
149. MR NASIM: My Lord, I do apologise. Can I just clarify about the costs order? In the case of Rashid we have to pay half of the Defendant's costs?
150. MR JUSTICE BURTON: That is right.
151. MR NASIM: Is there any order against the Defendant?
152. MR JUSTICE BURTON: No. In Mr Tattersall's case and your case you are paying half their costs, and in Mr Jacobs' case they are paying two thirds of his costs.