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
		3 July 2009

1. SIR MICHAEL HARRISON:

Introduction

2. This is a claim for judicial review of the legality of the detention of the claimant with a view to his removal from the United Kingdom. The claim originally also related to a failure to consider some representations made on behalf of the claimant on 7 January 2008 and a failure to consider a non-statutory recommendation made by an Immigration Judge in a determination promulgated on 25 July 2006. The defendant subsequently agreed to consider those two matters so they are not the subject of these proceedings but they are nevertheless still relevant as part of the factual matrix relating to the issue of the lawfulness of the claimant's detention.

Factual Background

3. The claimant is a national of Nigeria. In August 2000 he entered the United Kingdom illegally together with two of his brothers. Between 2000 and 2005, they attempted to regularise their position. During that time, one of the brothers was granted indefinite leave to remain. Eventually, appeals by the claimant and the remaining brother, Olugbenga, against a refusal of leave to remain in the United Kingdom, were determined on 25 July 2006. The appeal by Olugbenga, who was mentally ill, was allowed, but the appeal by the claimant, who had done well in his academic studies, was dismissed.
4. There are two paragraphs of the Immigration Judge's determination which are relevant as part of the factual background to these proceedings. Firstly, at paragraph 68, the Immigration Judge concluded:

"I have to decide in the light of Huang whether if the appellant does not qualify to stay under the Immigration Rules his appeal should be allowed because circumstances of this case are 'so exceptional on its facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules.' I cannot find that that is the case and that finding is made with great reluctance."

5. Secondly, at paragraph 70 the Immigration Judge stated as follows:

"I well understand how upsetting this decision will be both to the appellant and his family. I would encourage the respondent having regard to the favourable outcome in Olugbenga's appeal to consider the exercise of his discretion outside Immigration Rules in favour of this appellant to allow him both to play a part in Olugbenga's recuperation and achieve the academic success for which he is destined and which otherwise he would have to pursue by obtaining entry clearance as a student which despite his unlawful entry in 2000 should in my judgment be favourably considered."

6. Following an unsuccessful attempt to seek reconsideration of the Immigration Judge's determination, the claimant's former legal representative, Mr Grand, wrote to the defendant on 4 September 2006 asking the defendant to follow the Immigration Judge's recommendation. Chasing letters were sent on 21 September 2006, 22 November 2006 and 31 January 2007, none of which were answered. On 24 September 2007 Mr Grand wrote again, referring to the claimant's outstanding application and giving his change of business address. On 7 January 2008, Mr Grand wrote again, pointing out that the "truly exceptional" test in Huang relied on by the Immigration Judge in paragraph 68 of the determination was no longer applicable in the light of the judgment of the House of Lords in that case. The letter also referred to the Immigration Judge's recommendation for discretion to be exercised outside the Rules. Finally, on 31 March 2008 Mr Grand wrote to the defendant for the seventh time, referring to his continuing representations and asking how the claimant's application was proceeding. The defendant did not respond to any of those letters.
7. There then followed the sequence of events relating to the claimant's detention. On 29 April 2008 the claimant was detained as a result of a random immigration check at Victoria Station. At that stage, the defendant had not dealt with the Immigration Judge's recommendation made almost two years previously, nor had he dealt with the fresh representations made by Mr Grand on behalf of the claimant on 7 January 2008 relying on the change in the law in the Huang case.
8. When the claimant was detained on 29 April 2008, he told the Immigration Officer that he had an application outstanding. The officer rang Mr Grand who told him that there were no applications outstanding but that there were outstanding representations. Mr Grand faxed the outstanding representations and the outstanding recommendation to the defendant marked for the attention of the Immigration Officer, who recorded only that no applications were outstanding. The Chief Immigration Officer authorised detention on the basis simply that there were no applications outstanding.
9. On 29 April 2008 two Forms IS91R (Notice to Detainee of Reasons for Detention and Bail Rights) were issued to the claimant. Only one form should have been issued. Both Forms give the same reasons for detention, but there are differences relating to the factors relied on. Both Forms give the reasons for detention as, firstly, that there was insufficient reliable information to decide whether to grant the claimant temporary admission or release and, secondly, that his removal from the United Kingdom was imminent. Both Forms relied on the factor that the claimant had used or attempted to use deception in a way that led the defendant to consider that the claimant was likely to continue to deceive. One Form relied on an additional factor that the claimant had failed to give satisfactory or reliable answers to an Immigration Officer's enquiries, whereas the other form relied on two additional factors, firstly that the claimant did not have enough close ties (eg family or friends) to make it likely that he would stay in one place and, secondly. That he had previously failed or refused to leave the United Kingdom when required to do so.
10. On 29 April 2008 the defendant set removal directions for 3 May 2008. Attached to them was an Immigration Factual Summary, which did not mention the claimant's appeal in 2006 which resulted in the Immigration Judge's recommendation.
11. On 30 April 2008, on a 24-hour review, the decision was made to maintain the claimant's detention. The relevant entry reading:

"Sub employed doc deception on arrival + has failed to regularise his stay since. He has shown no incentive to leave the UK + given his history I am not satisfied he would comply with SC1 RDs. Detention is maintained to effect a successful removal, booked for 3/5/08."

12. Also on 30 April 2008, Mr Grand wrote to the defendant making an asylum claim based on the recent discovery that the claimant was HIV positive.
13. On 2 May 2008, on a three day review, the decision was made to maintain the claimant's detention. The relevant entry reads as follows:

"Subject employed deception to enter the UK and is therefore an illegal entrant by documentary deception served on 03/04/2006 IS151A. Subject had removal directions set for his removal on an NGA passport to Nigeria on the 03/05/2008. Travel Desk to confirm embarkation."

14. On the same day, 2 May 2008, the claimant issued these Judicial Review proceedings. As a result, the defendant cancelled the removal directions but continued to detain the claimant.
15. On 6 May 2008, there was a seven-day review of the claimant's detention which stated as follows:

"Detention remains appropriate at present. Sub is ARE [appeal rights exhausted] O1/09/06. RDs were set for sub when he was encountered, RDs for 03/05/08. Sub Reps have applied for JR, caseworker to liaise with JRMU to see if case can be expedited, if so then detention can be maintained."

16. On 9 May 2008, the claimant was released.

Law

17. The power to detain a person in the claimant's position is to be found in paragraph 16(2) of Schedule 2 to the Immigration Act 1971 which states:

"If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10 or 12 or 14, that person may be detained under the authority of an immigration officer pending.

(a) A decision whether or not to give such directions;

(b) His removal in pursuance of such directions."

18. The principles to be applied, which are known as the Hardial Singh principles, were summarised by Dyson LJ in R(i) v Secretary of State for the Home Department (2003) INLR 196 at paragraph 46 as follows:

"(1) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(2) The deportee must only be detained for a period that is reasonable in all the circumstances;

(3) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(4) The Secretary of State should act with reasonable diligence and expedition to effect removal."

19. It is the second of those principles which is of particular relevance in this case.
20. The Home Office policy on detention is contained in Chapter 55 of the Enforcement Instructions and Guidance (the "EIG") which replaced the Operations Enforcement Manual in March 2008. Paragraph 55.1 of the EIG states that:

"The White Paper confirmed that there was a presumption in favour of temporary admission or release and that, wherever possible, we would use alternatives to detention..."

21. Paragraph 55.1.2 states that "detention must be used sparingly, and for the shortest period necessary."
22. Paragraph 353 of the Immigration Rules deals with whether further submissions in asylum and human rights cases amount to a fresh claim. Paragraph 353A states:

"Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submission under paragraph 353 or otherwise."

Submissions

23. Mr Chirico submitted on behalf of the claimant that the detention of the claimant on 29 April 2008 was unlawful because removal could not have been imminent because there were outstanding representations and the outstanding recommendation by the Immigration Judge to be dealt with. The defendant knew, or should have known, about those outstanding matters because the relevant documents were on the defendant's file and Mr Grand had confirmed the position by telephone and had faxed the relevant documents to the immigration officer. It was submitted that it was unreasonable to detain the claimant for more than one or two hours because the position would be clear on a cursory view of the file. Reliance was placed on the lack of any reference to the outstanding representations and recommendation in any of the detention reviews. There was no suggestion of a risk of absconding or further offending, and there was no evidence that the claimant's detention had served any useful purpose for the defendant. It was submitted that the reasons given by the defendant in the Forms IS91R did not justify detention. The documentary deception occurred in the year 2000 and had been found by the Immigration Judge to have occurred at the instigation of the claimant's mother, and the reliance on the lack of close family ties was clearly wrong in the light of the Immigration Judge's determination. Finally, it was submitted that the judicial review proceedings were a further reason for not detaining the claimant. It was contended that it was not lawful to detain the claimant simply to see if the proceedings could be expedited. Mr Chirico submitted that what had happened was the height of arbitrariness and that it was repugnant to the rule of law.
24. Ms Wakefield submitted on behalf of the defendant that time has to be allowed for the administrative process of decision taking, which in this case would include consideration of whether a substantive decision on the outstanding representations and the outstanding recommendation could be made in a reasonable time to be able to conclude whether removal was imminent. She submitted that the three-day period from 29 April to 2 May was an acceptable period for that process. Alternatively, the court should consider hypothetically what period would be reasonable if the defendant had constructive knowledge of the outstanding matters at the start of the period. So far as the period from 2 May to 9 May is concerned, it was contended that it was a reasonable period for the defendant to consider whether the expedition of the judicial review proceedings should be sought. Alternatively, the court should consider what period would have been reasonable for that purpose.
25. Ms Wakefield relied on two cases - R(WM) v Secretary of State for the Home Department (2007) EWHC 2562 (Admin), and R(Korkmaz) v Secretary of State for the Home Department (2008) EWHC 950 (Admin).
26. The case of WM was a decision of Beatson J. In that case, the first period of detention in question was between the 8 November 2004 and 24 November 2004. A removal direction had been issued on 8 November 2004 with a view to removal on 25 November 2004. On 4 November 2004, prior to the decision to issue removal directions and to detain, representations had been sent by the claimant's representatives by recorded delivery which were delivered on 4 November 2004 but which had not found their way on to the claimant's file by 8 November 2004 when the detention took place. Shortly afterwards, the defendant became aware of the representations which had been made but decided to maintain the detention pending consideration of the representations as constituting a fresh asylum claim.
27. Beatson J concluded that there was nothing unlawful in the initial detention or in the continued detention. At paragraph 48 he stated:

"It is, to say the least, unfortunate that the letters sent by the claimant's former representatives by recorded delivery and which appear to have been delivered to the defendant on 4 November had not been matched to the claimant's file by 7 November when the ISGIR was completed or by 8 November when he was detained. That does not, however, render the decision to detain him unlawful. In any event, very soon after he was detained on 8 November the defendant became aware of the representations. The defendant was entitled to take the view that the representations received did not preclude removal from being imminent. It is clear that those reviewing the claimant's case were confident the representations would be considered before 25 November, the date then scheduled for him to be removed. This belief was turned out to be justified..."

28. The case of Korkmaz was a decision of Wilkie J. That was another case where a decision to detain pending imminent removal was taken at a time when there were outstanding representations alleged to give rise to a fresh asylum claim which, on the judge's findings, had not been brought to the attention of those taking the decisions about removal and detention pending removal, although they were brought to the attention of the decision makers very shortly afterwards.
29. In paragraph 23 of his judgment, Wilkie J stated:

"In my judgment, whether or not the detention pending removal, in the context of representations being made which, it is said, amount to a fresh claim for asylum, is unlawful is a very fact-sensitive issue. I reject the claimant's contention that, where the Secretary of State is aware of representations being made, whether before or after the detention, as a matter of law that precludes his exercise of the power to detain. The statutory power is not thus hedged in. On the other hand, it is plain that it is not sufficient just for the Secretary of State to assert that, in his judgment, removal is imminent. Once he becomes aware of representations being made, plainly a decision has to be taken whether or not to release or continue detention."

30. In paragraph 26, the judge stated:

"In that context, I entirely agree with Beatson J that the existence of representations, whether known to the Secretary of State or as yet unknown to the Secretary of State, does not preclude her detaining or continuing detention. Furthermore, in the light of the history of this particular case, it seems to me that the decision of the Secretary of State to continue detention once she was aware of the representations being made cannot be categorised as an unreasonable exercise of her powers. It is, of course, the case that she did in fact address the question of the representations, well within the period before the 15th November when the removal directions were to it take effect. Accordingly, in my judgment, this element of the claim fails."

31. Ms Wakefield relied on those cases as showing that the mere existence of outstanding representations does not preclude the exercise of the power to detain. If the outstanding representations can be considered sufficiently swiftly, removal would nevertheless be imminent.
32. Mr Chirico accepted that those cases are authority for the proposition that the mere existence of further representations does not of itself render detention unlawful, but he suggested that there were two material distinctions between those cases and this case, namely that, in both cases, the representation had not reached the relevant file at the time the decision to detain was taken and, in both cases, decisions had been made on the representations before the proposed removal dates.

Conclusions

33. It is common ground in this case that there was power to detain the claimant. The issue is whether the power was exercised reasonably.
34. It is also common ground that it is for the court to decide whether the power was exercised reasonably. That decision is not made any easier by the absence of any witness statement from the defendant dealing with the decision taking process.
35. I agree with Wilkie J that the question of the legality of detention pending removal in the context of outstanding representations is a very fact sensitive issue. In the absence of a witness statement from the defendant dealing with the decision taking process, I have to make findings as best I can on the material available.
36. It seems me from the available material that the person taking the initial decision to detain on 29 April 2008 did so on the basis that there was no application outstanding and also on the basis, amongst other things, that the claimant had used deception in the past. There is no indication, either from the Forms IS91R or from the detention reviews, that account was taken of the outstanding representations or the outstanding recommendation despite the fact that, on 29 April 2009, the Immigration Officer was told about them by Mr Grand, and copies of them were faxed to him that day by Mr Grand so that they should have been on the file. There has been no explanation for that failure.
37. The cases of WM and Korkmaz are, however, authority for the proposition that the existence of outstanding representations, whether the defendant is aware of them or not, does not preclude the exercise of the power to detain. The recommendation of the Immigration Judge was a non-statutory recommendation, not a direction. It was something therefore about which the claimant could and did make representations. Whilst I accept that the defendant could not remove the claimant until the outstanding representations had been dealt with by the defendant, his detention is not in itself rendered unlawful by the fact that the representations were outstanding at that time, nor does it necessarily mean that his removal is not imminent.
38. It is, to say the least, most unfortunate that the outstanding representations and outstanding recommendation were not taken into account when the initial decision to detain was taken on 29 April 2008. However, I do not consider that that failure in itself rendered the detention unlawful because, if the defendant had not failed to take those outstanding matters into account, some time would have had to have been allowed for the defendant to consider them in any event and to decide whether they could be dealt within a reasonable time, albeit that I recognise they should have been dealt with a long time previously.
39. The judicial review proceedings, which were issued on 2 May 2008, brought the outstanding matters to the defendant's attention. In my view, taking account of the administrative practicalities of the decision taking process in this kind of matter, it would not have been unreasonable to have expected a decision taking into account the outstanding matters to have been made by about the time that the judicial review proceedings were issued. As it happens, therefore, I do not consider that the period of detention up to 2 May 2008 was so unreasonable as to render the detention unlawful.
40. Thereafter the defendant maintained the claimant's detention for a further seven days until he was released on 9 May 2008. The purported reason for that extra period of detention was so that consideration could be given to expedition of the judicial review proceedings. There is no witness statement to that effect but there is mention of it in the seven day detention review.
41. Whilst I can see that the issue of expedition can be relevant to whether removal is imminent, I have no doubt that it should not have taken as long as seven days for that issue to be considered. In my view, a period of no more than four days should have been sufficient in the circumstances of this case for the question of expedition to have been considered. I therefore conclude that the defendant should have been released by 6 May 2008. It follows, in my judgment, that the defendant's detention was unlawful for the last three days, from 6 May 2008 to 9 May 2008.
42. The claim form includes a claim for damages. In this case, it will relate to damages for three days of unlawful detention. I am told that the parties are agreed that the assessment of damages should be adjourned to a separate hearing and that there is a good chance that the amount of damages will be agreed. I will therefore order that the assessment of damages be adjourned to a separate hearing.
43. Are there any consequential matters?
44. MISS WAKEFIELD: My Lord, I will turn to permission and costs now. You will have noticed that my learned friend Mr David Chirico is not present today in court, and I am afraid that because of that, we are not in a position today, I think, to make submissions as to either costs or indeed permission to appeal, though of course that is perhaps more a matter for my learned friend to deal with than for me. Accordingly, I would suggest, if you are amenable to this, that we have 14 days in which to put in our submissions in writing as to both costs and permission to appeal for both sides and similarly that lodging of any Appellant's Notice, the time for lodging the Appellant's Notice be extended by 14 days, as well. I don't know if my learned friend would like to make submissions on that proposal.
45. SIR MICHAEL HARRISON: Yes, Miss Williamson?
46. MS WILLIAMSON: Unfortunately, I came to this case very late in the day, and having spoken to my learned friend outside, it seems to be the most reasonable course of action to allow the parties to make submissions in writing; I am not in a position to address the court today as I am unaware of the full detail of the case.
47. SIR MICHAEL HARRISON: When were you instructed, then?
48. MS WILLIAMSON: I received instructions yesterday afternoon. I understand the court was made aware beforehand that Mr Chirico was not to be available.
49. SIR MICHAEL HARRISON: That is true, that is why I thought there would be time for somebody else to be briefed in the case, and to deal with the matters today.
50. MS WILLIAMSON: Unfortunately, I am not in a position to be able to address in detail on costs today and I apologise for being in that position. I can only ask that the matter be allowed to be put in writing by the two parties and dealt with that way.
51. SIR MICHAEL HARRISON: Well, I think you have put me in the position of having to agree with that. I think it is regrettable, because there seems to have been time for instructions to have been taken, but, be that as it may, what are you suggesting? Both sides have 14 days for submissions on costs and permission to appeal?
52. MS WAKEFIELD: I was, my Lord, but on reflection it might be better for my learned friend Mr Chirico to go first, 14 days, and us to have 7 days. I know that it pushes it later in the calendar, but I know Mr Chirico is unavailable any earlier than that. I have been put on notice by my learned friend there will be a substantial point taken as to costs, I understand in this case. I as yet do not know what that point is. It will be better for me to see that point and respond to it in writing rather than shoot in the dark, as it were. I do know 21 days is a long amount of time for your Lordship to have deal with this matter, and also will put back the filing of the Appellant's Notice more than is usual practice. I think the White Book says an extension of 14 days is normally the maximum that is allowed. I cannot help your Lordship more than that, I am sorry.
53. SIR MICHAEL HARRISON: Well, very well. I will give the claimant 14 days to make written submissions on costs and, if desired, on permission to appeal, and 7 days for the defendant to reply on those issues, and I will extend the period for lodging any Appellant's Notice by 14 days. That is what you were asking for, was it not?
54. MS WAKEFIELD: It is. Might we have it extended by 21 days? Should I receive instructions, we would apply for permission to appeal on the finding of 3 days that went against the Secretary of State, we would like to have time to lodge that notice after having applied for permission from this court.
55. SIR MICHAEL HARRISON: Because the first part of the order involves 21 days.
56. MS WAKEFIELD: It does, and then we need time to learn your Lordship's decision on whether to grant or refuse permission to appeal. It is very difficult doing this in writing. Perhaps I might suggest an alternative order, which would be that both parties address permission to appeal within 14 days and the Secretary of State has liberty to come back on costs within 7 days of the claimant's submissions on costs. So you would have our respective submissions on whether both, either or neither sides wish to appeal any of your Lordship's findings within 14 days, and then on the cost point I have time to see the case put against me, and come back on it. I hope that makes sense, perhaps not.
57. SIR MICHAEL HARRISON: Just try again, will you?
58. MS WAKEFIELD: I will try again. If we divide it into permission to appeal first of all and then I will turn to costs. The claimant has 14 days to put in writing any application for permission to appeal; the defendant similarly has 14 days to put into writing any application for permission to appeal.
59. SIR MICHAEL HARRISON: So that applies to both parties. Both parties have 14 days should they wish.
60. MS WAKEFIELD: Quite.
61. SIR MICHAEL HARRISON: To lodge an application for permission to appeal.
62. MS WAKEFIELD: And because both parties would need to know in the circumstances your Lordship's response to that application and whether they need to apply for permission from the Court of Appeal or whether you have granted permission yourself, we presumably need to build into the timetable some time for your Lordship's consideration and judgment in respect of those submissions.
63. Alternatively, the appealing party could lodge an Appellant's Notice with the Court of Appeal requesting permission from that court in the event permission is refused by your Lordship, which might be the better course.
64. SIR MICHAEL HARRISON: The practical difficulty is that I stop sitting today, finishing my stint, and I will not be available until the end of July. I say I won't be available; documents can eventually be got to me.
65. MS WAKEFIELD: In that case my Lord, I suggest the first two suggested paragraphs of the order remain. You allow an extension of 14 days for the filing of an Appellant's Notice with the Court of Appeal and this applies to every party in the event, it is made known to the Court of Appeal that an application for permission to this court is outstanding; when judgment is received that would be forwarded on to the Court of Appeal, but in the Appellant's Notice to the Court of Appeal we would ask for permission to be granted by that court should your Lordship refuse permission. It is unlikely that the Appellant's Notice would be considered by the Court of Appeal before the end of July, so that would give your Lordship time to see the papers, let us have the order--
66. SIR MICHAEL HARRISON: I feel it is better to deal with it in a more sequential way, starting with what should be considered first. I think it is probably best for a time period for any application for permission to appeal to be put in. One thing to consider is within what time the transcript may be available.
67. MS WAKEFIELD: Quite, my Lord.
68. SIR MICHAEL HARRISON: Monday of next week. On that basis, that it will be available within that period of time, I would have thought the normal time for application for permission to appeal to be lodged.
69. MS WAKEFIELD: Is 21 days to the Court of Appeal. The application we are making to you is we are asking you to adjourn today's hearing to allow submissions on permission to appeal as part of this hearing. These are submissions that should normally be made orally as part of the hearing; this is quite different.
70. SIR MICHAEL HARRISON: Any application by the claimant or defendant to this court for permission to appeal shall be lodged within --
71. MS WAKEFIELD: 14 days.
72. SIR MICHAEL HARRISON: -- 14 days. Now, any submission on costs. How do you suggest that should be dealt with?
73. MS WAKEFIELD: My Lord, where my learned friend and I have been able to deal with this today, we would ask for the normal order for costs in respect of publicly funded applicants.
74. SIR MICHAEL HARRISON: That can be dealt with now.
75. MS WAKEFIELD: It cannot. I understand a point is being taken against me and it is a point my learned friend is not in a position to deal with today, so accordingly I would suggest that point is reduced to writing by Mr Chirico.
76. SIR MICHAEL HARRISON: What point is that?
77. MS WAKEFIELD: I do not know, my Lord.
78. SIR MICHAEL HARRISON: What you are talking about is an application for --
79. MS WAKEFIELD: Were Mr Chirico to be here today, I would ask for the claimant (being a party in receipt of services relating to these proceedings funded by the Legal Services Commission within the meaning of Section 11(1) of the Access to Justice Act 1999) to pay to the defendant an amount to be determined by the costs judge. Then it would go off to the costs judge. That is what I would be asking for today, but I understand there is a point. It is not about quantum of costs. I understand a point of principle is to be taken against me as to whether that is the appropriate costs order for to you be making, my Lord.
80. SIR MICHAEL HARRISON: There may even be an order for costs against you.
81. MS WAKEFIELD: There might be, and that might be the point that is being taken.
82. SIR MICHAEL HARRISON: Why can't we have an order that the claimant's submissions on costs be put in writing and lodged within 14 days?
83. MS WAKEFIELD: Yes, my Lord. I am happy, as I indicated earlier, to respond to those within 7 days.
84. SIR MICHAEL HARRISON: And the defendant to reply in 7 days?
85. MS WAKEFIELD: Yes. The claimant has my opening position, as it were, which is that we would be seeking the entirety, the normal costs order, so that the claimant pays our costs.
86. SIR MICHAEL HARRISON: If that is what You are going to be saying, you are going to be doing it in reply.
87. MS WAKEFIELD: It depends on the point taken against me. The point as I understand it, having discussed it briefly with my learned friend, and I accept that she is not in a position to deal with that today. I think it is because the removal directions were cancelled, detention was continued; so which aspects of the judicial review remained live and why and whose fault it was; I imagine it would be submissions of that nature, to which I will need to respond in a degree of detail, but not huge detail I hope, but a degree of detail.
88. SIR MICHAEL HARRISON: If you may be raising a claim for costs yourself in the reply then there should be an opportunity given for the claimant to reply to your costs claim, if it is not being put in --
89. MS WAKEFIELD: My Lord, if it is any easier I am happy, within seven days, say, to reduce to writing the submission I have made today; my learned friend can reply to that, and I can come back, so it can go seven days; seven days; seven days.
90. SIR MICHAEL HARRISON: I would have thought that is much better.
91. MS WAKEFIELD: Okay.
92. MS WILLIAMSON: Absolutely.
93. MS WAKEFIELD: It is simply because I am here today I thought I would make that orally, I am very happy to put that in writing.
94. SIR MICHAEL HARRISON: Costs submissions to be put in writing by the defendant within seven days; by the claimant seven days thereafter, and your reply by the defendant seven days thereafter.
95. MS WAKEFIELD: I am happy with that, thank you my Lord.
96. SIR MICHAEL HARRISON: I do not know if all of that is being followed, but I think it is a good idea is if is reduced to written form today.
97. MS WAKEFIELD: I am happy to do that.
98. SIR MICHAEL HARRISON: Would you do that?
99. MS WAKEFIELD: You may be coming to this in a moment, but if we could deal with the question of Appellant's Notice before --
100. SIR MICHAEL HARRISON: Yes.
101. MS WAKEFIELD: And the extension of time to be provided for the Appellant's Notice. The Appellant's Notice would normally need to be filed within 21 days including within it a application to the Court of Appeal for permission to appeal, because of course in the normal run of things we could have discussed permission to appeal today, your Lordship would have refused or granted it, and were your Lordship to have refused we would renew that application to the Court of Appeal as part of the Appellant's Notice. Given we do not know and will not know within the time for lodging of the Appellant's Notice of 21 days whether your Lordship has granted permission to appeal or not.
102. SIR MICHAEL HARRISON: Can you not say if permission is not granted an application is made hereby to the Court of Appeal?
103. MS WAKEFIELD: Could we have an extension of 14 days to file the Appellant's Notice?
104. SIR MICHAEL HARRISON: I have got so confused I cannot remember.
105. MS WAKEFIELD: I think we have started afresh; at the moment I have no outstanding order dealing with the Appellant's Notice, and your Lordship indicated let us start afresh and deal with it in chronological order.
106. SIR MICHAEL HARRISON: Yes.
107. MS WAKEFIELD: Given we will need time to receive the transcript, the approved transcript, and then take instructions from our respective clients.
108. SIR MICHAEL HARRISON: The beginning of this new way of looking at it was that an application by the claimant or the defendant to this court for permission to appeal to be lodged within 14 days.
109. MS WAKEFIELD: Yes, my Lord. The Appellant's Notice to the Court of Appeal will normally have 21 days to be lodged. Might we have an extension of 14 days? This is more, to be fair, for my learned friend's benefit than for mine, it must be said, because he is unavailable until quite shortly before that deadline. I think both parties would appreciate a 14-day extension to that 21-day period.
110. SIR MICHAEL HARRISON: Are you talking about a further extension? Because the 14-day period relates to permission to me, to an application to me, to appeal.
111. MS WAKEFIELD: Well, it is both my Lord. The reason the period to you has been set at 14 days is because of Mr Chirico's unavailability, and his unavailability holds good for the drafting and lodging of an Appellant's Notice, so that is why 14 days is the period that appears in both orders.
112. SIR MICHAEL HARRISON: Yes.
113. MS WAKEFIELD: Similarly, I understand it is the usual practice when a transcript has to be obtained to have some extension of the 21-day period anyway for the filing of the Appellant's Notice, that is why 14 days. Should your Lordship be happier with seven days, there is no magic in the number 14.
114. SIR MICHAEL HARRISON: Well, I am content with 14 days.
115. MS WAKEFIELD: Thank you, my Lord.
116. SIR MICHAEL HARRISON: What I suggest you do is to draw up this order. It has become unnecessarily complicated, I think. Can you do that today?
117. MS WAKEFIELD: I will do so.
118. SIR MICHAEL HARRISON: Can you do it in effect here and now before you both leave court, so it is initialed by you both?
119. MS WAKEFIELD: I could. My chambers are across the road, and I could type it up, email to my learned friend and get it back to you by 4 o'clock, easily, if that could be acceptable?
120. SIR MICHAEL HARRISON: Yes. I think that is best.
121. MS WAKEFIELD: Thank you, my Lord.
122. SIR MICHAEL HARRISON: And so you will lodge that with the Administrative Court, will you? I want to make sure; documents do go astray in this building.
123. MS WAKEFIELD: I will ask my clerk to speak to your clerk.
124. SIR MICHAEL HARRISON: I do not have a clerk.
125. MS WAKEFIELD: I do not know who she speaks to when she --
126. SIR MICHAEL HARRISON: To the Administrative Court Office.
127. THE CLERK: Can the order be sent to me and I can bring it to you?
128. SIR MICHAEL HARRISON: Can it be sent to this court.
129. MS WAKEFIELD: Thank you my Lord, I am grateful.
130. SIR MICHAEL HARRISON: And I think you had better both be available on the telephone in case I have any query when I see what you have agreed.
131. MS WAKEFIELD: I will cross reference the appropriate provisions within the CPR so we know what we are doing for each provision.
132. SIR MICHAEL HARRISON: Yes, thank you.