England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		6th November 2009

1. LORD JUSTICE SULLIVAN: In these proceedings the claimants challenge three decisions:

(1) the first defendant's decision on 20th February 2009 to issue search warrants;

(2) what is said in the claim form to be the second defendant's decision to execute the warrants on 24th February 2009 "in the manner in which he did"; and

(3) the third defendant's decision, communicated to the claimants in a letter dated 2nd April 2009, to suspend the fourth claimant from the register of licenced sponsors.

2. Calvert-Smith J granted permission to apply for judicial review in respect of the third decision, but refused to grant permission to apply for judicial review in respect of the first and second decisions. This is a hearing of the application for judicial review in respect of the third decision and a renewed application for permission to apply for judicial review in respect of the first and second decisions.
3. The claim form contains a lengthy statement of detailed grounds. Those grounds have been supported by witness statements from the first, second and third claimants. It is fair to say that much of the factual background to the claim is either in dispute or not admitted.
4. For present purposes the salient facts are, in a nutshell, as follows. The first claimant is the owner of the Middlesex College Limited ("the College"), which is the fourth claimant. The second claimant is the wife of the first claimant and the third claimant is the director of studies at the College.
5. Until 31st March 2009 the Department for Innovation, Universities and Skills (DIUS) maintained a register of education and training providers. Educational establishments, such as the College, which wished to recruit international students, had to appear on the DIUS register. Following the introduction of a new points-based system by the United Kingdom Border Agency (UKBA), those educational establishments, such as the College, wishing to be a Tier 4 sponsor were required, after 31st March 2009, to be included in the register of licensed sponsors maintained by the Sponsor Licensing Unit (SLU). SLU is part of UKBA, but it is operationally separate from the other parts of UKBA, including those parts of UKBA which are responsible for investigating alleged breaches of the Immigration Rules.
6. The College was included in the DIUS register when the second defendant applied to the first defendant on 20th February 2009 for the search warrants in question. The first defendant's summary grounds explain that:

"On 20th February 2009 an application was made by PC Michael Atkinson for search warrants pursuant to section 8 Police and Criminal Evidence Act 1984 ["the 1984 Act"] for documentation relating to the facilitation of foreign nationals into the UK, including laptops and other electrical equipment relevant to the inquiry.

The application stated that the items were likely to be relevant evidence and be of substantial value to the investigation and did not consist of or include items subject to legal privilege, excluded material or special procedure material.

In accordance with section 8(3) [of the 1984 Act] the applicant identified the following grounds applicable to the application:

(c) entry to the premises will not be granted unless a warrant is produced,

(d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.

The application contained details of ongoing investigations regarding the subject of the search warrants. Contrary to good practice and normal procedure, no note was taken of any additional information provided by the officer in support of the application."

7. That explanation is amplified in the second defendant's summary grounds:

"4. Prior to seeking the search warrants, police had gathered witness evidence which tends to show that Middlesex College was, inter alia, selling 'diplomas' for large sums of money with a view to students using those diplomas to support UK visa applications or extensions, issuing diplomas and certificates from or on behalf of certifying bodies without the right or permission to do so, offering bogus courses and/or providing teachers who were not qualified to teach.

5. Police suspect that Middlesex College is being used as a vehicle for significant numbers of students who are illegal entrants to the UK to enrol on bogus courses or acquire bogus qualifications in order to have study visas granted or extended.

...

7. To advance this police investigation, PC Atkinson, on behalf of the second defendant and working as part of Operation Swale, applied for search warrants on 20th February 2009 from Croydon Magistrates to search three addresses.

8. An information from PC Atkinson supplying the above background information was laid before the first defendant, Croydon Magistrates' Court, on 20th February 2009 and this was sufficient for the justices of the peace to be satisfied that search warrants under section 8 [of the 1984 Act] should be issued for..."

Then three addresses are given.

8. The second defendant's summary grounds go on to explain that the information which PC Atkinson supplied was lodged with the first defendant and a copy was not retained by the second defendant.
9. The warrants were executed on 24th February 2009. I will consider the claimant's detailed criticisms of the manner in which the warrants were executed in due course, suffice it to say that there is a dispute as to whether the warrants were executed by the second defendant in an unlawful or oppressive manner.
10. Because permission has been granted and witness statements have been served, there is far more information available in respect of the third decision, which is challenged in these proceedings. When the warrants were executed, DIUS was responsible for the relevant register. On being told of the enforcement action on 24th February 2009, DIUS temporarily suspended the College from its register of education and training providers on 26th February 2009.
11. In the meantime, as part of the hand over of functions from DIUS to UKBA, and the replacement of the register maintained by the former with SLU's register of licensed sponsors, the Sponsor Management Unit (SMU) of UKBA had arranged to visit the College on 11th March 2009.
12. A key feature of SLU's new licensing system is the need for any applicant applying to be included on its register as a Tier 4 sponsor to have accreditation from a specified independent body. The guidance for applicants makes it clear that such accreditation is a prerequisite for inclusion in SLU's register. In the present case the relevant accrediting body is the Accreditation Service for International colleges (ASIC).
13. On 9th March 2009 ASIC wrote to the College:

"The accreditation of Middlesex College, London by ASIC was considered at an ASIC committee meeting on 27th February 2009.

In the light of the letter dated 26th February, sent to you by the registration team of the Register of Education and Training Providers informing you that Middlesex College has been temporarily suspended from the register, the committee decided that your accreditation by ASIC should also be suspended pending the outcomes of on-going investigations.

This decision was supported by other issues of concern which have been identified by Maurice Dimmock and myself concerning the operation of the College, which are not yet fully resolved.

If the College meets the bona fide requirements of the Immigration Rules and is returned to the register we shall reconsider our decision. In the meantime, please note that the suspension is with immediate effect and we require you to remove mention of ASIC accreditation and the ASIC logo from your publicity documentation and website immediately."

14. When the officers from SMU visited the College on 11th March 2009 they were not aware of:

(a) the enforcement action on 24th February 2009;

(b) the decision of DIUS to temporarily suspend the College from its register on 26th February 2009;

(c) ASIC's decision to suspend the College's accreditation on 9th March 2009.

15. Since the visit was undertaken in the presence of the third claimant, the Director of Studies of the College, it is surprising that he did not draw any of these matters to the attention of the visiting officers. In a joint statement dated 28th October 2009 the first and the third claimants explained that the ASIC letter dated 9th March 2009 did not arrive until 12th March 2009, ie the day after the visit.
16. The explanation as to why the other two matters were not mentioned to the visiting officers is less than satisfactory. In interview on 24th February 2009, after being arrested following the execution of the search warrants, the third claimant had told PC Atkinson, who took a leading part in the enforcement operations, that the College had made an application to UKBA and was waiting for a visit from the Home Office. PC Atkinson said that he would not prevent the visit from taking place.
17. Those exchanges do not begin to explain why the third claimant was not frank with the inspecting officers, since it must have been apparent to him that they were not aware of events which, on any basis, were highly material for purposes of their inspection. Moreover, since the letter from ASIC had made it clear that "other issues of concern [had] been identified", which had not been resolved, it is surprising that the College did not promptly write to the visiting officers to inform them that the letter had arrived only the day after their visit.
18. On the basis of the visiting officers' appraisal, SLU awarded the College an A-rated licence on 19th March 2009.
19. The internal e-mails make it clear that it came as a very nasty shock to SLU when its officials were told, only a few days later on 26th March 2009, of the enforcement action and DIUS' temporary suspension. Information about AISC's temporary suspension of the College from its register followed shortly thereafter and further information (much of which the claimants would vigorously dispute) was supplied by PC Atkinson.
20. There is some confusion as to the date on which SLU formally responded to this unwelcome news. On 27th March 2009 Mr Robert George, the then head of SLU, sent an e-mail which said:

"I've just authorised the immediate suspension of Middlesex College's licence and the removal of their details from UKBA's website.

The website removal is subject to IT constraints but will actioned as soon as is possible — early next week."

21. The status of this e-mail is unclear because the Government department responsible for the register on 27th March 2009 was still DIUS. In any event, Julie Senior, who is now the head of SLU, explains in her witness statement that the decision to suspend the College's licence was taken by Jan Harwood, Head of Sponsorship at SLU, and Steve Lamb, the Regional Operations Director for UKBA.
22. Ms Harwood's witness statement makes it clear that two signatories are required for a suspension and that she had received a report from a case worker which had said:

"Suspension required as a result of ongoing investigations.

The College has been under investigation by the Area 1 Crime Team for 12 months supported by LSE RIU. The Crime Team carried out an operation on 24th February with a number of immigration offences being identified. The College was remove[d] from the DIUS register of education providers on 26th February.

In addition, the sponsor has lost its accreditation with ASIC and therefore no longer meets the Tier 4 accreditation — which is a requirement of T4 registration.

Suspension and removal of the sponsor from the register is recommended in line with paragraph 527 of the level 3 guidance for sponsors which is attached to this stencil."

Ms Harwood discussed the case with Mr Lamb. The result was a letter to the College dated 2nd April 2009, which said:

"We received your application for a Tier 4 licence of 2nd February 2009 which was later granted.

However, we have recently suspended Middlesex College from the sponsor register as a result of ongoing investigations by this department and arrests made during a recent criminal investigation. We have been informed that your ASIC accreditation has been temporarily suspended. Having the necessary accreditation from a recognised accreditation body is mandatory for any Tier 4 points-based system licensed sponsor.

As a result of concerns relating to events described above we have therefore deactivated your SMS account and have removed the college's name from our published website until this issue is resolved.

You have 28 days to make any representations including, if you wish to, submitting evidence in response to this letter. If you are unable to respond within that time, please contact us immediately. We will aim to decide what action, if any, to take within 14 days of receiving any representations (or, if no representations are received on time, within 14 days of the 28-day time limit expiring).

I do hope we can resolve these matters as quickly as possible."

23. It is that decision in respect of which permission to apply for judicial review was granted by Calvert-Smith J.
24. Was that decision unlawful? The lawfulness of the three decisions by three different decision-takers must be separately considered. Once that is done, it is plain, in my judgment, that, whatever criticisms may be made of the other two decisions, the third decision, that of SLU on behalf of UKBA, was lawful. Indeed, it is impossible to see how SLU could, on the information available to it on 2nd April 2009, have taken any other decision consistently with its own guidance for sponsor applications.
25. It is unnecessary to rehearse all of the relevant paragraphs in that very lengthy guidance document because two things are clear:

(a) accreditation from ASIC was a prerequisite for the inclusion of the college in the register; and

(b) if SLU had reason to believe that the College was seriously breaching its duties and posed a major threat to immigration control, it could suspend the licence while the relevant procedures were followed (see paragraph 526 of the guidance).

26. Those procedures included writing to the College to explain what action was being taken and why, and giving the College 28 days to respond in writing.
27. The letter dated 2nd April 2009 refers to the ongoing investigations and arrests. In a letter to SLU dated 1st April 2009, the claimants' then solicitors had explained that the first and second claimants had been arrested and interviewed under caution "in relation to baseless allegations that our clients had facilitated... illegal immigrants into the United Kingdom".
28. It is not for this court to say whether those allegations were baseless or not. A police investigation into the facilitation of illegal immigration into the United Kingdom was certainly capable of giving SLU reason to believe that the College was in breach of its duties and that it did indeed pose a major threat to immigration control. Whether that belief eventually proves to be well founded or not does not affect the lawfulness of the decision referred to in the letter dated 2nd April 2009.
29. In fact, the investigations have disclosed, amongst other matters, that the first claimant was employing the third claimant as the Director of Studies at the College and that the latter had no right to work in the United Kingdom. Such a breach of immigration control in respect of an employee as important as the Director of Studies of a College would be a ground for serious concern. In any event, the suspension of the College's ASIC accreditation would have been sufficient reason for SLU to suspend the College from its register, whether or not there had been a police investigation, and regardless of the outcome of that investigation. Each of the two reasons given in the letter was sufficient, on its own, to justify suspension in accordance with the guidance.
30. In paragraph 41 of the claimant's skeleton argument it was submitted that the decision was unlawful on four grounds:

(1) because the Secretary of State had failed to comply with her own procedures in suspending the College;

(2) because the procedures were inappropriately circular, in that UKBA directly procured the allegedly independent action of ASIC, which led it to suspend the College;

(3) that no reasons had been given; and

(4) that the suspension was irrational in view of the fact that UKBA had itself awarded a Tier 4 licence by a letter of 19th March 2009, after the inspection on 11th March 2009.

31. The short answers to these four grounds are as follows:

(1) The procedures were complied with. On receipt of information about the enforcement action on 24th February 2009 and the temporary suspension from the accreditation register maintained by ASIC, either of which would have justified suspension from SLU's register, the College was told of its suspension on those two grounds in the letter of 2nd April 2009 and told that it could make representations.

(2) The third paragraph of the letter from ASIC, dated 9th March 2009 (see para 13 above), and an e-mail from Mr Dimmock dated 27th February 2009 to UKBA's migration strategy team demonstrate that ASIC formed its own independent view. The e-mail said this:

"Following an on-the-spot visit by myself last week we also were about to suspend their membership. This was to be confirmed at the accreditation meeting today.

We found that, although some major improvements had been made to the College IT facilities, two classes were running with less than 15 hours per week as they were not including break times.

From the information we have, they quite definitely have genuine students attending, [but] again we don't know how many visas were given."

Unfortunately, despite the best efforts of the Treasury Solicitor, it has not proved possible to obtain a witness statement from Mr Dimmock, the Chief Executive Officer of ASIC, until this morning. That witness statement confirms what was, in my judgment, evident from the letter and the e-mail to which I have just referred, namely that ASIC reached its own independent decision to suspend the College.

Whether it did so partially on the basis of information it had received, that the College had been suspended from DIUS' register because of the enforcement action on 24th February 2009 is beside the point. ASIC was entitled to, and did reach, its own decision on the basis of that and other material. In any event, it is clear that SLU is at arm's length from ASIC. The latter is an independent body. If ASIC accredits an educational establishment, then SLU accepts that accreditation. If ASIC suspends or removes accreditation, then SLU acts on that decision by ASIC. Even if there was an element of circularity because information from the enforcement branch of UKBA was at least partially responsible for ASIC's decision, SLU was still entitled to rely on the decision of ASIC.

Moreover, the claimants have made no effective attempt to persuade ASIC to alter its decision. We were shown a letter of 4th August 2009 in which the College's present solicitors said to ASIC:

"We write to request your written confirmation that should the Middlesex College be allowed back on to the Tier 4 Register, ASIC will lift the abovementioned suspension. We further request you to confirm the period of time it will take to re-accredit the College with ASIC if Tier 4 status is again allowed."

With respect, that puts the cart before the horse. SLU's guidance makes it quite clear that the College will have to persuade ASIC to restore it to accredited status. Only then will SLU consider whether there might be any other reason (for example the kind of suspension referred to in paragraph 526 of the guidance) why the College should not be restored to SLU's register.

(3) Sufficient reasons were given in the letter dated 2nd April 2009. The claimants were told the two reasons why they were being suspended. The proof of the pudding is in the eating, because the claimants' solicitors were able to, and did, make lengthy representations in response.

On behalf of the claimants, Mr Alun Jones QC complained that there had been no response to these representations. That complaint lacks substance because there has been a response during the course of these judicial review proceedings, but even if there had been no response that would still not be any basis for quashing the decision of 2nd April 2009; it would simply be a reason for requiring SLU to make its response clear. As I have indicated, in my judgment that response is perfectly clear from the evidence that is now before this court.

(4) It is clear that the Tier 4 licence was awarded on 19th March 2009 on the basis of the inspection on 11th March 2009; and that the visiting officers were unaware of the enforcement action on 24th February 2009, the DIUS suspension and the ASIC temporary suspension. Far from being irrational to reconsider the matter in the light of those factors, once they were discovered by SLU it would have been irrational not to do so.

There is a further point in respect on this complaint. The College, through its Director of Studies, should have informed the visiting officers of the first two factors when they visited on 11th March 2009 and of the third factor as soon as the letter from ASIC was received. Remedies in judicial review are at the discretion of the court and, in view of the College's lack of frankness with the visiting officers on 11th March 2009, I would not have permitted the claimants to rely on this complaint in any event.

32. It follows, in my judgment, that the application for judicial review of SLU's decision must be dismissed.
33. What of the other two decisions? Calvert-Smith J gave very careful reasons for refusing permission to apply for judicial review in respect of those two decisions.
34. Looking, firstly, at the first defendant's decision to issue the search warrants, while it is regrettable that neither the first defendant nor the second defendant has been able to find a copy of the written information given to the first defendant by PC Atkinson and that, contrary to good practice, no note was taken by the first defendant of any additional information that was provided by PC Atkinson in support of the application for a warrant, I see no reason to doubt the information contained in the first defendant's summary grounds as to what the first defendant was told by PC Atkinson. I have set out that material above.
35. Nor do I see any reason to doubt that, whether the information given to the first defendant by the second defendant was right or wrong, PC Atkinson summarised the investigation substantially in the manner described in paragraphs 4 and 5 of the second defendant's summary grounds (see above). Although a number of complaints were made in respect of the first defendant in the claimant's detailed grounds, Mr Jones, in his oral submissions this morning, contended that two points were arguable, that there was no evidence on which the first defendant could have been satisfied that:

(1) there were reasonable grounds for believing that the material sought in the warrants did not consist of, or include, special procedure material. Reliance was not placed on material subject to legal privilege or excluded material; and

(2) entry would not be granted unless a warrant was produced or the purpose of the search may be frustrated or seriously prejudiced unless immediate entry to the premises could be secured.

36. In respect of the first of those two matters, Mr Jones referred us to R v Crown Court at Lewes ex parte Hill [1991] 93 CrAppR 60. At page 69 Bingham LJ (as he then was) accepted the submission that it was not enough for a constable to blandly assert that the statutory conditions were met. The judge (and in that case the judge was concerned with special procedure material) had to form his own judgment.
37. I readily accept that the first defendant had to form his own judgment, but I am not prepared to infer that he did not do so. The phraseology of the first defendant's summary grounds may not be ideal, but the proper inference is not that the second defendant simply asserted that the conditions were met, but that the first defendant was satisfied that the conditions were met.
38. In R (Faisaltex Limited and Others) v Preston Crown Court and another [2009] 1 CrAppR 37; [2008] EWHC 2832 (Admin), Keene LJ, giving the judgment of the court, referred to the decision in Lewes, and to other authorities, and said this in paragraph 30:

"These and other authorities emphasise the vital importance of the role of the judge who is being asked to issue a search warrant. It is his task to be satisfied that the statutory requirements have been met."

39. Keene LJ then cited the words of Judge LJ in R (Bright) v Central Criminal Court [2001] 1 WLR 662, 677 and continued in paragraph 31:

"On the other hand, the role of this court in judicial review proceedings is not that of an appeal court but one of review on the usual principles. If it was properly open to the judge below to be satisfied as to the various requirements, then this court will not intervene. In addition, it has to be borne in mind that in both section 8(1) of PACE and the Schedule 1 first set of access conditions, what the judge must be satisfied as to is that there are 'reasonable grounds for believing', no less but no more. And in a number of the provisions, the belief is that something is 'likely': for example, in section 8(1)(c), that the material 'is likely to be relevant evidence'. As this court observed in R v Chief Constable of Warwickshire, ex parte Fitzpatrick [1999] 1 WLR 564, 574H,

'a likelihood is less than a probability.'

The burden of showing that the judge acted ultra vires in issuing a warrant or that the police acted unlawfully in some way when executing a warrant rests upon the claimant."

40. I am not persuaded that there is any realistic prospect of the claimants discharging that burden in the present case in respect of the first defendant. The submission that the first defendant did not form his own independent judgment is based on nothing more than a somewhat pedantic interpretation of the summary grounds, which, since they are only a summary of the first defendant's position, should be read in a common-sense way.
41. These observations apply with equal force in respect of the second complaint against the first defendant.
42. Mr Jones referred us to paragraph 16 of the Divisional Court's decision in Redknapp and another v the Commissioner of the City of London Police and others [2008] EWHC 1177 (Admin) in which Latham LJ said:

"... The application for the warrant did not identify which of the conditions in section 8(3) was being relied on; and, as I have said, I cannot see anything in DC Driscoll's statement which clearly identifies the fact that the magistrate was clearly told anything which could remedy that defect. I am not prepared to infer from the contents of the statement that the magistrate must have been told, or that there is enough in the statement to indicate that there was material before the magistrate which could have justified him in concluding that at least one of the conditions was met..."

43. In the present case, however, the warrant did identify which of the conditions in section 8(3) of the 1984 Act was being relied upon.
44. The first defendant's summary grounds clearly state that the applicant identified the following grounds applicable to the application. Then grounds (c) and (d) are set out.
45. On the facts of Redknapp it is perhaps readily understandable that the court was unwilling to draw inferences in favour of the applicant for the warrant, but in the present case I can see no reason to draw any inference against the first defendant that he did not consider that the conditions identified were made out to the court's satisfaction.
46. That leaves the second decision. It is important to bear in mind how that decision was described in the claim form:

"The second defendant's decision to execute the warrants on 24th February 2009 in the manner in which he did."

47. The complaint relates to the manner in which the second defendant executed the warrants. A large number of complaints are made and these complaints have generated, on the claimant's side, at least, a considerable volume of evidence. With one exception, to which I will return in due course, the issues in dispute are all factual, not legal matters. Those disputes could not be resolved on the basis of an exchange of witness statements alone. It is plain that in order to fairly resolve the many matters in dispute it would be necessary for there to be cross-examination, and most probably extensive cross-examination at that. I readily accept that claimants can challenge the manner in which warrants are executed by way of proceedings for judicial review, but equally it is trite law that judicial review is a discretionary remedy and it is very well established that the court will refuse to grant permission to apply for judicial review if it considers that there is a more appropriate alternative remedy.
48. In Faisaltex Keene LJ said this in paragraphs 90 and 91:

"90.As for the alleged seizure of irrelevant material, it may be that some has taken place but there is no agreement as to the extent thereof, if any, and it is quite clear that resolving disputes about the relevance of particular documents is likely to require extensive oral evidence. The documentation is voluminous. Very considerable issues of fact are bound to arise.

91. In Fitzpatrick... Jowitt J, with whom Rose LJ agreed, said this at page 579 D-F:

'Judicial review is not a fact-finding exercise and it is an extremely unsatisfactory tool by which to determine, in any but the clearest of cases, whether there has been a seizure of material not permitted by a search warrant. In my judgment a person who complains of excessive seizure in breach of section 16(8) should not, save in such cases, seek his remedy by way of judicial review but should rely on his private law remedy when he will have a tribunal which will be able to hear evidence and make findings of fact unfettered by Wednesbury principles. In an appropriate case the court in a private law action is able to grant interlocutory relief on a speedy basis on well recognised principles so that in all but the clearest cases of a breach of section 16(8) judicial review has only disadvantages and no advantages when compared with the private law remedy.'

A similar point has been made in a number of other authorities. We agree. We can seen no reason why civil proceedings could not establish the extent of any excessive seizure. It was argued by Mr Jones that no civil remedy is available if a police officer acts within the scope of an apparently lawful warrant: see McGrath v Chief Constable of Royal Ulster Constabulary [2001] UKHL 39; [2001] 2 AC 731 at paragraph 12. That is so, but there is a civil remedy if he goes outside the scope of the warrant and section 19 of PACE, for example by seizing material covered by legal privilege, even if at the time of the seizure he was acting on a bona fide belief that the particular seizure was authorised by the warrant. That was established by the decision in Bramley... see in particular Kennedy LJ at page 586 F-G, with whom Turner J agreed. We are satisfied that judicial review proceedings are not an appropriate mechanism for resolving the large number of issues of fact as well as law which are likely to arise when determining whether excessive seizures have taken place in the execution of these warrants."

49. With the one exception to which I will refer in a moment, all of the claimants' many complaints as to the manner in which, and the time at which, the second defendant executed the warrants fall squarely within those dicta of Keene LJ. The one exception is this. In the claimant's detailed grounds it was contended that:

"The warrant should be set aside because it does not name on its face the premises to which it applies. The first, second and third claimants seek relief under this head. Section 16(5)(b) of the Act requires that a copy of the warrant be served on the occupier. While it is conceded that this was done in this case, and that the address was recorded by an officer when the searches began, the warrant did not on its face indicate that the justice had authorised a search of the individual premises, and accordingly it should be quashed."

50. It is now accepted on behalf of the claimants that the warrants issued by the first defendant were accompanied by schedules on which the relevant address or addresses were specified. Thus it is no longer contended against the first defendant that he was not entitled to issue the warrants on this ground.
51. It is said that the claimants were not shown the schedules. They were shown only what I might refer to as the title page of the warrants. Mr Jones referred us to paragraph 21 of Latham LJ's judgment in Redknapp, in which he said that there was substance in a complaint that:

"... the copy of the warrant provided to the second claimant failed to specify the address of her home. This is agreed as a fact. It is further agreed that the second claimant was not shown the schedule to the warrant, and accordingly was not shown the fact that her address was on the warrant. The police explained this by saying that they did not wish her to know what other addresses were being searched. In my view that is no answer. The second claimant was entitled to be shown the warrant, and to a copy of the warrant, which must include the schedule to the warrant. What any householder wants to be satisfied about if his house is to be searched is not only that there is a warrant in existence, but that it refers to his or her address. There should be no difficulty in ensuring that the address is identified on the warrant or the schedule; there can be no difficulty in ensuring that no other addresses are identified. Either separate warrants should be obtained, or the other addresses can be redacted. In my judgment, accordingly, the execution of the warrant was not valid, the requirements of section 16(5) of PACE had not been satisfied."

52. In answer to that submission, Mr Shetty on behalf of the second defendant said that although the copy warrants given to the claimants had not included the schedule, the warrants did specify the premises to be searched in compliance with section 15(6)(a)(iv) of the 1984 Act because on the copies of the warrants left with the claimants there was a box at the foot of the warrant. The box contains the following wording:

"To be completed by the officer in charge of the search if the premises entered are not specified above:

For the information of the occupier, the premises entered on this occasion are:

Premises..."

and then the address of the premises is filled in.

53. The printed words in the box continue:

"You are not entitled to be given details of, or any information about, other premises to which the warrant authorises entry."

There is then a line for the officer in charge of the search to provide his or her signature and a date and a time is given.

54. The entry to the premises in respect of this warrant is agreed to be 0615. The time entered in the box at the foot of the warrant is 0618. Thus, the fair implication is that the premises were entered and then the address written into the box by the officer in charge of the search. That is perhaps supported by the wording at the top of the form, which makes it clear that this is a "copy for occupier of premises entered".
55. We were told by Mr Shetty that this way of proceeding was a widespread practice. In my judgment, it is at least arguable that a householder whose home is being invaded is entitled to be shown a copy of the warrant as it was issued by the magistrate, suitably redacted if it is desired not to disclose any other addresses that appear on the schedule to the warrant.
56. It is further arguable that the householder should not be confronted by a police officer demanding entry on the basis of an apparently blanket authorisation to search unspecified premises, who, once he has entered, then proceeds to write in the address of the property that has been entered. How, in those circumstances, does the householder know that a warrant was issued by a magistrate relating to his house?
57. This is a relatively short point which, since we have been told it is a widespread practice, is, in my judgment, appropriate for resolution by way of judicial review.
58. The proposition that it is a more general practice, and therefore affects other householders in addition to these claimants, is confirmed by the notes at the foot of the copy of the warrant that is retained by the police. That deals with the number of copies to be made and says, in respect of warrants to which a schedule of the premises to which entry is authorised, that there should be:

"... as many copied as are required. An occupier is not entitled to be given details of, or any information about, other premises to which the warrant authorises entry. Whenever premises are entered under a warrant to which a schedule is attached, the copy that is given to the occupier or left on the premises should be endorsed by the officer in charge of the search to specify the premises entered on that occasion".

Thus, the householder will be confronted by an officer who will write in the householder's address once entry has been effected.

59. I repeat, the householder, in those circumstances, would be entitled to wonder whether that entry into his home had indeed been authorised by the magistrate or whether the officer was simply acting of his own volition in writing a particular address on the warrant.
60. It seems to me that Mr Jones submitted with some justification that this is a point which is of wider importance. It is a point on which relatively little evidence is required, and, as I say, it is therefore precisely the kind of point which can more appropriately be resolved by way of judicial review.
61. At this stage we are simply concerned with whether the point is arguable. I am satisfied that it is and I, for my part, would therefore grant the claimants permission to apply for judicial review against the second defendant, but on this ground alone. I would emphasise that my view that permission should be granted on this ground does not mean that I consider that there would be any good reason to grant permission on the other "fact-heavy" grounds that are raised by way of complaint against the second defendant.
62. So for those reasons I would refuse to grant permission to apply for judicial review against the first defendant, I would grant permission to apply for judicial review against the second defendant on the sole ground that I have just mentioned, and I would dismiss the application for judicial review against the third defendant.
63. MR JUSTICE BLAIR: I agree.
64. LORD JUSTICE SULLIVAN: Where do we go from there?
65. MR JONES: Well, my Lord, on the permission aspect, my Lord, we are seeking, of course, the returnable property, which we say was illegally seized. My Lord, we would respectfully suggest that it is not necessary to take 5 weeks for the police to respond with any evidence, which they would in the normal way, and I would respectfully suggest that the time could be abridged to enable this matter to be decided as soon as possible. It will be a short matter in the Divisional Court.
66. LORD JUSTICE SULLIVAN: Yes, I think that is the basis on which my Lord and I have granted permission. What is it?
67. MR JONES: It is 35 days. That is, therefore, 5 weeks. That brings us pretty close to Christmas.
68. LORD JUSTICE SULLIVAN: Yes, we ought to try to get this one on, I think, before the end of term.
69. MR JONES: Yes, it ought to be a two-hour hearing at most.
70. LORD JUSTICE SULLIVAN: Yes.
71. Now then, Mr Shetty, I am sure you not going to suggest it is going to take as long of 35 days to put in factual evidence on this narrow point alone, are you?
72. MR SHETTY: No, I see the point, my Lord. Let us face it, in reality all we need is evidence from probably three police officers who have the relevant paperwork, who, hopefully, showed the relevant paperwork to the occupants as they were.
73. LORD JUSTICE SULLIVAN: Or did not, as the case may be.
74. MR SHETTY: Exactly. That is right.
75. LORD JUSTICE SULLIVAN: I would have thought they ought to be able to do that within, say, 14 days.
76. MR SHETTY: My Lord, I can see the sense in that, but I just fear, and perhaps it is the cynic in me, that by the time the administrative wheels starts to rotate — e-mails and correspondence goes out and officers get them and prioritise them — that 14 days might be unrealistic. I appreciate, also, that, in the face of the fact that this matter is here, that hopefully that might concentrate the minds of those people required to give evidence.
77. LORD JUSTICE SULLIVAN: I appreciate that when you are dealing with large organisations, it is sometimes like kicking a dinosaur. I mean, you kick it in its tail and then it takes quite a long time for the head to work out that the tail is being kicked. On the other hand, it does seem to me that sometimes orders from the court can concentrate minds wonderfully, and, were my Lord and I agreed that 14 days was a sufficient time, given the length of time this is going on, given that we are concerned, obviously, with a significant interference with someone's home, it seems to me that if we say 14 days. Of course, if the material comes back from the force solicitor that — I do not know — the officer is on holiday and simply cannot be contacted or is in hospital as a result of some terrible accident, then he can say so. There may, conceivably, be a very good reason why it cannot be done in 14 days, but I think we ought to proceed on the basis that unless there such a reason, you ought to bang your evidence in quickly, the claimants ought to have 7 days to respond and the matter should be set down as soon as possible thereafter for a short JR hearing before the end of this term.
78. (Pause). My Lord is saying, "Query whether 2 hours is enough". I would have thought that half a day without time for judgment is perfectly adequate. It is a relatively short point, I would have thought. So I would have thought that we ought to be able to get it in before the end of term, on that basis, and we ought to try to do so.
79. MR SHETTY: Yes.
80. LORD JUSTICE SULLIVAN: Well, if you go away and say that the Divisional Court was extremely fierce, it is entirely possible that the police will then react.
81. MR SHETTY: I am sure that we will be able to relay that information.
82. LORD JUSTICE SULLIVAN: Can I be deemed to be being very fierce?
83. So permission granted on that ground. Time for putting in the second defendant's evidence and detailed grounds, if so advised. You may feel that the evidence will speak for itself. Detailed grounds abridged to 14 days. Claimants to respond within 7 days. The matter to be set down as soon as possible thereafter for a half-day hearing (less judgment) before the end of term if at all possible.
84. Now, any more for any more on that?
85. MR SHETTY: No, my Lord.
86. LORD JUSTICE SULLIVAN: Any other applications to be made?
87. MR HALL: Costs.
88. LORD JUSTICE SULLIVAN: Yes, Mr Hall.
89. MR HALL: My Lord, I am going to ask for the costs on an indemnity basis. The College's approach has been that ASIC was not independent and, as we now know, there were dealings between the College and ASIC where ASIC were expressly independent of DS, independent of the Operation Swale matters, real concerns. Now, those matters were not put before the court. So the case that ASIC is simply a rubber stamp has been advanced by the claimants on a partial basis. To boot, in front of Calvert-Smith J, when the argument was raised, "The ASIC point should dispose of this matter. ASIC are independent. If you do not have accreditation you cannot get on the sponsor's licence", was met — and this is at page 77 of the defendant's bundle; it is the transcript, it is the note of the hearing — by the -- and this is at the bottom of that page. You have that, my Lord. So it is the defendant's bundle.
90. LORD JUSTICE SULLIVAN: I have it.
91. MR HALL: So during argument Mr Jones set out the claimant's financial difficulties et cetera. Then it is this sentence:

"Mr Jones said that his instructing solicitor had been in touch with ASIC that morning [2nd October 2009] (Mr Bhogal having entered the courtroom and handed him a slip of paper prior to this submission) who said they would re-accredit the College within a week if it was put back on the Tier 4 Register."

92. That took the wind out of the Secretary of State's sails, and if you look over the page at page 78 you will see my surprise there in the second paragraph:

"Mr Hall said that the new evidence as to ASIC's position came as something of a surprise..."

I had taken the court to policy documents "where it was clearly written that the College could not be put back on the register without it being accredited by an independent body, ASIC accreditation had to come first". So this was the way in which the claim was dealt with (inaudible) complete answer to the claim, leaving aside the other issue as to major problems with immigration control.

93. Now, that point there has not been made out, on the evidence. It would have if Mr Bhogal admitted that he had in fact said that to Mr Jones in making an application for wasted costs against the solicitors, on the basis of the either improper or unreasonable nature (?) to assert that in front of the judge and then not make it out.
94. Now, I have been told, since this morning, that Mr Bhogal denies having made direct contact with ASIC on 2nd October and that he was relaying his lay client's instructions. I am told that Mr Akhtar spoke to ASIC and I cannot, obviously, invite your Lordships to resolve the question as to who said what when. In those circumstances, I am driven to ask for indemnity costs against the claimants, because of the way in which this case has been advanced, both generally, by suppressing evidence of their dealings with ASIC, and in particular by putting forward what is manifestly an erroneous basis in front of Calvert-Smith J to meet what I would say are the Secretary of State's very strong grounds for permission not having been granted at all, with the result, inevitably, that all the cost and expense of putting up the evidence and preparing for this hearing has been accrued.
95. LORD JUSTICE SULLIVAN: Yes. What do you want to say about that?
96. MR JONES: This does give rise to some serious concerns, my Lord. When we rose at 1.30 pm, I was approached by my learned friend who told me he was going to apply for wasted costs against Mr Bhogal. I therefore went away to research the question to come back at 3.00 pm and to find that my learned friend had had a private conversation with Mr Bhogal outside about who had said what and whether it was Mr Bhogal or his client, and, as a result of obtaining that evidence, my learned friend is relaying it to the court.
97. This question, my Lord, is difficult. We have been confronted this morning, for the first time, with statements from Mr Dimmock. Two days ago, from a statement from Ms Major about her conversations with him.
98. My Lord, I have not had time to discuss with Mr Akhtar what conversations he had with Mr Dimmock at different times and it is, in my respectful submission, quite contrary to principle for my learned friend to have a conversation with a solicitor outside who is threatened with a wasted costs order application and then, as a result of what the solicitor says, announce that he has discovered, as his own witness, that it is Mr Akhtar's fault.
99. My Lord, these costs issues go deeper than this. Our submission is that of course my learned friend, having succeeded in his application today, should, in the normal way, get his costs, but there is an important subsidiary issue. My Lord, that is that Calvert-Smith J considered the question of permission twice in respect of the Home Office's decision and gave permission twice. The reason it came back to him on 2nd October was because the Secretary of State submitted that he had not been put on notice properly of the proceedings.
100. Could I ask your Lordship to look at the Home Office acknowledgment of service, my Lord, to explain why it is that the matter had to go back to Calvert-Smith J?
101. LORD JUSTICE SULLIVAN: Do you have a page reference? In your volume 1, is it?
102. MR JONES: It is in our volume 1, yes. It is page 81.
103. MR HALL: Page 74.
104. LORD JUSTICE SULLIVAN: It starts at page 74, yes.
105. MR JONES: Yes. The argument — the summary grounds of resistance — start at page 78.
106. Now, at paragraph 17 onwards -- this is the day after Calvert-Smith J's order was granted:

"On 17th June 2009, solicitors for the claimants telephoned the Treasury Solicitor to ask what the third defendant intended to do about the order. The Treasury Solicitor informed the claimants' solicitor that no claim form had been received and no order had been received."

107. Then:

"On 18th June, more than a month after the last date for service of the claim, a copy of the claim for permission to seek judicial review was served upon the Treasury Solicitor."

108. Then paragraph 23, my Lord:

"The third defendant's primary position is that this case should be dismissed for lack of service. The claim was lodged on 5th May 2009 but was not served until 18th June 2009 and then only after repeated requests by the Treasury Solicitor. CPR... requires service within 7 days of the date the claim was filed. The claimants' representatives did send a copy to a branch of the third defendant, Eaton House in Hounslow... but this is not effective service."

109. My Lord, the impression given from that is that the Treasury Solicitor did not know and the Home Office did not know because the documents had been lodged in an obscure branch in Hounslow away from the business area. It was for that reason that the matter went back before Calvert-Smith J, but in the evidence which we have received in the last day or two, my Lord, it is clear that SLU had the relevant documentation in May. That is at page 64.
110. LORD JUSTICE SULLIVAN: Of their bundle?
111. MR JONES: Of their bundle.
112. So on the 21st May we find the Sponsor Licensing Unit itself sending to the Duty Officer:

"Please find attached JR.

Can you please let me know if we need to send a holding response from our end as it's addressed to our AD."

They acknowledge that Ms Harwood herself, one of the principal witnesses in this case, received this letter on 13th May referring to the judicial review and telling them that we were going to apply for interim relief.

113. That document was received, as is now conceded, within SLU itself in May. So they knew all about the judicial review proceedings in May and have the documents, yet the impression created in the acknowledgment of service is really quite different.
114. It turns out, my Lord, on analysis, that the only point taken is a very strictly technical one, that although SLU have the documents, they should have been served upon the Treasury Solicitor, as they should have done, but, my Lord, had it been acknowledged in May and June that, "Yes, SLU has had these documents, they have passed them to the Judicial Review Unit", the court would have taken the view that any objection should have been from the Treasury Solicitor, although right, was of such a highly technical nature, and it is because of that, my Lord, that we are here now in November as opposed to July. Therefore, the second hearing before Calvert-Smith J should not attract costs.
115. I would respectfully invite the court not to give an order for indemnity costs, certainly without allowing us the opportunity to make further representations in writing when I have had a proper opportunity to talk to Mr Akhtar, who, Mr Hall has found out in conversations with our solicitor, so he is says, is responsible for misleading somebody.
116. LORD JUSTICE SULLIVAN: Is there anything else you want to say or have you made your position quite clear?
117. MR HALL: Well, the reason it came back before Calvert-Smith J -- Mr Jones was not present at the hearing in front of the Divisional Court where an attempt was made to commit the Secretary of State.
118. LORD JUSTICE SULLIVAN: Yes, yes, we have seen that — commit the Secretary of State.
119. MR HALL: That is why it came back in front of Calvert-Smith J -- is because he made an order for a stay and there was some contentiousness about what that actually meant. Was it a requirement to do nothing else? Was it a requirement to put back on the register? So the reason it came back in front of Calvert-Smith J --
120. LORD JUSTICE SULLIVAN: In fact, during the course of the vacation, I was asked what was the effect of one of Calvert-Smith J's orders and I said they have jolly well got to go back and ask Calvert-Smith J. So they did.
121. MR HALL: My Lord, in terms of SLU having the documents, if you do need to look at it, it is paragraph 24 of what Julie Senior says. She says that there was a letter.
122. LORD JUSTICE SULLIVAN: I am not sure if I would be so assisted by it. I think what I will do is I will just go out with Mr Justice Blair and then we will decide where we go from there and what orders should be made.
(A short adjournment)
123. LORD JUSTICE SULLIVAN: Mr Hall and Mr Jones, we consider that the claimants should pay the Secretary of State's costs, not on an indemnity basis — on the standard basis — but, let us say, all the costs, not trying to separate out any of these hearings before Calvert-Smith J and so forth. So you get your costs of the judicial review on the standard basis, to go for detailed assessment unless otherwise agreed.
124. Now, is there anything more? I think, Mr Jones, there are no costs, so far as the magistrates are concerned, anyway, and, so far as the police are concerned, it seems to me that the costs of the element that we have given permission to apply for JR on, obviously they are going to get sorted out after the end of that, and, in a sense, on the other issues it is a draw, because we have just said, "Well, more appropriate remedy. Off you go", and who knows how they will be resolved one way or the other, but that would be our approach there. So no order, so far as the second claimant's costs thus far are concerned.
125. Any more for any more?
126. MR JONES: No, thank you, my Lord.
127. LORD JUSTICE SULLIVAN: Thank you all. Sorry to keep you a little late.