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
		6 November 2009

1. MR JUSTICE STADLEN: There is before the court an application for judicial review of a decision made on 2nd June 2009 by the First Tier Tribunal (Social Entitlement Chamber). The application concerns the true interpretation of regulation 3(2)(e) of the Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005. In circumstances to which I shall refer briefly, it is common ground between the claimant and the second defendant, the Secretary of State, that the application should succeed to a limited extent because the decision reached contained and was based on an error of law.
2. The claimant is a 35 year old Somalian woman. She is a failed asylum seeker who has made further representations to the Secretary of State which she contends amount to a fresh asylum and human rights claim.
3. Whilst the Secretary of State was considering those representations, he provided the claimant with accommodation under section 4 of the Immigration and Asylum Act 1999. On 22nd April 2009 he determined that her representations did not amount to a fresh claim. On 1st June 2009 the claimant issued a judicial review claim challenging that decision; that is to say, the Secretary of State's decision that her more recent representations did not amount to a fresh claim. I should add that she had long since exhausted her rights of appeal against an initial claim to asylum. On 14th May 2009 the Secretary of State decided to cease to provide the claimant with section 4 accommodation with effect from 30th May 2009.
4. On 14th May 2009 the claimant's immigration solicitors sent the Secretary of State a letter in anticipation of a claim for judicial review of the immigration decision of 22nd April 2009 asking for the decision to be retaken. On 20th May 2009 she gave notice of appeal to the First Tier Tribunal from the Secretary of State's decision of 14th May 2009 to cease providing her with section 4 accommodation. On 1st June 2009 the claimant issued the claim for judicial review challenging the immigration decision of 22nd April 2009; that is to say, the decision that her new representations do not amount to a fresh claim.
5. On 2nd June 2009 the First Tier Tribunal heard her appeal against the Secretary of State's decision to cease providing her with section 4 accommodation. That decision was reached by him on the basis that the claimant did not satisfy the requirements of the regulations, to which I shall refer shortly.
6. The 2005 regulations were made pursuant to section 4(5) of the 1999 Act. Section 4(2) of that Act provided that the Secretary of State may provide facilities for the accommodation of a person if (a) he was but is no longer an asylum seeker, and (b) his claim for asylum was rejected. Section 4(5) of the Act provided that he may make regulations specifying the criteria to be used in determining whether or not to provide or to continue to provide accommodation under the section. Those are the 2005 regulations. Regulation 3 is in these terms:

"Subject to regulations 4 and 6, the criteria to be used in determining the matters referred to in paragraphs (a) and (b) of section 4(5) of the 1999 Act in respect of a person falling within section 4(2) or (3) of that Act are -

(a) that he appears to the Secretary of State to be destitute,

(b) that one or more of the conditions set out in paragraph 2 are satisfied in relation to him.

(2) Those conditions are that -

(a) he is taking all reasonable steps to leave the United Kingdom or place himself in a position in which he is able to leave the United Kingdom, which may include complying with attempts to obtain a travel document to facilitate his departure;

(b) he is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason;

(c) he is unable to leave the United Kingdom because in the opinion of the Secretary of State there is currently no viable route of return available;

(d) he has made an application for judicial review of a decision in relation to his asylum claim -

(i) in England and Wales, and has been granted permission to proceed pursuant to Part 54 of the Civil Procedure Rules 1998, ... or

(e) the provision of accommodation is necessary for the purpose of avoiding a breach of a person's Convention rights, within the meaning of the Human Right Act 1998."

7. It was and has always been common ground between the parties, and it was put on this basis before the First Tier Tribunal, that the claimant satisfies the requirement in regulation 3(1)(a); that is to say, that she appeared to the Secretary of State and still appears to be destitute. The question that arose is whether one or more of the conditions set out in paragraph 2 are satisfied in relation to her. Again, it is common ground that none of the conditions in (a) to (d) inclusive apply. In particular, although she has made an application for judicial review of the immigration decision; that is to say, the decision taken on 22nd April 2009 that her representations of 27th October 2007 are not a fresh asylum or human rights claim, no permission to proceed with that judicial review claim has yet been given.
8. When the matter came before the First Tier Tribunal it appears that the submission was made on behalf of the claimant to the tribunal that the mere fact of an application for permission judicially to review the decision of 22nd April was sufficient of itself to command the conclusion that she satisfied the requirement in (e), namely that the provision of accommodation is necessary for the purpose of avoiding a breach of a person's Convention rights within the Human Rights Act 1998. That submission was rejected by the tribunal judge, Mr Saunders. However, in rejecting her appeal he went further. He said this:

"Ms Hickey argued that I should find that the appellant fell within this regulation in view of the fact that her application remains outstanding. I do not agree."

9. I interpose to say that at that point the judge had done no more than reject the submission to which I have referred, namely that the mere fact of an application for permission to judicially review being outstanding was not itself sufficient to satisfy the requirements of regulation 3(2)(e). However, he went on as follows:

"if I were to accept that position, then regulation 3(2)(d)(1) would have no legal effect. It was clearly Parliament's intention to make a distinction following the rejection of further representations presumably by there being some kind of check on the application by virtue of it having to satisfy the High Court that it requires permission in order to proceed."

10. It appears to me, and it also appears to have appeared to the Secretary of State as well as to the claimant, that in that passage of the decision the tribunal judge was holding that, where there has been a decision by the Secretary of State that fresh representations do not amount to a fresh asylum claim, the fact that permission judicially to review that decision has not been given by the High Court is itself dispositive in a negative way of the question whether the requirements of the provisions of 3(2)(e) of the regulations is satisfied. In other words, to put it the other way round, it is a requirement in such a circumstance that before 3(2)(e) can be satisfied permission has been granted. It is accepted by the Secretary of State that that is an error of law, as submitted by the claimant. I have no difficulty or hesitation in expressing my view that it is indeed an error of law. However, that is the extent of the Secretary of State's concession.
11. It is apparent to me, on reading the papers and in brief discussion with counsel this morning, that there are a number of questions which arise in relation to the interpretation of 3(2)(e), and there are a number of factual circumstances in which the question of the true interpretation may fall to be considered. Thus, for example, the question may fall to be considered where, as in this case, an application for judicial review has been made but has not yet been determined. The question may fall to be determined at a prior stage where, following a decision by the Secretary of State that representations do not amount to a fresh claim, an application judicially to review that decision has not yet been made.
12. On the facts of this case that question arose in this way. There is in the ordinary course an obligation under the rules on a person who wishes to apply for judicial review to send a pre-action protocol letter to the Secretary of State, giving him an opportunity to explain his views and think again. It was pointed out to me, it seems to me on its face with some force, that a difficult question might arise if a claimant who required accommodation under section 4 was put in a position of there being a conflict between his need or her need to comply with the pre-action protocol letter requirement on the one hand and there being an absolute bar against complying with the requirement of 3(2)(e), where representations had been held not to amount to a fresh claim until and unless a claim for judicial review had been issued. On the other hand, as appears in discussion of these issues in two authorities which were placed before me, difficult questions may arise. It is notorious that there are many cases of claimants whose appeal rights in an asylum case are exhausted who make representations which are entirely without merit for the sole purpose of seeking to delay the moment at which they are removed. Questions may arise as to how that fact is to be taken into account in the question of what is the approach to be adopted on an application for section 4 accommodation where there is a challenge, either actual or anticipated, against a decision that fresh new representations do not amount to a fresh claim.
13. On the facts of this case, the Secretary of State having conceded that the tribunal judge made the error of law to which I have referred, has, through the skeleton argument of Mr Manknell on his behalf, indicated that he has offered to reconsider the question of the claimant's continuing application for accommodation pursuant to section 4 of the Act on the basis that she satisfies the requirement under regulation 3(2)(b), with a further right of appeal to the tribunal in the event that that consideration is unfavourable. In the light of that offer it seems to me clear that the appropriate course for me is to confine myself to quashing the decision in fact made on 2nd June by the First Tier Tribunal on the basis that the decision is vitiated by the error of law to which I have referred.
14. It seems to me that it would be wrong for me to remit this matter back to the First Tier Tribunal so that it should reconsider the appeal. That is because the Secretary of State having indicated that he considers that the approach of the Tribunal was wrong in law, it is preferable by far that, in the light of the Secretary of State's realistic and, if I may say so, helpful offer, the matter should go back to square one with the Secretary of State having the opportunity himself to consider what is the correct interpretation of regulation 3(2)(e) and what is the correct approach for him when considering an application pursuant to it on the facts of this case. I say that because it is apparent from what I have said already, and from the authorities which have considered these questions, which are R (AW) v Croydon; R (A,D and Y) v Hackney [2005] EWHC 2950 (Admim) and R (Binomugisha v LB Southwark) [2006] EWHC 2254 (Admin), that there is a variety of factual circumstances in which the question of whether the regulation is satisfied may arise. It is desirable that these questions should be addressed not in abstract but on the facts of particular cases and before the courts are invited to intervene in adversarial litigation. It is preferable that the Secretary of State should have the opportunity himself of considering what is the correct approach. It may be that he will accede to the application or request for accommodation, in which case this is not a case that will lead to any appeal to the tribunal or challenge by way of judicial review to this court requiring any judicial expressions or views. On the other hand, it may do. If it does so it is better that it should do so on the basis of a properly reasoned approach by the Secretary of State which then, if it is challenged, can be challenged. It is also for those reasons that I am clear that it would be wrong for me on this application simply to give any kind of general ruling as to the correct interpretation of the regulation. Not only would it be academic on the facts of this case but it is apparent from what I have said that, because there is a variety of factual circumstances in which the regulation may fall to be applied, it would be unhelpful rather than helpful for the court simply to give a wide ranging judgment which might not cover all the factual circumstances that could conceivably arise. I am told by Mr Manknell, who has taken instructions, that the Secretary of State is prepared to reconsider the question, including the consideration under regulation 3(2)(e) as indicated, as foreshadowed in paragraph 22 of Mr Manknell's skeleton argument. He has also agreed that he will continue to make section 4 accommodation available until 14 days after notification to the claimant of his decision on the section 4 accommodation.
15. MR JUSTICE STADLEN: I have said what the Secretary of State has agreed. On that basis I quash the decision. I do not think that there is anything I need to do.
16. MR COX: The decision was 2nd June 2009. It is the First Tier Tribunal (Social Entitlement Chamber).
17. MR JUSTICE STADLEN: That should be read as amended to incorporate those corrections.
18. MR COX: I think you mentioned that the Secretary of State's decision on 14th May was to cease accommodation from 14th April. It was in fact 30th May. I have an application for costs which, if I may, I deal with in a little more detail. Opposition has been foreshadowed in my learned friend's skeleton argument at paragraph 26, where he makes two points, that the claimant had rejected the Secretary of State's offer to compromise the claim without the need for a hearing and that the claim was not directed against the decision of the Secretary of State. Might I mention why I say that costs should be ordered. First of all, it should be noted that the offer was not an offer to compromise the claim. The offer was not made until the third week of September, after the bundle and my skeleton had been filed. First of all, the Secretary of State accepts in his skeleton, paragraph 11, that the position that he has taken in his skeleton argument to your Lordship is not the position he took before the tribunal. He procured the decision of the First Tier Tribunal that was made. That is relevant to whether or not the unsuccessful party before the tribunal should be awarded their costs for the necessary steps in reversing the ruling that was made in favour of the successful party.
19. MR JUSTICE STADLEN: Paragraph 11 says "the rigid approach set out in paragraph 6 is not correct". It is paragraph 11 of Mr Manknell's skeleton.
20. MR COX: "it is accepted that this was not the basis on which the case was argued before the Tribunal".
21. MR MANKNELL: It is a mistake. It should be 9.
22. MR JUSTICE STADLEN: Is that the submission that was being made below, the one set out in 9? I am not sure that is what the view of the judge was.
23. MR MANKNELL: I am in difficulty as to what was said below. I have the judgment only to go on. The position appears to be that the claimant took one view, which is that the fact that she brought a claim for judicial review, albeit that she did not have permission, was enough for 3(2)(e). That was not correct. What the Secretary of State appears to have said is also incorrect. The tribunal appears to have adopted what the Secretary of State had put.
24. MR COX: The second aspect of the conduct is that the body that had represented the claimant before the First Tier Tribunal did immediately contact the Secretary of State, asking the Secretary of State to continue accommodation for 14 days, it being considered that the application for permission in the immigration judicial review would be able to come on in that time.
25. MR JUSTICE STADLEN: After the decision of 3rd June?
26. MR COX: 2nd June. The e-mail was sent at lunch time on the same day. The tribunal sat quickly. The decision is given there and then. The judge retired to type up their reasons and it is handed back the same day. At page 212 of the bundle you will find the e-mail from the lady who had represented Miss S before Mr Saunders. She sent an e-mail to the Assistant Director responsible for asylum support, having explained the situation: "given the circumstances of this case and the fact that this woman is very vulnerable we would greatly appreciate if our client's section 4 support could be continued temporarily until the outcome of the permission hearing in the JR is known. This should not take more than 14 days.".
27. MR JUSTICE STADLEN: This is the immigration JR?
28. MR COX: Yes. Solicitors not having been instructed at that stage, it was hoped that this judicial review could be avoided. You can see the response from Mr Meares at 2.12: "

I am forwarding your e-mail to the caseowner. My position in the programme office does not allow me to intervene directly in cases. I imagine the caseowner will stand by the decision and I will ask him to contact you asap."

29. There was no response from the case worker. Solicitors were instructed and on the next day they wrote to the section 4 team, asking that at the least the Secretary of State agree to continue accommodation to avoid the need for an urgent application for interim relief. There was no response. His Honour Judge Anthony Thornton gave the paper order you see at 2.16 in the immigration judicial review, ordering an urgent oral hearing of that judicial review. That was sent to the Secretary of State. There was a further request on 4th June that the accommodation be extended pro temp. That was not responded to. At 2.19 copies of the claim forms in draft form that were due to be issued were served on the Secretary of State with a repeated request that day to extend accommodation. I accept that by this stage the decision to issue the judicial review had been made but it is relevant to costs that there was no response from the Secretary of State.
30. MR JUSTICE STADLEN: That is temporary accommodation pending the JR immigration? Why did that increase the costs?
31. MR COX: It all increases our costs that we had to apply in these proceedings for an interim order from the judge, whereas if the Secretary of State had said: "yes, I will extend" -- there are two stages. Before the solicitors are instructed the representative says: "if you extend accommodation for 14 days you will not need to issue judicial review ----.
32. MR JUSTICE STADLEN: On this?
33. MR COX: "we will not need to issue this judicial review".
34. MR JUSTICE STADLEN: Against the FTT decision?
35. MR COX: "you will extend it for 14 days. We will get permission to claim judicial review, the immigration judicial review. You will then accept that we qualify under paragraph (d) and it will become academic for us".
36. MR JUSTICE STADLEN: It may not. I cannot judge that.
37. MR COX: That is true, but what you can judge is the fact that the Secretary of State's response was: "I am not going to accommodate. I am not going to extend accommodation". Then representations were made: "we are going to issue judicial review of the full time tribunal. Please at least agree to extend accommodation pro temp so that we do not need to seek an interim order". There was no response to that, to extend accommodation. The Secretary of State's acknowledgement of service in these proceedings, which you will find at 1.22, formally contested all of the claims. Section 8.1: "I intend to contest all of the claim." judicial review acknowledgement of service, paragraph 1.
38. MR JUSTICE STADLEN: What is the date of this?
39. MR COX: This is dated 2nd July 2009. The summary grounds of defence though only sought to have the Secretary of State released as second defendants -- that is at 1.25 -- and in fact made no submissions at all on the claimant's argument that the First Tier Tribunal had gone wrong.
40. MR JUSTICE STADLEN: He wanted not to be released?
41. MR COX: 1.27: "the second defendant submits that the claim insofar as it is made against the Second Defendant has no merit." the Secretary of State appeared to think that the claimant was seeking final relief against the Secretary of State. The only relief that the claimant had ever sought against the Secretary of State was that he be directed on an interim basis to accommodate pending judicial review of the First Tier Tribunal. It sought no quashing of any decision. All that the Secretary of State sought at that stage at 1.28 was that the second defendant submits that permission against the second defendant should be refused. Nothing said about the law. The result was that Dobbs J granted permission. That is at 1.45. She did not release the second defendant from taking part in the proceedings and directed that the --
42. MR JUSTICE STADLEN: The date?
43. MR COX: 12 August 2009. She directed skeleton arguments be filed. There was still no reaction from the Secretary of State. The claimants filed the skeleton argument and then the Treasury Solicitors telephoned my solicitors with a proposal. That was in the days before 23rd September 2009. They telephoned my solicitors and proposed that the matter be dealt with on the basis that the Secretary of State would look at the case again. I think that this was 22nd September. My instructing solicitors wrote in reply, saying, first of all, that they felt it would be helpful if the Secretary of State could issue guidance on the matter but, secondly, that the concession would not bind the tribunal. Therefore, the claimant wished to have an order of the court as to the legal position to preclude the tribunal from making the same legal error again. There was no response to those letters by telephone or in writing. A month later the claimant received the Secretary of State's skeleton argument. That was dated 27th October.
44. MR JUSTICE STADLEN: Is there any difference between the offer in the skeleton and the earlier offer?
45. MR COX: There was no formal record on behalf of the Secretary of State that we could put before the tribunal to show that they had conceded that the decision was wrong. There is not that much difference.
46. MR JUSTICE STADLEN: It was not implicit in the September offer that you could put that before the tribunal? Did you explore that possibility?
47. MR COX: We did. We wrote back to the Secretary of State and explained our concerns about the course that was being proposed and we heard nothing.
48. MR JUSTICE STADLEN: What was the basis of the concern?
49. MR COX: The basis of the concern, as I have mentioned today, is that an agreement between the parties would not make any difference to the approach of the tribunal ----.
50. MR JUSTICE STADLEN: What your letter says in the second paragraph, you do not seem to accept that support ought to be provided under regulation 3(2)(e). You were asking for something further than you are asking for today. All that the Secretary of State has agreed today is that he will reconsider it. What you appear to be asking for in the letter was: "that is not enough. We want you to agree in advance that your reconsideration will lead to her getting an entitlement".
51. MR COX: The context of that is that if the Secretary of State had done that, there would have been no concern about the tribunal.
52. MR JUSTICE STADLEN: I have not said whether you are entitled --
53. MR COX: I understand that. The First Tier Tribunal made the decision on the law. The claimant issued a claim for judicial review. The only relief that was ever sought in that claim for judicial review was that the First Tier Tribunal's decision be quashed. The claimant has never sought in these proceedings an order that the Secretary of State award section 4 accommodation or a declaration that the claimant is entitled to section 4 accommodation or a declaration as to how paragraph (e) should be interpreted.
54. MR JUSTICE STADLEN: In your letter, the second and third paragraphs, in the last sentence: "you do not seem to accept that support ought to be provided.".
55. MR COX: To agree to a settlement simply provides for a reconsideration which may turn out to be negative and leave her having to go through the process again.
56. MR JUSTICE STADLEN: That is what we have.
57. MR COX: No, it is not because your Lordship has ruled on the law. Now when I appear in front of Mr Saunders on an appeal from the Secretary of State's negative decision, Mr Saunders will have to conduct a detailed fact based assessment. Mr Saunders will not say: "the fact that you and Mr Manknell agreed ----.
58. MR JUSTICE STADLEN: You are ignoring the last sentence of the second paragraph: "you do not seem to accept that support ought to have been provided under 3(2(e)." that is not just saying that you have got it wrong. It is saying: "on the facts of this case we are entitled. You are not agreeing that we are entitled".
59. MR COX: That is right.
60. MR JUSTICE STADLEN: I have not gone that far.
61. MR COX: I know you have not.
62. MR JUSTICE STADLEN: This letter appears to be saying to the Secretary of State: "your offer of reconsideration is not good enough. For me to accept the settlement nothing short of agreeing I am entitled will get to a settlement". You have not got that today.
63. MR COX: I know. The relief we seek in these proceedings is not simply that the First Tier Tribunal decision would be quashed but that your Lordship has made a ruling that we are right about the law. That was something we needed to come before you for. The only course that would make that relief academic would be a decision from the Secretary of State that Miss S qualifies under paragraph (e). A decision short of that would still leave us needing that relief. It has been open to the Secretary of State since April to reconsider the case. It has been open to the Secretary of State since September. He does not need your Lordship's authorisation to reconsider her case. He could have decided at any stage that she qualified under paragraph (e) or did not qualify under paragraph (e). He has not done any of those things.
64. MR JUSTICE STADLEN: In the second letter you suggest it proceed to trial with the judge being asked to rule on the legality of the tribunal's decision. That is what has happened. You say that until you were told that was going to happen you had to incur the costs of demonstrating why the appeal decision was wrong?
65. MR COX: We say, first of all, that we had to bring the claim because the Secretary of State persuaded the First Tier Tribunal to make a decision which he now accepts was unlawful.
66. MR JUSTICE STADLEN: Once he had made you the offer on 22nd September, you are relying on the fact that you incurred the costs of the skeleton argument between then and being heard on 27th October.
67. MR COX: My skeleton was on 9th September. The offer from the Secretary of State came after the skeleton.
68. MR JUSTICE STADLEN: I understand your point b. You say that you are entitled to the costs of your skeleton which was served on the 9th?
69. MR COX: Before the offer.
70. MR JUSTICE STADLEN: The first offer?
71. MR COX: Yes. The Secretary of State seems to suggest that we should not have any of our costs.
72. MR JUSTICE STADLEN: Are there any costs between the 22nd September offer and the 27th October skeleton?
73. MR COX: No, except for writing the letters.
74. MR MANKNELL: The circumstances of the offer of 22nd September, the offer was -- I have the attendance note to be sure of what I say -- that the matter be sent back to the Secretary of State for consideration with specific regard to consideration under (e). There was some discussion on that date as to whether the claimant would continue to be accommodated. Pending that decision it was indicated at that stage that it would be the case, but on 23rd September one of the solicitors acting on behalf of the claimant telephoned my instructing solicitor saying that he had now had time to think about the matter, and "they will not agree to withdraw unless the policy guidance is changed to reflect the concession". There followed the two letters of 23rd and 24th September. Your Lordship has not seen the draft consent order which accompanied the second of those. I hand it up. It came from the claimant's solicitors. That made clear, looking at the preamble, that the acceptance of the Secretary of State's offer was contingent on the Secretary of State amending his policy guidance. The Secretary of State had no intention of doing that. The policy guidance is perfectly appropriate. The preamble required the second defendant to agree to amend by 13th October. The fourth line down: "so as to ensure that its caseworkers are instructed to authorise the provision of accommodation and support under section 4 to applicants with pending applications for judicial review (reads to the words) manifestly unfounded." that goes further than the Secretary of State's concession and your Lordship's consideration of this. The submission made by the Secretary of State is a short one. In term of costs an offer was made on 22nd September to resolve the matter without this hearing on the terms that it was in fact resolved by your Lordship this morning. An order achieving what the claimant now says they wanted to achieve could have been drawn up without difficulty, setting out the terms on which the Secretary of State was going to reconsider the matter.
75. MR JUSTICE STADLEN: Have I got your offer?
76. MR MANKNELL: It was made by telephone. It is brief. That is the position. In respect of the earlier costs there is perhaps some criticism that can be made of the Secretary of State. It does take time for the position to be fully considered and a decision to be put forward, but what we do say is that, had that offer been accepted around that time or even on receipt of the skeleton argument, towards the end of October, this hearing could have been avoided. The consequence of that would have been to save costs on both sides. It is not only the claimant's costs, it is also the Secretary of State's costs. We say that the fair thing is to make no order as to costs.
77. MR JUSTICE STADLEN: Is that on the basis that, if I were to be of the view that you should pay the costs up to the offer and I should also find that the claimant should pay the costs after the offer, that a broad brush approach is to cancel each other out.
78. MR MANKNELL: Yes, my Lord. It is a broad brush approach. This hearing could have been avoided. The Secretary of State could have avoided his own costs of today. Even if the claimant has incurred some costs up to 22nd September, by and large, the easiest way is to say no order as to costs. The only other point I would make in relation to matters before 22nd September ---
79. MR JUSTICE STADLEN: On that, the point that Mr Cox makes is that what he required in order for the tribunal not to make the same mistake again was a judicial declaration that the error was an error and that the Secretary of State conceded that it was an error and nothing short of that. An order quashing was not enough without what I have set out in my judgment.
80. MR COX: A consent order would not bind the tribunal.
81. MR MANKNELL: Whilst it may be true that as a matter of true law a consent order would not bind the tribunal, the idea that if the parties had set out in writing that the decision was to be quashed and the basis of the Secretary of State reconsidering it, and that order had been approved by a judge on the papers, that a tribunal would simply ignore that, is unrealistic.
82. MR COX: On the costs before 22nd September a number of the matters referred to on behalf of the claimant did relate to matters in relation to the other judicial review claim. Those cannot possibly be ancillary to this.
83. MR JUSTICE STADLEN: No. There was an application for interim accommodation pending this hearing which was refused.
84. MR MANKNELL: I cannot say anything about that. The claim form did on its face challenge the decision in May by the Secretary of State to refuse to supply accommodation. That may be the explanation.
85. MR COX: I press the application for all of our costs. I do not accept the submission that it is a question of pure law. It is to stand our constitutional law on its head to say that because the parties think a judge got it wrong, therefore the judge is bound to take a different approach.
86. MR JUSTICE STADLEN: But come the skeleton argument the Secretary of State is saying that he is happy for it to be remitted to the tribunal.
87. MR COX: Absolutely. If we had then agreed a consent order --
88. MR JUSTICE STADLEN: It is only the skeleton argument.
89. MR COX: The only way that we could have avoided today's hearing would be if the parties were content to have the judge deal with it on the papers, which was not a proposal put to us by the Secretary of State --.
90. MR JUSTICE STADLEN: Nor was it made by you.
91. MR COX: It was not made by us.
92. MR JUSTICE STADLEN: What you are saying is that whatever the Secretary of State said, you would have been satisfied with nothing short of a judicial statement. If that is right nothing that the Secretary of State could have done would have stopped you coming here and asking me to do that. The one thing you could have done is to say: "would you join with us in asking the court to do that on the papers?" you did not do that.
93. MR COX: He did not set out his position until 10 days ago.
94. MR JUSTICE STADLEN: You could have written: "thank you very much. In the light of that, because we want judicial dicta, can you agree that this can be done on the papers by consent?" .
95. MR COX: We could have done. Counsel's brief had already been received by counsel. It was clear that there was going to be an issue about costs in any event. By the time that the skeleton argument was received on 27th October, 10 days ago, I had prepared my skeleton argument. I had already thought about what I would be saying at the hearing. In any event, the hearing would have been necessary because of the stance taken in the skeleton about costs. Might I mention two matters? This claim would never have been necessary if the Secretary of State had agreed to extend accommodation in the first place for 14 days because then the hearing in the immigration judicial review would have gone ahead and there would have been a permission hearing. We would have had an option.
96. MR JUSTICE STADLEN: We do not know that.
97. MR COX: We do not know that the judge would have granted permission. This hearing would not have been necessary if the Secretary of State had reconsidered under paragraph (e) and decided that he was going to grant Miss S accommodation. The only reason that your Lordship does not know the answer to that is because the Secretary of State has chosen not to do it, which in my submission is material to the question of costs. Where one party has the mechanism of taking out of the court the whole proceedings and declines to do it, then that is material. As to the suggestion that your Lordship should take a broad brush approach, the costs up until receipt of the Secretary of State's proposal, the claimant's costs greatly outweigh the costs of Mr Manknell attending today. We would oppose that as being an unprincipled approach. If you are not persuaded that a claimant who is forced to bring an action before the court, is forced to obtain a judicial decision, should not have all of their costs for doing so in the face of a defendant who does not accept until the last minute that that is the wrong course --
98. MR JUSTICE STADLEN: If my view is that you should get your costs up to the original offer but not thereafter, do you invite me to make an order to that effect, or to make a broad brush percentage offer?
99. MR COX: I would invite your Lordship to make an order that we should have our costs up to the 23rd and there be no order for costs thereafter.
100. MR JUSTICE STADLEN: Mr Cox on behalf of the claimant asks for all his costs, alternatively, his costs up to 22nd September when an offer was made by the Secretary of State which are in similar terms to the offer then made in Mr Manknell's skeleton argument of 22nd October 2009. In relation to the period up to the 22nd October offer reliance is placed by Mr Cox first of all on the refusal of the Secretary of State to provide interim section 4 accommodation, both in the context of the judicial review claim against the immigration decision and in the context of the judicial review claim against the tribunal's decision. I agree with Mr Manknell that insofar as reliance is placed on the refusal to supply accommodation in the context of the immigration judicial review it is irrelevant. However, I do accept that the failure of the Secretary of State to agree to provide accommodation in the context of this application is relevant. It seems to me that he ought to have agreed to do that. To the extent that costs were incurred in seeking to persuade him of that, that is a matter that the claimant can rely on. Second and more importantly, the fact is, as is very candidly acknowledged by Mr Manknell, that it is clear from the decision of the tribunal judge that the error into which he was led was, I will not say contributed to by the Secretary of State, but appears to have coincided with a submission made on behalf of the Secretary of State as to the ambit of paragraph (e), which I have held to be wrong in law. Thereafter the Secretary of State indicated in his acknowledgement of service that he was contesting all points. Until the offer was made on 22nd September 2009 by the Secretary of State that he would concede that the tribunal had made an error of law and that the matter should be sent back to him to reconsider the decision, until that point it seems to me that the claimant is right to say that he had no alternative but to prepare for this hearing. The costs of Mr Cox's skeleton argument had by that stage been incurred. It is right that the claimant should have her costs up until receipt of the telephone offer on 22nd September. Thereafter, it seems to me that there should be no order for costs. The reality is that Mr Cox, rightly in my view, was of the view that a mere concession on the part of the Secretary of State would not bind the tribunal in the event that, following a reconsideration, the Secretary of State came to the same conclusion for different reasons and there was a further appeal to the tribunal. It does seem to me that Mr Cox is right to say that his client would be in a better position having had the benefit of a court expressing its view that the tribunal had made an error of law.
101. It is also the case that once the Secretary of State had indicated that he agreed that there had been an error of law, it was open to the claimant to save the costs of today by inviting the Secretary of State to invite the court to deal with this on the papers, including by giving a judicial indication that the concession made by the Secretary of State, and as contended for by the claimant, was right as a matter of law and that the tribunal had made an error. The claimant did not do so.
102. In my judgment, the right and fair order to reflect everything that has happened is that the defendant should pay the claimant's costs up to the making of the order of 22nd September. Apart from that there should be no order as to costs.
103. MR MANKNELL: It appears that there is no need for an elaborate order of any sort, given your Lordship's judgment. It could simply say that the decision be quashed and the order as to costs that you have directed.
104. MR COX: Yes. You have recorded in the judgment the acceptance.
105. MR JUSTICE STADLEN: Someone has to draft an order.
106. MR COX: Would you order a detailed assessment of costs for the purposes of public funding?
107. MR JUSTICE STADLEN: Yes.