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
		27 October 2010

1. MR JUSTICE BURTON: This has been a series of five applications, which have been brought together because they are all on a similar basis, by different claimants against the Secretary of State for the Home Department. The main point in all of them is as to whether the Secretary of State has unlawfully failed to issue a removal decision. That removal decision might be a decision not to remove, it might be a decision to remove and to certify the removal decision as within the Act, or it may simply be a straightforward decision to remove which would carry with it an in country appeal to the Immigration and Asylum Tribunal.
2. The respondent submits that there has been no unlawfulness in relation to her failure to make that decision. Indeed, the contrary, because she must make, she submits, a proper decision. On occasion such a proper decision can be made simultaneously with refusing an application for leave to remain, but not always, and not in this case where, in due course, she will give a decision which considers both Article 8 and paragraph 395C of the Immigration Rules, and any other material factors brought before her.
3. Each of the five cases, although similar in that regard, have additional points which fall within them. In particular, in the case of Nti there is a case that the Secretary of State ought to have made a decision in relation to whether or not to revoke an earlier deportation order, and in relation to one of the applicants, Mr Zorrila, unlike all the others who were all unlawful overstayers, and indeed unlike his own wife, Mrs Zorrila, who was an overstayer, he had never been granted leave to enter or remain and consequently had at all material times been unlawfully within the country. His submission is that the Secretary of State ought to have considered his application as if it were an application for leave to enter.
4. There have been a whole series of previous decisions of this court in which similar questions have been considered. The most significant of those is Mirza v Secretary of State for the Home Department [2010] EWHC 2002 Admin, a decision by Moses LJ sitting as a judge of the Administrative Court, in which permission to appeal was given. Mr Singh, who has rightly drawn a distinction between the facts of Mirza and this case, points out that in Mirza all of the claimants were those who had had leave to remain which had not expired, and had made an application for variation or continuation of the leave to remain at a time when the original leave had not expired, so that there the refusal by the Secretary of State to deal with their applications, such that it should or should not lead to a removal order, in fact converted them into unlawful overstayers. The position of the claimants in this case, however, is that they are unlawful overstayers of their own motion, either, in the case of Mr Zorrila, at all times, or, in many of the other cases, for many years.
5. There has also been a decision, R(Daley-Murdock) v Secretary of State for the Home Department [2010] EWHC 1488, a decision of Wyn Williams J, in which I have been told that, there too, there has been permission to appeal given, although no one was able to tell me on what basis, and Mr Singh has said that he understands that there were a number of points raised in that case, only one of which related to the overstayers position similar to that in this case.
6. Mr Singh has urged me to follow what has become the uniform practice of this court since Suphachaikosol v Secretary of State for the Home Department [2010] EWHC 1817, namely, to refuse permission on the basis that it is not arguable that the Secretary of State has acted unlawfully in failing to consider the making or otherwise of the removal order at the same time as making a decision in relation to leave to remain.
7. The claimants, each represented by separate counsel, each wish to argue not only that point, reserving their position as to whether Mirza was correctly decided, and in the event piggy-backing on the permission in Daley-Murdock about which we know little, and in any event each of them have fresh arguments to make upon which they would rely, including a wish to make a challenge to the Article 8 decision which has been made in the context of refusal of leave to remain, as being irrational, or in the case of Zorrila, not adequately taking into account the principles which underlie the now repealed practice direction, DP5/96, which may or may not have relevance. They urge that I should deal with their applications, or alternatively should adjourn them, in the circumstances to which I will refer.
8. It seemed to me that a great deal of money was going to be expended in terms of legal costs, and no doubt has been expended in other cases too, with regard to something which, certainly in the case of someone who is already an overstayer, causes no continuing prejudice. I understand the point that is made about a decision or a failure to decide by the Secretary of State turning someone who is not an overstayer into an overstayer, but where they are already overstayers they appear to me, and no one has pointed out any respects in which such is not the case, not to be suffering any prejudice. They have been, in many cases, unlawfully working, in other cases living either with or without the benefits of Social Security, and the action or inaction of the Secretary of State has no impact. What seems to me to be significant is simply that what they want is a decision which will take into account all matters and which will be appealable, subject to certification if appropriate. I asked the Secretary of State how long it would take for her to reach such a decision, and I have been told now 3 months from the date of any further submissions which will require to be put in by the claimants, which are to be put in within 14 days.
9. The issue then is whether I should proceed with dealing with all the matters, including those which, arguable or not, will take some time to deal with and which are not wholly intertwined with what I have called the 'a fortiori Mirza' point, or whether I should take what I see to be the overwhelmingly sensible course of avoiding that time of the court and those costs, by waiting until after the Secretary of State has made his decision, which will mean that all the points now sought to be argued will have become, for one reason or another, academic.
10. Mr Singh rightly draws my attention to the words of Collins J which started all this in the beginning and, as I have said, in a line of decisions which have followed, namely in Suphachaikosol, which is that a message should go out that the Secretary of State will not necessarily be reaching a removal decision at the same time as her decision on whether to grant or extend leave to remain, and that there is no question of unlawfulness by virtue of a failure to do so, in a determined attempt to cut down the amount of litigation on this topic. Whereas the motive behind what Collins J said was admirable, about sending out the message, the message has not got home, or has not had any effect, because, far from cutting down the litigation, it has increased it. I shall try a different message. That is that there is no point in issuing these proceedings where it will lead, as it has here, to an adjournment so that the Secretary of State will then make that decision. I certainly believe that legal aid is unlikely to be forthcoming for the purpose of simply obtaining that which could be obtained by sustained correspondence with the Secretary of State. But that is for the future.
11. In the meanwhile, I take the view that I should make the order which, today, seems the right one, the fair one, and the sensible one in order to avoid costs and waste, and that is the course that I take. If I were to take any other then there might well be further litigation. In this way, I know perfectly well that there will not be, and that in 3 and a half months time these claimants will know their fate and will be in a position to challenge any decision, either by appeal or, if appropriate, by judicial review, but on completely different grounds from what have been before me today.
12. I have said that I do not see that my decision today has any impact at all on costs and the right course, in my judgment, would be that I should reserve the question of costs to myself, to be argued on paper after all other matters have been disposed of, as I hope they speedily will.
13. Thank you very much.