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
		23 October 2012

1. JUDGE MCKENNA: This is the substantive hearing of an application by Gary Paul Abela and Imeilee Abela who seek judicial review. The background to this claim is that the first Claimant arrived in the United Kingdom on or about 15 November 2008. He was joined by his wife, the second Claimant, on 26 March 2009 together with their two children, whose dates of birth are 28.10.05 and 1.3.07. They are therefore now almost 7 and five and a half years old respectively.
2. On 8 October 2009, the first Claimant applied for leave to remain as a student under the Tier 4 (general) points based system. On 20 July 2010, that application was refused by the Secretary of State, the Claimant's sponsor having been suspended from the list of approved colleges. In September 2010, the Claimant's appeal to the First-tier Tribunal was dismissed. Leave to appeal was sought and granted in January 2011, and on 27 July 2011 the Upper Tribunal (Immigration and Asylum Chamber) granted the appeal.
3. The substance of the decision and the reasoning for the decision is to be found in paragraphs 12 to 15 under the heading "Conclusions", where Deputy Upper Tribunal Judge Hall says as follows:

"12. I find that the appeal determination of Immigration Judge Forrester did, unfortunately, contain an error on a point of law because he both failed to address the issue of the fairness of the decision of the Secretary of State which was made on 20 July 2010 and also failed to consider the appellants' Article 8 rights which had, although not directly, been raised in the grounds of appeal. In reaching this conclusion there is no criticism of the Immigration Judge who was faced with dealing with an appeal on papers and without the assistance of the parties.

13. Accordingly I have to remake this decision because it could not be held that the outcome would be the same had the error of law not taken place.

14. In remaking the decision I find that the appellant was blameless and without fault in the suspension of the licence of the Secretary College in Croydon and I accept his statement that he was not notified of such suspension and only learned about it some months later. It follows that the appellant should be given the opportunity to find an alternative college and it is appropriate in these circumstances to follow the procedure laid down by the Tribunal in the case of Patel.

15. I therefore find that the decision of the respondent Secretary of State of 20 July 2010 was not in accordance with the law and therefore ceases to have effect. The application of the appellant for leave to remain remains outstanding and must be determined in accordance with the law as set out in this judgment. In order to give effect to the principle of fairness in this case I direct that a fresh decision is not to be made for a period of 60 days from the date of the decision being transmitted to the appellant in order to enable the appellant to obtain a fresh sponsorship letter that is current and which will enable his existing application to be varied to include study at the place set out in the new sponsorship letter."

4. As I understand it, no application has been advanced to date specifying a different college as was envisaged in that decision. Rather, what happened was the Claimants issued a challenge in this court to allege failures by the Secretary of State to issue a confirmation of the Claimant's entitlement to work in late 2011 and to issue a formal decision granting exceptional leave to remain.
5. Following the issue of the claim form an acknowledgement of service form was filed on behalf of the Secretary of State -- I say was filed, was prepared: there is no copy of the acknowledgement of service on the court file, although I have subsequently been provided with such a copy. In that acknowledgement of service the Secretary of State indicated that she had agreed to extend the time for issuing the Claimants with a decision on the outstanding in-time application for leave to remain and on that basis suggested that the judicial review proceedings should be withdrawn by the Claimants. That offer was rejected by the Claimants by a letter of 13 July. In the penultimate paragraph of that letter the Claimants say as follows:

"In the interests of fairness, we humbly urge the Defendant to consider our situation and exercise her discretion to issue us DISCRETIONARY LEAVE TO REMAIN as reparation for damages. Otherwise, we will pursue our Article 8 rights and the same issues will be brought back out in court putting both parties back to the drawing board. We believe this is the most logical way of ending this crisis."

6. The Secretary of State responded in August, noting that the Claimants had not advanced any additional evidence, or indeed any evidence, of on ongoing intention to remain in the United Kingdom for the purposes of study and therefore indicated an intention to proceed to determine the original 8 October 2009 application.
7. Meanwhile, the papers were referred to Lang J in the usual way and on 30 August she granted permission, not having seen the acknowledgement of service to which I have previously referred. Her reasoning was as follows:

"The Defendant has failed to file an Acknowledgement of Service, due by 18 June 2012, despite having applied for an extension in order to file by 16 July 2012. Given the apparent failure to re-determine the application for leave, in accordance with the decision of the UTIAC, given as long ago as 27 July 2011, the claim must now be progressed without further delay."

Directions were then given, hence today's hearing.

8. The next material event is that on 19 September 2012 the Defendant refused the first Claimant's application for leave to remain in the UK as a Tier 4 (general) student migrant. No further evidence had been filed by Mr Abela and as a result he scored zero points under the points based scheme. As I understand it, that aspect of the decision letter is not challenged in this claim. The Secretary of State did, however, go on to consider and to refuse both Claimants and their children's claim for discretionary leave to remain on the basis of the establishment of private and family life. The decision letter of 19 September 2012 on its face makes reference to the relevant tests under Article 8 under the Immigration Rules and also under section 55 of the Borders, Citizenship and Immigration Act 2009 and the duty therein to have regard to the welfare of the children.
9. Crucially for the fate of this claim for judicial review the Secretary of State granted the Claimant an in-country right of appeal. I understand that that in-country right of appeal has been pursued so far by the Claimants, although it is the Claimants' case today that this court should deal with the existing judicial review on its merits and, as I understand it, the Claimants have sought to put on hold, if that is the right expression, the in-country right of appeal to the Tribunal.
10. Following the decision letter of 19 September and in the light of the granting of the in-country right of appeal the Secretary of State again wrote to the Claimants on 25 September suggesting that the in-country right of appeal amounted to an adequate alternative remedy which ought to be pursued first, judicial review being a remedy of last resort, and that the judicial review proceedings should be discontinued. That letter was responded to by the Claimants by a letter from the first Claimant dated 1 October, rejecting the suggestion and urging the Secretary of State again to consider the granting of discretionary leave to remain.
11. In that letter, the first Claimant also raised an issue about a reference in the September 2012 letter to an extension of leave to 19 December 2011, which was an error on the Secretary of State's part, the Claimant's pre-application immigration status being preserved by section 2C of the 1971 Immigration Act, which was pointed out to the Claimant in the Secretary of State's reply of 4 October.
12. That then is the history leading to today. The Secretary of State's position in summary is, first, the in-country right of appeal accords the Claimants' family not only with an adequate but in many ways a more appropriate and extensive remedy than this court would be able to provide when exercising a review function. Secondly, and in the alternative, the Secretary of State says that in any event on the merits of the lawfulness of the Secretary of State's decision removal would not constitute a disproportionate interference and there is no basis on which this court could interfere with the rational decision making of the Secretary of State.
13. To my mind, the adequacy of the alternative remedy is fatal to this application. It is trite law that judicial review is a remedy of last resort. In this case, the Secretary of State has provided the Claimants with, as I have already recorded, not only an adequate but indeed in many ways a more appropriate remedy. That is the remedy which the Claimants should pursue and the existence of that remedy makes this claim, in effect, academic.
14. Mr Abela has sought to argue in his skeleton argument, and indeed during the course of his oral submissions today, that:

"Whilst the Claimants agree that an in-country right of appeal is a viable remedy provided by the Defendant in its latest decision, it would be an exercise in redundancy as the same issue and facts would be raised and it would just prolong the process further to the disadvantage of both the Claimants and the Defendant in terms of time and resources involved."

That is, I am afraid, not the case, as I have already indicated. The remedy is a more effective remedy than judicial review. By way of example, at the hearing the Claimant will be able to furnish not merely any written evidence that they rely on to support that evidence with oral testimony but that oral evidence can then be tested in cross-examination. That would be of particular assistance, as it seems to me, to the Claimants in this case. There is also, of course, the difference in the extent to which the Tribunal, as opposed to this court, can go in terms of looking at the evidence. Nor am I persuaded that the Tribunal is not adequate as an alternative remedy because the Claimant has, as he submitted during the course of argument today, paid the costs of pursuing the judicial review to date.

15. I turn now to the substantive challenge. As I say, it seems to me that the issue as to the appropriate remedy is fatal to this claim but, in any event, having heard argument from Mr Abela and having read his skeleton argument, in fairness to him I am also going to deal with the substantive challenge albeit shortly. In his skeleton argument under the heading "Legal Points", paragraph 20, Mr Abela makes reference to section 55 of the Borders, Citizenship and Immigration Act 2009 and the duty regarding the welfare of children. At paragraph 1.3 and 1.4, he says as follows:

"1.3 For the future and welfare of their children, herein Claimants argue that it would not be in their best interests to return to the Philippines as it would be disruptive to their educational and social development. Four years in the UK is sufficient enough for them to have established strong emotional and social ties to other extended family members settled in the UK and friends in the community. The educational and social set-up in the Philippines is not even recognizable to the children and therefore not conducive to their development. Their inability to speak and understand Filipino language in itself is a big hindrance to their educational development if forced to return. The Philippine educational system is likewise different and far below in rank with that of the UK. They have not tried schooling in the Philippines and it would be tantamount to downgrade if they are forced to reintegrate. The emotional and psychological disaster is likewise of great importance in determining the reasonableness of removal.

1.4 Claimants children have completely adapted to the educational system in the UK as their formative formal education was spent here. They have exhibited excellence in their academic progression and we fear that suddenly removing them from the school they love and separating them from their cherished friends would be disastrous to their well-being. They gained much needed confidence by engaging in activities not otherwise available back home such as football classes. They have likewise embraced British culture and history by participating, in their own way, to events which showcased British traditions such as special days commemorating the monarchy. All these will be lost if they are to be removed."

16. It is relevant to record the relevant test in terms of judicial review and in this regard I was referred by counsel for the Secretary of State to R(Mahmood) v Secretary of State [2001] 1 WLR 840, in which Lord Phillips identified three principles at paragraph 37:

"(1) Even where human rights were at stake, the role of the court was supervisory. The court would only intervene where the decision fell outside the range of responses open to a reasonable decision-maker.

(2) In conducting a review of a decision affecting human rights, the court would subject the decision to the most anxious scrutiny.

(3) Where the decision interfered with human rights, the court would require substantial justification for the interference in order to be satisfied that the response fell within the range of responses open to a reasonable decision-maker. The more substantial the interference, the more that was required to justify it."

Paragraph 38:

"The court does not substitute its own decision for that of the executive. It reviews the decision of the executive to see whether it was permitted by law - in this instance the Human Right Act 1998. In performing this exercise the court has to bear in mind that, just as individual states enjoy a margin of appreciation which permits them to respond, within the law, in a manner that is not uniform, so there will often be an area of discretion permitted to the executive of a country before a response can be demonstrated to infringe the Convention."

17. I have reviewed the decision of the Secretary of State as set out in her letter of 19 September. It is plain that she appropriately directed herself as to the relevant law: I have already made reference to the explicit references to the Immigration Rules, to section 55, to Article 8 and the like. She considered the evidence and submissions made to her and came to a decision. That decision was well within the range open to a reasonable decision maker. In those circumstances, it is not open to this court, even if this court would itself have come to a different view, to rule that the decision was unlawful. In any event, to my mind this decision was a reasonable decision and one which, had it been a question of this court having to substitute its decision for that of the Secretary of State, the decision would have been the same.
18. It is, of course, of considerable relevance in this matter that the two children came to this country in connection with their father's visit for study purposes. The expectation must therefore have been that they would be returning to their country of origin at the end of the period of study. There could not be any legitimate expectation that their father having abandoned his study plans they would benefit from some longer period of leave to remain. They are still young children, they will be returning to the Philippines with their parents and there has been no reason advanced as to why they will not simply be able to re-adapt to life in the Philippines.
19. On this issue, therefore, of the substantive challenge I conclude that the claim fails. So on both grounds advanced by the Secretary of State I would dismiss this claim.
20. Mr Thomann, I understand that there may be an application for costs in this case, is that right?
21. MR THOMANN: Could I just have a moment to take instructions.
(A short pause)
22. My Lord, I am grateful for that chance. In view of what I have said about the initial mistake made about employment status I would limit my application for costs to the period after the exchange of 11 and 13 July 2012 when the Claimant was invited to discontinue on the basis that he had the alternative remedy.
23. JUDGE MCKENNA: To all and intents and purposes, it is the costs of today, is it? There is probably a little bit of correspondence but there is little on the court file.
24. MR THOMANN: I think in substance that will be the costs of today. There will, of course, have been some work done last week and work leading up to that.
25. JUDGE MCKENNA: Do you have a schedule or an indication of costs?
26. MR THOMANN: If we could have an order for them to be assessed if not agreed.
27. JUDGE MCKENNA: All right.
28. Mr Abela, the Secretary of State is saying, in effect, "Look, we have given you at least two opportunities to abandon this claim which we think is misconceived because you have got an alternative remedy, you have not taken them, you have forced us to come to court today, we want our costs for today's hearing and the work done in the immediately preceding period." Is there anything that you can say in answer to that?
29. THE CLAIMANT: Yes, your Honour, because when I contacted the Treasury Solicitor I told her our main objection to the decision was the reference to that of the Biometric Residence issued in October because it affects our immigration status because of the difference of the conditions.
30. JUDGE MCKENNA: Unfortunately, that is not relevant to the issue of whether or not the Secretary of State acted irrationally in refusing leave to remain, I am sorry.
31. THE CLAIMANT: So I was then thinking that they would probably re-word the decision but then so we will be able to abide by the procedures we just file the appeal because we only have 10 days to file it.
32. JUDGE MCKENNA: All right, thank you very much, Mr Abela.
33. THE CLAIMANT: Thank you.
34. JUDGE MCKENNA: In this case, given that the Secretary of State has invited the Claimant on two separate occasions to abandon this claim, effectively on the basis that there was a better, more effective alternative remedy and that unfortunately Mr Abela did not take either of those options, it seems to me that the argument in favour of the granting of costs against Mr Abela is unanswerable. Sensibly, the Secretary of State is limiting the period for which he claims costs to the period 11 July to date. In the circumstances, I order that the Claimant should pay the Defendant's costs of the claim from 11 July to today's date, those costs to be subject of detailed assessment if not agreed.
35. Mr Abela, can I commend you for the way in which you have presented your case today and indeed in your written skeleton argument. I am sorry I have not been able to find in your favour but I appreciate the way in which you presented the case.
36. THE CLAIMANT: Thank you, your Honour.
37. JUDGE MCKENNA: Thank you very much.
38. Thank you, Mr Thomann.