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
		30 April 2013

1. THE DEPUTY JUDGE: This is the substantive hearing of an application seeking judicial review of an immigration decision, permission having been granted by HHJ Thornton QC on 19 March 2012.
2. The background is as follows, and is factually undisputed: the claimant is a citizen of Mauritius and this set of applications is made by her and her family. They comprise her husband, the second claimant; her eldest daughter (aged 12), the third claimant; her eldest son (aged 11), the fourth claimant; her youngest daughter (aged 7), the fifth claimant; and her youngest son (aged 3), the sixth claimant.
3. The claimant, her husband and eldest two children arrived in the United Kingdom on 27 December 2003. Their immigration history is set out in the chronology in paragraph 4 of the skeleton argument of Mr Malik, who appears for the claimants this morning.
4. I need not repeat the historical aspects of this case. Suffice it to say for present purposes that either in time, or sometimes out of time, applications were made to renew or revise the immigration status of the family while they were in the United Kingdom.
5. But at all events, on 23 November 2010, following a reconsideration of an earlier application, the Secretary of State granted the family leave to remain until 23 February 2011. Within time, and therefore while lawfully present within the United Kingdom, the first claimant and her family members made an application by letter dated 7 February 2011. This letter was not included in the original hearing bundle, and without objection on the part of Miss Olley who appears for the Secretary of State, Mr Malik placed it before the court this morning. I am mindful of its contents, and it included within it an application for indefinite leave to remain.
6. The Secretary of State's responses to those applications were all dated 15 June 2011, and essentially the decision letters are in common form, the material part of which reads as follows:

"Grant of discretionary leave to remain.

"Dear [and then the decision letters recite the particular applicants and they are all individual], I am writing to inform you that although you do not qualify for leave to remain in the United Kingdom under the Immigration Rules, it has nonetheless been decided that discretion should be exercised in your favour.

"You have therefore been granted limited leave to remain in the United Kingdom. In accordance with the principles set out in the Home Office policy instruction on Discretionary Leave, you have been granted Discretionary Leave to remain until 14 June 2014."

7. The family, dissatisfied with that conclusion, wrote a pre-action protocol letter inviting reconsideration of the application for indefinite leave to remain. By letter dated 22 September 2011, the Secretary of State maintained her decision and the claim form in this case was issued on 14 December 2011, purporting to challenge the decision on 22 September 2011.
8. HHJ Thornton QC, in my judgment correctly, identified that the application therefore was in fact a collateral attack on the earlier decisions of 15 June 2011, and strictly and technically (although he made no observations or findings in that regard) the claim form was issued out of time as provided for by the Civil Procedure Rules part 54.5.
9. Nonetheless, since HHJ Thornton QC granted leave, it is implicit that he must have found there to be good reason justifying the application made. He must have been aware that the time issue was live because it was specifically referred to in paragraph 19 of the Secretary of State's summary grounds of defence as they existed at the time. Accordingly, there is in my judgment no proper basis on which I can go behind that decision and indeed, Miss Olley does not invite me to do so.
10. Leaving aside the delay issue which therefore does not arise for further consideration, in the original grounds of defence, at paragraph 9, the Secretary of State observed:

"The claimant and her family did not qualify for leave to remain under the Immigration Rules. "

11. This is not challenged by the claimant. Indeed that remains, as I see it, the position today. The claimant defines the issues in this case in the following terms that appear at paragraph 3 of Mr Malik's skeleton argument.

"Issue A, whether the Secretary of State's decisions are unlawful for being made in breach of her duty under section 55 of the Borders, Citizenship and Immigration Act 2009.

"Issue B, whether the Secretary of State's decisions are unlawful for being inconsistent with her own published policy.

"Issue C, whether the Secretary of State's decisions are unlawful as she failed to give any or any adequate reasons."

12. It is correct to note and observe that the decision letters do not in fact mention section 55 at all. Moreover, the decision letters -- in the material part that I have already cited -- do no more by way of stating reasons for the decision than to say that, in the Secretary of State's judgment, the family do not qualify for leave to remain in the United Kingdom under the Immigration Rules.
13. The defendant's case, essentially, is that the decisions in this case must have been predicated on the acceptance of the factual assertions and submissions made by the family in their application; to the effect, namely, that there were Article 8 reasons (that is Article 8 under the European Convention on Human Rights) why the defendant could not remove this family. As a result, the only decision that she was in fact left with was: either do nothing, or as the defendant submits, grant Discretionary Leave, there being no dispute that the policy criteria for the grant of indefinite leave to remain were not in fact satisfied in this case.
14. Essentially, therefore, the issue for me to decide is whether despite the fact that the indefinite leave to remain criteria in her policy and guidance were not satisfied, it is plain that the defendant should nonetheless have granted it and that her refusal to do so is open to attack on public law grounds.
15. Lying at the root of this argument is the question of the lawfulness of the Secretary of State's current policies concerning the grant of indefinite leave to remain and the grant of Discretionary Leave to remain.
16. Of these policies, the defendant in the summary grounds of defence draws my attention to the decisions firstly, of the Court of Appeal in EF v Secretary of State for the Home Department [2010] EWCA Civ 2003; and related to the same issue, the decisions of the Court of Appeal in IT (Sierra Leone) v Secretary of State for the Home Department [2010] EWCA Civ 787, and the earlier decision of Gibbs J at first instance in R (on the application of Shahid) v Secretary of State for the Home Department) [2004] EWHC 2550.
17. In reference to the decision in EF, it is the defendant's submission that the judgment of Richards LJ at paragraph 27 essentially acknowledges and accepts the legality of the overarching policy of the Secretary of State. He does so by acknowledging in the final sentence of that paragraph that:

"The Secretary of State was entitled to have regard to the policy on discretionary leave, and to grant leave in accordance with that policy."

18. Mr Malik observes that that decision called into question, and only called into question, the Asylum Policy Instruction ("API") on Discretionary Leave to which he refers in paragraph 9 of his skeleton, and did not expressly consider legality of the Immigration Directorate's Instructions ("IDI"), chapter 1, section 14 which he refers to at paragraph 10 of his skeleton.
19. With respect to that argument, the umbrella guidance and policy for this purpose in my judgment is the so-called API, and the IDI is an application of that in certain circumstances to which those instructions apply.
20. Therefore, in my judgment, I am bound to accept that the guidance and instructions that overlies the decision making in this area is lawful, and has been adjudicated to be lawful by decisions that constitute binding authority upon me and from which I am not entitled to depart.
21. In IT Sierra Leone, the Court of Appeal acknowledge in the judgment of Pill LJ that - and I quote from paragraph 15 of his judgment:

"Following a successful Article 8 appeal, the respondent cannot remove the appellant but it is for her to decide whether to exercise her discretion to grant leave to remain, and if so, for how long."

22. He arrives at that conclusion as appears from paragraph 14, in no small part relying upon and indeed citing with approval as appropriate the reasoning of Gibbs J in Shahid. He sets out the reasoning of which he expresses approval in the body of paragraph 14 of his judgment in the Court of Appeal.
23. In my judgment, the position that arises is that the Secretary of State is entitled to have a policy. That policy comprised the API and in my judgment, therefore, the IDI, and that there is authority binding upon me that that policy is lawful. Of course, she must then apply it, and she must do so lawfully, rationally and in a way that is sensitive and appreciative of wider rights that applicants may have. These rights include, but are not necessarily limited to, the children's rights as expressed in section 55 of the 2009 Act and the family's rights, both collectively and individually under Article 8 of the European Convention on Human Rights.
24. Therein, in my judgment lies the difficulty with the submissions that Mr Malik makes, because the only legitimate inference that can be drawn from the fact that the Secretary of State granted Discretionary Leave in all six cases is that she must have accepted the section 55 and Article 8 submissions that had been made on behalf of the family for the purpose of their application.
25. She was faced, in my judgment, with the decision: remove or do nothing, or grant leave to remain and what she did was to grant the most beneficial outcome that was permitted under the guidance that she had set herself. Mr Malik submits that the decision nonetheless was unlawful despite what I have just observed, because she did not go so far as to grant indefinite leave to remain; and in granting Discretionary Leave to remain, she did not expressly refer to section 55 criteria which she was obliged to consider and apply.
26. There is, in fact, no dispute between Mr Malik and Miss Olley that the Secretary of State was obliged to consider section 55 and was obliged to take, therefore, the interests of the children into account; not only in relation to safeguarding their welfare at the present time, but promoting their welfare in the future which, according to the guidance to which Mr Malik referred me, is to be found in the United Kingdom Border Agency's document "Every Child Matters" issued under section 55, paragraph 1.6 of "enabling optimum life chances to the children" and paragraph 2.7, "minimising the uncertainty that they might experience."
27. His case is dependent entirely upon the fact that there is no reference whatsoever in the decision letter to section 55 and that, he submits, renders the decision unlawful.
28. Very properly, he draws my attention to the decision of Wyn Williams J in R (on the application of TS) v Secretary of State for the Home Department and Northamptonshire County Council [2010] EWHC 2614, but I note and observe at paragraph 24, that Wyn Williams J acknowledges in terms that express reference to section 55 is not necessary. What is necessary is that the written decision:

"Must be such that it is clear that the substance of the duty was discharged."

29. That is no more than a reflection of what indeed the Court of Appeal said in AJ (India) v the Secretary of State for the Home Department [2011] EWCA Civ 1191, paragraphs 28 to 31; again, from a judgment of Pill LJ in which again it was acknowledged in terms that the decision is not rendered invalid simply because it does not refer to section 55 in terms.
30. As I have already indicated, in my judgment, the only reasonable inference that can be drawn from the fact that discretionary leave was granted is that the submissions made under section 55 and in relation to Article 8, were in fact accepted by the Secretary of State for otherwise she would not have needed to grant Discretionary Leave to remain. That, in my judgment, is sufficient to dispose of the first ground of complaint.
31. The second ground of complaint based upon the terms of the instructions to which I have already made reference is, in my judgment, unarguable. Mr Malik draws my attention to paragraph 1.2 of the IDI which provides in the following terms:

"It has always been possible to grant some limited or indefinite leave to remain/remain outside the Immigration Rules. Where it is not possible to grant leave, [my emphasis], "under the Immigration Rules or to grant asylum, or Humanitarian Protection, or Discretionary Leave, [my emphasis], "any other leave to remain or remain outside the Immigration Rules must be granted under a further category: Leave Outside The Rules/LOTR.

"The only two circumstances where it will be necessary to consider granting LOTR will be in mainly non-asylum and non-protection cases."

• "Where someone qualifies under one of the immigration policy concessions. [That is not contended for this case].

• "Or, for reasons that are particularly compelling in the circumstance."

32. Amplification of that broad instruction is to be found later in the instructions themselves. So, for example, in relation to cases that fall within the first of the bullet points identified in paragraph 1.2, that is qualification under one of the immigration policy concessions, there is amplification in paragraph 2.1.
33. In relation to the second bullet point concerning compelling circumstances, there is amplification in paragraph 2.2, and it is material in my judgment to note that the third sentence in paragraph 2.2 reads as follows:

"Caseworkers/immigration officers should always first give full consideration to whether someone first qualifies under the provisions of the Immigration Rules, or the Humanitarian Protection and Discretionary Leave criteria or any relevant policy instruction."

34. So it is, in my judgment, that the Secretary of State is setting policy or guidance, the legality of which is already established for the reasons I have already given in this judgment that entitles her: first, to consider whether an applicant qualifies under the Immigration Rules, or Humanitarian Protection, or Discretionary Leave; and, if an applicant qualifies under one or other of those routes, then the applicant attracts the outcome dictated by one or other of those routes. It is only if the applicant does not attract qualification under one or other of those routes that the policy gives her a residual discretion to consider granting Leave Outside The Rules.
35. In this case, by virtue of her acceptance of the section 55 or Article 8 arguments (for the reasons that I have already expressed) she found that this family was entitled to the exercise of her discretion to grant Discretionary Leave to remain. She has, therefore, in my judgment strictly and properly applied the lawful policy that she has laid down.
36. In those circumstances, in my judgment, it cannot be sustained that her decision is open to attack on public law grounds in relation to the second ground of complaint.
37. As regards the third ground of complaint, in my judgment, therefore, it does not arise because she is by the lawful policy and guidance directed first to consider whether or not one of these other gateways has in fact opened. She has found that it does open and she has granted Discretionary Leave. There was not a refusal to apply the guidance or policy that attracted an obligation to give reasons and there is, therefore, nothing in my judgment in Mr Malik's third ground of challenge.
38. In all of those circumstances, for those reasons, this application is dismissed.

MISS OLLEY: My Lord, I am grateful. May I ask for a grant of the defendant's costs?

THE DEPUTY JUDGE: I have not seen a statement. Is there one? Have you been served it, Mr Malik?

MR MALIK: No, my Lord, no.

MISS OLLEY: No. We have failed to do that, my Lord.

THE DEPUTY JUDGE: Well, you cannot get it then, can you. Normally I should at this stage summarily assesses those costs, and if Mr Malik has not been served with the statement of costs, and has not had an opportunity to consider it or take instructions in relation to that, I cannot proceed fairly to a summary assessment, can I?

MISS OLLEY: I would not have thought to a summary assessment. I was going to ask if it could be assessed if not agreed, if that could be the order.

The difficulty is with these cases where I am being paid on an hourly rate. It is not possible to predict with certainty, obviously how long -- I do not have the brief here. I think I could work it out.

THE DEPUTY JUDGE: I think you have overstepped the time estimate by 9 minutes.

MISS OLLEY: I am sorry if I am responsible for that, my Lord.

THE DEPUTY JUDGE: No, you are not responsible for it at all, but this should have been capable of being dealt with this morning. Those instructing you should have served a statement of costs.

There is not a good reason in my judgment at the moment, subject to your submissions, putting this off to another court hearing, incurring yet further costs, by making an order to provide for assessment. In the ordinary course these matters should be dealt with by summary assessment.

Have I anticipated your arguments correctly, Mr Malik?

MR MALIK: My Lord, yes.

MISS OLLEY: Indeed, my Lord. I would prefer not to have that job, and further costs incurred.

There is a statement I would have to beg your Lordship's indulgence that we take a little time before the lunch break for that to be considered, and I do ask for my costs and I submit that whilst your Lordship is entirely correct in the criticisms made, it might be disproportionate --

THE DEPUTY JUDGE: -- well, as a matter of principle, costs should follow the event and Mr Malik, I suspect you would not be in a position to resist that.

The question is whether I should in fact proceed to an assessment of those costs now, or whether I should put them off to an assessment, and at the moment I am disinclined to put them off to an assessment.

That means, I am afraid, that I think you are going to have to reflect on this document and see whether there is scope for agreement, but also to afford you proper opportunity to take instructions.

MR MALIK: Yes, certainly, my Lord. I can certainly take instructions on this. I do not oppose the costs in principle.

THE DEPUTY JUDGE: No.

MR MALIK: We did ask that the Secretary is --

MISS OLLEY: -- my Lord, in that case, may I first apologise sincerely for --

THE DEPUTY JUDGE: -- it may of course affect the way in which I exercise my discretion as to costs.

MISS OLLEY: It may do, I understand that.

THE DEPUTY JUDGE: See what you can do. I have another case. I would like to start that case before the short adjournment.

MISS OLLEY: May I hand up the schedule, my Lord?

THE DEPUTY JUDGE: You had better. I am not promising that I will get to you at 1.55, or whether I will get to you at 2 o'clock. That may depend on whether you can in fact reach any agreement.

MR MALIK: My Lord, there is one further consequential matter.

I am very grateful for this very clear judgment, but I am afraid that I have an application for permission to appeal.

My Lord, the question concerning the proper ambit of IDIs is of some importance and has not yet been considered by the Court of Appeal.

Therefore, there is in my respectful submission a compelling reason for granting permission, and I further submit for the reasons canvassed earlier there is at least a realistic prospect of success.

THE DEPUTY JUDGE: I am sorry, say that again?

MR MALIK: There is a real prospect of success in relation to the argument concerning the IDIs. I therefore invite my Lord to grant me permission to appeal.

THE DEPUTY JUDGE: Mr Malik, I will have to encapsulate my decision in the usual document which I will have to prepare either over the short adjournment or later today and I will make it available for collection.

But my decision is to refuse permission to appeal, the reason that I do so is that I do not detect within the grounds a challenge to the legality of IDI. What I detect is a complaint about its application to the facts of this particular case. Therefore, I am not satisfied that a point of law or principle in fact arises, let alone one which, bearing in mind the reasons that I have given, there are real prospects of success within the meaning of the rule, and so, I decline your application.

MR MALIK: I am grateful my Lord, thank you.

THE DEPUTY JUDGE: Thank you very much for your time and trouble both of you.

(A short adjournment)

THE DEPUTY JUDGE: Where are we in the case of Alladin?

MR MALIK: My Lord, as I said, I do not oppose the costs in principle. I do not oppose the (inaudible) that is claimed.

THE DEPUTY JUDGE: I do not think that I have the statement.

MISS OLLEY: I was about to --

THE DEPUTY JUDGE: -- I know you were offering it. I do not think I ever received it. (Handed to judge) Thank you.

MISS OLLEY: My Lord, the total sum of claim is £8,848. First --

THE DEPUTY JUDGE: -- conventionally, I hear the objections first because then you know what you are having to deal with and you can answer.

MISS OLLEY: Yes, indeed, my Lord.

THE DEPUTY JUDGE: Shall I hear from Mr Malik first, who says he does not dispute rate and hourly rate.

MR MALIK: I take issue with the number of hours claimed, and in my respectful submission they are unreasonably high. In particular, my Lord, 10 hours for attendances on the client and the second page, work done 19.7 hours.

THE DEPUTY JUDGE: Yes, if my back of an envelope calculation is correctly by stripping out counsel's fees, which you are not objecting --

MR MALIK: -- I am not my Lord, no.

THE DEPUTY JUDGE: It is slightly over 40 hours. That does strike me as quite a lot of work responding to a claim, when essentially it is the claimant making the claim that has to make all of the running.

MISS OLLEY: My Lord, the three usual points:

One, this will necessarily be less than is usually claimed by claimants on the other side in one day matters.

THE DEPUTY JUDGE: That is irrelevant.

MISS OLLEY: I submit it is not irrelevant.

THE DEPUTY JUDGE: It is irrelevant, and the decided cases say that: simply because one side's fees are a certain level is not itself an indication of the reasonableness and recoverability of your own fees. That is a free-standing question for the determination of the court.

MISS OLLEY: I am not saying that it is a question of your Lordship's discretion in any way.

The second point is that nobody has deliberately wasted time.

The third point is that realistically your Lordship will take a view as to what your Lordship feels is an appropriate sum. I accept that, and I invite your Lordship to award costs.

THE DEPUTY JUDGE: What do you say, Mr Malik, is a reasonable number of hours?

MR MALIK: My Lord, I, without making due and diligent submissions -- but I would certainly invite my Lord to assess the total costs at £5,000.

THE DEPUTY JUDGE: How many hours? Because I have to say, again, applying the back of an envelope, your assessment of £5,000 implies £2,600 only for the preparation of this case, which is in terms of hours, and I have to say that given the issues of complexity that you raised, that seems -- a little light.

MR MALIK: Well, my Lord, certainly, I take no issue with the counsel's fee who is assisting the trainee solicitors on the issue of laxity, but I leave this in my Lord's hands.

THE DEPUTY JUDGE: Twenty-five hours at £160 an hour, £4,000. Plus counsel's fees, £1900 and £500, give you the total of £6,400. It seems to me to be reasonable and proportionate and I summarily assess costs in that sum.

MISS OLLEY: My Lord, I am grateful.

MR MALIK: I am very grateful.

THE DEPUTY JUDGE: Now, thank you very much to you both.

Now, the form. I will try, I now have some homework in the other case as you have seen, but I will try to do the form over the short adjournment as well, so I may have it available at 2 o'clock.

MR MALIK: Yes. I wonder if my Lord wants either me or my learned friend to do the draft order, if that helps?

THE DEPUTY JUDGE: (To the Court Associate) Which would you prefer: Do you want to do the orders application dismissed, costs summary assessment, or do you want them to draw the order?

THE COURT ASSOCIATE: I can draw it up, that is fine.

THE DEPUTY JUDGE: We need not trouble you, Mr Malik. It is a simple straightforward order. Thank you very much, 2 o'clock then, I will try and have the form available for you.

MR MALIK: Yes.

THE DEPUTY JUDGE: Thank you, you need not wait, Mr Malik.

MR MALIK: My Lord, I have another commitment at 2 o'clock. May I respectfully suggest that the form may be sent to the solicitors with the order, if that helps?

THE DEPUTY JUDGE: Is that all right? The permission to appeal form.

THE COURT ASSOCIATE: He will get served with an order, my Lord, yes.