England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		17 September 2013

1. MR JUSTICE HICKINBOTTOM: There are before the court applications for extensions of time to serve an acknowledgement of service and summary grounds of defence in each of twenty individual claims, identified in a schedule to this judgment. In each, save for one (K v Secretary of State for the Home Department (Claim No CO/2253/2013), to which I shall return in due course), there have been at least two, and as many as four, extensions granted already. All of the claims are against the Secretary of State for the Home Department, challenging asylum, immigration and temporary migration decisions of various sorts. Some claims, ironically, are challenges to the Secretary of State's failure to make a prompt decision on an application for leave.
2. Because of their nature, challenges to administrative decisions are required to be brought and determined with promptness. That is reflected in, for example, section 31(6) of the Sennior Courts Act 1981, which gives the court the power to refuse permission to proceed or refuse relief on a substantive application where there has been "undue delay"; and CPR rule 54.5. Subject to the power of the court to extend time under CPR rule 3.1(2)(a), that rule requires a claim for judicial review to be filed promptly, and in any event within three months after the grounds giving rise to the challenge first arise. Where a claim in respect of an asylum or immigration decision is not brought within those time limits, whatever may be said on her behalf in terms of the merits of the claim, the Secretary of State takes a firm stance on delay, as she is fully entitled to do, invariably seeking an order refusing permission to proceed on the basis of delay alone.
3. The other procedural time limits in CPR Part 54, which governs judicial review claims, are similarly tight. CPR rule 54.8(1) provides that a defendant or any other person who wishes to take part in a judicial review "must file an acknowledgement of service in the relevant practice form in accordance with the following provisions". Those provisions provide that any acknowledgement "must be filed not more than 21 days after service of the claim form" (CPR rule 54.8(2)(a)); and served on other parties "as soon as practicable and, in any event, not later than 7 days after it is filed" (CPR rule 54.8(2)(b)). The importance of maintaining those time limits is emphasised in CPR rule 54.8(3), which prohibits extensions of time by agreement: a court order is required for any extension, to enable the court to maintain effective control over public law claims.
4. The rules require the acknowledgement of service and summary grounds to indicate whether the party filing them intends to contest the claim and, if so, "a summary of his grounds for doing so" (CPR rule 54.8(4)(a)(i)). The pre-action protocol letter, to which the proposed defendant is required to respond within 14 days, is designed to prompt proposed defendants in judicial review claims to give early consideration to their public obligations, and to take further steps to comply with them if necessary. The primary purpose of the defendant's summary grounds in the acknowledgment of service, on the other hand, is to assist the court when a judge comes to consider the application for permission to proceed, not (as the rules, literally read, might suggest) as to the basis for resisting the substantive claim (which, if necessary, is the role of the detailed grounds, in due course); but as to the basis for resisting the application for permission to proceed and/or limiting the scope and terms of any permission granted (see R (Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583 at [43], and R (Davy) v Aylesbury Vale District Council [2007] EWCA Civ 1116 at [32]). That focused role is reflected in CPR rule 54.9, which prohibits a defendant from taking part in the permission process if he has not filed summary grounds in accordance with rule 54.8; although, if he proceeds thereafter to file detailed grounds under CPR rule 54.14, he may take part in the substantive hearing.
5. The acknowledgement of service incorporatimg the defendant's summary grounds is therefore a procedural document which is vitally important to the court when it considers permission; and there is a heavy procedural obligation on a defendant to file it promptly to assist the court in that task.
6. The obligation is imposed for good practical reason. At the permission stage it is crucial that the court is placed in a properly informed position to decide the issue of arguability. With the retreat of legal aid, an increasing proportion of public law claimants are acting in person. Through no fault of their own, the immigration history that they are able to portray in their claim, and the issues to which that history has given rise, are often inaccurate. That of course may also apply to cases where the claimant relates that history to a legal representative who prepares the procedural documents, but generally to a much lesser extent. A well-drafted, succinct acknowledgement of service, including a clear history and brief reasons as to why the decision-maker came to the relevant decision and why that decision is not unlawful, is of invaluable help to a judge considering an application for permission, particularly on the papers. The rules recognise that practical value. That is why the heavy obligation to file summary grounds promptly is imposed.
7. In each of the claims before the court now, the Secretary of State has simply failed to file a response to the claim with anything like promptness.
8. To take one example, in Harbhajan Singh v Secretary of State for the Home Department (Claim No CO/5940/2013), the claimant entered the United Kingdom clandestinely and with a false identity in 2003, when he claimed asylum. That claim was refused. He absconded. In July 2012, the claimant applied for leave to remain as the partner of a person present and settled in the United Kingdom, an application which was refused on 21 February 2013. As there was no right of appeal, the decision could only be challenged by way of judicial review. A pre-action protocol letter was sent on the claimant's behalf on 26 March 2013. No reply appears to have been received. On 12 May, the claim for judicial review was issued and served. The acknowledgement of service was due on 12 June 2013. Requests for 21-day extensions were made on 12 June, 3 July, 24 July and 14 August. In each application it was said that the Treasury Solicitor was still awaiting instructions from the Secretary of State. Indeed, even as late as 14 August, by when the Secretary of State had had the claim not for three weeks but for three months, the court was told that the case had not even been allocated to a caseworker at UK Visas & Immigration. On 5 September 2013, the application for permission was allocated to a Deputy High Court Judge, Maura McGowan QC. No acknowledgement of service having been filed, she directed the application for an extension be set down for hearing. It was set down before me today with nineteen other generally similar cases. In the event, the acknowledgement of service in Harbhajjan Singh was filed on 5 September, nearly four months after service of the claim and about three months late, and after the Deputy Judge had made her order. The Secretary of State's summary grounds contest the whole claim; and, indeed, submit that the claim is totally without merit.
9. The other applications for extensions of time before me arise out of similar circumstances, except two: Jasbir Singh v Secretary of State for the Home Department (Claim No CO/5212/2013), and K to which I have already referred. In the former, the acknowledgement of service was filed on 22 August 2013, late in the sense of outside even the third extension of time that had been granted, but before the application was considered by a judge - in fact, me - on the papers on 3 September. The document had simply not caught up with the file, when I considered it. K was stayed pending resolution of a Sri Lankan country guidance case, and so no acknowledgement of service was due and no extension for lodging it was required. Miss Patry, for the Secretary of State, has this morning informed me that that country guidance case has now been promulgated, and a further extension of time of three months has been granted to the claimant to consider any amendments to his claim that might be necessary as a result of that case.
10. In each of the other cases, the acknowledgements of service were not filed by the time the applications for permission were considered by a judge on the papers. In each case, the acknowledgement of service was originally due about three months ago. In each case, a further extension of time was required, and has been sought by application.
11. To complete the up-to-date picture, I should say that, since these applications were set down for hearing, acknowledgements of service have now been filed in all but two cases: K (for the reasons I have given), and Zewdu v Secretary of State for the Home Department (Claim No CO/6067/2013, in which Mr Ahluwlia has today appeared for the claimant and to which I shall return shortly).
12. In respect of the position with regard to acknowledgments of service, the history of the cases before me is unfortunately not unusual. It is now common for a high proportion of asylum and immigration claims that are assigned to a judge for consideration of permission on paper not to have any acknowledgement of service or summary grounds. In these cases, some judges have tried to determine permission without the assistance of an acknowledgement. That, at best, means that applications take much longer than they would otherwise take, and some claimants will inevitably be given permission to proceed in circumstances in which they would or may not have been granted permission if the judge had had the benefit of the Secretary of State's summary grounds. In other cases, judges have simply granted permission to proceed, or made an order for filing an acknowledgement of service on a final basis, i.e. that, unless the acknowledgement is filed by a specific date, then permission be granted and the claim proceed to a substantive hearing. However, that course too will inevitably result in claims being fully prepared and contested which might have been disposed of at the permission stage if the Secretary of State had complied with her obligations under the rules. The result is wasted time and effort by the parties and, importantly, a waste of the increasingly precious resources of the court.
13. As well as being wasteful, claims which do not have the Secretary of State's summary grounds after not three but twelve weeks or more are frustrating for judges to whom they are allocated – but none of the courses to which I have referred is entirely satisfactory. Hence, some judges have set down the Secretary of State's application for an extension of time for an oral hearing, and those are the applications I now have before me.
14. In a statement dated yesterday (16 September 2013), Mr Daniel Hobbs, the Director of UK Visas & Immigration with overall management responsibility for the litigation caseworking and appeals operations for the Secretary of State, has sought to explain, if not excuse, the delays. There has been a rapid and unprecedented rise in challenges to asylum and immigration decisions made by the Secretary of State. The number of judicial reviews received, he says, was 69% higher in July 2013 than July 2012. The number of pre-action protocol letters has more than doubled; over 2,500 were received in July 2013 alone. The number of challenges to temporary migration decisions, which include applications for limited leave under the new family rules and under the points-based system, for example students, has risen particularly steeply. Upon investigation, he says, most of these claims are found to lack any significant merit: over 90% of applications for permission are refused on the papers, and over 70% that go on to an oral renewal hearing are refused there. Of the 547 refusals of permission on paper in July 2013, 46% - nearly half - were described by the judge who dealt with them as being devoid of merit or abusive. However, every claim, whether it be in the form of a pre-action protocol letter or action in this court, of course has to be allocated to a caseworker, investigated and a response prepared. Mr Hobbs frankly accepts that his teams have simply been unable to keep up.
15. To an extent, I can sympathise. The rise in challenges to decisions of the Secretary of State has been prodigious, particularly steepening over the last few months. The figures produced by Mr Hobbs are reflected in the number of proceedings commenced and pursued in this court, which has faced similar challenges resulting from the relentless rise in asylum and immigration judicial reviews, without any correlative increase – or, indeed, any significant increase at all - in resources to deal with them. However, as Mr Ahluwalia submitted with force, the Secretary of State could – and, indeed, should - have anticipated the increases in the number of claims, many of which result from Government policies for which she is responsible.
16. In any event, Mr Hobbs accepts that the Secretary of State's response time to claims is currently unacceptable. In his statement, he has explained the positive steps taken to improve the position, which has been expanded by Ms Patry this morning. These include the short-term use of very junior members of the Bar, the employment and training of 60 additional full-time case working staff, the prioritisation of cases, the basing of some Home Office staff at the Treasury Solicitors to ensure earlier instructions can be given in more cases, the identification of cases which raise identical or very similar issues which can be dealt with by standard summary grounds, and procedures for ensuring that staff comply with guideline judgments of tribunals and courts quickly. In addition, Miss Patry says that staff have been employed over weekends to try and deal with the backlog.
17. Mr Hobbs says he hopes and believes that these steps will deliver significant improvements and quickly. He says the Secretary of State will take every step to ensure that the 21-day timescale laid down in CPR Part 54 for filing acknowledgements of service is generally met, and that applications for extensions of time are minimised. If applications are necessary, he asks that they be treated on an individual case-by-case basis; and he requests some forbearance over the next few weeks to enable the steps which have been taken to take effect.
18. The evidence of Mr Hobbs and the submissions of Miss Patry on behalf of the Secretary of State this morning have been extremely frank, useful and constructive. The position is, as they readily concede, wholly unacceptable. Primary sufferers of the Secretary of State's procedural failings are of course the claimants, who are entitled to expect their claims to be dealt with promptly. Mr Hobbs has attached to his statement a letter he has written in response to a letter from Duncan Lewis (a firm of solicitors who act for many immigration claimants) to the lead judge of this court, Mr Justice Ouseley, expressing their deep concerns about the delays in judicial reviews at the hands of the Secretary of State and the consequences for their clients.
19. Additionally, before me this morning Mr Ahluwalia has, in relation to the claimant Ms Zewdu, stressed the very real detrimental impact there has been upon her, as a result of the failure of the Secretary of State promptly to respond to her claim. The claimant sought permission to work pending determination of her application for leave to remain. The acknowledgement of service was due on 10 June 2013. Three months later, no acknowledgement of service has yet been filed; although it must be said that, as a result of the claim, the claimant has been given leave to remain and, with it, has obtained permission to work. However, Mr Ahluwalia has emphasised the continuing urgency in respect of the continuing claim for damages, because the lack of those funds is still severely detrimental to the claimant.
20. However, over and above these adverse consequences for the claimants, in the field of public law there is also a very substantial public interest in the finality of administrative decisions, and hence the need for challenges to such decisions to be brought, dealt with and, if necessary, determined with reasonable promptness. Whilst the sheer number of such claims being received by the Secretary of State is patently a challenge, that public interest still looms large.
21. With regard to the future, Miss Patry says that the steps which have been put in place are hoped to bring immediate results, and the Secretary of State hopes that, by the end of this calendar year, in the general run of cases acknowledgements of service will be filed within the prescribed 21 days. In the meantime, she asks for the court to be tolerant of the position, and to be generous in applications for extensions of time.
22. I cannot lay down any general guidelines. Of course, each case must turn on its own facts. Some complex cases may well warrant a longer time than 21 days, even to make an initial summary response. But in my view, even with the challenges the Secretary of State faces, such cases should be few. There should be very few cases indeed which require more than six weeks in which to lodge a summary response. In respect of those cases, there needs to be some very compelling reason demonstrated for the requirement for additional time. In the cases before me, there has been and is no such reason. In my view, the Secretary of State simply cannot pray in aid a lack of resources or foresight to justify an extension of time that, even in standard cases, more than doubles the time allowed by the rules. Miss Patry, for the Secretary of State, does not suggest otherwise.
23. As I have stressed, there will always be exceptional cases. But without laying down rigid guidelines, it seems to me that, as she accepts, the Secretary of State must aim, within a reasonable period of time, generally to comply with the requirement of the rules that a summary response to the claim is filed within 21 days.
24. Nevertheless, certainly in the period whilst the benefits of the positive measures that are being taken are achieved and assessed, in my view, unless a claimant identifies some good reason why such an extension would be particularly prejudicial, the first application in any claim for an extension of time of up to three weeks need not be supported by any detailed evidence or grounds, and such an application should be treated generously by the court.
25. However, subsequent applications must be supported by a full explanation for the delay in compliance and a firm promise to the court as to when the acknowledgement of service and summary grounds will be filed. Repeat applications with barely aspirational dates, such as have been made in the past, are to be deprecated. On second and subsequent applications, the court should scrutinise the reasons for the delay rigorously; and the Secretary of State should be prepared for such applications to fail unless she has produced compelling reasons specific to the case as to why further time is needed.
26. Where a matter appears reasonably capable of compromise – for example, where the Secretary of State has agreed to reconsider a challenged decision – then, the summary grounds can be short, setting out why that belief is held and a realistic date for lodging a consent order or substantive grounds if, contrary to the hope and expectation, compromise is not reached. Mr Hobbs has indicated that cases will be prioritised; and it is to be hoped that cases where such a compromise is possible will be prioritised to enable them to be disposed of promptly.
27. The court must remain in control of the management of each case, and should not hesitate to impose sanctions on the Secretary of State, including costs sanctions, if good reason for delay is not made out on second or subsequent applications. Where the time and effort of parties and the court are wasted because of a failure on the Secretary of State's part to comply with a reasonable procedural timetable, then severe sanctions can be expected. In this, of course the court must be even-handed. Whilst the cases before me now concern defaults on the part of the defendant Secretary of State, the same principles apply to claimants. Although its manifestation may be different, the spirit of the Jackson reforms apply to public law cases as much as to private law claims.
28. In the immediate future, there will be cases in which several applications for extensions have already been made and granted; and a further extension will be sought to enable an acknowledgement of service finally to be filed. In my view, such applications should in the immediate short-term future be treated, effectively, as a first application, and the court should generally treat them with similar tolerance and with one further 21-day extension.
29. Every extension (whether the first or subsequent) must of course be sought by way of an application, which will require the appropriate fee. Before making the application, the Secretary of State should seek the views of the claimant with regard to the proposed extension, and file any response received with the application.
30. I have of course been considering the position with regard to acknowledgments of service in asylum and immigration claims on the basis of the evidence and submissions before me. Mr Hobbs has set out the steps the Secretary of State has taken to ensure that she fulfils her obligations to the court; and has expressed confidence that they will produce immediate results and that, within a reasonable time (say, by the end of the this year), the Secretary of State will be in a position generally to comply with the 21 days time limit imposed by the rules. If the position changes – if, for example, the tide of claims continues to rise so that Mr Hobbs' expectations are frustrated – then it is incumbent on the Secretary of State promptly to inform the President of the Queen's Bench Division and the Lead Judge of the Administrative Court as to the new problems that have arisen, the steps being taken to address them and the proposed timetable for ensuring that the position is rectified.
31. Turning to the individual applications now before the court, I should deal with two discretely.
32. In relation to K, no further order is required. This case is currently the subject of a stay pending the claimant's consideration of the Sri Lankan country guidance determination to which I have referred.
33. In respect of Zewdu, the position is, as I understand it, as follows. The Secretary of State has granted the claimant leave to remain and, with it, permission to work, as the claimant sought in her claim. The only outstanding relief sought is in respect of damages. As I have indicated, Mr Ahluwalia, on the claimant's behalf, has expressed in appropriately robust terms the continuing adverse effects of delay upon the claimant who is, he submits, being kept out of money to which she is entitled, with resulting poverty. Miss Patry has asked for an additional 14 days in which to lodge an acknowledgement of service and summary grounds, evn if on an "unless" basis.
34. The order that I propose to make in Zewdu is that the Secretary of State shall file an acknowledgement of service and summary grounds by 4 pm on 1 October 2013, in default of which judgment be entered for the claimant on her claim for damages to be assessed. There is, in my judgment, no reason why the Secretary of State should not respond to this claim within the next 14 days, failing which she should be barred from defending the damages claim. As and when those grounds of defence are filed, or default judgment entered, the court can take a view as to possible transfer of the case to the Queen's Bench Division General List.
35. In relation to the other eighteen cases, as I have indicated, in each an acknowledgement of service has now been served. I am in no doubt that those documents will be of considerable value to the judges who in due course will consider the claimants' applications for permission to proceed. In each of those cases, I shall order that time for filing the acknowledgement of service be extended so that the acknowledgement which has in fact been filed is in time.
36. Finally, in applications which have been challenging in many respects, may I thank both counsel, and Mr Hobbs for his evidence - but in particular may I express my thanks to Miss Patry for the helpful and realistic submissions she has made, both in writing and orally before me this morning.
Schedule

(1) CO/5212/2013	Jasbir Singh
(2) CO/5236/2013	Rathore
(3) CO/6127/13	Mohammadi
(4) CO/6157/13	Wetsi
(5) CO/6578/13	Villavicencio
(6) CO/5940/13	Harbhajan Singh
(7) CO/5478/13	Zheng
(8) CO/6679/13	Upingasana
(9) CO/6057/13	Momenzedeh
(10) CO/5612/13	Djatsuk
(11) CO/7043/13	Tuci
(12) CO/6333/13	Kamran
(13) CO/4995/13	Manikandan
(14) CO/6466/13	Abdow
(15) CO/6115/2013	Boudjemaa
(16) CO/2253/13	K
(17) CO/5752/13	Parr
(18) CO/6067/13	Zewdu
(19) CO/6076/13	Benlalem
(20) CO/8542/13	Taiwo