England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		16 December 2013

HHJ Belcher:

1. This is the substantive hearing of Mrs Nasreen Khan's claim for judicial review. She challenges two decisions of the Secretary of State, the first refusing an application she made for asylum and the second a decision that she and the three children who are the subject of the asylum claim should be removed from this country.
2. The removal directions were set aside by the Secretary of State once the asylum application was lodged and during the progress of these proceedings. Therefore the challenge to the removal decision is now academic. I say that because if the outcome of this application is against the Claimant, then the Secretary of State would have to issue further removal directions in any event.
3. It may be helpful if I set out the background immigration history in this case. The Claimant, Mrs Khan, entered the country on 26 September 2011 with her husband and three dependent children, and they were granted leave to remain as visitors until 14 December 2012. The second claimant, that is Mr Saleem, claimed asylum on behalf of the whole family on 26 December 2011. In other words, Mrs Khan and the three children were dependents in her husband's asylum claim. That asylum claim was refused on 23 January 2012. Having refused asylum, the claimants were served with the asylum refusal decision and one-stop notices under Section 120 of the Nationality, Immigration and Asylum Act 2002. I have copies of those notices in the bundle and, in particular, the notice addressed to Mrs Khan, which states, as required, the following:

"You must now make a formal statement about any reasons why you think you should be allowed to stay in the United Kingdom. This includes why you wish to stay here, and any grounds why you should be removed or required to leave.

...

You do not have to repeat any reasons you have already given us but if you do have more reasons you must now disclose them.

If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application is refused."

That document is dated 26 January 2012. There is a suggestion in paragraph 9 of the Claimant's detailed grounds that that document may not have been received by Mrs Khan. Paragraph 9 says:

"It is unclear whether the First Claimant was ever served with that notice."

However, for the purposes of her husband's appeal to the Tribunal against the refusal of asylum, solicitors acting for the Claimants submitted a bundle of documents to that Tribunal including a copy of the one-stop notice served on Mrs Khan. I am entirely satisfied, therefore, that she received or knew of that notice.

4. At that stage, Mrs Khan supplied no reasons at all in response to that notice. She continued to rely on her husband's position, and he appealed the refusal of asylum and that was dealt with in the Immigration Tribunal. I have before me the decision of the First-tier Tribunal, which I have read. I do not propose, of course, to go through it in full. It suffices to say that the Tribunal Judge (that is, Judge Macdonald) rejected Mr Saleem's account of the facts and matters he sought to rely upon in support of his claim for asylum. At a number of points, the Immigration Judge described Mr Saleem's account as fabricated. In particular, I refer to paragraph 52, in which the Immigration Judge says this:

"In conclusion I find the Appellant [that is, Mr Saleem] is not a witness of truth. I am satisfied, on the evidence before me, that the whole of his account has been fabricated in order to gain access for himself and his family to the United Kingdom. Whatever the reasons which caused him to bring his family to the United Kingdom, it is not for the reasons he has claimed in his evidence before the Tribunal."

The rejection of Mr Saleem's asylum claim was upheld by the Tribunal. The Tribunal Judge noticed that the Mr Salleem's account was littered with inconsistencies and his oral evidence was vague and evasive, and he identified the inconsistencies in the course of his judgment. He highlighted the different account given in a screening interview to that given in the asylum interview, and to that in the evidence before the Tribunal, and similar matters of that sort. He also commented that, although Mr Saleem's claim involved threats having been made directly to his wife and children and that they were all ill-treated by the authorities, the appellant's wife did not give evidence nor did she provide a statement to the Tribunal. Those are all matters of relevance in the context of this application before me.

5. Mrs Khan appears before me in person today. At one point she asked me, through the interpreter, if I would hear from her husband because, she said, this case all arises out of his position should they return to Pakistan. I refused to hear from Mr Saleem. Firstly, he is not a party to these proceedings, his claim for permission for judicial review having been refused. Furthermore it was clear he wished to put evidence before me to explain why he claims he cannot return to Pakistan, and I made it clear that I am not sitting in the position of a court of appeal, that I am not reviewing the Tribunal decision and that the findings of the Tribunal remain in place and are findings which I will use in the context of these proceedings. I sought to explain to Mrs Khan on a number of occasions, with the assistance of the interpreter, that notwithstanding these proceedings are called judicial review they are not an appeal in any sense from the Tribunal's decision, nor am I in a position, even if I thought it were right to do so, where I could grant asylum. The sole function of this court is to review the decisions made by the Secretary of State in the context of checking that they have been lawfully made and are properly within the ambit of her discretion, and if those decisions have been properly and lawfully reached, this court would have no power to interfere with those decisions. Mrs Khan was anxious to point out that she says this is a genuine case, that there have been no fake documents, that all documents are genuine, and that, she says, could be proved. She said they can be verified from anywhere. Documents cannot, in fact, be verified from anywhere. But there again, that is not the issue in this case. She told me that whoever has taken the decision at the Home Office is wrong and that she is doing this for the safety of her children, and that she is not going to take them back to Pakistan. She said the children have already faced a lot and asked me to cooperate with her and her family as much as possible.
6. Before leaving the Tribunal decision, I should also mention that the Tribunal Judge addressed documents which were placed before him, which he was concerned about, and he found the documents to be unreliable and attached no weight to them. That was in the context of his conclusions regarding credibility and the fact that the documents were poor copies, not originals, and various discrepancies were identified in those documents. The Tribunal judge also addressed the Article 8 claim which had been made by Mr Saleem and concluded that he was satisfied that returning Mr Saleem and his family to Pakistan would not constitute a breach of Article 8 rights.
7. Following the Tribunal decision, attempts were made to remove the family from the UK. In the usual way, a family returns conference was set up, endeavouring to persuade this family to comply with the process. The Claimants refused assisted voluntary return to Pakistan, and Mr Saleem made further representations on 28 May, said to be a fresh claim. Those representations were rejected by the Secretary of State in a letter dated 21 June 2012, and the suggestion it was a fresh claim was also rejected. Mr Saleem then made further representations in a further attempt to obtain leave to remain, and those were rejected by a letter dated 19 July 2012. That letter, it is right to say, fully addressed all the further points made by Mr Saleem including Article 8 and the best interests of the children under section 55 of the Borders, Citizenship and Immigration Act 2009.
8. On 19 July this family was due to be removed to Pakistan. They had been served with removal directions requiring voluntary check-in. They did not turn up. Further attempts, therefore, were made to remove them, and on 25 July 2012 immigration officers attended at the family home and took the family into detention. In response to that, Mrs Khan applied for asylum for herself and the three children. Initially she did so by a handwritten letter simply saying that they would be in big trouble if they went back to Pakistan. Solicitors on the same day submitted representations on her behalf, and those representations enclosed further documents said to assist in support of the claim. The letter of 25 July is at page 28 in the bundle prepared for today's hearing. The solicitors state that she could not claim asylum in the past due to lack of funds and/or medical issues. No evidence of either has been produced. There is some very general evidence of seeking medical assistance in this country, but it is general, anti-depressants and matters of that sort for Mr Saleem, but nothing that would support the suggestion this family could not be removed for medical reasons or could not have made an application for asylum for medical reasons. It is also suggested that her previous representatives prevented her making a claim for asylum, but again there is nothing to support this.
9. The documents provided by the solicitors at that stage were an arrest warrant, dated 7 February 2012, purporting to be a warrant for the arrest of Mr Saleem; a notification for the appearance of the defendant, undated; and a further notice for the appearance of the defendant, this time with a different case number and purporting to be dated 19 December 2011. Each document is stamped to say that it has been translated from the Urdu, but the original documents in Urdu have never been produced, and Mr Barnes, who appears for the Secretary of State, points to the fact that these appear to be further documents of unproved provenance produced right at the last minute to try and avoid removal from the jurisdiction.
10. Whilst dealing with documents, it is convenient for me to deal with further documents which have been produced today. Mr Barnes' first point in relation to the documents is that they are in fact of no relevance because this court has to consider the decisions made by the Secretary of State based on the information before her at the time of her decision. To judge the lawfulness of a decision can only properly be done in the context of the information available to the decision maker at the time. That is plainly correct but I consider it appropriate to comment further on the further documents produced for the first time today. One purports to be a writ from the High Court in Lahore. The first line says "Lahore High Court, Lahroe", an obvious spelling error. There is nothing on it which could identify this document by itself as relating to Mr Saleem. There is then a document purporting to be something from the Lahore High Court, handwritten. I do not know whether it is being suggested this has been translated. It does not have any official seal on it, and it is a document which, on the face of it, would certainly cause me concern as to its veracity.
11. The next document is a document purporting to be in the Court of Senior Civil Judge, Lahore in a case by Mohammed Ahmad against Mohammed Nadeem Saleem. This claim, if genuine, appears to be a civil claim for specific performance to sell a residential plot of land. Even if genuine, it does not, on the face of it, appear to relate to anything which was put before the Tribunal in terms of the alleged criminal proceedings.
12. Finally, there is a further document purporting to be from the Financial Crimes Investigation Wing, summoning Mr Saleem from three different addresses to appear in front of officials in relation to a fraud case. This document is dated 19 December 2012. There is no explanation as to where it has come from, or when Mrs Khan received it. There is no authoritative seal. The paper is of poor quality and feels like photocopied paper. Whilst these documents do not affect the issues I have to consider today, I consider it right to record that I have very real concerns about them.
13. I turn then to the challenge to the decision letter, which is in fact threefold. The first challenge is that the Secretary of State failed to offer an asylum interview to Mrs Khan. Secondly, it is alleged that the decision is irrational. There is a challenge to the certification of that decision such that there is no right of appeal. There is also, in the more detailed grounds submitted, and which I have seen for the first time today, a claim that the first claimant was not given the opportunity to provide further information relating to the asylum claim.
14. I can deal with the last point very quickly. This is an applicant who until very recently has had the benefit of legal advice. Her claim for asylum was rejected on 25 July 2012. Now, 17 months later, by producing documents to me at court this morning, for the first time she has purported to provide further information in support of her claim. She has had ample opportunity to produce further information. She has not produced any, and I reject the suggestion that she has not been given the opportunity to provide further information.
15. I turn, then, to the question of a failure to offer an interview. The relevant rule is rule 339NA of the Immigration Rules, which provides as follows:

"Before a decision is taken on the application for asylum, the applicant shall be given the opportunity of a personal interview on his application for asylum with a representative of the Secretary of State who is legally competent to conduct such an interview."

It is correct to say, therefore, that the starting point is that an interview is usual. However, there are a number of listed grounds on which a personal interview may be omitted. These are specified in paragraph 339NA, and the relevant grounds here being items (iv) and (vi):

"(iv) the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his claim clearly unconvincing in relation to his having been the object of persecution;

...

(vi) the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his removal."

The rule goes on to say:

"The omission of a personal interview shall not prevent the Secretary of State from taking a decision on the application.

Where the personal interview is omitted, the applicant and dependants shall be given a reasonable opportunity to submit further information."

As I have already said, I am entirely satisfied that there was a reasonable opportunity to submit further information. Whilst the Secretary of State's decision letter does not address the actual test in terms, in my judgement it is entirely clear that the letter considers the relevant matters even though the rule is not referred to expressly.

16. I have the letter in front of me. It is the letter of 25 July. At paragraph 2 it points to the previous service of the one-stop notice, giving Mrs Khan the opportunity to state all her reasons for wishing to remain in the UK and notes that she did not give any reasons why she could not return to Pakistan. In paragraph 3 it rehearses the claims made by her husband, notes that Mrs Khan had been dependent on her husband's application for asylum and that claim was rejected on the grounds that he was disbelieved and found to be wholly lacking in credibility. At paragraph 5 what is addressed is the particular documents sent by her when the claimant made her application for asylum. Those are the arrest warrants and the notifications for appearance. It is noted that they give no details of the alleged charges and that Mrs Khan has not stated how or when she obtained the documents or why they were not submitted to the UK Border Authority before. The letter concludes that those documents are self-serving and submitted in an attempt to bolster her husband's claim for asylum. It is further noted that when Mr Saleem submitted a fresh claim on 17 July 2012, that is only 12 days before Mrs Khan's application, those documents were not mentioned at all. That, taken together with the fact that all of this was raised only in response to the attempt to remove, the Secretary of State concluded that the purpose of the application was to frustrate removal. That, of course, is ground (vi) in the Rules, which permits a personal interview for asylum to be omitted. In those circumstances, I am entirely satisfied that the decision reached was a decision properly within the Secretary of State's discretion and that there are no grounds for challenging the decision not to give Mrs Khan an interview.
17. I turn, then, to the question of the certification under Section 96 of the 2002 Act. Under Section 96 the Secretary of State has a power to certify cases where an individual relies on matters that should have been raised following the one-stop notice under section 120. The one-stop notice, as I have already said, was in January 2012. It is only on 25 July 2012 and only in circumstances where the family was being taken to detention that the further matters were raised. By further matters, I mean Mrs Khan's claim for asylum and the three documents that she produced to support it. Section 96(2) provides an appeal against an immigration decision may not be brought if the Secretary of State certifies (a) that the person received a notice under Section 120 (whilst I paraphrase, it means by virtue of a previous decision); (b) that the new decision relates to an application or claim which relies on a matter that should have been but has not been raised in a statement made in response to the Section 120 notice; and (c) that in the opinion of the Secretary of State there is no satisfactory reason for that matter not having been raised previously.
18. Mr Barnes has referred me to the case of J v SSHD [2009] EWHC 705 (Admin) and at paragraph 106 in the judgment of Stadlen J, where he identified a four-stage test which the Secretary of State must follow before she can lawfully certify a claim pursuant to section 96(2). First, he states, she must be satisfied that the person received a notice under Section 120 by virtue of an application other than that to which the new decision relates. That test is plainly satisfied. Mrs Khan received a Section 120 notice following the refusal of her husband's asylum application. That is plainly a wholly different decision to the decision being made in July 2012 on her own application for asylum. The first part of the test is plainly satisfied.
19. The second limb of the test set out in Stadlen J's judgment is that the Secretary of State must conclude that the new decision relates to an application or claim and relies on a matter that should have been but was not raised in a statement made in response to the Section 20 notice. Again, the Secretary of State's decision, in my judgement, is entirely justified in that respect. The documents produced by solicitors acting for Mrs Khan are dated 19 December 2011 and 7 February 2012, the third document being undated; all purporting to be from a case dated 16 November 2011. No reason has ever been offered as to why those documents were not included and raised in response to the Section 120 notice and therefore, in my judgement, the second and third limbs are plainly satisfied, the second limb being that it was not specified when it should have been, and the third being that there was no satisfactory reason for not stating it.
20. The fourth stage in the test is that the Secretary of State must address her mind to whether, having regard to all relevant factors, she should exercise her discretion to certify and conclude that it is appropriate to exercise the discretion in favour of certification. Mr Barnes submits that there were ample reasons for the Secretary of State to certify that claim. He points to the fact that the extent of failure to produce the documents earlier and the absence of any reasons for the failure to produce the documents earlier, an omission he describes as "glaring". Further, he submits that the documents produced today, at the very last minute once again, and documents which are not on their face obviously reliable, support the conclusions reached by the Secretary of State rather than negating it. He submits that the documents produced today are strongly suggestive of a further attempt to frustrate removal, being the very the decision which the Secretary of State reached and was entitled to reach when making her decision. Further, he submits that the claim is manifestly hopeless given the manner in which the documents have been produced, that is the documents produced to the Secretary of State in July of last year, and in the light of the conclusions of the Tribunal judge and Mr Saleem's failure to establish a fresh claim. Taken all together, Mr Barnes submits that there are no grounds on which this court could say that the exercise by the Secretary of State of her discretion to certify the claim is outwith the proper ambit of her discretion. I accept that submission.
21. That disposes of the grounds, the principal grounds. Having seen for the first time today, the Claimant's detailed grounds, which for some reasons appear not to be in the main court bundle, I have thus far addressed grounds 1 and 2, and I ought to deal with other grounds that relate or may relate to this Claimant.
22. Ground 3 is expressed to be that the defendant's decision is a flagrant breach of natural justice. No particulars are given of that claim. I take it to mean that she was not given the opportunity of an interview and a hearing, but the Rules expressly allow for that, and as I have found, have been properly applied in this case. Ground 3 goes on to say that the Claimants are frightened of their opponents in Pakistan and extremely depressed over the situation, and suffering medical issues. None of those is grounds for challenging the decision made. Fear of their opponents in Pakistan has been expressly rejected as false by the Tribunal Judge, and I have already indicated what the position is in relation to medical evidence. Whilst it is said that the Second Claimant has developed symptoms of suicidal behaviour, the Second Claimant is not before this court as a party, and that appears to be an excessive overstatement of the medical evidence which I have seen.
23. Ground 4 relates expressly to the Second Claimant, and I do not therefore need to address it.
24. Ground 5 challenges the Defendant's decision to remove the Claimants without considering the factors set out in chapter 53 of the Operations Enforcement Manual. No particulars are given. It is impossible to understand what is alleged, but in any event that deals with the removal decision, which as I have already said has become academic.
25. Finally, ground 6 states that the Defendant has failed properly to consider her duties set out under section 55 of the Borders, Citizenship and Immigration Act 2009. That, I suspect, was a ground intended to relate to the Second Claimant, who had submitted an Article 8 claim. Certainly no express argument was put before this court on behalf of the First Claimant, but it is clear from the decision letter of 19 July 2012, dealing with Mr Saleem's fresh representations, that Section 55 was expressly considered and he has been refused permission to judicially review that decision. There are, in my judgement, no grounds on which Mrs Khan could challenge the decision refusing her asylum on the basis of section 55 of the 2009 Act. In those circumstances, it follows that the Claimant's claim must fail and it is dismissed.

JUDGE BELCHER: Yes, Mr Barnes, you are seeking costs.

MR BARNES: Yes, my Lady. There is an application for costs.

JUDGE BELCHER: I have seen a costs schedule. Let me find it. It appeared to have two different counsel attending on the last occasion when I looked at it, briefly. Yes. And apart from telling me what their grades are, it does not actually give me any details about the fee-earners. But first of all, perhaps you could deal with the expenses – oh, there were two oral permission hearings, weren't there?

MR BARNES: Yes, my Lady, I think the first one was adjourned.

JUDGE BELCHER: Why was the first one adjourned?

MR BARNES: I could probably find out if I could have a moment. It was transferred so that it could be moved to Leeds.

JUDGE BELCHER: It did not require an attendance then, did it?

MR BARNES: I think that it was listed in London and it was meant to go ahead but then transferred to Leeds. Yes, I mean, I have a copy of the order, which is paragraph 1: "This matter be adjourned and transferred to the Administrative Court in Leeds."

JUDGE BELCHER: Does it suggest there was an attendance?

MR BARNES: Yes. First claimant appearing in person, Miss F Patterson of counsel on behalf of the Defendant.

JUDGE BELCHER: All right. Right, well what do Grade 6 and Grade 7 mean in terms of years' qualification or anything of that sort?

MR BARNES: They are Civil Service grades.

JUDGE BELCHER: I appreciate that. But in assessing costs, I have to deal with the grades for assessment, do I not, which are A, B and C and D?

MR BARNES: Yes. I think that in fact the rates will be comfortably within --

JUDGE BELCHER: They usually are, but –

MR BARNES: Can I just check? I think, my Lady, the best we can do is to say that you would expect grade 6 to be in excess of four years' PQE and you would expect grade 7s, which are perhaps perversely the lower grade, to be between newly qualified and four years' PQE, but it is difficult to be any more –

JUDGE BELCHER: All right. Are these rates claimed within their relevant bands then? I have not got my White Book here, I am afraid.

MR BARNES: I will just check.

JUDGE BELCHER: I have one in my room, and this is a criminal court so there is not one on the bench. (Mr Barnes reading). It is always difficult to find, I am afraid.

MR BARNES: Yes.

JUDGE BELCHER: Mrs Khan, so you understand what is going on at the moment, I am against you on the claim and the Secretary of State is seeking an order for costs against you. There is a statement of costs, in which they are seeking – it is not signed actually, the copy I have got --...

MR BARNES: I have a signed copy.

JUDGE BELCHER: ...of over £12,000. The procedure is that I carry out a summary assessment, so I have to be satisfied that the hours involved are reasonable and that the rates sought are proper. I have asked Mr Barnes to check the appropriate rates in the White Book and then I will proceed further from there. They are in part 44, are they not?

MR BARNES: I was just looking in the index, but it is very difficult to find.

JUDGE BELCHER: They are always difficult to find, I am afraid. Or is it 43? It is around there somewhere.

MR BARNES: They must be here somewhere. I am obviously struggling to find them.

JUDGE BELCHER: Shall I rise? I am very happy to come back on the bench. I have two options. One is I rise and we sit again at 2.15.

MR BARNES: I suspect, my Lady, no-one in this room will be keen for that.

JUDGE BELCHER: Well, precisely. Which part are you in?

MR BARNES: I have looked in 44 and I am now in 45, my Lady.

JUDGE BELCHER: I am going to rise and get my White Book and come back. It is just along the corridor. I will come straight back. (Judge rises briefly) I am looking also. You have not found it.

MR BARNES: My Lady, I have found it almost as soon as you walked out of the room.

JUDGE BELCHER: I have turned it up, yes.

MR BARNES: So it is in the 2013 edition, 1662.

JUDGE BELCHER: Yes, and Leeds is Band 1.

MR BARNES: Yes, Leeds inner.

JUDGE BELCHER: £200 is a grade A fee earner. Sorry, 2010. It is more than a grade B, is it not? The form is normally set out. The categories are solicitors with over eight years' experience would be a category A. Solicitors and legal execs with over four years' post-qualification experience are category B. Other solicitors and legal execs and fee-earners with equivalent experience, C. I am on page 1661. Trainee solicitors would be the lowest level. So the rates are going to need adjusting, are they not?

MR BARNES: The only thing I would say in response to that is, of course, the Treasury Solicitor is located in London.

JUDGE BELCHER: I think the guidelines are the court, are they not, rather than the –

MR BARNES: Yes, my Lady, although the guidelines are not absolute. They are flexible.

JUDGE BELCHER: Well, they are, but –

MR BARNES: And in circumstances where the Administrative Court is regionalised, if this was a personal injury case, for example involving a local, a firm based in London but operating in Leeds, one can see why you might charge the local rates.

JUDGE BELCHER: Yes. Well I will come back to that. Now explain to me eight hours' attendance on clients. It seems a lot. I appreciate there was a lot in this, but eight hours. That is effectively taking instructions, is it not?

MR BARNES: Yes, my Lady. As my Lady will no doubt be aware, the difficulty when the Treasury Solicitor is involved dealing with a government department, there is much more interaction between client and solicitor than one might otherwise expect. Everything has to be run past the client. One has to make sure that the client fully appreciates the issues in the case and the response.

JUDGE BELCHER: Right. Eight-and-a-half hours' attendance on counsel? Just under eight-and-a-half hours.

MR BARNES: My Lady, can I just take instructions? The short explanation is that there have been three separate barristers instructed, and there has been a lot of interaction between Treasury Solicitors and the barristers.

JUDGE BELCHER: Well, I am mindful that you have had a conference or an advice, at least.

MR BARNES: My Lady, I think that is fee for advice, documents, conference and it would cover the detailed (inaudible). There has been no conference.

JUDGE BELCHER: But I am sure there will have been telephone calls.

MR BARNES: There have been telephone calls and e-mails going backwards and forwards.

JUDGE BELCHER: Well, that does not surprise me at all. Given this is summary I am going to cut the hours for attendance on counsel down to six, because it seems to me attendance for the oral permission hearing does not require anything like the extent of input. Who are the attendances on others? Who are the others? Not the opponents, I have not challenged that, but there is five, six, six-and-a-half hours there.

MR BARNES: My Lady, I will just check. My instructions are that there was some attendance on the court, which will have taken some time. It may be that the transfer of the courts involved more time than one might normally expect. I think, my Lady, if you were to take a summary approach to that and reduce it, there would be little ground for serious complaint.

JUDGE BELCHER: That must be right. And then work done on documents. It has got over 32 hours.

MR BARNES: My Lady, I expect that the reasons for that probably are these. First of all, the need for the solicitors involved to carefully review the file, and that will be both the junior and the senior solicitors. There may be some duplication of work involved in that, but that is what would have been done. Then the summary grounds of defence were drafted by solicitors, so that will have taken some of the time. And then of course reviewing the documents as they came in from the claimant and reviewing the Detailed Grounds of Defence.

JUDGE BELCHER: All right. And then attendance at the hearing, that is today's hearing, is it?

MR BARNES: Yes, my Lady.

JUDGE BELCHER: Right, well what I am minded to say – the 7.9 hours' attendance on client, I am going to say seven hours. Attendances on counsel, and I am doing this simply because it is summary, I am deleting the 0.4 hours at £200 per hour. I am going to allow five hours at £160 and one hour at £90. Attendances on opponents I allow. That is 0.7 hours. Attendances on others is going to be three hours at £160. Documents is going to be 25 hours. Of those five will be at £90 and 20 at £160. The attendance at the hearing I allow. And the previous fee matters. I am going to get a calculation. I have reduced the costs. I have disallowed a number of the hours being claimed on the basis that they may very well – I do not doubt that they have been incurred but I consider it reasonable to reduce, and Mr Barnes will get me a figure in a moment. Is there anything else that you want to say about costs? Is there anything else they want to say to me about costs? In principle, they are liable to pay the costs.

MRS KHAN (speaking through an interpreter): We do not have any money. We get support from here just for the children.

JUDGE BELCHER: Yes. Well, I will make the order for costs, and whether it can be enforced is another issue. But in principle I will be making it. It occurs to me, I am sorry, you ought to take an hour off the attendance at hearing, the solicitor's attendance. We have not been that long. She was not here until 11. I am not criticising her.

MR BARNES: No, my Lady.

JUDGE BELCHER: You are being paid travel expenses in addition to brief fee, are you?

MR BARNES: The brief fee includes the travel expenses at half the hourly rate.

JUDGE BELCHER: Right. Well, there is a claim for your travel expenses. That is all I am querying. If it within your brief fee, it should not be claimed separately? Or are your being paid a brief fee plus –

MR BARNES: No, it should not be claimed separately. I do not think, my Lady, it is.

JUDGE BELCHER: Well, what is this other expenses at the bottom? £930.15. £350, £700.

MR BARNES: That is the train fare.

JUDGE BELCHER: Right, so that is being paid separately.

MR BARNES: Yes.

JUDGE BELCHER: All right. That is fine.

MR BARNES: So the solicitors' costs are £7152. And then --

JUDGE BELCHER: The other figures are added to it.

MR BARNES: So the total should be £9762.15.

JUDGE BELCHER: All right. Paragraph 1 is the claimant's claim is dismissed. Paragraph 2, the claimant do pay the defendant's costs of these proceedings, summarily assessed in the sum of £9762.15. So I have reduced the costs by about £2,500 from what was claimed.

MR BARNES: My Lady, can I just say that I think the reality is, because I am paid on an hourly rate, that the total is – this is an estimate – the total is likely to be ten hours when you take into account travel and prep. And so the fee for hearing should be £1000 rather than £1,180. So the figure should be reduced by £180.

JUDGE BELCHER: All right, thank you very much. £9582.15?

MR BARNES: Yes, exactly, my Lady.

MRS KHAN (speaking through an interpreter): Why our claim has dismissed?

JUDGE BELCHER: Well that is what my judgment – I have explained that fully in the judgment. I have concluded that the Secretary of State was entirely within her discretion and that therefore the claim is dismissed.

MRS KHAN (speaking through an interpreter): Is it possible for me to be granted the right of appeal for my children?

JUDGE BELCHER: Right, so you are applying for permission to appeal? On what grounds? What is the basis? An appeal has to be brought on the basis that my decision is wrong in law in some way.

MRS KHAN (speaking through an interpreter): Because my children, we are in trouble. We did not come here – and no-one from our family came here. We just came here (inaudible). We left without my parents.

JUDGE BELCHER: I am sorry. Everything that she is putting forward, nothing that she is putting before me goes to the legal issues of my decision. She is seeking to challenge the Tribunal's decision, which she cannot do.

MRS KHAN (speaking through an interpreter): I am not challenging the decision.

JUDGE BELCHER: Well if she is seeking permission to appeal, she is challenging my decision.

THE INTERPRETER: Sorry, I am just telling her that I cannot interpret her. A full paragraph, she is hard to interpret. But what she said is "I cannot take my children back because we are in trouble over there."

JUDGE BELCHER: Well, we have been through that.

MRS KHAN (speaking through an interpreter): And I would like to be granted permission to stay in this country with my children:

JUDGE BELCHER: Well, I cannot grant that. I keep telling her that. And even if I could, on the basis of what I have seen, the decisions appear to be completely right. I am refusing permission to appeal. There is a form I have to complete, which if they want to try and get permission from the Court of Appeal they will need that form. It will be at the court office in an hours' time. Thank you very much. Thank you, Mr Barnes.