England and Wales High Court (Administrative Court) Decisions

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

		Priory Courts 33 Bull Street Birmingham West Midlands B4 6DS
		25th February 2014

1. MRS JUSTICE ANDREWS: This is an application for judicial review of a decision that was originally made on 13th May 2013, to refuse the claimant's application for leave to remain in the UK on essentially Article 8 family and private life grounds. That decision was then reconsidered and a further decision was made by the Secretary of State on 27th September 2013, which is the current decision under challenge.
2. The claimant, Mrs Bailey, is a national of Uganda. She initially made an application for leave to remain in the jurisdiction on the basis of her relationship with her then husband, but very tragically Mr Bailey took his own life at a time when that application was still being considered. The effect of this tragedy was to put an end to the claimant's ability to apply to stay in the UK on marriage grounds. At the time of that application for leave to remain she had already overstayed her leave. She appealed against the refusal of her application to the First-tier Tribunal, which refused the appeal on 25th July 2012.
3. I should mention that in the context of that appeal, consideration was given, in some depth, to her Article 8 rights and to the question of whether or not it would be disproportionate to require her to go back to Uganda. The judge of the First-tier Tribunal made an express finding, having undertaken the relevant balancing exercise, that it would not be a disproportionate interference with her rights to a private and family life to expect her to return to Uganda. He described her as a bright and articulate young woman who was then aged 30, and he mentioned the fact that although she had not obtained any further qualifications from her time in the United Kingdom, there was no reason to believe that she would not be able to secure employment in Uganda.
4. After the refusal of her appeal the claimant formed a relationship with another British citizen, but that relationship is not yet of such a subsisting duration as to enable her to qualify for leave as an unmarried partner. This is because they had not been living together in a relationship akin to marriage for at least 2 years prior to this application.
5. On 16th May 2013 the claimant made this fresh application for leave to remain on Article 8 grounds. By that stage the considerations in the Strasbourg and domestic jurisprudence of the factors that one weighs in the balance in determining (i) whether or not somebody has a private or family life and (ii) whether or not the refusal of leave or the removal to another country would be a disproportionate interference with that private or family life, had been brought within the Immigration Rules themselves. The new rules signify the way in which the decision maker on behalf of the Secretary of State is expected to carry out the balancing exercise. The Rules are not, however, exhaustive. As the Court of Appeal in the case of MF (Nigeria) and, more recently Sales J in the case of Nagre have made clear, there may be situations in which the evaluation of those factors that now fall within the Immigration Rules will not suffice to dispose of a claim under Article 8. There may be cases of an exceptional nature where the specific circumstances pertaining to an individual claimant who does not qualify under the Immigration Rules nevertheless demonstrate that it would be a disproportionate interference with that person's rights to require them to leave the UK and that accordingly leave to remain should be granted outside the Immigration Rules.
6. However, it now appears to be clear from the authorities that each case is very much dependent on its own facts, and that the exercise of evaluating the proportionality of interference with the claimant's Art 8 rights, (depending on those facts), will not necessarily require the person making the decision to carry out a completely fresh evaluation of the relevant factors when considering whether or not to exercise discretion outside the Immigration Rules. This is not required if to go through those steps would be an unnecessary repetition of the same balancing exercise that has been carried out within the Rules. The Court has to look at the decision under challenge on the basis of determining whether the decision-maker has properly weighed in the balance all the relevant factors, either inside or outside the Rules.
7. The main ground of challenge in this particular case is to the decision that Mrs Bailey did not satisfy the requirements of paragraph 276ADE of the Immigration Rules. In particular it is contended that she did satisfy subparagraph (vi), in that she is more than 18 years old, she has lived continuously in the UK for less than 20 years and she has no ties (including social, cultural or family) with the country to which she would have to go if required to leave the UK, namely, Uganda.
8. The decision maker noted that at the time of her application Mrs Bailey had resided in the UK for a period of 8 years, having entered the UK aged 22 and having applied for leave to remain aged 30. The decision maker goes on to state:

"Your client had still therefore spent the large majority of her life, including her formative years in Uganda and would be more than capable of re-adapting to life in her home nation."

The decision maker also refers to the fact that Mrs Bailey stated on her application form that she speaks the national language in Uganda. None of that is controversial. What is controversial, however, is the next point that is made by the decision maker, namely:

"She has also stated that she has family members to return to there."

9. The criticism that is levelled at that statement is that Mrs Bailey had made it very clear on her application form that although she had half siblings from her father's second marriage, who lived in Uganda, she had no contact with those half siblings either at the time of her leaving Uganda and entering the UK or at any period thereafter. Therefore, it was submitted that the decision was irrational or unlawful because it made a finding which flew in the face of what the applicant herself was saying. It subsequently came to light, and was referred to in correspondence after the 27th September decision, that when Mrs Bailey had spoken to an immigration officer back in 2008, reference was made by her to a sister who had gone back to live in Uganda. That point was prayed in aid by the Secretary of State in the detailed grounds of defence which were served extremely late, so late in fact that the claimant has not yet been able to produce a witness statement dealing with that specific matter. I was told by Mr Hoare that he was only able to see his client on Friday last week (it is now Tuesday) and that there really was no proper opportunity of getting a witness statement from her to explain how it was that an immigration officer came to make a record of such matters.
10. Although the passage that I have quoted from the decision of 27th September 2013 relating to Mrs Bailey stating that she has family members to return to in Uganda is ambiguous, and might possibly be a reference to the interview with the immigration officer, I have no evidence that the decision maker knew anything about that matter on 27th September. It is therefore fair that I should discount that evidence specifically in relation to this application, which is concerned with the materials that were before the immigration officer at the time of the decision.
11. However, taking the Claimant's case at its absolute highest, even if one were to assume in Mrs Bailey's favour that she had no family ties whatsoever with Uganda, (in that she has no family members to whom she could return or with whom she could make contact) and even if one were to ignore the half siblings on the basis that she never had any contact with them anyway, that is not necessarily an end of the matter.
12. The two authorities that are particularly helpful in relation to the way in which rule 276ADE and the ties point in sub-rule 6 are to be approached are Ogundimu (Article 8-new rules - Nigeria) [2013] UK UT 60 and Green (Article 8-new rules) [2013] UK UT 254. They are both decisions of Blake J. sitting in the Upper Tribunal.
13. Mr Najib submitted, by reference to Ogundimu, that sub-rule (vi) is in the nature of a true exception. It applies to someone who would otherwise be subject to the 20 year residence requirement but is able to demonstrate that he or she has no ties with the country with which he or she is to be returned. In such circumstances, it would be considered "unjustly harsh" to expect such an individual to establish private life in a country with which he or she has no ties, i.e. a country in which he or she would be a stranger. However, Blake J said in paragraph 125:

"Whilst each case turns on its own facts, circumstances relevant to the assessment of whether a person has ties to the country to which they would have to go if they were required to leave the United Kingdom must include, but are not limited to: the length of time a person has spent in the country to which he would have to go if he were required to leave the United Kingdom, the age that the person left that country, the exposure that person has had to the cultural norms of that country, whether that person speaks the language of the country, the extent of the family and friends that person has in the country to which he is being deported or removed and the quality of the relationships that person has with those friends and family members."

14. The court had already made it clear that consideration of whether a person has "no ties" to such other country must involve a rounded assessment of all the relevant circumstances and is not to be limited to social, cultural and family circumstances. It follows from that, that no single one of those factors can have a decisive bearing on the determination of whether there are "no ties" and thus the mere fact that an applicant has no family or friends in the country will not in and of itself lead inextricably to the conclusion that there are no ties. I agree with those submissions.
15. In the present case, the decision maker was entitled to take into account the fact that Mrs Bailey had spent most of her formative years in Uganda, that she had only come to this jurisdiction in her twenties, that she had only been within this jurisdiction for some 8 years, that she had clearly had an exposure to the cultural norms of her country of origin, and that she spoke the language of that country. In the light of all those factors, in my judgment, it is impossible to say that the decision that she did not qualify under the relevant sub-rule of paragraph 276ADE was irrational, or unlawful, or Wednesbury unreasonable, even if one were to assume in her favour that she has no friends or relatives in Uganda. It plainly is not the sort of case with which the Upper Tribunal was concerned in Ogundimu or indeed in Green. Both of those were cases involving people who had come to this country as very young children and been granted leave to remain in the jurisdiction, who had no ties whatsoever with their country of origin, but who had then committed criminal offences and therefore appeared to be subject to compulsory deportation to that country, subject only to Article 8 considerations. But this is not a case in which it could possibly be concluded that Mrs Bailey would be a complete stranger to Uganda, however strong the ties that she has formed in the UK since coming to this country and overstaying her visa.
16. In those circumstances, the main ground of challenge simply does not get off the ground, regardless of any further information relied upon by the Secretary of State in relation to family members in Uganda. That information, on the face of it, appears to be credible and there is no information before me to suggest that it is not. But, as I have said, it would be unfair to Mrs Bailey to take into account something that it is not clear was before the decision maker. So the decision I have made is on the assumption in her favour that the decision maker was referring purely to her half siblings. Even if one assumes in her favour that there is no real connection with them, there are more than enough remaining factors to say there are ties with Uganda, such that she does not qualify under the rules.
17. That really leaves the question of the consideration of her case outside the rules, bearing in mind that the balancing exercise has largely been carried out already in considering her case within the rules. However, the decision maker has gone into considerable detail in looking both at Article 3 and at Article 8 outside the rules, in the second of the two decisions made in September 2013. The highest that the claim can be put in relation to the consideration of whether a discretion should have been exercised outside the rules, is that insufficient account was taken of the ties that Mrs Bailey had formed in this country with members of her deceased husband's family (his late mother, and her sister-in-law, who wrote a letter in support of her application). But it is clear from her sister-in-law's letter that the nature of their ties is not one of any dependency. Rather, it is a social relationship which largely consists of written and verbal communications by telephone, by e-mail and text, with two or three social visits in the course of a year. That falls a long way short of the kind of ties whose strength means that a refusal of leave or a decision to deport would be disproportionate interference with private or family life. In fact, the nature of the relationship is such that it would not readily qualify as "family life" under Article 8 at all, but rather as private life. In my judgment, the decision maker was entitled to come to the view that it was open to Mrs Bailey to retain those ties with her sister-in-law and other members of her late husband's family from Uganda, using modern methods of communication.
18. That being so, in my judgment, there really is no basis for this court to interfere with the decision that was taken, and I dismiss this claim for judicial review.

MR NAJIB: My Lady, can I just clarify one thing? I think your may have in your judgment referred to what appeared to be a passage from Ogundimi. It is my fault --

MRS JUSTICE ANDREWS: It is from your skeleton argument, is it not?

MR NAJIB: It is paragraph 14. The first part of that is my submission, which is uncontroversial because that is what it is. The reference to Ogundimu there in paragraph 124 is the use of the words "unjustifiably harsh and would be a stranger in the country" which over the page I have set out the full quote.

MRS JUSTICE ANDREWS: I think I came to notice that when I was formulating the judgment and I thought that may be so. If there is a need for correction then obviously once I see the transcript I will correct it and make it clear that it is a record of your submissions and that the reference is to the part of Ogundimu where it refers to harshness.

MR NAJIB: Which is in paragraph 124. I am grateful.

MR HOARE: That is the way I took it, my Lady.

MR NAJIB: My Lady, as the claim has been dismissed I would ask for an order that the claimant pay the Secretary of State's costs on these proceedings in the usual order. I do not believe this claimant is publicly funded.

MRS JUSTICE ANDREWS: Why should the Secretary of State have her costs when she has failed to comply with court orders, has served evidence really late and as far as I can see has not provided a schedule of costs for today?

MR NAJIB: My Lady, dealing with the first point. I have to accept, as does the Treasury Solicitor, that there has been delay in this. We sought a number of extensions to get our summary grounds in. Ultimately that was refused and permission was granted and we have filed our detailed grounds late. There is a long story behind all of this. There has been a huge increase in the number of these particular challenges arising from the new rules. The Treasury Solicitors and the Home Office have had a difficult time coping with this. There have been a number of times for extension and it has been raised with the high judiciary as well. It is something that they are having great difficulty with due to the vast increase in the number, over 100% increase in the last 6 or 12 months, of these applications. So that is where we find ourselves. I accept that the court can be critical of that and say: you have not done very much.

However, having said that, certainly in the last week there has been a great effort in getting in detailed grounds and preparing for this hearing and skeleton argument, my attendance to assist the court and I would hope that the court has been assisted by that in determining this application.

MRS JUSTICE ANDREWS: I think the real problem, Mr Najib is, as I said to counsel yesterday who was representing the Secretary of State in similar circumstances, if an acknowledgement of service had been filed with detailed grounds when it should have been filed, it is very unlikely that Hickinbottom J would have given leave in a case such as this. So the court has had to have the trouble of dealing with the matter on an oral hearing. It would have been quite different if permission had been refused and it had been renewed to an oral hearing, but the judge gave leave on the basis that there seemed to be a prima facie argument there and, if there had been an AOS with the detailed grounds in it, it is very likely this court would have taken a different view about that and not granted leave in the first place. So it may well be that, whilst I hear what you say about the Treasury Solicitor being overwhelmed, it would not be right to allow you all your costs. Where is the schedule of costs?

MR NAJIB: My Lady if I could deal with one point. That is a double edged sword so far as permission not being granted. I accept that if permission had not been granted, we would not be here today so a reduction on costs would be warranted on that basis. Conversely, this was a case that, if that is right, had no merit to begin with and was unarguable, and therefore permission should never have been granted. Yet the claimant has persisted in pursuing it and has not taken the view that "actually I do not have a case on the authorities and on the merits and therefore I will simply withdraw." She has taken the decision to push this through to a final hearing and has lost. So it is only right that the Secretary of State recovers some costs.

As far as a schedule of costs is concerned my Lady, it has not been a usual practice in this court to have a summary assessment of costs following a final hearing --

MRS JUSTICE ANDREWS: Why ever not? It is in the rules. It is less than a day. It is what the CPR says.

MR NAJIB: Yes my Lady.

MRS JUSTICE ANDREWS: How can you have a detailed assessment in a case like this? It is so disproportionate. The acknowledgement of the service does not even tell you how much your costs are of the AOS (Pause). I am not shooting the messenger.

MR NAJIB: I completely understand, my Lady, and I accept the rules say what they do but certainly it has never been the practice (in this court certainly) that there would be a summary assessment of costs.

MRS JUSTICE ANDREWS: Perhaps it is about time the practice changed to reflect the CPR.

MR NAJIB: That may well be the case my Lady.

MRS JUSTICE ANDREWS: Did Green J not order a summary assessment last week in the case you were referring to? Perhaps I ought to speak to him and find out whether he did.

MR NAJIB: My Lady I can certainly say I have appeared in a number of final hearings in this court before Hickinbottom J and Beatson J (as he then was), various judges, and Lewis J only recently, and orders have been to the effect that there be detailed assessment of the Secretary of State's costs. I have certainly never had occasion where there has been a summary assessment, other than where perhaps there had been an unwarranted adjournment and the court wanted to make a costs order there and then.

MRS JUSTICE ANDREWS: I find that remarkable. Of course I hear what you say. Of course I accept what you say, but I do find that absolutely remarkable because whenever I sit in the Administrative Court schedules of costs are always produced (including by the Treasury Solicitor) on a final hearing.

MR NAJIB: It may well be the practice has not developed here and it may well be that that may have to change. But as far as expectation is concerned, it would be unfair, in my submission, for the Treasury Solicitor to have to produce one today or have produce one when it certainly has not been the practice to do so. Very often my Lady and no doubt --

MRS JUSTICE ANDREWS: You go away and agree them.

MR NAJIB: Or in most cases the claimant is publicly funded and it is....

MRS JUSTICE ANDREWS: That may be why the practice has grown up.

MR NAJIB: To a great extent it is never an issue because it is not to be enforced in any event and so the whole thing falls away.

MRS JUSTICE ANDREWS: I could see how that could have grown up. Mr Hoare, I have not asked you for your submissions in relation to costs.

MR HOARE: On the background to this of course the defendant has an unprecedented list of claims, but that arises from a decision to make most of these decisions non appealable and therefore the foreseeable consequence that people would seek to challenge in judicial review. That is the background. But we have had absolutely no compliance of any description. We have had no response to a pre-action protocol letter, no acknowledgement of service. I accept that we have the letter from September 2010. We put that in our bundle at a time when the defendant had no bundle that she was presenting. One will see from the correspondence that we then try to raise what we consider to be the residual issues given that this 2008 raid is not brought to our attention until the evening of the 18th or 19th February. Against that factual background then we have no compliance with acknowledgement of service, we have until that time, that evening last week, and we do not know until then what the defendant's case is on ties. It is said: withdraw, but we do not know what the case is on ties.

MRS JUSTICE ANDREWS: You say on the face of it there appeared to be a direct contradiction between the information that was given and the information that is on the face of the Decision Letter, the second Decision Letter; that Hickinbottom J at least thought there was enough in it to merit it coming here; and if a judge of this court gives you permission, then obviously you think there is enough of a runner to pursue it. Giving it up at a late stage, you have already spent most of the costs by then.

MR HOARE: The phrase that the judge used I think, was that "all points were arguable". We did not rely on the chapter 53 point at all because of what we are able to glean from Mrs Bailey on Friday.

MRS JUSTICE ANDREWS: What I am minded to --

MR HOARE: May I just say my learned friend says: no merits. But one could - it is not the view that has been taken - but one could take the view that there were no ties. That is not a completely hopeless point. The level of noncompliance by the defendant is so aggravated. The draft skeleton argument was notified to me late yesterday afternoon. It is no criticism of my opponent but I then had to collect that from his chambers at 5.10. We know the full extent of the case at that stage. It is said we should have discontinued, but in practical terms that is difficult in terms of getting instructions from a bereaved, (and vulnerable, to some extent) applicant and my submission is that given the breaches of the Civil Procedure Rules, it would not be appropriate to award costs because the whole assessment of whether to bring a claim that risks costs payable by the other party is based on information that is available and it was not available in any form until late last week.

MRS JUSTICE ANDREWS: What is very surprising is that there is not even an indication of what the costs are in the acknowledgement of service. The costs, that is,of producing the acknowledgement of service. That is something that as a matter of fact one normally sees in section D of the acknowledgement of service - there is generally something in terms of costs. But here there were no summary grounds. What would you say to perhaps the possibility of a compromise in the sense that I might make an order in relation to the costs of the acknowledgement of service but not the costs of today?

MR HOARE: My Lady if I may have one moment please?

MRS JUSTICE ANDREWS: That might well be fair.

MR NAJIB: My Lady, it is difficult to take any proper view on that. This has all been done, I accept, within the last week. The detailed grounds were filed I think, on Wednesday of last week and then I was instructed, then I prepared a skeleton argument that was served yesterday. So here we are in final hearing. It is quite a short period of time during which all the costs have been incurred. It is a question perhaps of putting it this way. If the acknowledgement of service, including the detailed grounds, the costs are recovered for that, then it is in effect saying the attendance at the hearing today has not been of any assistance. Perhaps I would submit it is the other way round. Notwithstanding the filing of acknowledgement of the service it is the preparation for the hearing and the hearing today, in which the issues have been aired and the Secretary of State has been represented, which warrants a cost order in our favour. It is a matter for you my Lady. It is ultimately a discretion you have as to what is the appropriate amount of costs. The alternative would be a percentage reduction on costs and to say the Secretary of State shall have X per cent of her costs.

MRS JUSTICE ANDREWS: Right. The Secretary of State has succeeded in the claim but she has done so against a background where there was a wholescale failure to comply with any of the rules of court. The acknowledgement of service was not served at the appropriate time, despite the obtaining of many extensions. It was not even served shortly after Hickinbottom J gave permission in November. It was not served in fact until, I think, the course of last week. The skeleton argument came late. That is probably a result of counsel being instructed somewhat late in the day. There has been no statement of costs in the acknowledgement of service, and there is no schedule of costs provided today for a summary assessment to be carried out. I am told by Mr Najib, and of course I accept, that in the past that has not been something that has been done. Detailed assessment is routinely sought and obtained. I find that astonishing, in that whilst I can understand it in cases where the claimant is legally aided, there is really no excuse for not complying with rules in the CPR for one-day cases.

But the real problem in this case is that if an acknowledgement of service had been filed with detailed grounds much sooner than now, either permission would not have been granted or if it had, it would at least have given the claimant a proper opportunity to take stock of what the Secretary of State's real position was. Who knows whether or not this claim would have been pursued to court had that taken place. It seems to me in the light of all of those matters, it would perhaps be unduly harsh to deprive the Secretary of State of all of the costs but I do not have any material whatsoever before me on the basis of which I can make an assessment of the costs that she should have.

I am not going to send this away for a detailed assessment. I think a marker has to be put down in relation to the undesirability of doing that, but it probably does not matter because what I propose to do is to allow the Secretary of State a sum of £1500 in respect of the costs of the acknowledge of service. I cannot imagine that the costs of the acknowledgement of service and the detailed grounds which were settled by counsel is likely to exceed that on the materials before me. It is unlikely to be less. Unless I am told that it is less, that is what I propose to do.

MR NAJIB: My Lady I did not settle the detailed grounds. Counsel did not. I believe that was --

MRS JUSTICE ANDREWS: I had assumed you had, from what you have just told me.

MR NAJIB: I did the skeleton argument once I had received the acknowledgement of service. My Lady, if that does not change your view then certainly --

MRS JUSTICE ANDREWS: Unless I am told that £1500 is too much, that is the figure I plan to settle on. That is really on the basis of figures that I have seen in like cases in other circumstances.

MR NAJIB: My instructions are that in light of the detailed nature, that would certainly reflect the number of hours that has gone into it and would be an adequate sum and I would take no further points on costs.

MRS JUSTICE ANDREWS: Then the order I will make on costs is that the claimant will pay the Secretary of State's costs of the acknowledgement of service and detailed grounds of defence, which I summarily assessed in the figure of £1500. I will make no order in relation to the costs of today. Thank you both very much.