England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		15 October 2014

1. THE DEPUTY JUDGE: I shall deal first with the application before me, that being an application by the Claimant to amend his grounds for seeking judicial review, and thereafter, to have permission to proceed with that judicial review.
2. Just by way of background, the Claimant initially made a claim for judicial review on 23 May 2013. He was then challenging a decision dated 26 February 2013 by the Defendant not to grant him further leave to remain as a Tier 4 student migrant. His claim, essentially, was that that decision made in February 2013 was unfair, unreasonable and unlawful. I summarise the fairly lengthy grounds.
3. However, the grounds for seeking judicial review at that stage appeared all to be directed towards the Defendant having rejected the Claimant's application under paragraphs 332(1)(a) of the Immigration Rules on the basis of non-disclosure of the facts, because he answered no to a question on the form about whether he had ever knowingly used deception.
4. The Defendant's position was that he had used a false certificate of acceptance form. The complaint in the original grounds was that that decision was unfair and irrational since, on 18 October 2012, the Upper Tribunal had overturned a finding that he had used deception in that there was no evidence that he had knowingly been involved in that deception, albeit the decision to refuse leave was upheld; in fact, upheld with the Claimant agreeing that that was the only decision that could be reached.
5. The claim was then put before Helen Mountfield, QC, sitting as a Deputy High Court Judge, on the papers. By that time, there had been some developments in that on 16 July 2013 the Defendant had issued a further decision essentially withdrawing reliance on the deception point, but maintaining the decision to refuse leave on the basis that the Claimant was an over stayer and had applied more than 28 days after his leave had expired.
6. That had also formed part of the original decision, but the challenge that was made was essentially to the first part, namely, what I have termed the deception point, although, as Miss Solanki has pointed out to me, there was some challenge to the second part within the grounds, but not highlighted in the way that the other point was.
7. When Ms Mountfield considered the application for permission, she had the original grounds. Unfortunately, although the Defendant had produced summary grounds of defence and the Claimant had apparently filed amended grounds in response, neither of those reached the court file in time for Ms Mountfield to consider them, so she was making her decision simply on the basis of the original grounds.
8. She, therefore, considered the application for permission on that basis. She granted permission, in essence, on the basis that it was arguable that the Defendant had proceeded on a fundamental error of fact about the deception such as to amount to an error of law. On that basis, the matter was listed before me for a substantive hearing.
9. It is clear to me, and it is accepted and agreed by both parties, that the scope of the permission granted by Helen Mountfield, QC did not cover the matters which are now included in the amended grounds and, in fact, did not cover what the Claimant now seeks to argue.
10. The heart of the Claimant's case now is that the decision on 16 July 2013, which would also cover the second part of the original decision, was unlawful because, in refusing the Claimant's application on the basis that he had overstayed his leave and had not submitted his application within 28 days of his leave expiring or, in this case, his leave being deemed to expire after the exhaustion of appeal rights, the Defendant had failed to apply her own policy.
11. It is accepted by the Claimant that it is correct that under the Rules, the Claimant's application did fall for refusal. But what the Claimant says is that under the policy, the Defendant ought to have taken account of exceptional circumstances and, therefore, exercised her discretion to allow the application and not refuse it simply on the basis of it being made out of time.
12. The exceptional circumstances relied upon, it is said, is that the Claimant initially had to challenge a decision that went through appeal, eventually going to the Upper Tribunal, that decision including a finding that he had used deception in a previous application. The decision of the Upper Tribunal was handed down on 18 October 2012 and was received by the Claimant on 19 October 2012. It seems to be that the argument that the Claimant seeks to put forward is that he did not have a sufficient period in which to obtain a new CAS and to make an application on that basis.
13. The Claimant says that despite having provided a CAS which was dated outside the 28 day grace period allowed, the Secretary of State did not consider the exercise of her discretion at all. There is no evidence at all that she went through the exercise of discretion and that it cannot be said that if she had done that, that the Secretary of State would not have exercised it in his favour.
14. The Claimant, through Miss Solanki, therefore, says that it is arguable, and, of course, at this stage I am considering only whether permission should be granted, that the Claimant can seek judicial review in order to secure an order that the Secretary of State should now exercise her discretion and consider the exceptional circumstances said to have been put before her.
15. Miss Rowlands resists the application. She takes a sensible and pragmatic course and accepts that really what I am required to consider is whether permission should be granted and, in doing so, whether there are reasonable prospects of success on those grounds. If there are, she does not seek to take any technical point about the amendment of the grounds, but her position is that whether it is dealt with by way of refusing amendment or whether it is dealt with by way of refusing permission, there is no proper basis whatsoever on which permission should be given. She says it is utterly unarguable that the decision can be challenged in the way that the Claimant now seeks to do so.
16. I have been assisted by submissions on both sides very helpfully and I have considered both the oral submissions of Miss Solanki and, indeed, the more detailed submissions set out in her skeleton argument, which was helpful and allowed a focus on the issues before coming into court.
17. In the response of Miss Rowlands, which she set out today, perhaps the key point that she makes is that in order to rely upon exceptional circumstances, the policy, being the policy on which the Claimant now seeks to rely, which is set out in the bundle specifically in page 162, makes it clear that if there are exceptional circumstances, the applicant must submit evidence of those exceptional circumstances with the application.
18. The policy also makes it clear that the threshold as to what constitutes exceptional circumstances is high and depends on the individual circumstances of the case. Some examples are given, including serious illness, travel or postal delays, or inability to provide necessary documents. There are then some further examples given, having made it plain that those circumstances are only to be treated as exceptional circumstances if they are exceptional or unavoidable circumstances beyond the applicant's control. Then some examples are given such as the Home Office being at fault, loss of or delay in returning travel documents, or delay in obtaining a replacement for documents as a result of theft, fire or flood.
19. Obviously, they are not exhaustive. They are not set out in that way, but Miss Rowlands makes the point that they do set a high threshold. They do not simply suggest that any inability to provide necessary documents will be treated as exceptional. If that were the case, Miss Rowlands says, in every case where a document was obtained late, it would exceptional and that would effectively mean that there is no time limit.
20. She also makes the point that the time limit is 28 days in addition to the period when an applicant should apply.
21. I have, as I have indicated, considered all the submissions made on the Claimant's behalf. However, it does seem to me that the arguments now put forward are not sufficient to justify the grant of permission. The Claimant did provide no evidence at all of exceptional circumstances. When pressed on this point, all that Miss Solanki could point to was the date on the CAS form itself and the provision of the decision of the Upper Tribunal. She indicated that that gave rise to a case for exceptional circumstances. I do not accept that that can be right or that it is arguable that that is right.
22. As Miss Rowlands properly points out, there is a trigger for the consideration of exceptional circumstances under the policy and that trigger is the applicant making it clear that he relies on exceptional circumstances and, therefore, wants the discretion to be reconsidered. If he does not do that, then the Home Secretary cannot be expected to question and consider whether there are exceptional circumstances. In fact, even if that had been done, the case would be that there had been no evidence put forward as to anything exceptional.
23. The Claimant had the decision on 19 October. He had a period of 46 days thereafter in which to make the application. There is absolutely no evidence as to what he was doing within those 46 days, what steps he had taken. The highest really that Miss Solanki puts it is that the policy also provides for a period of 60 days in different circumstances, namely, circumstances where, through no fault of the applicant whatsoever, the loss of sponsorship occurs and the applicant then has to obtain a new CAS form. Well, in those circumstances, the applicant has had no warning and no basis to make preparation. That simply is a different situation. To draw a comparison and say that it would be irrational and effectively unreasonable not to treat the Claimant in the same way just simply does not stand up to argument at all.
24. So for those reasons, I am afraid that my decision is that permission should not be granted. The grounds have not formally been amended and there there is, in fact, no formal application before me, but given that I find that the grounds are utterly unarguable, it seems to me that there is no purpose at all in granting permission to amend. Therefore, my decision is that the application for permission to amend is refused.
25. MISS ROWLANDS: I am grateful, my Lady. Just one thing occurs to me at this point. It is just that you did not refer to my skeleton argument. I do not know whether you have had one.
26. THE DEPUTY JUDGE: I am not sure I have, actually.
27. MISS ROWLANDS: It may be academic now, but I have got a spare copy, if you are interested for decorative purposes.
28. THE DEPUTY JUDGE: Would you like to pass that up? I can at least put it on the file. Sorry, I should perhaps have checked that at the outset.
29. MISS ROWLANDS: So should I, indeed.
30. THE DEPUTY JUDGE: As it turns out, it is academic.
31. MISS ROWLANDS: There is, of course, an application for costs from the Secretary of State. A schedule of costs was filed and served yesterday.
32. THE DEPUTY JUDGE: I have not got that either.
33. MISS ROWLANDS: Of course not.
34. THE DEPUTY JUDGE: Right.
35. MISS ROWLANDS: Of course, there is a typographic error there. My surname has not got its S on the end. But apart from that --
36. THE DEPUTY JUDGE: Right. Yes.
37. MISS SOLANKI: I do have a few issues to raise, my Lady.
38. Just in relation to the first figure that appears on the first page --
39. THE DEPUTY JUDGE: Right. So just dealing with principle of costs, no representations as to why the Claimant should not --
40. MISS SOLANKI: No.
41. THE DEPUTY JUDGE: -- pay the costs.
42. MISS SOLANKI: No.
43. THE DEPUTY JUDGE: So it is just a question of how much.
44. MISS SOLANKI: Yes, that is it.
45. THE DEPUTY JUDGE: Yes.
46. MISS SOLANKI: Attendances on clients, it amounts to 7.6 hours. In comparison, the Claimant's solicitors, who have a lay client, have spent 3.75 hours. It does seem excessive for this type of case for the Secretary of State to be spending 7.6 hours attending on a client. The point was most certainly a narrow one. She had to change her first decision --
47. THE DEPUTY JUDGE: Yes.
48. MISS SOLANKI: -- accepting that that was unlawful in that regard. So, really, that does not make much sense.
49. In relation to attendances on counsel, that amounts to around 8 hours. It is just in excess of. There are no bundles that have been served by the Secretary of State in this case. Counsel has clearly drafted the summary grounds of defence, but it does not appear that counsel drafted the detailed grounds of defence, because they have been signed off by the Treasury Solicitors. There will have been a skeleton argument today, but no doubt the instructions will not have been going to be very different. So 8 hours seems excessive in that regard as well.
50. THE DEPUTY JUDGE: Yes.
51. MISS SOLANKI: Work done on documents, on the next page, 10.8 hours. Now, I am handed a schedule of work done on documents just now by the solicitor instructing my learned friend. That includes counsel's fee -- this is the second item -- for drafting summary grounds of defence, 2.5 hours. It actually appears that there is a fee for counsel for advice, conference and documents anyway at £800.
52. It is not clear whether the review of the claim and the draft summary grounds of defence are being also claimed as additional items, and the skeleton argument, to what has been claimed by counsel for drafting the same. But in any event, in light of the fact that the summary grounds and the detailed grounds are almost identical, it would seem that 10.8 hours is really very excessive.
53. Thank you, my Lady.
54. THE DEPUTY JUDGE: Thank you. Yes.
55. MISS ROWLANDS: Working backwards, my fee for today is £800 plus £300. It is £300 for the hearing because it is a short hearing. £800 --
56. THE DEPUTY JUDGE: Right.
57. MISS ROWLANDS: -- is for preparation of the skeleton argument. The skeleton argument is effectively the detailed grounds of defence to the amended grounds as well. So it has taken quite some time to go through that.
58. THE DEPUTY JUDGE: Right. So I have read that.
59. MISS ROWLANDS: I did not do the detailed grounds.
60. THE DEPUTY JUDGE: When I did read the detailed grounds, it did strike me that they were very similar to the summary grounds, and, in fact, did not really respond to the amended grounds.
61. MISS ROWLANDS: No, because they had not been seen by then.
62. THE DEPUTY JUDGE: Right, okay. That makes more sense then.
63. MISS ROWLANDS: Yes.
64. THE DEPUTY JUDGE: I thought they did mention the amended grounds. In fact, I am pretty sure they did.
65. MISS ROWLANDS: Sorry, I may be wrong on that. No, they do mention the additional grounds, yes.
66. THE DEPUTY JUDGE: Yes, because actually what struck me was, although they purported to mention the amended grounds, they did not really go into an analysis of them and they maintained the position.
67. MISS ROWLANDS: As far as attendances on client are concerned, this is a case where --
68. THE DEPUTY JUDGE: So let me just check that. The fee that you have included is the fee -- or is included for you -- is for the skeleton argument --
69. MISS ROWLANDS: Yes.
70. THE DEPUTY JUDGE: -- and the fee for attendance.
71. MISS ROWLANDS: Yes.
72. THE DEPUTY JUDGE: Then --
73. MISS ROWLANDS: Preparation for the hearing.
74. THE DEPUTY JUDGE: Right. Then you did not draft the detailed grounds. They are --
75. MISS ROWLANDS: That is right. I did do the summary grounds, but not the detailed grounds.
76. THE DEPUTY JUDGE: Right. So the summary grounds are included within the work done on documents.
77. MISS ROWLANDS: They are, and not included in counsel's fee at the end there. They probably technically should be.
78. THE DEPUTY JUDGE: Yes. They should, should they not?
79. MISS ROWLANDS: It does not really make any difference to the final figure.
80. THE DEPUTY JUDGE: But how many hours is that? So that is the 2 and a half, is it?
81. MISS ROWLANDS: That is right, yes.
82. THE DEPUTY JUDGE: So 8.3 hours is the solicitors.
83. MISS ROWLANDS: Yes.
84. THE DEPUTY JUDGE: Right, okay.
85. MISS ROWLANDS: This is a case where we have had to send out a supplementary decision letter in the middle of case, of course.
86. THE DEPUTY JUDGE: Yes.
87. MISS ROWLANDS: So that does mean that hours go up. To compare attendance on our clients with attendance on the Claimant is not comparing the same thing.
88. THE DEPUTY JUDGE: But is it right to require the Claimant to meet all those costs when some of it was correcting, effectively, an earlier decision?
89. MISS ROWLANDS: It was always a decision that was bound to be upheld on judicial review because it was always the same decision that he was out of time when he made his application.
90. THE DEPUTY JUDGE: Yes.
91. MISS ROWLANDS: His claim has been doomed from the start and the Secretary of State has had to incur these costs in responding to it.
92. THE DEPUTY JUDGE: I think 7.6 hours does sound a lot.
93. MISS ROWLANDS: Can I just turn my back, please?
94. The only other thing to point out is simply the length of time that the case has been ongoing. We have had to chase the Claimant for bundles and things like that over the last week or so.
95. THE DEPUTY JUDGE: Right. Well, that would be in attendances on opponents --
96. MISS ROWLANDS: On opponents, yes.
97. THE DEPUTY JUDGE: -- which I do not think was challenged.
98. What about attendances on counsel of 8 hours? That sounds a lot as well.
99. MISS ROWLANDS: Again, there has just had to be a lot of to-ing and fro-ing because of the nature of the case.
100. THE DEPUTY JUDGE: Let me just --
101. MISS ROWLANDS: We are in your hands, my Lady.
102. THE DEPUTY JUDGE: Right. Well, this is a summary assessment, so I can only take a fairly broad approach, but I will, of course, look at the breakdown.
103. It does seem to me that when one looks at the combination of attendances on client, attendances on counsel and the work done on documents, that that is a very high level of input. I do understand that the case has been going on for some time. But, nevertheless, for what was a relatively simple point, it does seem that a large amount of work has been done.
104. Insofar as work has been added to by the need to produce a further decision letter, I do think that, to some extent, the Secretary of State has to bear some responsibility for that because the first letter perhaps did not set out the position quite as clearly as it might do and so there was some clarification in the second letter.
105. Plainly, it was thought necessary by the Secretary of State to take that course, I think rightly, but in order to clarify the position from the first letter. Insofar as that is the explanation, I do not think that it is an explanation that sufficiently justifies what seem to be high costs and requires the Claimant to pay for that.
106. So I do intend to make a reduction. I am going to reduce the attendances on the client by taking 2 hours off the 6.9 hours.
107. The attendances on counsel, I am afraid, I do struggle to see 8 hours of attendance on counsel. Given what I have been told about the work that has been done, I have not got sufficient explanation to justify that. It is 8 hours in total, I think, or thereabouts. I will leave the 3.6 hours at £160 per hour, but I am going to reduce the 4.7 hours down to 2 hours.
108. In relation to the work done on the documents, that is claimed, effectively, at 8.3 hours, if counsel's fee is taken out of that. Just let me check what we have got. I propose, perhaps not very scientifically, to take another 2 hours off the 10.3 hours.
109. I do not think there is any VAT on these costs, is there? So there will be a total of 4 hours at £160 to come off and 2.7 hours at £90.
110. Other than that, I am going to allow the costs and counsel's fees as claimed.
111. MISS ROWLANDS: Sorry, my Lady. Are you moving the costs of the summary grounds from work on documents to counsel's fees? We are clearly entitled to that amount.
112. THE DEPUTY JUDGE: I have not taken that off, no. I am simply going to take 2 hours off the work done on documents. What I have done is I have looked in the round at the work that has been done and I think that, overall, there has been too much claimed. If I were to be absolutely precise, it would take us far too long.
113. MISS ROWLANDS: Yes.
114. THE DEPUTY JUDGE: So I am allowing 8.3 hours at £160 an hour. I think that does still include your fee.
115. MISS ROWLANDS: I see.
116. THE DEPUTY JUDGE: Strictly speaking, we should jiggle it around, but I do not think that is necessary to do that.
117. So all together, 4 hours at £160 comes off and 2.7 hours at £90 comes off. Otherwise, I will allow the costs as claimed.
118. MISS ROWLANDS: I think that comes to £4,468 then.
119. MISS SOLANKI: I am just working out the last part.
120. MISS ROWLANDS: £4,468.
121. MISS SOLANKI: That does sound right, yes.
122. THE DEPUTY JUDGE: Do you need to just check it when --
123. MISS SOLANKI: Do you mind?
124. THE DEPUTY JUDGE: I will be in the court building. I will make the order in those terms. If you two can just check and make sure it is absolutely agreed. If it is not right and you are able to agree, a correction will be made under the slip rule. If you really cannot, then they will have to call me to come back in. I suspect that will not be necessary.
125. MISS SOLANKI: Thank you.
126. THE DEPUTY JUDGE: So I am going to make the order. Just give me one moment.
127. MISS ROWLANDS: Thinking through the order, my Lady, permission was granted on the original ground. Permission to amend has now been refused.
128. THE DEPUTY JUDGE: Yes.
129. MISS ROWLANDS: What do we do with the permission that was granted? Is the claim then dismissed?
130. THE DEPUTY JUDGE: That is a good point. Just give me one moment --
131. MISS ROWLANDS: Yes.
132. THE DEPUTY JUDGE: -- and I will come back to that. That is a good point.
133. Right. Miss Solanki, what do you want to do in relation to that? Do you want to withdraw the application in relation to the original ground?
134. MISS SOLANKI: Well, the position is that we have both accepted that there had to be a new grant of permission today --
135. THE DEPUTY JUDGE: Yes.
136. MISS SOLANKI: -- because of the change in decision making. So it is just the course of events that have led us into being in the situation that we are. If that is the most practical way forward, then yes.
137. THE DEPUTY JUDGE: Shall we do it as a recording that upon the Claimant accepting that the substantive hearing cannot proceed on the basis of the original permission --
138. MISS SOLANKI: I think I would be happier with that, yes.
139. THE DEPUTY JUDGE: Do you think that works, Miss Rowlands?
140. MISS ROWLANDS: We do need to have something finalised as to the case, do we not?
141. THE DEPUTY JUDGE: Yes.
142. MISS ROWLANDS: So we do need either the claim withdrawn or the claim dismissed.
143. THE DEPUTY JUDGE: Just a minute.
144. Yes. So we will put a recording in that upon the Claimant accepting that the application for judicial review can no longer proceed on the basis of the permission granted by Helen Mountfield, QC on 11 October, then the order will be:
145. One, that the Claimant's application for permission to amend his grounds for judicial review is refused on the basis that the amended grounds disclose no arguable ground in respect of which permission would be granted.
146. Two, the claim for judicial review is dismissed.
147. Three, the Claimant pays the Defendant's costs, summarily assessed in the sum of £4,468, unless you later tell me otherwise.
148. MISS SOLANKI: I have just worked it out. That is --
149. THE DEPUTY JUDGE: That is right. Okay, good.
150. Right. Now, would you draw up the order? Would you do it, Miss Rowlands?
151. MISS ROWLANDS: Certainly.
152. THE DEPUTY JUDGE: Thank you. What are you going to do with that? Are you going to submit it?
153. MISS ROWLANDS: An e-mail is being waved at me at the moment.
154. THE DEPUTY JUDGE: Thank you.
155. MISS ROWLANDS: So I will send that to my learned friend and then onto the court.
156. THE DEPUTY JUDGE: Right. You will do that as soon as possible.
157. MISS ROWLANDS: I will get back to chambers shortly --
158. THE DEPUTY JUDGE: Excellent.
159. MISS ROWLANDS: -- and do it now.
160. THE DEPUTY JUDGE: Thank you. As long as I can do it before I leave court. Thank you both very much.