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
		5 December 2014

1. MR JUSTICE JAY: This an application for judicial review brought by Fatya Mohammed.
2. The basic facts appear to be these that she came to the United Kingdom many years ago, I believe, in 1999 but the precise date does not matter. About seven years ago, I am told, she met her partner Mr Roger Negus and they married on 19 November 2012. At that point the claimant was an overstayer. Indeed, her leave to remain in the United Kingdom, I believe, had expired many years ago in or about 2001. Just before the marriage the claimant made an application to remain in the United Kingdom on the basis of her relationship with Mr Negus. After the marriage it seems clear that a copy of the marriage certificate was sent to the Secretary of State. It may be that it was not correctly united with the file. On 28 May 2013 the Secretary of State refused the application. According to the decision letter:

i. "You are not married to your sponsor and you do not have evidence that you have been living together for two years preceding date of application. Therefore, it is not accepted that you are a partner of a person present and settled in the United Kingdom."

3. Judicial review proceedings against that decision were filed on arguably the last available date, namely 28 August 2013. It might have been open to the Treasury Solicitor to say that the application had not been brought promptly. Sensibly however that point was not taken. It was at least just about within three months.
4. The case was considered on the papers by Mr Charles George QC (sitting as a Deputy Judge of this Division) on 18 December 2013. He pointed out - in my view entirely properly - that given that the defendant's refusal letter erroneously stated that the claimant was not married when in fact she clearly was, that letter seemed to be flawed. He also made the point, as Mr Makol for the claimant today points out, that the case justified a fuller and more specific consideration of Article 8 rights. Moreover proper consideration was not given to the issue of how long the parties had been living together.
5. Having received that adverse decision, the Treasury Solicitor and the Secretary of State took the pragmatic view that the decision really needed to be reconsidered. I say "pragmatic" although, to be fair to the claimant, I believe any judicial review would almost certainly have succeeded. The Secretary of State's position was made clear in February 2014. In June 2014 the defendant agreed to pay the costs.
6. What happened then was that on 25 April 2014, which was before the Secretary of State's final position on costs had been outlined, the Secretary of State took a fresh decision. The Secretary of State refused the application on the basis that the relevant Rules - and here we are talking about the Rules which were introduced on 9 July 2012 - were not satisfied. It was recognised in terms in the letter that the claimant has a genuine and subsisting relationship with her British partner. He has lived in United Kingdom all his life and has been employed here. The Secretary of State did not consider that relocation to Ghana would cause a degree of hardship. The Rules require there to be insurmountable obstacles to family life. The Secretary of State is not satisfied that there were. The case could not meet the requirements of the separate Article 8 provisions because the claimant had not been here for long enough. The Secretary of State finally went on to consider the issue of exceptional circumstances but concluded that there were not any.
7. The matter comes before me today not as a challenge to the original decision of 28 May 2013. It would be academic and wrong to countenance any further challenge to that decision. The Secretary of State has clearly stated that she will withdraw it and, furthermore, she has already reconsidered it. In my judgment there is nothing left in these judicial review proceedings. The costs have now been sorted out. The proceedings have, in substance, albeit perhaps not in form, come to an end.
8. Mr Makol, for the claimant today, directed virtually all his submissions to challenging the second decision made on 25 April 2014. I will come to the substance of the matter in a moment. But in my view one simply cannot overlook the form. The claimant has not sought formally to challenge that decision. It is true that the claimant has points to make about the lawfulness of that decision but those points have only been raised in correspondence and today in oral and written argument. The requirements of the Civil Procedure Rules have not been met in relation to that second decision. The view seems to have been taken that it would have been an abuse of process to seek to assail that second decision and that, as a matter of form, it remains appropriate for the claimant to challenge the second decision within the framework of the existing judicial review proceeding. Frankly, I cannot accept that that is a correct analysis of the law. The correct analysis is, as I have already stated, that the first decision no longer exists. It has been wholly overtaken by the second decision. If there is a legal flaw in the second decision then that decision needs to be the subject matter of fresh judicial review proceedings, the need for which proceedings cannot be ignored.
9. On one level that ought to be the end of this application. In the circumstances I should express some views about the second decision. If I were to do otherwise I might be leaving the claimant and her partner, both of whom I believe to be in court today, with a profound sense of grievance.
10. Mr Makol's submissions were that this case falls squarely within the principles set out by the House of Lords in Chikwamba [2008] UKHL 40. I have been referred also to a subsequent decision of the Court of Appeal in Hayat [2012] EWCA Civ 1054, where Lord Justice Elias, speaking for that Court, summarised the Chikwamba principles.
11. Equipped with those arguments, Mr Makol submits that the position here is really indistinguishable from Chikwamba, that if one takes a sensible and humane approach to these facts what we have here is two people who are in a bona fide relationship, they have been in such a relationship for seven years, they have been married since November or October 2012 (therefore two years) and it is not remotely sensible to require them to leave the United Kingdom, as the Secretary of State has suggested they should do, fly to Accra in Ghana which is some six hours away, apply there to the High Commissioner for an entry clearance, likely wait for a number of months for their application to be determined and then if that application is adverse finding themselves in a lengthy appellate queue. Overall, submits Mr Makol, that would be wholly unreasonable and it is not a step that the Secretary of State should be requiring this claimant to take notwithstanding the premise of the decision letter dated 28 April 2014.
12. I do not believe that it is right for me to express definitive views about the lawfulness of the decision letter dated 28 April 2014 because it is conceivable, just about, that a fresh challenge be brought to that letter. I do not overlook the time difficulties however.
13. In my judgment the issue is whether the Secretary of State's decision, which is to the effect that this case does not possess exceptional features, is a decision which is Wednesbury unreasonable. The Secretary of State has at least grappled with the issue. Chikwamba appears to have turned on its own particular facts. The Court of Appeal in Hayat noted that it was an exceptional case. In the circumstances of that case there was no sensible reason to require Mr Chikwamba to return to Harare in Zimbabwe and make an application from that jurisdiction.
14. The only so-called exceptional circumstance in this case is its basic features, namely that we have here a couple who have lived together for seven years and who are married. No one is saying it is other than a wholly bona fide relationship. We also have a sponsor who fully complied with the financial requirements which the Secretary of State now imposes in this sort of case. These, in my view, are not exceptional features. They are (if I can put it in these terms) standard features of a case which ex hypothesi complies with the requirements of the Rules in other respects. By that I mean that if this were not a bona fide relationship then self-evidently the claim should fail for other anterior reasons, but this is as bona fide relationship. But no evidence of any particular hardship has been put forward.
15. I am really being asked to take judicial notice of the circumstances and to sympathise with the sponsor and the claimant. To make it clear, I do have some sympathy with them but I have to approach this not as if I were the Secretary of State but on a much stricter basis, namely I am reviewing the reasonableness of the Secretary of State's conclusion that there are no exceptional circumstances here. The threshold is extremely high. I have to be satisfied that that decision is wholly unreasonable. I regret to say that on all of the evidence I cannot be so satisfied. This is not an exceptional case. Even it were open for this court to delve deeper into these facts, as I have ventured to do, that approach does not avail the claimant at all.
16. I shall make clear that the observations on the merits are, strictly speaking, outwith the scope of this application. The narrow scope and basis of my decision is that given that the Secretary of State has reconsidered the matter, this judicial review is no longer effectively extant as a matter of substance and that the challenge, if it is to be brought at all, must be, as a matter of law and principle, to the decision dated 25 April 2014.
17. It would be open to the Secretary of State, having heard my observations, to take a benevolent view of this case in all the circumstances; that would not be unreasonable. But I am not giving the Secretary of State any indication or steer. These decisions are decisions for Secretary of State caseworkers. They see far more of these cases than do the courts. Although I am on one level sympathetic to the claimant, I have to point out to her that she has been in this country for thirteen years without permission and that her relationship started at a time when she did not have permission. Those are considerations which, contrary to Mr Makol's approach, do not bear ignoring.
18. For all the reasons I have given, this application for judicial review must be dismissed.
19. Mr Jolliffe, what is the position on costs?
20. MR JOLLIFFE: The position on costs is that in respect of the first decision letter we agree to pay the claimant's costs. We indicated that that would be done in February this year, so some ten months ago or so.
21. MR JUSTICE JAY: I thought in June - - - - -
22. MR JOLLIFFE: The offer was made in February; the costs point was made in June. I am grateful for the correction.
23. MR JUSTICE JAY: Is not the correct order that the claimant has her costs until whichever date it was in June but you have your costs thereafter?
24. MR JOLLIFFE: Quite so. I suspect that may amount to something like an order for costs in substance.
25. MR JUSTICE JAY: Yes. Why do I not take a pragmatic line and say no order as to costs?
26. MR JOLLIFFE: May I take instructions? We would be content with that order.
27. MR JUSTICE JAY: Also tell the Secretary of State through me that although these decisions are for the Secretary of State - this is not a case where I feel it is right to make a recommendation to the Secretary of State but I have done that in some cases - the Secretary of State should consider whether it is reasonable to require this couple to go to Accra to make their application.
28. MR JOLLIFFE: I will pass that indication on.
29. MR JUSTICE JAY: Pass that on from me. If you pass it on in those terms I think that is a fair way of putting it. That is the best i can do, Mr Makol.
30. MR MAKOL: For the whole judicial review, up until the order in June we get our costs.
31. MR JUSTICE JAY: That is right - - no, no. Because they cancel each other out, probably - - - - -
32. MR MAKOL: What did you say? Cancel each other out?
33. MR JUSTICE JAY: Yes.
34. MR MAKOL: One year and six months.
35. MR JUSTICE JAY: No, because there is this hearing today. It is a contested hearing.
36. MR MAKOL: I understand, but that judicial review bundle took a lot of time and effort. Plus the costs of that would probably be £5,000. (To counsel for the defendant) I do not know what your costs were for today. What were your costs for today?
37. MR JOLLIFFE: They would be some hundreds of pounds in respect of my time and my solicitor. However as I think is well known, litigation costs tend to be backloaded so that trials or contested hearings like this are the more expensive part of them. I find the suggestion that there is £5,000 worth of professional time invested in the preparation of this bundle surprising, on the face of it. The alternative to "no order", what we would say is a sensible and pragmatic way of dealing with it, is to order detailed assessment of costs because there are no schedules.
38. MR JUSTICE JAY: That is the point I was going to make, Mr Makol. You have not submitted a schedule, have you?
39. MR MAKOL: No. I have not.
40. MR JUSTICE JAY: That makes the "no order" all the more attractive. I am entitled to take a pragmatic view and look at the whole position. You got more out of me than you deserve really, if I may put it like that. You have some message to go back to the Secretary of State. You presented this in a way that does not work as a matter of law, notwithstanding with a degree of disarming charm.
41. MR MAKOL: I liked the way you did the Leveson Inquiry.
42. MR JUSTICE JAY: I do not need to hear that. I also give you one piece of advice: your style of advocacy is to tell me what you think and what you believe.
43. MR MAKOL: It does not work like that. I read the law. I am from a different background.
44. MR JUSTICE JAY: It is what you submit. What you believe you can tell your clients about before and after. You can tell them that very frankly. But it is what you submit.
45. MR MAKOL: That is why I make a skeleton argument.
46. MR JUSTICE JAY: You see the difference. As soon as you personalise it you step outside the area that you are speaking.
47. MR MAKOL: Thank you. I appreciate the feedback.
48. MR JUSTICE JAY: Is there anything else, Mr Jolliffe?
49. MR JOLLIFFE: No.
50. MR JUSTICE JAY: Thank you both for your submissions.