QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(Sitting as a Deputy Judge of the High Court)
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent|
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Miss J Anderson (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
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THE DEPUTY JUDGE:
"does not allow someone to whom the EEA Regulations apply to make an application to revoke a deportation while they are in the UK... [and] which makes it clear that an application can only be made when the applicant has left the UK."
Detention was maintained at that stage and, as I shall explain, thereafter.
"Taking account of all of the circumstances and the previous judicial assessment of the relevant factors (many of which remain constant) along with the admission that the relationship with your client's former partner is no longer extant, it has been concluded that there would be no breach of article 8 ECHR by upholding the deportation order in this case."
"the Secretary of State or an immigration officer may certify a ground for the purposes of paragraph 4 [of Regulation 26] if it has been considered in a previous appeal brought under these Regulations or under section 82(1) of the 2002 Act".
Having referred to that power to certify a ground previously relied on, the letter concluded at paragraph 57:
"For all the reasons set out above, it is hereby certified that the present decision is one to which section 4(5) Schedule 2 (Regulation 30) of the 2006 Regulations applies. As a result, your client has no further right of appeal whilst in the UK."
I have struggled to understand the reference in that final paragraph to section 4(5) Schedule 2 and to regulation 30. It was common ground between the parties in this case that the relevant certification power arising for consideration by the Secretary of State was that to be found in Regulation 26(4) and (5) and those are the provisions to which the Secretary of State has referred in the penultimate paragraph of the decision letter. I will come back to the Secretary of State's reasons for certification.
(1) Issue 1. Was the claimant entitled in law to make an in-country application for revocation of the deportation order and, if unsuccessful, pursue an in-country appeal against a refusal to revoke the deportation order? On behalf of the claimant, for whom David Chirico and Catherine Robinson appeared and assisted me, it is contended that the claimant was entitled in law to those in-country rights, either because of provisions in the Citizens Directive or because of human rights guarantees in the Human Rights Act.
(2) Issue 2. Was the ongoing immigration detention of the claimant a violation of the familiar common law Hardial Singh principles on the grounds that, before the expiry of a period for detention (for the purpose of deportation) that was reasonable in all the circumstances, it had become apparent that the Secretary of State would not be able to effect deportation within a reasonable period? The claimant's submissions on that point require the legality of the detention to be tested against various dates, namely as follows. 2 January 2013, when the request was made originally by the solicitors. If not that, then 5 April 2013, when the judicial review proceedings were started. Or 14 May 2013, when permission for judicial review was granted. Alternatively, 22 May 2013 and 19 June 2013 which were both the points of time at which detention fell for consideration and review. On behalf of the claimant, it is said that he ought not to have been detained at any of those dates, and if, in relation to any of them, detention could not be justified, then he is entitled to remedies including compensatory, and not merely nominal, damages.
(3) Issue 3. Was the certification in the 15 November 2013 letter legally sustainable?
The key provisions at the heart of this case
"A deportation or exclusion order shall remain in force unless it is revoked by the Secretary of State under this Regulation."
On its face, that is an exclusivity provision which provides that the sole and exclusive route for revocation of an EEA deportation order is Regulation 24A.
"if the person considers that there has been a material change in the circumstances that justified the making of the order."
The key provision then in Regulation 24A(3) reads:
"An application under paragraph (2) shall set out the material change in circumstances relied upon by the applicant and may only be made whilst the applicant is outside the United Kingdom."
That provision, on the face of it, is excluding the possibility of any in country application for revocation of the deportation order. The combined effect of Regulation 24A(1) and Regulation 24A(3) is that on the face of it there could only be a revocation of such an order were an out of country application made, based on a material change in the circumstances.
"A person may not appeal under Regulation 26 whilst he is in the United Kingdom against an EEA decision...
(b) to refuse to revoke a deportation order made against him."
On the face of it, that provision makes clear that no appeal against a refusal to revoke could be made in country. I add at this point that Regulation 19(1A) provides that a person is not entitled to be admitted to the United Kingdom by virtue of Regulation 11 if they are subject to a deportation order.
"The Secretary of State or an immigration officer may certify a ground for the purposes of paragraph 4 if it has been considered in a previous appeal brought under these Regulations or under section 81(1) of the 2002 Act."
On the face of it, that is a provision which permits the Secretary of State to certify a ground such that, whether in county or out of country, the individual concerned would not then be able to pursue an appeal on or relying on that ground.
(1) The 2006 Regulations were the domestic implementation of the 2004 Citizen's Directive.
(2) Although the 2004 Directive does not guarantee an in-country application for revocation, nor does it exclude one. Article 32(2) of the Directive is describing the situation where the individual is out of country and a deportation order has been implemented. It provides that such an individual has no right of entry while their application to lift the deportation order, based on a material change of circumstances, is being considered. It does not, says Mr Chirico, exclude the possibility of the Secretary of State considering revocation in-country before the individual has been removed. Nor does the right to a review after two years, if not removed, under article 33(2), exclude the ability to revoke in an appropriate case before a two year period has elapsed.
(3) On the statutory scheme, an in-country application could have been advanced. Section 5(2) of the Immigration Act 1971 provides that a deportation order against a person may "at any time" be revoked by further order of the Secretary of State. As it happens, when the 2006 Regulations came to be made, that position was preserved because regulation 24(3) described the consequences of the underlying regulation 19(3)(b) decision, namely that the relevant provisions of the 1971 Act were to apply and that brought into play section 5(2) until regulation 24A came into being in 2009.
(4) In all these circumstances, it was unlawful for the Secretary of State to remove that pre-existing right of in country application. Article 37 of the Directive is headed "More favourable national provisions," and reads as follows:
"The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a member state which would be more favourable to the persons covered by this Directive."
Recital 3 of the Directive talks about codifying and reviewing the instruments dealing with work as self-employed persons and so on who are nationals of member states exercising rights of free movement and residence and speaks of simplifying and strengthening the right of free movement and residence of Union citizens. I was also referred to Metock v Minister for Justice  QB 318 in the light of article 37 and recital 3.
(5) What the Secretary of State was not entitled to do, in implementing the Directive, was to remove a pre-existing and more favourable protection than the Directive itself mandates.
(1) Under the provisions of the 2006 Regulations as amended, EEA nationals and relevant family members have no right of in-country application or in-country appeal to seek the revocation of an EEA deportation order, based on change of circumstances.
(2) Those who are non-EEA individuals who may have committed criminal offences which are identical in their seriousness, who may pose risk of harm which is identical in its seriousness, and who may in every other relevant respect be directly comparable, have the benefit under the statutory scheme of an in-country application for revocation and an in-country appeal. That point is illustrated by cases such as BA (Nigeria)  UKSC 7 and by considering the factual context of a case such as Mehmet  EWHC 741 (Admin). A directly comparable individual faced with deportation to, say, the United States therefore has guaranteed procedural rights to apply and appeal, in-country. These regulations serve to deny those same rights to EEA nationals and others affected by the EEA Regulations, beyond the narrow human rights removal point which I identified earlier.
(3) In a context where such deportees are advancing human rights arguments - for example that the ongoing exclusion, which the deportation order effects, is incompatible with ECHR article 8 private life or family life - this is a series of measures which fall within the "ambit" of ECHR article 8. If the case falls within the ambit of article 8, then it triggers the equal treatment guarantee of article 14.
(4) The EEA and non-EEA cases are relevantly similar such as to call for a justification of the differential treatment.
(5) "Very weighty reasons" would be required to justify that different treatment given that this is nationality-based discrimination.
(6) And so the question is: can the Secretary of State justify the difference in treatment?
"whether the situations to be compared were truly analogous, whether the difference in treatment was based on a proscribed ground and whether it had an objective justification."
As Lady Hale there pointed out, a rigidly formulaic approach is to be avoided. Then in Carson  UKHL 37, Lord Nicholls, at paragraph 3, emphasising the appropriateness of a simple and non-technical formulation, said the essential question:
"is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny."
At paragraph 31, Lord Hoffmann, spoke of difficulties in the formulation of separate questions which can be artificial, such that there may be:
"a single question: is there enough of a relevant difference... to justify different treatment?
Lord Walker at paragraph 63, again identifying the unsatisfactory nature of a:
"rigid, step by step approach based on comparators... [which may] obscure the real issue in the case which was why the complainant had been treated as she had."
And, finally, also as to comparators, AL (Serbia)  UKHL 42, Baroness Hale at paragraphs 22 to 24, dealing with the particular approach under article 14 to difference of treatment and comparators, and saying this at paragraph 24:
"It will be noted... that the classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator. They ask whether 'differences in otherwise similar situations justify a different treatment'".
Mr Chirico also emphasises the importance found discussed in the same judgment of Baroness Hale at paragraph 38, of the need to justify not the measure but the difference in treatment.
"As the judge pointed out, the provision for detention in each case forms part of a wider regime dealing with removal. Unlike nationals of other countries, nationals of the EEA are entitled to reside in this country and enjoy the protection from removal afforded by the Treaty and the Directive. They are subject to a different legal regime which cannot be directly compared to that which applies to other foreign nationals, who can be deported if the Secretary of State deems their removal to be conducive to the public good: see section 3(5)(a) of the Immigration Act 1971."
"Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous."
(1) This is a differential in treatment which cannot be justified and certainly does not constitute very weighty reasons. There is no feature here, which is a function of the risk posed by the individual deportee which could justify having a different procedural right and being required to leave the country before exercising it. Those affected by deportations are demonstrably not materially different: one can test that by taking serious cases to illustrate how clear the comparison is and that no bright line (see Carson at paragraph 41) could justify the differential procedural measures in this case.
(2) Justification cannot be provided by pointing to other benefits enjoyed by EEA nationals. The question remains whether the material disadvantage is one that can be justified. This cannot be seen as an 'equalising' case, that is to say positive discrimination to reverse the effect of some advantage and yield an overall level playing field.
"(iii) if, before the expiry of the reasonable period, [that is to say the period in which a deportee can be detained as being reasonable in all the circumstances] it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, [s]he should not seek to exercise the power of detention."
(1) The decision does not grapple with what the Secretary of State considered was "the ground" being certified in this case.
(2) The decision does not address the question of discretion that arises where a ground has previously been relied on in a relevant appeal. That discretion, in my judgment, is of great significance but, in any event, it plainly appears on the face of the empowering provision. It is not acknowledged in the letter that the Secretary of State is exercising a power, still less is any reason identified as to why it is considered to be appropriate to exercise that power.
(3) The discretion is a matter of clear relevance, in my judgment, in circumstances where it is true that article 8 and therefore incompatibility with human rights had been advanced in the original appeal, and article 8 was being relied on again, but where what was being put forward was a material change in at least two respects in the circumstances, and therefore the implications for article 8 for the claimant and his son.
(4) The letter therefore does not grapple with those changed circumstances, even in the narrow context of the act of removal and the necessary short term period, or period of at least up to six months while any out of country application is pursued, and why it was considered to be appropriate by the Secretary of State to certify and block any appeal.
(5) On my reading of the decision letter, the Secretary of State proceeded on the basis that the certification had the consequence that an appeal could be pursued, but only out of country. That, in my judgment, is also problematic. For the reasons I have given, it is not the consequence of a regulation 26(5) certification. It may be that the Secretary of State had in mind a different appeal in relation to a different EEA decision, but the reasoning in the decision letter is, in my judgment, wholly inadequate to enable this certification in the circumstances of this case to withstand legal scrutiny.
MISS ANDERSON: My Lord, I hope I can be brief. Consequentials: obviously costs. It is my submission that the vast majority of the claim has been rejected and indeed the reasons why it was contested (Inaudible) that might have been dealt with in a different way.
THE DEPUTY JUDGE: What do you say is the right order?
MISS ANDERSON: I would ask for the usual that costs follow the event and that the event is that the main body of the appeal has been dismissed and that the minor element isn't sufficient to cause a split costs order. Usually in public law, that is not done as it perhaps may be done more readily in private law. But my fallback argument would be if there is to be a split it has got to be a minor amount.
THE DEPUTY JUDGE: What do you say it should be?
MISS ANDERSON: It may make no difference because I imagine the claimant is legally aided.
THE DEPUTY JUDGE: Well, let's hear Mr Chirico. I am sorry if I have kept pronouncing your name incorrectly.
MR CHIRICO: My Lord, it is Ki-ri-ko (As spoken).
THE DEPUTY JUDGE: Well then I have, and I apologise. Nobody will see it in the transcript. What is your position on costs?
MR CHIRICO: The claimant was going to seek the claimant's costs in this rather than (Inaudible) so clearly doesn't agree with that. Our first submission would be that the claimant should receive his costs in their entirety in this application. Alternatively, that the claimant should receive a significant proportion of costs. It is right that the claimant hasn't succeeded in all of his grounds. He succeeded, however, in obtaining what, on the face of it and in the light of your analysis at the end of the judgment, what he sought ultimately, which is an in country decision first of all. So his initial complaint was that the Secretary of State was declining to consider his human rights application. He obtained that in these proceedings. His further complaint was that he is not entitled to appeal that at present.
THE DEPUTY JUDGE: From tomorrow, he can.
MR CHIRICO: As of tomorrow, he can do. So all of this is as of this afternoon. So those are the fundamental remedies that are sought.
THE DEPUTY JUDGE: You say claimant's costs. Do you have a fallback?
MR CHIRICO: The fallback position would be that the claimant should receive an estimate of 75 per cent of the costs. I am plucking that figure slightly out of the air. Actually, before I come to that, the fallback position would be that the claimant should receive costs as from the date of grant of permission, not specifically because the grant of permission changes anything, but because looking at the conduct of the parties since then, the Secretary of State did not defend the claim. What she did instead of that was issue a decision which, had that been taken earlier on, would probably have led to this claim not having to proceed. Had the Secretary of State taken a view of the certificate, the 15 November certificate, which was lawful, and withdrawn it and issued an appealable decision on the 15th, the reality is that all that would have been left of this judicial review claim, all that would be non academic would be a detention challenge. So we say the claimant should have the costs of everything relating to the consideration of a claim. She has done what the claimant asked her to do. She would have the costs of everything relating to the certification challenge because the claimant succeeded before you on that. All that would then be left is the detention. Our submission would be that either that is (inaudible) and costs should follow on that in any event. Otherwise that if you look at the amount of time that has been spent actually pleading this as opposed to both parties putting in lengthy passages about the law which are not tailored particularly to this case, and the length of time which has been spent both arguing it and in your judgment we would say a not very significant reduction should be made, for that reason.
THE DEPUTY JUDGE: I've just got one question.
MR CHIRICO: Yes.
THE DEPUTY JUDGE: If I decide that the correct order in principle might be a split order where you get a third of your costs and the Secretary of State gets two thirds of her costs, bearing in mind the prospect of set-off, is that something that you would resist, compared, to say, an order for no order for costs?
MR CHIRICO: I'm sorry, I missed, bearing in mind?
THE DEPUTY JUDGE: Three grounds; you've lost on two, you've won on one. So if I concluded that your client is entitled to a third of the costs but the Secretary of State is entitled to two thirds of her costs?
MR CHIRICO: Yes.
THE DEPUTY JUDGE: Because that is one possible solution. But I just want to make sure I have understood the practical implications of this. This is a Legal Aid case.
MR CHIRICO: Our instructing solicitor is not behind us today. We would want to take instructions on that. So if that were --
THE DEPUTY JUDGE: Because that would give rise to a set-off and I've had this problem before.
MR CHIRICO: Yes.
THE DEPUTY JUDGE: It was exactly what the court did in one of the Iraq cases, and that is on the legal perspective and gives rise (Inaudible).
MR CHIRICO: It is either something on which instructions could be taken about now, if you would like to deal with that now, or it's a matter, if that were the way that your mind was going, whether we could deal with costs by way of written submissions. I know you indicated last time it was not to be dealt with.
THE DEPUTY JUDGE: Well, no, we can only do what we can do, but.
MR CHIRICO: Could we have three minutes just for my colleague to try and take instructions on that particular point.
THE DEPUTY JUDGE: Yes. Can we deal with the other consequential while we are waiting?
MR CHIRICO: Yes, my Lord.
THE DEPUTY JUDGE: Miss Anderson, do you have any observations about the different possibility? It is in the mind at the moment. If you could say, oh well, you both won something: no order. Or a court could say, in principle: you've won on two thirds; they've won on a third. So you get two thirds of yours but they get a third of theirs. Then you are into that rather complicated scenario. Whether it makes any practical difference in this case, I don't know. Or one could say, well, the claimant has succeeded on a third of the case so should have a third of their costs. Those seem to me to be the most promising options at the moment that are open to me. I know you've asked for more than that, but I've heard what you've said about that.
MISS ANDERSON: Certainly, on practicalities, it does make a practical difference to the Secretary of State because in this current climate, as it were, money to pay legal costs has to be taken from somewhere else, and that literally means having less people working or something of that nature. So there is a real consequence for the Secretary of State. Of course, it's not so true for the claimant because it's public funds on the other side, but it's not a case in quite the same way of taking them away from operational matters or something of that nature. So there is a consequence. To some extent it is sort of public on both sides so that you don't have that other element. In terms of splitting of the order, I'm afraid I don't know sufficiently about Legal Aid to be able to make a submission on what would happen in that case. That is for the claimants to deal with.
THE DEPUTY JUDGE: Maybe I will have to defer that and make an order with my eyes wide open. I know there is authority on that point because I was in it. It is one of the Mousa cases.
MISS ANDERSON: Generally, there aren't split orders in public law cases because of the nature of public law cases, as it were. There is some authority. Although I think that there is always a discretion in court. The general rule is of course that the court assesses who has overall won, and that follows the event. So it is unusual to have a split order. There is clearly power to do that.
THE DEPUTY JUDGE: Yes.
MISS ANDERSON: And the general rule is a strong rule, but of course the court has the discretion to depart from it.
THE DEPUTY JUDGE: Yes.
MISS ANDERSON: There is plenty of authority that says how strong it is. I wouldn't argue too much against a split order in this case if it is practicable. To respond to my learned friend's submission, it is just inconceivable that this case would not have been contested if a decision -- if you look at the basis of what has been argued. It has been argued on that very broad challenge ground. No concessions have been made. Even on the last point about the scope of the appeal, no concession was made on that in the sense it had to be the broad full appeal with everything in it.
THE DEPUTY JUDGE: No, I understand that. I think I have your points. I am just, in my mind, weighing up those three candidates. It seems to me those are the three candidates: no order; claimant gets a third; claimant gets a third and the Secretary of State gets two thirds.
MISS ANDERSON: So, practically speaking, no order probably wouldn't actually make a lot of difference in practice to making an order. But we know that Legal Aid isn't a reason to make a different order.
THE DEPUTY JUDGE: Yes.
MISS ANDERSON: Practically speaking, a split order I would say have effects; we don't know the effects on one side, but it certainly has effects on this side. I'm sorry, my Lord, what was the final one?
THE DEPUTY JUDGE: The claimant had a third of his costs.
MISS ANDERSON: Of course that split order.
THE DEPUTY JUDGE: He's won on a third.
MISS ANDERSON: Yes, my Lord, well, I don't think I can assist you further.
THE DEPUTY JUDGE: No, all right, we'll see. So shall we deal with the other consequential matters?
MR CHIRICO: My Lord, yes. In terms of what is or is not conceivable, that is a costs point. Shall I wait and address you on that when I have instructions on something else, and I will deal with them together?
THE DEPUTY JUDGE: Yes.
MR CHIRICO: My Lord, then in terms of the remedies, could I suggest that in respect of 15 November 2013 decision, my Lord has quashed the certificate. Can the order therefore be formulated to be that paragraphs 56 and 57 of the decision of 15 November 2013 be struck out?
THE DEPUTY JUDGE: I think it is your paragraph 8 iii is what I had in mind. Quashing the decision certifying this claim, under paragraph 26(5). Nobody has addressed me on those references to other provisions in the next paragraph. I just notice it.
MR CHIRICO: No, my Lord, I didn't notice. I'm not sure if anyone would notice --
THE DEPUTY JUDGE: That would quash the certificate under 26(5). I am not aware that the Secretary of State is saying that there is some other certificate --
MR CHIRICO: My Lord, no. That's not the reason why I am asking this.
THE DEPUTY JUDGE: No.
MR CHIRICO: I'm also assuming that the last paragraph is simply an accidental --
THE DEPUTY JUDGE: A mistake. It's an asylum provision, I think.
MR CHIRICO: Yes. The reason I am asking for the order to be formulated in that way is that that will make clear that there remains a 55 paragraph decision which we say is the subject of a right of appeal.
THE DEPUTY JUDGE: Yes. This would be the same in any certification case, wouldn't it. If you judicially review the certificate and the certificate is quashed, the rest of the decision stands and the whole point you can appeal in country.
MR CHIRICO: My Lord, that is right. It's just there are sometimes issues, because the First Tier Tribunal likes to have a decision which is plainly an appealable decision. What the First Tier Tribunal most likes is a decision which is issued with a notice of appealable decision. But it would certainly like, I think, to have a document which you can understand is the decision. So what often happens when a section 94 certificate is quashed is that a decision is re-issued with notice of appealable decision, and we would ask for that whole process to be short circuited for the claimant and for the Secretary of State.
THE DEPUTY JUDGE: Right, well, I understand what you are asking for and why. Mandatory deletion of paragraphs from a letter.
MR CHIRICO: My Lord, yes. It is exactly the relief which was asked for but whether it can be clarified, which has the effect that paragraphs 56 --
THE DEPUTY JUDGE: Where do you ask for paragraphs to be deleted?
MR CHIRICO: No, no. It is what you read out plus a clarification: what that means is paragraph (Inaudible), 56, and 57.
THE DEPUTY JUDGE: So that is the order?
MR CHIRICO: Yes.
THE DEPUTY JUDGE: What else?
MR CHIRICO: In terms of permission to appeal, the claimant would seek permission to appeal in relation to grounds 1 and 2. In relation to ground 1, on three points. Firstly, 37 of the directive, sorry, the article 37 of the directive.
THE DEPUTY JUDGE: Just tell me the points because I am familiar with them. The article 37 point, I know about this.
MR CHIRICO: We would say that properly read, that has the effect that the claimant is (Inaudible).
THE DEPUTY JUDGE: You said I got that wrong?
MR CHIRICO: Yes.
THE DEPUTY JUDGE: That's fine.
MR CHIRICO: And then in terms of article 14, we seek permission on three points. Firstly that Nouazli shouldn't be followed, in spite of the Court of Appeal per curiam. Secondly, that you were wrong to distinguish it, and thirdly, that your finding in the alternative about justification was wrong.
THE DEPUTY JUDGE: Yes, I understand.
MR CHIRICO: We say that all of those are points of general importance. And then, finally, the regulation 18 point which we have reserved our position on. So those all go to the ground 1.
THE DEPUTY JUDGE: Yes.
MR CHIRICO: And the final point in ground 1 is that in any event, the Secretary of State erred in her 28 March decision in not taking a decision on the human rights claim that was before her. So if it's right that there was the power to treat that application as an application not to remove.
THE DEPUTY JUDGE: Yes.
MR CHIRICO: And then, finally, ground 2 we seek permission on primarily on the basis that we have always said that the lawfulness or otherwise of that decision, 28 March, is material to it. And so we say that consequently if we are right that that 28 March decision was unlawful, that impacts on the lawfulness of detention.
THE DEPUTY JUDGE: Yes. Are you able to complete your submission on costs?
MR CHIRICO: My instructing solicitor also doesn't know what the effect would be of a split order. On that basis, it is obvious from what you have said that asking for 80 per cent or 75 per cent may be unrealistic. If you are looking at split orders, I would invite you instead to make a percentage order in favour of the claimant. My submission, respectfully, would be a 50 per cent one. It is not right to say that it is inconceivable that these proceedings would not have gone ahead. Had there been any kind of defence in July, had the decision on 15 November been taken differently, the claimant, like anyone else who is legally aided, would have had to look at what the advantage was to be achieved for him by these proceedings. The 28 March decision becomes academic except for the purposes of detention, the moment that there is a later appealable decision. That becomes a point for the tribunal and not for judicial review. So we say it is not right to say it is inconceivable had the Secretary of State taken a different position. She has resisted the claimant on ground 3 right to today. Had a different position been taken on that, had an appealable decision been made, we would not have been here on grounds 1 or 3.
THE DEPUTY JUDGE: Okay. Miss Anderson. What is your position on mandatory deleting paragraphs of the letter?
MISS ANDERSON: My Lord, my submission is that that is not the appropriate order. The order should just be that the certificate is quashed. That is the normal order. I think it's a matter for the Secretary of State whether she does reshape the decision to conform to the judgment, in the sense of making it very clear what the removal and temporary exclusion point are.
THE DEPUTY JUDGE: Okay. And what is your position on permission to appeal?
MISS ANDERSON: On permission to appeal, I don't understand my learned friend. There are obviously two limbs to have said that there is another reason, as it were. With two limbs, real prospects of success or other reason why, despite not having real prospects of success, there is some other reason.
MR CHIRICO: Sorry, my Lord, if it wasn't clear, I was submitting that all of the article 18, 37 and discrimination points are points of general importance.
MISS ANDERSON: That may be so, my Lord, but if they are bound to fail, it doesn't really avail anyone. Normally, other reasons are things more like bias or something like that --
THE DEPUTY JUDGE: You say I should refuse permission to appeal (Inaudible).
MISS ANDERSON: So, it's just real prospect of success unless you are satisfied there are real prospects of success, in my submission your judgment is very clear that there aren't. It is not a marginal judgment that says you are in two minds but you have finally come to a certain point. It's very clear, it makes the whole scheme, it makes sense of it all. So I do resist that.
THE DEPUTY JUDGE: Are you applying for permission to appeal in relation to the point on which you lost?
MISS ANDERSON: No. And I would comment, my Lord. I didn't give it the most robust defence in terms of the actual wording of the certificate in the particular ground. The wide issue as to the scope of the appeal was important, and that has been decided by the court in a particular way that has shaped what appeal could go forward.
THE DEPUTY JUDGE: Yes.
MISS ANDERSON: And so, in my submission, if you were actually looking at the element of the actual costs incurred, as it were the time taken --
THE DEPUTY JUDGE: Are we back on costs now?
MISS ANDERSON: Well, my Lord, it is a bit of both, but, as I say, in this particular case, really the scope of what's been lost is small.
THE DEPUTY JUDGE: All right. Thank you both very much. As to costs, I am going to order that the claimant recover a third of his costs. That is the only order I am going to make in relation to costs. That reflects the position as to his success and the scope of his success. I accept that although it was one of the three issues, it has two aspects to it, because it has a legal consequence in relation to appeal, with which I also dealt in the judgment. I accept that the Secretary of State prevailed in relation to the other two points but, in my judgment, it suffices to disentitle the claimant from recovering the other two thirds. It was neither necessary nor appropriate to make a cross order that the Secretary of State should recover a portion of her costs. I am not persuaded as to the arguments about the whether the case would have been fought or not fought had earlier steps been taken. It seems to me that the parties were committed in relation to the important issues that have risen. I focused, in terms of the costs order, on what was arguable and what I have decided and who won and who lost and the overall justice of the case. So that is costs.
In relation to remedy, I will make the order quashing the decision of 15 November 2013 certifying the claim under paragraph 26(5) of the 2006 Regulations. I am prepared to say in open court, it is clear from my judgment that paragraphs 20, 56 and 57 of that decision letter cannot stand but, in my judgment, that is obvious from what I have decided. It is neither necessary nor appropriate to make a mandatory order requiring a letter to be rewritten or paragraphs to be deleted. So the remedy is the order to which I have referred.
I grant permission to appeal in relation to the first issue on both grounds, a realistic prospect, in my judgment, and the importance of those issues. I can say that I, for myself, would welcome the Court of Appeal looking at these issues and indeed looking at this statutory scheme. I am not so confident in my judgment as to think there is no realistic prospect that the court will take a different view in relation to that. I am not prepared to grant permission to appeal on the immigration detention point. As that point was argued before me, even though the first ground was being advanced, it was, nevertheless, squarely a Hardial Singh 3 point and not a parasitic on ground 1 point. There is clear Court of Appeal authority that although Hardial Singh is an objective question for the High Court, it does not follow that the Court of Appeal simply steps into the shoes of the court on an appeal to that court. In my view, I don't think the Hardial Singh ground does have a realistic prospect of success, and therefore I am not prepared to grant permission on that point.
So, those are the orders that I will make in relation to all of the consequential matters.
MR CHIRICO: My Lord, finally, can the claimant have a detailed assessment?
THE DEPUTY JUDGE: Yes, detailed assessment for Legal Aid purposes.
MR CHIRICO: My Lord, there was another thing, sorry. I am asked to apply for anonymity in respect of the claimant as well, because of the child. The reasons for anonymity are the likely public interest in this case and the fact that there is a small child involved who is likely to remain in the United Kingdom.
THE DEPUTY JUDGE: Miss Anderson?
MISS ANDERSON: My Lord, I don't have instructions on the point and I don't seek to make submissions on it. I certainly wouldn't seek to oppose it from that point of view.
THE DEPUTY JUDGE: I'm going to make the order.
MISS ANDERSON: But the only issue I'd raise is that the Supreme Court has made quite a few comments on the subject of anonymity and the openness of justice, and regularly de-anonymises cases when they come before them. Lumba was one of those. I think because there were submission by the press about alphabeti spaghetti and so on so forth and how it was now indecipherable, so it wasn't open justice.
THE DEPUTY JUDGE: What about liberty to apply?
MISS ANDERSON: I only raise them just as an officer of the court; I'm not actually raising them to oppose it. I am just simply drawing them to the attention of the court.
THE DEPUTY JUDGE: Well, it is made very late, but given there is a very young child, I am prepared to make an anonymity order so that the claimant should not be identified in any reporting of this case. Do you need something more than that?
MR CHIRICO: My Lord, no. May the case be referred, therefore, as "BXS".
THE DEPUTY JUDGE: The claimant will be referred to as BXS. I do so on the basis that there is a young child involved. But I will say liberty to apply. I also make clear that if this case does go further to the Court of Appeal, it will be a matter for that court to consider any ongoing question of anonymity.
I will just pause here to fill out the form in relation to permission to appeal.
Thank you very much. I would like to apologise to the court staff for having kept them so long. I would like to thank everyone for your patience while we went through a marathon read-out, and I would also like to thank both teams for the considerable assistance I have had, not just on the three issues, but the very difficult conundrum of trying to make sense of this regime in the absence of authority. So with that sincere note of gratitude, I will watch carefully to see what is said next. Thank you all very much.
MISS ANDERSON: If it is not appropriate, can we thank you for dealing with it in such a thorough way. I think it is really appreciated when the judge does go through everything.
THE DEPUTY JUDGE: I feel a bit better now.