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
		21 July 2015

1. JUDGE WALDEN-SMITH: This is the substantive appeal brought by Mr Mahmood, a national of Pakistan, who the Secretary of State is seeking to remove. The reason why this matter is before the court for a substantive hearing is because the papers came before Sir Stephen Silber on 14 January 2015 when he made an order that unless the claimant served the relevant documents upon the Secretary of State, permission was to be deemed to be refused, but if the papers were served then the Secretary of State had until 8 February 2015 to serve an acknowledgement of service disputing the claim; failure to do so would result in permission being deemed as granted. The Secretary of State did not serve an acknowledgement of service in time and therefore permission was deemed granted. The acknowledgement of service and summary grounds were filed on 2 March 2015 and the detailed grounds of defence and skeleton argument combined were drafted on 16 June 2015. The Secretary of State says that Mr Mahmoud's grounds lack clarity and have the appearance of many applications made from detention centres. But it is possible to glean from the grounds the basis upon which Mr Mahmood makes this application for judicial review.
2. Mr Mahmood sought an adjournment of this hearing this morning and I refused that application for the reasons already given. In essence, there are two central matters that require consideration, the first of those being divided into two. First, the claimant argues that he should be entitled to stay in this country by reason of the various submissions made to the Secretary of State for asylum and that he has an article 8 claim. He contends that by deportation his rights under the Convention will be interfered with and that interference is not proportionate. The second main matter for consideration is his claim that the detention at Brook House Immigration Removal Centre between 6 June 2014 and 19 December 2014 was unlawful.
3. Mr Mahmood appears in person and has the benefit of an interpreter. It has been appropriate to take this matter quite slowly in order for Mr Mahmood to be able to understand the proceedings fully.
4. The history to this matter is that Mr Mahmood is a Pakistani national who entered the United Kingdom on 19 February 2011 with the benefit of a student visa. He did for a time live with his grandfather. Mr Mahmood says his grandfather is a British national and he says that they used to look after each other. Mr Mahmood's grandfather died in 2014. Mr Mahmood's brother also used to be in the United Kingdom but the Secretary of State was seeking to remove him and it appears from what has been said today, that he has now been removed. Mr Mahmood's student visa expired on 14 June 2012 and within a month before that expiry Mr Mahmood applied for asylum. That asylum claim was refused on 12 June 2012. The appeal to the Immigration and Asylum Chamber was also unsuccessful. Mr Mahmood became appeal rights exhausted with respect to that claim on 29 October 2012. On 31 October 2012 Mr Mahmood was detained and removal directions set for 27 November 2012, but the claimant was released on 16 November 2012 and removal directions cancelled as he applied for assisted voluntary return.
5. On 3 December 2012 he lodged an appeal against the decision to remove and on 6 December 2012 he withdrew his application for assisted voluntary return. The Secretary of State suggests that was a cynical endeavour to delay removal. The appeal against the removal decision was dismissed on 11 March 2013. The application for permission to appeal that decision of the First-tier Tribunal was refused by the First-tier Tribunal and the Upper Tribunal. Mr Mahmood became appeal rights exhausted with respect to that appeal on 26 June 2013.
6. Mr Mahmood has made six further submissions with respect to his claim, all of which were rejected. The submissions made on 15 June 2013 were refused on 13 May 2014. Further submissions on 9 June were refused on 4 July. A scheduled flight was requested for Mr Mahmood for 24 July 2014 but, as a result of further submissions made on 9 July 2014, that request was cancelled. On 4 August 2014 the submissions made on 9 July 2014 were rejected as not amounting to a fresh claim. Further submissions were raised on 7 August 2014, and refused on 28 August 2014. Removal directions were set for 11 September 2014, and further submissions lodged on 4 September were refused on 10 September 2014. On 11 September 2014 removal could not take place as the claimant was disruptive and refused to leave the immigration removal centre. Further submissions were made on 11 September 2014 and refused on 24 September 2014, which is the same date that Mr Mahmood's passport expired.
7. An earlier application for judicial review was refused by Upper Tribunal Judge Eshun on 16 September 2014. As a consequence of the passport expiring, the Secretary of State applied for emergency travel documentation but delays occurred as a result of Mr Mahmood failing initially to complete the necessary forms. The Secretary of State took steps to obtain an interview with the Pakistan High Commission. That interview was due to take place on 11 November 2014, and emergency travel documents were issued on 15 December 2014. On 31 October 2014 these judicial review proceedings were issued and as a consequence of these proceedings Mr Mahmood was released on 19 December 2014.
8. Turning first to the removal of the claimant, it is incumbent upon the Secretary of State to consider whether the new submissions made by the claimant amount to a fresh claim within paragraph 353 of the Immigration Rules. Paragraph 353 provides:

i. "353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(ii) had not already been considered; and

(iii) taken together with the previously considered material, created a realistic prospect of

i. success, notwithstanding its rejection."

9. Interpretation of those rules is helpfully set out within WM (DRC) and AR (Afghanistan) v Secretary of State for the Home Department [2006] EWCA Civ 1495. In the judgment of Buxton LJ, where setting out the task of the Secretary of State in paragraph 6, he says:

i. "There was broad agreement as to the Secretary of State's task under rule 353. He has to consider the new material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered. If the material is not 'significantly different' the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material..."

10. And in paragraph 7 he said:

i. "The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution..."

11. Further, in the case of AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535 in the judgment of Toulson LJ paragraph 23:

i. "Precisely because there is no appeal from an adverse decision under rule 353, the decision maker has to decide whether an independent tribunal might realistically come down in favour of the applicant's asylum or human rights claim, on considering the new material together with the material previously considered. Only if the Home Secretary is able to exclude that as a realistic possibility can it safely be said that there is no mischief which will result from the denial of the opportunity of an independent tribunal to consider the material."

12. And finally a consideration of the test that has to be applied in R(MN) Tanzania v Secretary of State for the Home Department [2011] EWCA Civ 193 in the judgment Maurice Kay LJ on the issues arising on the appeal said at paragraph 25:

i. "The first issue relates to the test to be applied upon Judicial Review of a refusal to treat further submissions as a fresh claim. Owen J applied the Wednesbury test. For the reasons I have already set out, I consider that he was correct in so doing. It seems to me that he would also have rejected the challenge if he had concluded that it was for him to form his own view as to whether the appellant would have a realistic prospect of success before an Immigration Judge."

13. It is clear, therefore, that in consideration of this matter that the court's role is limited to determining whether the Secretary of State has acted in a way that is irrational or Wednesbury unreasonable. The Secretary of State has to consider whether the further submissions taken together with the material already available do not create a realistic prospect of success before an immigration judge exercising anxious scrutiny in that consideration.
14. It is not a matter for the court to form its own view as to whether the claimant would have a realistic prospect of success before an immigration judge. In my judgment, in this case the Secretary of State has properly considered all the further submissions made by Mr Mahmood and she has acted in accordance with the rules set out in paragraph 353. She has come to conclusions which are neither irrational nor Wednesbury unreasonable and well within her decision-making powers. It is clear to me from a consideration of the decision letters that, while the Secretary of State was not satisfied with Mr Mahmood's case, she nonetheless considered his claim at its highest. In any event, in my judgment, Mr Mahmood's asylum claim failed to establish the essential elements of such a claim. First, he failed to provide any or any cogent evidence that he personally faces a real risk of serious harm on return to Pakistan. He refers to enemies or terrorists but his allegation is with respect to an attack or attacks on his father. Second, even if there were a direct threat to him, Mr Mahmood has not provided evidence that the Pakistani authorities are unable to protect him. Third, there has been no evidence provided that Mr Mahmood is unable to relocate within Pakistan if he were subject to a risk.
15. The other part of Mr Mahmood's claim with respect to removal is that it would result in an interference with his right to a family and private life. That claim was rejected by the Secretary of State and is said by her to be one totally without merit.
16. Mr Mahmood's brother was in this country unlawfully and I understand has now been deported. Mr Mahmood's grandfather, whom he used to look after and was looked after by, died in 2014. With due respect to Mr Mahmood he appears to be approaching his application before this court on the basis that as he has done nothing wrong, as in nothing criminally unlawful, and as he wants to stay in this country, he should be allowed to do so. That is not a right conferred by article 8 of the European Convention on Human Rights. As I understand the situation, Mr Mahmood's mother and siblings are in Pakistan and although he has said this morning that his mother could apply to remain in Britain, she has not done so. She is not present in this country, and as far as I am aware there is no other living relative in the United Kingdom.
17. Mr Mahmood has not suggested that there are any other reasons such as his own family by way of a partner and/or children so that removal would interfere with his article 8 rights. In my judgment, there is no basis for contending that removal of Mr Mahmood would interfere with his article 8 rights. The judicial review claim against the Secretary of State's decision to remove is totally without merit.
18. The next part of the judicial review application is with respect to the detention of Mr Mahmood between 6 June 2014 and 19 December 2014. Again, it appears that Mr Mahmood considers it was wrongful to detain him when he had done nothing criminally wrong. The power to detain is contained in paragraph 16(1) of Schedule 2 to the Immigration Act 1971. The power is also contained in section 62(1) of the Nationality, Immigration and Asylum Act 2002. As is accepted by the Secretary of State, the burden falls on the Secretary of State to establish that detention pending removal is lawful. A number of principles have developed known as the Hardial Singh principles. Those principles encapsulate the basis upon which detention may be lawful and are set out as follows by Lord Dyson in the case of Lumba [2011] UKSC 12:

(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal."

19. In this case, it is not disputed that the Secretary of State intends to deport and that Mr Mahmood was detained for that purpose. The issue is with respect to points 2, 3 and 4 and the reasonableness of the period Mr Mahmood was detained.
20. One of the principle issues that is taken into account with respect to whether the Hardial Singh principles are being complied with is whether there is a risk of absconding should the detainee be released.
21. In this case, Mr Mahmood applied for voluntary repatriation and then, after being released from detention, appealed the decision to remove and withdrew his application. In the R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804, Toulson LJ said that he accepted the submission made on behalf of the Home Secretary that where there is risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors and likely often to be decisive factors in determining the reasonableness of a person's detention.
22. In Lumba Lord Dyson dealt with the case where there are hopeless legal challenges made and said that if a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances. In the case of R(Amin Sino) v Secretary of State for the Home Department [2011] EWHC 2249 John Howell QC, sitting as a Deputy High Court Judge, said this:

i. "In my judgement the significance of a detainee's own conduct is inevitably sensitive to the facts of the particular case, like all other matters that are relevant to the application of the Hardial Singh principles. The Supreme Court may have rejected any exclusionary rule that generally required all delay occasioned by a detainee's own conduct to be disregarded. But equally it did not adopt any exclusionary rule that generally required the contribution that a detainee's own conduct may make to the length of his own detention to be disregarded. Thus in my judgment it is likely, other things being equal, that a reasonable period for the detention of an individual who does not co-operate in obtaining a travel document may well be longer than it will be in the case of an individual who co-operates."

23. In unlawful detention cases such as this, there is no one trump card which will determine whether detention is justified or not. There is always a complex matrix of fact and, in my judgment, the court is obliged to look carefully at all the various matters giving rise to the extended detention in order to determine whether the detention is reasonable and properly complies with the Hardial Singh principles. In this case, Mr Mahmood has behaved in a manner in which his own behaviour has resulted in the detention continuing. He has through the history of this matter introduced a number of new submissions in an attempt to avoid his removal. He made an application for voluntary return, pursuant to the assisted voluntary return scheme, which application he withdrew once he had been released from detention. When he was due to be removed on a flight, that removal proved impossible because of his own conduct.
24. Given his behaviour, the Secretary of State is justified in considering him to be a real risk of absconding. In my judgment it is his own conduct which has resulted in a lengthening in the period of detention. That lengthening of detention included a period when Mr Mahmood was failing to cooperate in the application for emergency travel documents. In all the circumstances, all the principles in 2, 3 and 4 of Hardial Singh have also been complied with, and the entire period of detention from 6 June 2014 to 19 December 2014 was lawful. Consequently, this part of the judicial review application must also fail. In all of circumstances, I dismiss this claim.
25. MS STOUT: My Lady, I am grateful. I do have an application for costs.
26. JUDGE WALDEN-SMITH: Yes.
27. MS STOUT: The statement of costs was served on the claimant when he arrived today, I am afraid, not before.
28. JUDGE WALDEN-SMITH: So you say these were served today, not yesterday.
29. MS STOUT: Yes. We were having difficulty contacting the claimant before this hearing. Various attempts had been made to courier things to him and phoning him, and he was not responding.
30. JUDGE WALDEN-SMITH: Okay, fine.
31. MS STOUT: The amounts are fairly straightforward. There is just one point to note in terms of my fees: that the advice conference documents figure there also includes my preparation for today, so that is everything all rolled up together.
32. JUDGE WALDEN-SMITH: Your fee for the hearing is charged separately.
33. MS STOUT: Yes. That is literally attendance today.
34. JUDGE WALDEN-SMITH: Yes, okay. Let me just ask Mr Mahmood what his position is on the costs. Mr Mahmood, the principle in cases that take less than a day is that there is an assessment that is a calculation of those costs on the day. What the Secretary of State is asking is first that she has an order for her costs as she has succeeded in defeating your application. And, secondly she is asking me to actually order a specific amount and that is why this statement of costs had been provided. Mr Mahmood, this is your opportunity to first of all say why you might think that the Secretary of State should not be entitled to her costs at all. I will say, Mr Mahmood, that if the Secretary of State gets an order for costs that does not necessarily mean that she will be able to collect the costs. As far as the court is concerned, if the person does not have the money to pay, then that does not stop the costs being awarded. So what I am interested first of all is if you, Mr Mahmood, have reasons you want to put to me as to why the Secretary of State should not have an order at all.
35. MR MAHMOOD: I don't have any money, I don't have a job. I haven't done any job. My time was invested in this country and I didn't have the chance to work and I don't have money. So that is why.
36. JUDGE WALDEN-SMITH: The usual order is that if the party succeeds then they are entitled to their costs.
37. MR MAHMOOD: One thing that I forgot and no decision has been made, but I do not have money.
38. JUDGE WALDEN-SMITH: With respect to the schedule, is there anything in particular that you would like to say about the schedule or would you rather that I dealt with that and made what I consider to be an appropriate order?
39. MR MAHMOOD: Neither I understood this nor I have money to give them.
40. JUDGE WALDEN-SMITH: I can understand that. Let me just talk to Ms Stout for the moment. The position of the Secretary of State on this is she wants an order, no doubt appreciating that the chances of enforcing it are limited.
41. MS STOUT: Indeed. As a matter of principle there should be an order following the event.
42. JUDGE WALDEN-SMITH: Yes. And no doubt for all sorts of reasons, it is useful to be able to show that there are orders when successful in proceedings.
43. MS STOUT: Yes.
44. JUDGE WALDEN-SMITH: What I am minded to do because I see no proper reason as to why you should not have an order for costs having sought them, is to make an order, but appreciating that Mr Mahmood is in a somewhat hampered position and is not going to understand the costs themselves, and to assess those doing the best I can with respect to what seems to be to appropriate amounts. I appreciate, Mr Mahmood, as the Secretary of State does, that the chances of actually getting any costs are very limited indeed given your present financial situation and that it would take a change in Mr Mahmood's financial position for the Secretary of State to be able to enforce.
45. Ms Stout, what I am minded to do is order a total sum. I will go through the schedule in detail if you wish me to do so, but to order a total sum on costs assessed at £7,500.
46. MS STOUT: My Lady, if you could give some explanation as to the reason for the reduction, in my submission the level of costs is very reasonable for a one-day full hearing, such as we have had.
47. JUDGE WALDEN-SMITH: Okay. In which case then, can you give me full details of the attendances on the clients: 3.4 hours on letters, that seems to be rather high.
48. MS STOUT: My Lady, the way it works within the Government Legal Department obviously is that communication with the lay client is always at a remove so every single communication with the client consists of an email or a letter rather than time spent in conference and so forth as you might have more normally.
49. JUDGE WALDEN-SMITH: Yes. But I'm just wondering in a case such as this as to precisely how much communication was going on with the lay client once instructions had been given to say there was this case that needs to be dealt with?
50. MS STOUT: Certainly it is mostly to obtain documents and I am certainly aware that there were many requests for documents that went to and from the lay client.
51. JUDGE WALDEN-SMITH: That may be the lay client's failure to actually respond properly to requests being made. Then the question is whether the losing party should be obliged to pay for the lay client's failure to respond. I am just curious as to the amount of effort that had to go in. Okay.
52. MS STOUT: I am also told, and you will have noted that there are a number of redactions in the documents produced, and each of those has to be approved by somebody higher up the chain, so there is a lot of passing things around that has to go on in order for the bundles to be produced.
53. JUDGE WALDEN-SMITH: And the attendance on opponents: is that attendance with Duncan Lewis or with Mr Mahmood?
54. MS STOUT: Mr Mahmood, as I understand it. I don't think Duncan Lewis ever came on the record so far as we were concerned.
55. JUDGE WALDEN-SMITH: So telephone conversations with him?
56. MS STOUT: There were attempts to contact the claimant by telephone. I don't know whether earlier on there were successful attempts? No. Certainly, easily the amount of time recorded on there could well have been run up just on efforts to arrange couriers and re-arrange couriers when they got to the claimant's property and then were not allowed in, and so on and so forth. Quite a lot of time has been spent on that side of things. And the bundles were sent to the claimant once by post and then because we did not know whether he had got them or not and he was not responding, they had to be couriered again and then they were returned and so on and so forth, so quite a lot of time has been run up dealing with that side of things.
57. JUDGE WALDEN-SMITH: Could you just explain to me the division in the work that is being undertaken between -- I see that Katrina Waters has obviously gone up a grade in the course of these proceedings, and that might explain it -- the split between the grade 6 and the grade 7 fee earner and the work they were doing. Were there two people working on this case constantly, or what was happening?
58. MS STOUT: No. Katrina has done most of the work and did indeed go up a grade in the course of handling the case and Nihal was covering when Katrina was away.
59. JUDGE WALDEN-SMITH: Maybe you can assist me whether, for example, where it says: "letters out 0.8 at £200" and "0.1 at £160" whether that is all Katrina but just the change of grade or whether it is two people at that point?
60. MS STOUT: Nihal, who is sitting behind me, has only been involved since Friday, in fact, so everything before that is Katrina, so most of this is Katrina, either at her grade 6 or her grade 7 level.
61. JUDGE WALDEN-SMITH: And the attendance on others that is there, I assume that is partly in court.
62. MS STOUT: Yes.
63. JUDGE WALDEN-SMITH: And anyone else, you, I assume?
64. MS STOUT: I think that is where I come in on the schedule. Yes, the costs of speaking to me and so forth will be on that part of the schedule. It is counsel's clerks and the court's clerks and me.
65. JUDGE WALDEN-SMITH: Can you explain to me the detailed grounds column or the work on documents, 11 hours. Because as I understood it, that was your work as part of the skeleton argument. Sorry, I see it says 22, so it may be that it is not 11, I don't know what that is, but if it is only being claimed as £22 then it may well be just reading, to which there can be no objection. I just don't understand why it says 11 hours. I am content to accept that £22 may have been spent on reading the skeleton argument if the 11 hours is just struck through.
66. MS STOUT: Yes, I am sorry. I would have to cross refer it to what has actually gone into the final amount that has gone into the total.
67. JUDGE WALDEN-SMITH: It is the 4640 figure, which is what, looking at it, the total is.
68. MS STOUT: I see, yes, sorry. That looks to me to be the total counting the £22 just adding it up very roughly.
69. JUDGE WALDEN-SMITH: Yes. And it may well be it should be 0.11, rather than 11.
70. MS STOUT: So it has only gone in as £22.
71. JUDGE WALDEN-SMITH: Yes, that's fine.
72. MS STOUT: You are right that my fee is the drafting of the grounds and the prep for today and advice.
73. JUDGE WALDEN-SMITH: I will give a very short ruling on the costs.
74. ruling
75. Having dismissed this application for judicial review in favour of the Secretary of State, I am asked to make an order for costs and, if I give that order, to summarily assesses the schedule, I am told that Secretary of State understands that the prospect of recovering any monies is limited but that she seeks the order understandably because the principle is an important one. So far as an order for costs being made, the principle rule remains, under CPR 44, that the successful party will recover their costs. That general rule can be displaced but there is no principled reason in this matter as to why the Secretary of State should not be given an order for costs.
76. I am therefore asked to summarily assess those costs. The figure claimed is £10,257.60 including VAT. I endeavoured to take, probably wrongly, a short cut with respect to those costs. But I have been asked to take a more rigorous approach in looking at that costs schedule. In doing so, I am going to reduce the amount sought for attendances on the client to 1 hour of the grade 6 fee earner. That is £200 for letters out and emails. The reason I do that is because without further information from the Secretary of State, it does appear that a lot of that work cannot be laid at the door of the claimant. For a similar reason, I am only going to allow 0.1 hours on the telephone. On attendances on opponents I will allow the amount claimed for letters out but not for the telephone. I am not going to interfere with the attendances on others. With respect to schedule of work done on documents, I am only going to allow 3 hours for the grade A or instructions to counsel and 1 hour for the category C, and 10 hours in place of the 13.2 hours for the disclosure exercise. Those three changes will reduce the total figure of the work done on documents, and that will have to be recalculated.
77. With respect to counsel's work and the attendance today, I am going to allow a total figure of £2,600 and, other than the change that that will make to the VAT claimed, I don't make any further amendment to the schedule. That figure will have to be recalculated and then if a draft order is drawn up then I can then approve it and have it sealed.
78. MS STOUT: I am grateful. I am happy to do the calculations when I get back to chambers and draw up an order.
79. JUDGE WALDEN-SMITH: Yes.
80. MS STOUT: The final matter, my Lady, is to seek an order from you that any application for permission to appeal against your decision by the claimant should not operate as a bar to his removal. That, of course, is actually the operative provision under CPR 52.7 because unless this court or the Court of Appeal says otherwise, an appeal does not operate as a stay but in cases where removal is in issue, the Secretary of State does ask for this order so that it is clear that the removal will be lawful.
81. JUDGE WALDEN-SMITH: Yes, I can understand the desire to have what could be called cover with respect to that. Yes, I will just hear if Mr Mahmood has any points to make on that.
82. Mr Mahmood, the situation is that having made the determination I have, there is no stay, there is no prevention or bar upon the Secretary of State to have you removed. In order to have a bar on removal, you would need to obtain a stay. If you were seeking to appeal my decision you would have the opportunity to go to the Court of Appeal but you can also apply to me for both permission to appeal my decision and you can also apply to me to stay the effect of my decision pending Court of Appeal involvement. So, in other words, you can apply to ask me to order at this stage the Secretary of State does though remove you. That is part of the appeal process. Mr Mahmood, are you seeking permission to appeal my decision and, if so, is that on any grounds different to those that you have already put before me? Do you seek an order that I prevent the Secretary of State at this stage from being able to remove you?
83. MR MAHMOOD: Yes.
84. JUDGE WALDEN-SMITH: And other than that which has already been said to me in your submissions, are there any other points you wish to make as to why I should give permission to appeal and/or stay the ability of the Secretary of State to have you removed at this stage?
85. MR MAHMOOD: I wanted to tell but probably I forgot that. I did not make any obstruction when the ETD are to be made, while making. When the form was sent to me the first time, I called then and asked them what is to be filled in. I wrote my name, my village detail and other things. I told them my passport is with you, and I do not remember these details. And I said, take it from there, I did not create any obstruction. I did what I was told. I did not cause any problem. And my brother is also in Turkey. There is danger to my life, and I request you that I shall not be sent by force. And for this I don't have any cost, I don't have any money, I don't know what to do. I have nothing. This is the whole situation.
86. JUDGE WALDEN-SMITH: Thank you.
87. ruling
88. I have invited Mr Mahmood to consider in light of my decision whether he would wish to seek permission to appeal that decision and seek a stay of the impact of my decision pending any appeal or any future application for permission. Upon my invitation to do so, Mr Mahmood has made such an application and he does so, first, on a new point that he did not raise before me, secondly, repeating points he made in the course of his substantive hearing.
89. The new point is that he says he did not interfere with the process of obtaining emergency travel documents, that he did not obstruct or cause any problems, but rather filled in the forms as he was asked. There is a conflict between his account and that given by the Secretary of State, but even accepting Mr Mahmood's position as being the correct one, given the various other matters that I refer to in my judgment, that fact alone would not make what is otherwise a lawful detention unlawful. I do not consider therefore that new point gives rise to any realistic prospect of succeeding on an appeal.
90. With respect to the other points raised in the course of the hearing, those were all matters that were fully taken into account, and I do not consider that Mr Mahmood has any realistic prospects of succeeding on an appeal against my decision. With respect to the application for a stay, I do not consider there is any justification for staying the consequences of my judgment dismissing his application for judicial review and, in the circumstances and in accordance with CPR 52.7, I will expressly order that any appeal or application for permission to appeal by the claimant to the Court of Appeal should not act as a bar to removal. So that is the order I make. I will also reiterate to Mr Mahmood that it is open to him, of course, to make an application for permission to appeal to the Court of Appeal. For that purpose he is likely to need a transcript of my decision. Mr Mahmood may benefit from visiting the RCJ Advice Bureau in this building, although it may be too late today, I don't know.
91. Is there anything further? I will ask Ms Stout to draw up the order and then obviously I will have that signed and sealed. Can I thank you, Mr Mahmood, for the manner in which you have presented your case today and also I thank the interpreter for his hard work.