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
		4 June 2015

1. MR JUSTICE HAMBLEN: This is an application by the claimants for permission to apply for judicial review. The application was lodged on 24 June 2014 and has been the subject of various directions by the court and has been directed to be dealt with by way of a rolled-up hearing if permission be granted.
2. By their application the claimants seek to challenge a decision of the Upper Tribunal on 13 May 2014 refusing to grant permission to appeal from a decision of the First-tier Tribunal. That decision had dismissed an appeal against a decision of the Secretary of State for the Home Department whereby she refused to vary leave to enter or remain and made a decision to remove the claimants. The removal aspect of those decisions were expressed in the following terms:

i. "If you choose not to appeal this decision, or you appeal and the appeal is unsuccessful, you must leave the United Kingdom as soon as possible when your leave to enter or remain in the United Kingdom expires. If you do not leave the United Kingdom voluntarily, you will be removed to ... "

3. In the case of the first, third and fourth claimants it is said that removal will be to the Congo; in the case of the second claimant, who is the husband of the first claimant and the parent together with the first claimant of the third and fourth claimants, it is said that removal will be to Nigeria.
4. The background is that the first claimant is a citizen of the Congo born in September 1983. The second claimant is her husband, a citizen of Nigeria, born on 1 January 1970. The first claimant arrived in the United Kingdom in August 2005 as a student, and she has remained here since with leave to remain as a student and subsequently with discretionary leave to remain. In April 2013, prior to expiry of her leave to remain, applications were made by all of the claimants for leave to remain on private and family life grounds. Those applications were refused and the applicants were served with the immigration decisions to which I have referred.
5. The claimants appealed to the First-tier Tribunal. The appeals were heard by the Tribunal Judge Chohan on 28 February 2014. By his decision of 13 March 2014 the appeals were dismissed. The First-tier judge considered that the family could return as a family unit to either Congo or Nigeria and that the criteria set out in paragraph 276ADE(4) of the Immigration Rules were satisfied as he considered that it would be reasonable to expect the third and fourth claimants to leave the United Kingdom and that as they would be returning as a family unit there would be no interference in family life.
6. Application for permission to appeal to the Upper Tribunal was made first to the First-tier Tribunal, which was refused, and then to the Upper Tribunal, which was also refused. The Upper Tribunal's decision stated as follows:

i. "Essentially, the present grounds are the same as put to, and considered by, the First-tier Tribunal. Having considered the determination, I agree with what the First-tier Tribunal said about those grounds in its decision refusing permission to appeal. The First-tier Tribunal judge correctly asked whether it would be reasonable for the child appellants to leave the United Kingdom with their parents. For sound reasons set out at paragraphs [21] to [25] of the determination the judge concluded that it would not. In doing so, the judge did not arguably fail to apply any binding legal authority or otherwise err in law. The burden was on the appellants to show that they could not all live in Nigeria or Congo.

ii. There is no arguable error of law in the determination."

7. The First-tier Tribunal's refusal of permission to which that decision makes reference includes, so far as material to the present application, the following:

i. "Ground 4 argues that the judge was not entitled to speculate as to the prospects of the family being able to live together in Congo or in Nigeria. His treatment of this issue at paragraph 38 did no more than recognise that the parents need not necessarily be separated if the necessary formalities and travel documentation for travel of the non national parent were complained with. There is no reference to any background evidence in support of the Appellant's contention that neither parent could reside in the other's country.

ii. No arguable error of law is disclosed by the application."

8. The principal ground upon which the application is made relates to the fact that the removal decision refers in the case of the first, third and fourth claimants to any removal which might be necessary being to the Congo, whereas in the case of the second claimant it referred to any such removal as being to Nigeria. It is submitted that the First-tier Tribunal judge was wrong in those circumstances to find that there would be no interference with family life because the decisions themselves were contemplating such interference by effectively dividing up the family unit upon which the judge rightly placed significant reliance.
9. It is submitted that the judge erred in law in concluding that the family would be returned as a family unit because the immigration decisions themselves made clear that that was not the case. It is submitted that, in the absence of an amendment of the immigration decisions and confirmation of the defendant that the family would be returned as a family unit, the judge was required to consider the decisions before him and whether those decisions would be in accordance with paragraph 276ADE and/or would constitute a disproportionate interference in their right to respect for family life. It is submitted that he did not so approach the case and that this is an error of law in relation to which this court should intervene.
10. This is a case which is subject to the second appeal test. That means that the claimant has to show either that the appeal would raise an important point of principle or practice or that there is some other compelling reason for the court to hear it.
11. As to what is meant by compelling reason, I have been referred to the decision of the Court of Appeal in the case of PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988, where the court considered what would constitute a compelling reason for the purposes of the second appeals test and concluded that (1) the compelling reasons test is intended to ensure that judicial review is an exceptional remedy (see paragraph 33); (2) the word compelling means legally compelling rather than politically or emotionally compelling, although such considerations may add weight to the legal arguments (see paragraph 36); and (3) international law obligations do not require claimants to be given a second appeal, there must therefore be a compelling reason why the issue on which the claimant has failed twice should be subjected to a third judicial process.
12. In relation to the first and principal ground of the application, it is necessary to have regard to what the First-tier Tribunal judge found. The relevant findings in his judgment include the following:

i. "17. ... The unusual feature in this case, as Ms Thomas pointed out, is that the first appellant is from the Congo and the second from Nigeria. However, that should not cause any difficulty. It would be a matter for the parties to decide which country they would be prepared to return to.

ii. ...

iii. 20. ... I find that the first and second appellants could pursue their private life in their respective countries, which is a choice that they would have to make. The requirements of paragraph 276ADE(vi) are not met. Alternatively, they could go to one country together. Again, that would be a matter for them to decide.

iv. ...

v. 23. ... I can appreciate that in view of the fact that the two children only know life in this country it is open to argument that it would not be reasonable to expect them to leave the United Kingdom. However, if returned to either the Congo or Nigeria, they would be returned with their parents, and that is an important factor.

vi. ...

vii. 25. On the facts and evidence before me, I find that there is nothing to persuade me that it would not be reasonable to expect the two children to leave the United Kingdom with their parents. Whether that is to the Congo or Nigeria, it is a decision their parents would have to make. The practicalities of returning to either country is something the parties would have to deal with i.e. visas etc. but it is not something that could not be overcome.

viii. ...

ix. 32. The first and second appellants came to the United Kingdom and established a family life in this country in the full knowledge that they had no legitimate right to remain here in the long term. Certainly, the second appellant has been an overstayer since 2005. However, I see no reason why the first and second appellants could not return to either the Congo or Nigeria and continue a family life in one of those countries. The family of four would be returned to either the Congo or Nigeria as a family unit and therefore the two young children would not be prejudiced. ...

x. ...

xi. 37. The bottom line is that the children's family life is with their parents with whom they have been with all their life. It is not a case that they would be separated from them. They would be returned to either the Congo or Nigeria as a family unit. ...

xii. 38. Ms Thomas submitted that because the parents are from different countries there would be a risk that the parents would be separated as well as the children. That need not be the case. The parents would need to make a decision as to which country they would wish to return to as a family unit. Of course, the necessary formalities and travel documentation would have to be sorted out but it is not something that cannot be dealt with."

13. The thrust of those findings is to the effect that this is a family which can go to either Nigeria or the Congo and continue to be a family. There are certain formalities which might need to be met in order to enable that to be done but on the judge's findings those are matters that can be dealt with and overcome.
14. Against that background, in my judgment, the judge was right to regard the Secretary of State's decision as not involving interference with family life. The decision was not one requiring immediate removal of any of the claimants, it was a decision that if they did not leave voluntarily when their leave to remain expired then they would be removed to the countries specified. That does not prevent them from making arrangements of their own as to which country to go to should they wish to continue to live as a family unit. The substance of the finding made by the judge is that they can be a family unit whether it be in the Congo or Nigeria and it is a matter of their choice. This is something that can be arranged regardless of what has been said in the removal decision. Even if arrangements are not made in advance of any removal, they can be made immediately following the removal and the family can continue to be a family unit whether it be in the Congo or Nigeria. In my judgment this is an important and justified finding which underlay the judge's determination that this is a family that can remain as a family unit. I consider that it is artificial to analyse the case purely in terms of what the removal decision said and to ignore the realities, which are that these claimants can make arrangements to continue to be a family unit whether it be in the Congo or Nigeria.
15. In those circumstances, in relation to the first and principal ground, I have reached the conclusion that there is no important point or principle or practice and equally there is no compelling reason which would justify the grant of permission for judicial review.
16. Ground 2 relates to the 7-year rule and the fact that both children have been in the United Kingdom for 7 years. Under paragraph 276ADE(4) of the Rules it is provided that where an applicant is under the age of 18 years and has lived continuously in the United Kingdom for at least 7 years, that is an important factor to take into account. That reflects, it is submitted, the Secretary of State's previous policy (the so-called the 7-year child policy) which was to the effect that absent special circumstances it would be unreasonable to expect a child to leave the United Kingdom where he or she had resided there for a period of 7 years.
17. The judge clearly had regard to that policy and makes reference to it in his findings. The essential point made is similar to that made in relation to ground 1, which is that the judge has erred in seeing as an answer to this point the fact that the family could leave as a family unit. In my judgment, that was not an error because the reality is that on his findings they can still all be a family unit in either the Congo or Nigeria.
18. It was also submitted that insufficient regard had been had to section 55. But section 55 considerations are part of the Rules and were all no doubt considered by the judge as part of his consideration of that part of the case. Indeed, in later parts of his ruling he makes express reference to section 55. Again, my conclusion is that this ground does not raise any important point of principle or practice nor does it demonstrate a compelling reason for allowing or granting permission.
19. In all the circumstances I refuse the application.
20. MR JOLLIFFE: I am grateful to your Lordship. We seek our costs of today and of the acknowledgement of service. The AOS costs are sought in the sum of £315. There is also my fee for attending today in the sum of £750.
21. MR JUSTICE HAMBLEN: I am not very sympathetic to that application in view of your history of default. It seems to me that that should be marked in some way by the court. Not yours personally.
22. MR JOLLIFFE: My client's, certainly. May I address your Lordship on that briefly. I fully accept the force of that and I indicated in my resistance to Ms Bayati's application that we should be disbarred this morning that there might be some costs sanction as an appropriate alternative to disbarment. We do make that application, your Lordship, for this reason: the acknowledgement of service has been filed a bit late and I think from your Lordship's judgment it has been of some assistance. Plainly I have had to attend this morning. The claimant has brought this judicial review challenge and would have been, or certainly should have been, advised as to the difficulties of bring a Cart judicial review. The legal test is extremely demanding and it comes from a Supreme Court authority and is, or should be, well known. While I entirely accept the force of your Lordship's point that the Secretary of State did not comply with King J's order, we say the appropriate way to mark that would be by way of a reduction in our costs rather than no order at all. As I say, we say that the AOS has been relied on and has formed a part of your Lordship's judgment and I hope that my submissions this morning have also done so. I would invite your Lordship to reduce them by an appropriate proportion. But it seems to me to make no order is to say that because of the defendant's default your unarguably bad challenge should not receive any costs sanction at all.
23. MR JUSTICE HAMBLEN: Are there any observations you would like to make, Ms Bayati?
24. MS BAYATI: My Lord, yes. First in relation to the comment made by my learned friend of the unarguably bad challenge. I would first note that of course King J considered this application on the papers, on the face of it he considered that permission should be granted but that he should hear from the Secretary of State. That was his preliminary view. There was also a hearing in March where costs were reserved and the costs of that hearing were precisely because the Secretary of State attended not having given notice prior to the court that she was seeking to be involved. Then we have the further delay, and I appreciate there were reasons behind it but nevertheless there was a further delay in the failure to comply with the order of Morgan J also. My Lord, in my submission, having regard to all of those factors, I would ask you to make no order for costs.
25. MR JOLLIFFE: May I respond to those points briefly, your Lordship. I do not need to take up a great deal of time. It is incomplete to say King J considered the claim was arguable, he said that without sight of the acknowledgement of service and that plainly makes a difference. Your Lordship has found that it is not arguable, hence the refusal of permission to bring judicial review. So the submission that this is an unarguably bad case simply follows from your Lordship's judgment. This is a case the lack of merit of which should be sanctioned in costs and the proper way should be a reduction rather than a total negation of the Secretary of State's costs.
26. MR JUSTICE HAMBLEN: How much costs are you seeking?
27. MR JOLLIFFE: £315 for the acknowledgement of service and £800 for my attendance today.
28. MS BAYATI: It has gone up.
29. MR JOLLIFFE: It is not a permission hearing, it is a rolled-up hearing.
30. MS BAYATI: You said £750 a moment ago. You asked for £750 a moment ago.
31. MR JOLLIFFE: I am sorry, I will be held to the lower figure. It does actually depend on an hourly rate.
32. MR JUSTICE HAMBLEN: In the ordinary course I would make some order for costs in favour of the interested party in this case, who has provided an acknowledgement of service and provided assistance to the court but it is a matter of discretion and I am concerned about the history of this matter and the fact that the interested party has persistently ignored orders of the court: firstly, the order of King J which required an acknowledgement of service to be provided; there was then the costs of what should have been an unnecessary hearing before Morgan J; and there was then the further need to deal with an extension of time for the by now very late acknowledgement of service, which although ultimately there were circumstances which intervened the day before the deadline, it is quite clear that despite the history the Secretary of State was not doing all that could be done to ensure that the deadline was met, if it had not been so it would have been well in advance of the last moment. So I do think it is right that this court makes it clear that if a deadline is given it expects it to be observed and costs should not be incurred, as they have been in this case, by both parties as a consequence of non-observance of those timings.
33. In those circumstances, bearing in mind those further hearings involved the claimant in costs, I consider the appropriate order is no order for costs. Thank you both for your submissions.