England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		15 October 2015

1. THE DEPUTY JUDGE: This is an application for judicial review of three decisions made by the Secretary of State for the Home Department. The claimant is a national of Zimbabwe and his date of birth is 24 July 1975. The claim for judicial review relates to the following decisions made by the defendant:
2. First, a failure to determine an application for leave to remain in the United Kingdom made on 27 July 2011.
3. Second, a decision made by the defendant on 6 May 2014 to refuse to treat the claimant's submissions as a fresh claim for asylum.
4. Third, the decision to detain the claimant from 11 April 2014 to 20 June 2014.
5. Ms Anzani, who appears on behalf of the claimant today, seeks an adjournment of this hearing. This application is not opposed by the defendant.
6. The context for the application is this: until September 2015, the claimant acted in person. In September 2015, an application was made for legal aid, that application being made on 11 September. On 16 September, funding was granted. Following the grant of funding, the claim's solicitors had some difficulty in obtaining the necessary information from the claimant and instructed Ms Anzani of counsel on 5 October. Ms Anzani provided a skeleton argument which was served on the defendant on 9 October.
7. As might be expected when legal advice has been received, the claim was formulated in a different way to the way in which it had been formulated by the claimant acting in person. The reason that an application is made for an adjournment is for a number of matters of fact to be ascertained before the case is argued and in particular to resolve first a dispute as to when the claimant's appeal rights were exhausted, whether that was on 14 April 2014 or five days thereafter on the one hand, or on the other hand, in February 2014 when the Upper Tribunal refused permission to appeal from a decision of the First Tier Tribunal. The claimant is asking that the defendant particularise her case as to when the appeal rights became exhausted.
8. Second, the claimant is asking that the defendant's position on when a decision made in October 2011 refusing leave to remain in the United Kingdom was served. It appears that there is a dispute as to whether the October 2011 decision was served.
9. The third reason for the adjournment is to enable the claimant to formulate its case on when any section 3C Immigration Act 1971 leave rights where exhausted and whether any section 3C leave was terminated by the claimant making an asylum claim.
10. Although it is unsatisfactory to have to adjourn the hearing at such a late stage, I agree to the adjournment and do so on the basis that an adjournment will enable matters of fact to be resolved. It will enable both parties to clarify their case and therefore will allow for the case to be dealt with in a just and proportionate way.
11. I make the following order:

(1) 12. The substantive hearing listed for today, 15 October 2015, is adjourned.

(2) 13. The claimant is to make any request for additional documents from the defendant within 14 days; such request to be fully particularised.

(3) 14. The claimant is to file and serve amended grounds of claim within 21 days of receipt of the documents requested.

(4) 15. The defendant shall file and serve amended grounds of response within 21 days of the service of the claimant's amended grounds.

(5) 16. The substantive hearing shall be relisted for the first available date after receipt of the defendant's amended grounds. The case shall be listed with a time estimate of one day. When listing, the court should have regard to counsel's availability.

12. I now turn to the question of costs. The defendant has made an application that the claimant should pay the reasonable costs of the hearing today. The claimant opposes that application on the basis that he, and in particular his solicitors, have acted with due expedition in the circumstances of the case.
13. I make an award of costs in these terms:
14. Costs are reserved save that the claimant shall pay the defendant's reasonable costs of the hearing on 15 October 2015, which are to be subject to detailed assessment and subject to a determination of the claimant's liability to pay such costs pursuant to the relevant provisions relating to legal aid.
15. I make that order for the following reasons:
16. First, the need for the adjournment has arisen because of the claimant's reformulation of his claim.
17. Second, the reformulation of the claim arose as a result his seeking legal advice. He sought that advice on 11 August 2015. An application for legal aid was not made until 11 September 2015 and, following the grant of that legal aid on 16 September, steps were not taken to reformulate the grounds and notice of them was not given to the defendant until 9 October. The expense of this hearing could have been avoided if action had been taken more promptly by the claimant's solicitors and I have heard no clear explanation as to the reasons for the delays save that it was difficult to obtain instructions from the claimant.
18. Those are the orders I make.