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
		17 November 2015

MR JUSTICE WALKER:

A - Introduction

1. In this case there has been a failure to pay proper attention to the well-known principles discussed by Mr Justice Ouseley in R (Rathakrishnan) v Secretary of State for the Home Department [2011] EWHC 1406 (Admin). Application of those principles would have resulted in the termination of these proceedings in September 2014. Moreover, there has been a failure to recognise what would be needed if the proceedings were not to be terminated. There was an appreciation on both sides that permission to rely on additional grounds would be needed under CPR 54.15. However, it does not appear to have been recognised that permission for additional evidence would be needed under CPR 54.16. A remarkable feature is that the claimant in so-called "amended grounds" relied on expert evidence advanced in a different and separate case. Additionally, as it seems to me, there was all also a need to apply to amend the claim form.

B - Background and Procedural History

2. The claimant was born in Iran on 14 March 1988. He has described the circumstances in which he says he came to leave that country. What is known is that he was finger-printed in Italy on 11 May 2006. It is also known that in October 2013, having been found in this country, he claimed asylum here. He was held in detention. On 27 October 2013 a report was produced concerning allegations he had made of torture. The allegations were noted and detention was maintained.
3. On 30 October 2013 a screening interview was completed. On 4 November 2013 the defendant requested that Italy accept responsibility for the claimant under what may loosely be called the Dublin arrangements. The Italian authorities did indeed accept responsibility for the claimant under those arrangements on 15 November 2013. On 18 November 2013, in reliance upon the Italian authorities having accepted responsibility, the defendant certified the claimant's asylum claim as clearly unfounded. Two days later on 20 November 2013 the defendant issued removal directions. Under those directions, removal was scheduled to take place on 28 November 2013. In the interim, however, on 21 November 2013, the claimant submitted a pre-action protocol letter to the defendant. When that letter did not result in withdrawal of the removal directions the claimant lodged the present application for judicial review on 26 November 2013. On 29 November 2013 the defendant certified the claimant's human rights claim as clearly unfounded.
4. Just under three months later on 19 February 2014 judgment was given by the Supreme Court in EM (Eritrea) v Secretary of State for Home Department [2014] UKSC 12. It was after that decision that the application for permission to apply for judicial review came before Mr Charles George QC (sitting as a Deputy Judge of the High Court). By this time it was known that issues concerning return to Italy under the Dublin arrangements would soon be the subject of a decision in the Administrative Court. The case in question was R (Tabrizagh and Others) v Secretary of State for the Home Department [2014] EWHC 1914 (Admin).
5. By his order dated 13 March 2014, Mr George QC granted permission to apply for judicial review but directed that the matter was not to be listed until twenty-eight days after the judgment in Tabrizagh. In case-management directions he directed that the claimant should "file and serve any amended and further evidence" within twenty-one days of the handing down of judgment in Tabrizagh. After that had happened, the defendant was to file and serve detailed grounds for contesting the claim and any written evidence. In addition, any reply and any application by the claimant to lodge further evidence was required to be lodged within twenty-one days of service of detailed grounds for contesting the claim.
6. On 4 July the claimant filed and served a document headed "claimant's amended grounds". It is not clear to me that anything in the order made by Mr George QC gave permission for these grounds. No objection however was taken to them. Detailed grounds of defence were filed and served at a much later stage.
7. What then happened prior to the filing of detailed grounds of defence was that there was considerable activity in September 2014. This activity was, as it seems to me, prompted by the fact that the court had listed the matter for hearing on 28 October 2014 and there was much that needed to be done beforehand.
8. On 25 September 2014 the defendant's solicitor advised that the decision dated 29 November 2013, certifying the claimant's human rights claim, was withdrawn. It was added that the material submitted in support of that claim and any further material submitted within fourteen days of the proposed consent order would be considered by the defendant for the purposes of a new decision. In those circumstances it was submitted on behalf of the defendant that the present application for judicial review was academic. A consent order was proposed under which the claimant would "have leave to withdraw" the claim and there would be no order as to costs.
9. A reply dated 3 October 2014 from the claimant's solicitors noted that what was proposed on behalf of the defendant did not engage with the challenge to the defendant's decision of 18 November 2013 certifying the asylum claim. It was accepted that it would be appropriate for the proceedings to be stayed pending a new decision from the Secretary of State on the human rights claim. A draft consent order was proposed under which the claimant would submit further material, both in relation to the asylum claim and in relation to the human rights claim. The claimant's solicitor sent copies of the relevant correspondence to the court on 8 October 2014. The court was told that "as a consequence of these attempts to reach agreement with the defendant", the bundle and skeleton argument for the forthcoming hearing had not yet been submitted.
10. On 9 October 2014 the defendant's solicitor wrote to the claimant's solicitor referring to the decision in Tabrizagh. In her judgment in that case, Mrs Justice Laing had concluded that the evidential presumption that Italy would comply with its international obligations was not arguably displaced by reference to the general situation in Italy. Neither was there anything in any of the claimants' individual accounts which would enable the First Tier Tribunal to find that he was at a real risk of Article 3 ill treatment.
11. In those circumstances it was suggested on behalf of the defendant that it would be appropriate for the 28 October hearing be vacated to allow the defendant to reconsider the claimant's human rights claim. In the event that the human rights claim was refused, the defendant's solicitor's letter added that -

The SSHD considers that, in the particular circumstances of this case, the claimant should be given the opportunity to amend his grounds of claim in respect of that further decision and to clarify why the judgment in Tabrizagh is distinguished.

12. On 10 October 2014 a signed consent order was sent to the court. It was in these terms:

UPON the defendant having withdrawn the decision dated 29 November 2013 on the claimant's human rights claim

AND UPON the defendant agreeing to make a new decision on the claimant's human rights claim within eight weeks of signature of this order … to include consideration of the material submitted by the claimant in the course of these proceedings and any other material submitted by the claimant within fourteen days of signature of this order.

BY CONSENT

It is ordered that:

(1) The hearing on 28 October 2014 be vacated;

(2) The claimant ... fully intends to continue with his claim and, if appropriate, to file and serve amended grounds within twenty-one days of receipt of the defendant's decision.

(3) The defendant to file and serve grounds of defence within twenty-one days of service of the claimant's grounds referred to at (2).

(4) Costs to be reserved.

13. On 20 October 2014 a Case Progression Officer in the Administrative Court Office emailed the parties' solicitors. She advised that the Deputy Master of the Administrative Court had agreed to vacate the hearing listed on 28 October. However, the Deputy Master was not happy with the terms of the consent order in relation to amended grounds. Reference was made to Bhatti [2013] EWHC 3093 (Admin). The parties' lawyers were asked to explain why:

you should not start new proceedings and furthermore if you wish the case to be stayed/adjourned ... you should not automatically have leave to amend your claim form but will have to apply ... This requires [a] proper application notice and fee ...

14. On 21 October 2014 the defendant's solicitor wrote to the claimant's solicitor asking whether the claimant would agree to a consent order under which the claimant would have leave to withdraw the claimant for judicial review with no order as to costs. A response from the claimant's solicitor stated that the claimant would agree to a consent order "withdrawing this claim on condition that your client do pay our reasonable costs". There followed a lengthy exposition of why it was that the defendant should pay the claimant's costs. There was no reply to that response. The claimant's solicitor followed it up with a further letter on 26 November 2014. On 11 December 2014 the defendant's solicitor replied proposing that the matter of costs should be dealt with by way of written submissions.
15. What then happened was that on 16 December 2014 the defendant sent a decision letter addressed to the claimant's solicitors. In that letter it was recorded that it had been agreed that a fresh decision would be made on the claimant's human rights claim. The letter however dealt not only with questions of human rights but also with issues affecting the utilisation by the defendant of the Dublin arrangements. A central question examined in the letter was whether removal of the claimant from the United Kingdom to Italy would create a real risk that he would suffer treatment there contrary to Article 3 of the European Convention on Human Rights. The letter concluded that there were no human rights grounds that could be relied upon by the claimant and that there were no exceptional circumstances which might make a grant of leave outside the rules appropriate in his case. At paragraph 60 of the letter the defendant certified, under the provisions of Schedule 3 Part 2 paragraph 5 (4) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, that the claimant's human rights claim was clearly unfounded.
16. Following receipt of that letter, on 22 December 2014 the claimant's lawyer advised both the defendant's solicitor and the court that the claimant was no longer agreeable to withdrawing his claim. Instead, it was intended to submit an application for permission to amend the grounds by 10 January 2015 in order to address the new decision letter. What happened in January 2015 however was that the claimant's solicitor sought and obtained agreement from the defendant's solicitor to a stay of four weeks to allow an application for funding to commission the preparation of a "psychiatric and scarring report". On receipt of the medical report, the defendant was to have time in which to consider the new evidence. After further discussion between the parties on 9 March 2015 the court sealed a consent order signed by the parties for this purpose. Paragraph 3 of the consent order provided:

3 The full hearing to be listed for a date after 3 May 2015 to allow the parties to inform the court as to their respective position following any reconsideration [by] the defendant.

17. The next stage was that on 18 March 2015 the claimant submitted to the defendant further representations. Those representations included a medical report of Dr Maloney dated 26 February 2015 and a witness statement of the claimant dated 25 February 2015.
18. A further decision letter was issued by the defendant on 7 April 2015. After detailed examination of, among other things, the medical evidence and court decisions, the letter stated at paragraph 93 that the evidence presented by the claimant "does not even arguably approach" substantial grounds for believing that by reason of deficiencies or operational difficulties in asylum procedure in Italy the claimant would face a real risk of being subjected to inhuman or degrading treatment. The defendant again certified that the claimant's human rights claim was clearly unfounded.
19. Later, on 22 April 2015, a further Administrative Court decision concerning returns to Italy under the Dublin arrangements was handed down. This was the judgment of Mr Justice Lewis in R (MS and Others) v Secretary of State for the Home Department [2015] EWHC 1095 (Admin). Mr Justice Lewis in that case reached a decision which was in many respects similar to that of Mrs Justice Laing in Tabrizagh.
20. On 18 May 2015 the claimant's solicitor submitted to the defendant an addendum psychiatric medical report from Dr Maloney.
21. On 14 July 2015 a further decision letter was issued by the defendant. The defendant's conclusion was that the addendum report did not contain any new information or any significant concerns which would cause the decision of 17 April 2015 to be altered.
22. On 17 August, in response to a query from the court, the claimant's solicitor advised that an application for permission to amend the grounds would be submitted within ten working days. A request was made that "the listing of the hearing ... be stayed until our amended grounds have been considered by the defendant". A reply was sent by a case progression officer the same day. It stated:

If you wish the matter to be stayed, and it is agreed by the defendant, please file a consent order (CO) and in the event it is not agreed, please file an application notice (AN).

23. This led to discussions between the parties' solicitors followed by lodging, on 20 August 2015, a proposed consent order. A case progression officer responded that the proposed order could not be approved. The response drew attention, among other things, to CPR 54.15 stating that the court's permission is required if a claimant seeks to rely on grounds other than those for which permission to proceed has been given. There was then further discussion of the terms of the consent order.
24. Eventually, on 14 September 2015 the parties signed a consent order which recited the claimant's additional representations and medical evidence and the defendant's decisions of 7 April 2015 and 14 July 2015. It continued:

THE PARTIES SEEK PERMISSION FROM the court to rely on amended grounds of claim and amended grounds of defence.

BY CONSENT it is ordered that: -

(1) The claimant to file and serve amended grounds of claim within seven days of the sealing of this order.

(2) The defendant to file and serve amended grounds of defence within twenty-one days of receipt of the claimant's amended grounds referred to in (1) above.

(3) Permission for judicial review to be considered on the amended grounds of claim.

(4) Costs be reserved.

That consent order was sealed by the court on 16 September 2015.

25. On 18 September 2015 the claimant filed and served a document which, like the document filed on 4 July 2014, was headed 'amended grounds of claim'. Under that heading it set out what it described as a challenge to "the 14 July 2015 decision of the defendant, to certify as clearly unfounded on the third-country grounds the claimant's human rights application." It added:

Further, the claimant maintains his challenges [to] the 20 November 2013 decision of the defendant to remove the claimant to Italy.

Paragraph 2 of the document noted that the claimant had relied on two bases for suggesting that his removal was unlawful. They were described in this way:

(1) Italy never had responsibility for his reception under Directive 343/2003 after his departure from all EEA territories in 2006 and/or

(2) he faces a real risk of ill treatment contrary to Article 3 ECHR by way [of] poor reception conditions and/or destitution.

26. The amended grounds then stated that the claimant "here applies to amend his second basis". A number of grounds were then set out in support of the assertion that there was a real risk of ill treatment in Italy, contrary to Article 3 of the Convention. Under the heading "Evidence of Conditions in Italy", reference was made both to evidence that had been adduced in MS and to additional evidence.
27. By this stage the hearing of the claim for judicial review in this matter had been listed for today with a time estimate of two-and-a-half hours. Correspondence took place between the Court and the solicitors for the parties. The upshot of that correspondence was that the question whether the claimant should have permission to amend was to be determined at the hearing today.

C - The Rathakrishnan principles

28. As stated earlier in this judgment, the Rathakrishnan principles are well known to all practitioners in this court. In broad terms, it was held in Rathakrishnan that where the Secretary of State agreed to reconsider a decision it was not appropriate, save in exceptional cases, to stay proceedings for judicial review of the original decision rather than conclude them.
29. There are sound policy reasons why this general approach is appropriate. They were explained by Mr Justice Ouseley in paragraphs 9 and 10 of his judgment:

9 It would be a wholly exceptional case in which a claimant could postpone the effective quashing of the decision which he sought to have quashed in order that he might at some later stage bring a different challenge in respect of a different decision based on different evidence without having to go through the necessary applications, including payment of fees, for the purposes of challenging that further decision and should thereby evade the filter mechanism and simply take his place on a seemingly adjourned renewal application. Such a process has occurred in cases where permission has been granted or a renewal hearing is awaited, with the upshot being a series of letters which may or may not constitute the decision letter, further representations often addressed to the court rather than the Secretary of State by way of unamended grounds of challenge, amended grounds of challenge which are expressed in skeleton arguments without formal amendment and real difficulty for the court in knowing what is the focus of the challenge, what are the grounds that are relied on and what material can lawfully be admitted in order to show that there was an error of law. And due fees are left unpaid.

10 It is too often that these cases have come before the court at a point where the hearing is no more than an interruption in the process of the exchange of correspondence between the Secretary of State and the claimant. This makes for a wholly unsatisfactory process of litigation.

30. Mr Justice Ouseley noted by reference to the Court of Appeal decision in R v Secretary of State for the Home Department ex p Alabi [1997] INLR 124 that there might be a qualification where there was some particular reason why the possible future decision would continue to be challenged, for example, where it was inevitable that the particular point that was at issue in relation to the first matter was going to remain an issue to be resolved in relation to the second matter. After referring to that qualification, Mr Justice Ouseley continued (at paragraphs 15 and 17):

15 That is plainly not the case here. It is my judgment that a court considering how best to deal with this sort of case should be very reluctant to conclude that precisely the same point is going to apply to subsequent decisions in relation to the same claimant. There is also no need for proceedings to remain on foot on that basis because if the error is repeated it can be the subject matter of the fresh proceedings. To have two decisions that are the subject of challenge on partly the same and partly different grounds leads to muddle.

...

17 The concern that there might be an issue of wide and general application is also no reason, save exceptionally, for the claim to remain on foot because if an issue is of wide and general application there will be other cases that will raise the point. There may of course be a case in which that wide and general issue is sufficiently far advanced for it to be better for the matter to proceed but it is generally unwise for a case to decide such an issue if a fresh decision might make the issue academic in that case. The point I emphasise from those cases is that where a fresh decision has yet to be made and is going to be made, the existing proceedings should normally end. It may be otherwise where the fresh decision is actually already before the court at the time it comes to deal with the matter or there are other exceptional circumstances which mean that the proceedings should remain on foot. Legal aid difficulties in detained cases could be an example.

31. As to what should happen if it is proposed that the proceedings should remain on foot, Mr Justice Ouseley added (at paragraphs 18 and 19):

18 If an exceptional course is adopted, the question arises whether the amended challenge should start at precisely the point where the earlier challenge had been stayed because of the filter process. The court has seen a number of instances in which parties have merely agreed that the claimant should amend his grounds of claim if appropriate. The order can only be that he should apply to amend his grounds if appropriate. The court needs to consider the arguability of the new grounds, whether through a filter process or through a process of permitting amendment. If proceedings are stayed with a view to a further challenge to a further decision being made, it has to be made perfectly clear in any order that an application for permission to amend must be made. The eventual application must be supported by appropriate fees and provision must be made - for which the court's endorsement of the order would be required - as to the procedure by which arguability or the granting of permission to amend should be resolved, whether on paper or at an oral permission hearing.

19 The form in which that application is to be made should be spelt out. If the parties intend that after a stay pending a further decision the application for permission to amend should be made orally and the arguability of the fresh grounds should be considered orally - obviously at the same time - then the parties should so provide. It will be for the court to decide whether to accept such a consent order.

D - What should have happened in October 2014

32. By October 2014 the removal directions issued on 20 November 2013 (for removal on 28 November 2013) had been overtaken by events. The challenge on human rights grounds, along with the pre-action protocol letter and the application for judicial review, had had the consequence that 28 November had come and gone. As is apparent from the subsequent decision letters of the Secretary of State, the crucial question, both on ability to certify the asylum claim on third-country grounds and on the human rights claim, was whether return of the claimant to Italy would contravene the principles set out by the Supreme Court in EM (Eritrea).
33. It seems to me that in these circumstances the Deputy Master was right to be concerned about the proposed consent order of 10 October 2014. Indeed, in submissions this afternoon Mr Gilbert, subject to one qualification, accepted that the Rathakrishnan principles applied to that order. The qualification was that the defendant's solicitor had agreed to the proposed stay. To my mind, that makes no difference. There might be any number of reasons why, as a matter of convenience to one party or the other or both, they might think that it would be in their best interest for there to be a stay. They must recognise however that the court is required by the Rathakrishnan principles to consider whether it is in the interests of justice, not just in relation to the parties but in relation to other court users, for the matter to be allowed to remain on foot. The answer will often be that it would not.
34. Mr Gilbert then submitted that the court could have refused to vacate the 28 October 2014 hearing and instead could have insisted that the parties attend on that day so that the court could determine what would be the appropriate order to make. That, as it seems to me, is a suggestion which does not lie well coming from parties who were very keen indeed that the hearing should be vacated, who knew about the concern expressed by the Deputy Master and who could be expected by the court to take the appropriate steps to deal with the matter. The parties instead took far too long in debating the question as to which side should be responsible for costs. They could and should have recognised much earlier that they were unable to reach agreement in that regard and the sensible course was for costs to be the subject of written submissions.
35. The failure by the parties to take the course that should have been taken has resulted in precisely the sort of consequences which Mr Justice Ouseley warned about in Rathakrishnan. The case has stuttered from one set of representations to the next, from one decision letter to the next, from one set of "amended grounds" to the next. That is entirely unsatisfactory and the parties should not have allowed it to occur.

E – The application for permission to amend

36. Mr Gilbert submitted that this case fell within the exceptional circumstances identified by Mr Justice Ouseley in paragraph 17 of his judgment in Rathakrishnan. For the reasons given earlier, I do not agree. If, however, the case had indeed fallen within those exceptional circumstances then the procedure to be adopted was that described in paragraphs 18 and 19 of his judgment. There was no recognition to any substantial degree of this in the way that the parties went about further procedural steps in the matter.
37. Partial recognition of the need to seek permission to rely on additional grounds came about very late when the parties, on 14 September, agreed upon the terms of the consent order that they signed that day. The recital at least made it clear that permission would be needed. As Mr Gilbert accepted this afternoon, however, paragraph 1 was misconceived in referring to an apparent entitlement of the claimant to file and serve amended grounds. Moreover, paragraph 3 did not set out any clear, agreed procedure as to how a decision on permission would be taken.
38. There were other matters that were not addressed. No consideration appears to have been given by the parties to the requirement under CPR 54.16 to seek permission to rely upon evidence not otherwise falling within that rule. In addition, as I indicated at the outset of this judgment, it seems to me that there was a need to apply for permission to amend the claim form.
39. No application notice has been issued in any of these respects. The upshot is that there has been no orderly consideration of whether what is proposed is merely an amendment of grounds advanced earlier or is, in reality, a wholly fresh claim. I add - although it is not necessary to my decision - that the "amended grounds" have adopted a discursive style which does not make that task any easier. It is not however necessary to go into the detail of the amended grounds.
40. The way in which this matter has been dealt with since October 2014 has been lamentable. There was a failure to recognise that the case ought to have been brought to an end. That was followed by a failure to recognise that the proper procedures described by Mr Justice Ouseley would need to be followed if the case were to remain on foot. These key failures, when considered in the circumstances described above, lead me to conclude that permission to rely upon amended grounds should be refused. I add - although again it is not necessary for my decision - that my conclusion is supported by the failure to apply for permission to adduce evidence.
41. In that regard I noted earlier that the latest "amended grounds" appear to rely on expert evidence served in the case of MS. Mr Gilbert told me that the expert in question has not been instructed in the present case. The expert had been instructed by the claimant's present solicitors in MS. However that case is complete. Expert evidence can only be relied on with permission of the court. A vital aspect of that permission is that the expert must acknowledge the duties that are associated with that role. Among other things, an expert must draw to the attention of the court matters which come to the attention of the expert and which may have a bearing on the reliance which can be placed on the expert report. There would be no such safeguard if the claimant were simply permitted to put forward in this claim an expert report which had been prepared for a different claim.

F - Conclusion

For all these reasons I refuse permission to amend the grounds of claim. In the absence of such permission the claim is bound to fail and must be dismissed.