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
		26 November 2014

1. THE DEPUTY JUDGE: In this case judicial review proceedings have been brought arising out of a complaint that the Secretary of State refused or failed to consider the claimant's case which has been outstanding since 2000.
2. The brief factual background to it is this. The claimant, who was born on 7 July 1983, is Nigerian. On 4 October 2000 she was aged 17 and arrived in the United Kingdom with her younger sister, Natasha, and both made asylum claims. On 1 December 2000 the defendant advised if the claimant wished to seek asylum they should attend a screening unit, which the claimant failed to do. It might actually be of relevance for me to read out the two letters. The letters which were sent by the solicitors then acting for the claimant, dated 4 October, say:

"We refer to the above named who has consulted us regarding her immigration affairs.

We are instructed to apply on her behalf for her to be granted refugee status in the UK. This application is made on the grounds of her well-founded fear of persecution by reason of race/nationality/religion/membership of a particular social group or political opinion pursuant to paragraph 327 of HC 395.

Our client expresses her willingness to attend the Home Office for any interview you may wish to call regarding this matter."

3. Three points are worth noting about the letter. The first is that it is written by the solicitors acting for her; the second is that the claim made in the letter is very unspecific in terms of what actually the ground for seeking asylum is; and the third is that the solicitors expressly indicate that their client is available for an interview.
4. The Home Office reply, which is two pages, is a standard form proforma letter. The first two paragraphs read:

"Thank you for your letter of 4 October 2000 indicating that you wish to apply for asylum.

If you want to pursue this claim you should, within the next four weeks, attend the Asylum Screening Unit, Block B, Whitgift Centre, Croydon for interview between the hours of 9.00-12.00. Your husband/wife, children and other dependants who are in the United Kingdom must attend with you. Please bring this letter with you; it will help us to find your papers more quickly."

On that letter is a reference number.

5. The sole response to that letter was a letter from Shillingford again, dated 13 December 2000:

"We refer to your correspondence ... regarding the above named for whom we act ...

We note that you have invited her for an interview on her application. Our client is a 17 year old and still a minor. We would kindly request that her matter be dealt with under the child module.

Please confirm your intentions.

Please contact us if you require further details."

6. Again, two particular points worth drawing attention to: the first is that this letter certainly does not indicate an unwillingness to attend an interview; and secondly, it refers to a procedure called "the child module", which, having pressed counsel for the Secretary of State, Miss Anderson, on it, the best we can seem to achieve is it is not entirely clear what is meant by that, but there was a procedure put in place to the effect that a child would be accompanied by a responsible adult for the purposes of the procedure. Thereafter, the correspondence ends.
7. In fact, on 27 January 2004 the claimant and her sister lodged applications for indefinite leave to remain as the family unit, even though the claimant does not appear to be eligible because she was never registered for the purposes of claiming asylum. On 5 March 2007 further representations were sent. On 8 May 2009 the Secretary of State confirmed to the claimant's MP that the claimant and her sister's claim were in storage, had been recalled and would be dealt with in due course. On 5 May 2010 the claimant's sister was granted indefinite leave to remain and the claimant's file was not found. I shall return to that topic in a moment. On 28 February 2012, the defendant confirmed to the claimant's MP that the claimant had never made a formal asylum application, having not attended the interview, and there was no basis for her to remain in the United Kingdom, so the Secretary of State said. On 5 October 2010 a pre-action protocol letter was sent. On 23 October 2012 the Secretary of State replied saying there was no record of an asylum interview, although the letter had been sent to that effect in December. On 7 December 2012, judicial review proceedings were lodged. On 11 October 2013 Ms D Gill, sitting as a deputy High Court judge, granted permission. On 14 July 2014 the case was adjourned, it being listed for a hearing on 15 July, but His Honour Judge Allan Gore QC, sitting as a deputy High Court judge, adjourned it.
8. The next piece of evidence I want to refer to is contained in the letter from the Treasury Solicitor, dated 20 June 2014. Two completely different points come out of that letter. The first is that the claimant was invited to attend an asylum screening unit interview and make a formal application so that her case could be registered. That, as I understand it, was followed up by the offer that she attend on 22 October 2014 so her claim could be considered, but she declined to attend.
9. Because it is relevant to what is said in relation to one of the submissions, it is worth setting out what is said in this letter. In an earlier letter it was said that the claimant's younger sister had made an asylum claim on the same day, but that her sister's claim was concluded over a decade ago whilst the claimant's claim remains outstanding. The Secretary of State says that the sisters made a written application on 4 October 2000 and a refusal was prepared as a result of non-compliance on 12 July 2001 but never served. The claimant's sister was invited to the asylum screening unit on 10 October 2005 and attended formally to lodge her application form, although her asylum claim was eventually refused. She was granted indefinite leave to remain by the CRD, when dealing with the backlog of former asylum cases, on 23 April 2010. I assume by CRD that that is referring to the legacy programme. Various submissions are made by Mr Saini in relation to that letter, but I now move on to the various submissions that have been advanced.
10. I should preface any remarks about those submissions by saying that Mr Saini appears to have been instructed incredibly late. He has, throughout his submissions, displayed commendable care and reticence about the extent to which it is open to him to make submissions. He has been handicapped by the absence of any evidence his client could have put forward, including particularly any evidence the sister could have given, and it is noteworthy that he has put the points he can as ably as can be made in the circumstances.
11. The first submission he makes, which really appears for the first time in the skeleton argument he submitted, is based upon the European Directive on standards of procedure in Member States for granting and withdrawing refugee status. It is, with respect, a very bold submission and has a certain degree of novelty about it, but it is fraught with problems. It is worth saying (and I do not think I need recite too much of it) that in terms of the Directive, it is worth drawing attention to recitals (1); (5), which says that the main objective of the Directive is to introduce a minimum framework for the granting and withdrawal of refugee status; (7), which gives the Member States the power to exceed that; and (13), which the claimant attaches particular weight to, which, inter alia, requires that every applicant shall, subject to certain exceptions, have an effective access to procedures, the opportunity to co-operate and properly communicate with competent authorities so as to present the relevant facts of his case, and sufficient procedural guarantees to pursue his case throughout all stages of the procedure. Reference was also made to recital (14) in relation to minors.
12. Mr Saini, in reply at any rate, appeared to advance the submission that he could rely directly on breaches of the recital as grounding a legality claim, and with respect I would hold that he cannot directly rely on recitals. There are some additional points I want to make about the Directive but I will come on to those in a moment. In terms of the provisions of the Directive, attention is drawn to Article 1, which says the purpose is to establish minimum standards; Article 2, which includes the definition of an application in 2(b), which this certainly is, and refers to unaccompanied minors at (h), which this certainly is.
13. It seems to me, although this was not a point particularly pressed by either counsel, that the procedure envisaged by this Directive begins at Article 8 where there is a procedure set out about requiring Member States to ensure that applications are neither rejected or excluded on the sole ground they have not been made as soon as possible, and more importantly, perhaps, Article 8(2): "Member States shall ensure that decisions by the determining authority on applications for asylum are taken after an appropriate examination" and ensure at 2(a) that "applications are examined and decisions are taken individually, objectively and impartially." I think those are the only parts that are germane to this hearing.
14. Mr Saini attaches particular weight to Article 20, where there is an obligation under Article 20(1) for the determining authority to take a decision to either discontinue the examination or reject the application, and that there is also an obligation under 20(1)(a) which requires Member States to address things if there is a failure to respond to requests to provide information essential to his or her application. That is an obligation that arises where the Member States may assume that the applicant has implicitly withdrawn or abandoned her application for asylum.
15. There are a number of jurisprudential difficulties that the claimant's case faces by relying on the Directive. The Directive is a species of EU legislation which requires a Member State to introduce implementing legislation. I have not been taken to the implementing legislation at all, but in general terms it is not open for any person to rely on the Directive, save to the extent that the complaint is that the domestic legislation has not properly transposed the Directive which it purports to introduce into domestic law.
16. There were a number of points which Miss Anderson made. I am not sure I can do justice to the number which were given, but there are a number of technical problems, frankly, about the rather bold submission that one can look directly at a Directive, not least the Directive is designed to promote minimum standards. It is also worth emphasising (which is why I refer to Article 8) that the real issue in this case is not whether the Secretary of State failed to deal with an asylum application appropriately; I find that the real issue in this case is whether the claimant succeeded in registering an asylum claim which would then be processed. The short point is that, for reasons which are wholly unexplained, with respect, the claimant initiated a process through solicitors, indicated a willingness to attend an interview, was told in clear and unequivocal terms that she could attend an interview, a follow-up letter was written, solicitors never wrote any other follow-up letters and she does appear to have simply not progressed her application in any way.
17. The second argument that was made (and again, I am summarising the extensive nature of the arguments which have been made before me today, partly because of the hour, which is now late) in effect is that there was a disparity of treatment between the claimant's position and her sister, who made an asylum application at the same time. That too has some formidable difficulties in its path. Miss Anderson submits that there is no legal principle that requires consistency by comparison with an individual case and relies on an authority to that effect. She makes the submission that any other approach would lead to, in effect, a process where each counsel would produce indefinite numbers of comparators and the court would be placed in the invidious position of having to decide cases which were not before it. She also makes the further point that it is inherent to making an individual comparison that the court would be making a finding in relation to another case which has inherently problematic implications, not least that, even if a previous case is decided a particular way, two wrongs do not make a right, so to speak.
18. In any event, irrespective of the legal and principled objections made on behalf of the Secretary of State to the submission, it seems to me that the claimant essentially fails on the complained-about disparity of treatment because of the absence of any evidence to support it. It has certainly not been explained to me (and there may be good reason, for all I know) as to why the claimant's sister did not give a witness statement in these proceedings. At one stage it was suggested by Mr Saini, with his commendable caution, that there might be some obligation on the Secretary of State as a result of the duty of candour to make this available to them. I do not accept that submission, and I do not think it was pressed very hard, but it is nonetheless a point of some significance that it would have been on the face of it open for the claimant to advance a case. I simply do not have a sufficient evidential basis to make any finding as to disparity of treatment because I do not have the material before me. To repeat a point of some banality that I made during the course of argument, it is of course always up to the claimant to establish unlawfulness: the burden of proof lies on them and, when one is handicapped by the lack of evidence, as regrettably Mr Saini was, it is, I am afraid, a problem which has inescapable consequences for the conclusions of the case.
19. I should, however, deal with a further argument which developed - indeed, it took on an extraordinary momentum of its own - which was what was the position if there was an unlawful failure to register the claimant's claim? On that basis, Mr Saini, relied on the decision of Carnwath LJ (as he then was) in MK (Iran) [2010] EWCA Civ 115. The essential point in it which Carnwath LJ decides was that there is an obligation to decide an asylum claim within a reasonable period of time. The complaint that is made by Mr Saini, on the basis that I was with him on his primary case (which I am not) he would therefore, it would seem, want some form of declaration to the effect that the Secretary of State is in breach of duty in failing to decide the claim within a reasonable time.
20. There are a number of difficulties which that submission also has to recognise. The first is that, although there is an obligation (and I do not think that in principle is subject to qualification or debate by the Secretary of State, the legal proposition that there is an obligation to decide the asylum claim within a reasonable period of time) that has to be seen against the background really of at least two things: first, the statute does not itself stipulate any particular time within a claim; and secondly, it is inherent to a reasonableness issue that it must depend ultimately on the particular facts and circumstances of the case.
21. In relation to this case, what is said by the Secretary of State is that, if there had been an effective asylum claim, the result of that would be that the claimant's asylum claim would fall to be considered under the legacy programme, which, I can certainly say with confidence, has generated a great number of cases and quite a lot of law. The essential point made on the facts by Miss Anderson is really that she says, first of all, in looking at whether there was an unreasonable delay one has to look at it in the context of the legacy programme, because it is in effect a legacy case. Looking at it in that context (and I will not labour an already too long judgment by summarising the various points that are made in regard), she contends that, on the facts, there has not been an unreasonable delay when viewed as a legacy case. I accept that submission.
22. But, and in any event, this issue really developed a kind of momentum of its own, because a question which arose for consideration was: in the event I have accepted the claimant's case, what remedy would be available? Mr Saini, again in his considered and measured way, suggested a declaration would be appropriate. What is said on behalf of the Secretary of State is that my power to award a declaration is discretionary and it has to serve a useful purpose, and those of course are well-established principles.
23. Essentially where we ended up - and I think I may just cut to the chase - was through a long and often circuitous and complex route, but if this was effectively going to be looked at in the context of a declaration granted for un(Inaudible), would it have any practical utility? The essential problem from the claimant's perspective is, in the legacy context, that delay in and of itself is not unlawful in that context, and certainly in that context, and this case and these issues have now been canvassed and re-canvassed by the Court of Appeal (partly, if I may say, because of the enthusiasm of some to argue the same point again and again), the long and the short of it is that there has to be some form of underlying illegality. In the context of this case, as I find it to be, there is no underlying illegality.
24. I have rather laboured this point about legacy because of the complexity of the issues that that case raised, and I emphasise that I am not expressing any criticism of counsel in seeking to summarise an area of jurisprudence of which I was wholly innocent until comparatively recently. But in any event, the upshot is that, notwithstanding the skill and patience displayed by Mr Saini - who was not, if I may say so, particularly helped by the evidence he had to start with - and notwithstanding the way he advanced his case, it seems to me, with respect, plain that there was no asylum claim that was registered and there was therefore no unlawfulness in the way the Secretary of State addressed it. It seems to me plain that he fails on the evidence (leaving aside anything else) to show that there is a disparity of treatment because there just is no evidence in relation to the sister. Then I deal, and have dealt at undue length, with the submission that, even if he had overcome those difficulties, I would have, in the exercise of my discretion, declined to give him the relief sought of a declaration, in which case I am afraid his claim really does not take him very far.
25. That is my judgment.
26. Thank you very much, and thank you both for the way you have dealt with the case.
27. MISS ANDERSON: Thank you, my Lord. I am most grateful. There was a costs schedule served on the application for costs. I appreciate that it may be crying in the wind, but it is a rule that costs follow the event. So in principle there should be an award.
28. THE DEPUTY JUDGE: I do not think I have your costs.
29. MISS ANDERSON: It was served on the claimants.
30. THE DEPUTY JUDGE: May I see it?
31. MR SAINI: My Lord, I have not seen a costs schedule or been informed one was served, I should say for the record.
32. THE DEPUTY JUDGE: Okay. But I do not think it will come as any surprise.
33. MISS ANDERSON: I think the amount can be summarily assessed today. In fact, it is lower because it was a 3-hour hearing, and that was based on the estimate of counsel's fees at £120 an hour.
34. It is probably largely academic, my Lord, but I think that is what ought to be done: costs should follow the event. Perhaps it might be a reminder that this is not a cost-free experience and that those bringing these claims ought to understand that.
35. THE DEPUTY JUDGE: Shall we deal with this in stages? Shall we deal with, firstly, the principle of your client bearing costs. I assume your client is not legally aided?
36. MR SAINI: No, my Lord, she is not.
37. THE DEPUTY JUDGE: You will know the principles which constrain me in these circumstances, and that normally costs follow the event.
38. MR SAINI: I do, my Lord. I would only say one thing which I mentioned at the outset of the hearing, which I did not pursue aggressively, out of decorum, really: that the AOS was served late, of course, and so was the detailed grounds of defence, over a year. Under the CPR Rules I referred to, that would have costs consequences, of course. So I just ask that be borne in mind, my Lord, when the costs are summarily assessed. I say with deference to my learned friend, instructing someone of her calibre is something of taking a sledgehammer to crack a nut.
39. MISS ANDERSON: My Lord, just to reply to that, my learned friend was not so held back by decorum that he did not actually make the application and you actually did decide to extend time. But actually there are cost consequences that automatically follow. It is consequences for representation at the hearing that follows. Participation, as it were. In this instance, I would think at £120 an hour I am less than a trainee solicitor. So although my great age may make you think that I would be more weighty in terms of costs, that does not actually play through. I imagine my learned friend is on substantially more, but I will not embarrass him by asking.
40. You will see counsel's costs anyway are fairly small in proportion. It is just because it has gone on and on and on. An alternative remedy was offered very early on here. The point that has been pursued has been pursued on grounds which really are just without substance at all, and in fact the documentation undermines completely the case that has been ruled. So it was not a case that was well founded. We are not asking for an order to show cause, although really that is, in my submission, a just outcome. But given that that is satellite litigation that is just going to cost more money in these circumstances, I think, given that it is completely unfounded, my Lord, as it were, and an alternative approach of "come in and tell us about it" was offered again and again.
41. THE DEPUTY JUDGE: I am not sure, with respect, Miss Anderson. Complaints were made about elements of it, but I do not think the general principle of your costs being paid was disputed.
42. MISS ANDERSON: Absolutely, my Lord. But just in case there was any concern about overall fairness, if that is the way of putting it, then perhaps I do not need to make those submissions. But usually the strong rule should apply and nothing has really been said for it not to apply. In terms of the amounts, the Treasury Solicitor is less than normal solicitors anyway, so usually on the quantum there is not much (Inaudible).
43. THE DEPUTY JUDGE: (Inaudible) I agree, but I am afraid I am going to assess the costs at less because that is what would happen if it was a detailed taxation. So I am going to allow costs of £7,000.
44. MISS ANDERSON: I am grateful, my Lord.
45. THE DEPUTY JUDGE: Thank you both for the assistance in a case which turned out to be more difficult than it initially looked.
46. MR SAINI: I am grateful, my Lord, and grateful for your comments too.