CO/4834/2015 
Neutral Citation Number: [2016] EWHC 1648 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 8 June 2016
 
B e f o r e: 

MR JUSTICE WILLIAM DAVIS 

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Between: 
THE QUEEN ON THE APPLICATION OF HACINI
Claimant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant 

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Computer‑Aided Transcript of the Stenograph Notes of  
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Miss Kofo Anifowoshe (instructed by Elkettas & Associates) appeared on behalf of the Claimant

Ms Jennifer Thelen (instructed by Government Legal Department) appeared on behalf of the Defendant

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J U D G M E N T
1.	MR JUSTICE WILLIAM DAVIS:  The claimant seeks judicial review of the decision of the Secretary of State for the Home Department in which she refused his application for naturalisation, the application being made under section 6(1) of the British Nationality Act 1981.  The claimant applies for judicial review with permission of the single judge, who determined that the application was arguable.  
2.	The history of the claimant in terms of his connection with the United Kingdom is helpfully set out in a decision of the First‑tier Tribunal Immigration Judge Gillespie dated 3 June 2010. My summary is taken from that decision. Until about June of 1995 the claimant, together with his younger brother, lived with his family in Algeria.  The family included another older brother called Khaled Hacini.  In June 1995, Khaled Hacini came to the United Kingdom, apparently illegally.  The claimant remained back in Algeria.  The following year, Khaled Hacini was married in this country to a French national.  He was subsequently issued with a residence card, namely as the family member of an EEA national exercising her Treaty rights in this country.
3.	In due course, having been present in the United Kingdom for five years, Khaled Hacini was granted permanent residence in this country.  He obtained French nationality in 2002, and throughout the period and up to 2007 he regularly travelled to Algeria to visit his family, which  included the claimant.  
4.	In April 2007 the claimant entered the United Kingdom as a visitor.  He had leave to remain until September 2007.  During his period of residence as a lawful visitor he applied for leave to remain as the extended family member of an EEA national exercising Treaty rights in this country, that is to say, his brother Khaled.
5.	The Secretary of State, upon receipt of that application, issued the claimant with documents confirming his right to remain in the United Kingdom and to work pending determination of the application.  The documents were not withdrawn, but in February 2008 the application was refused.  An appeal against that refusal was dismissed in April of the same year.  
6.	The Immigration Judge in 2010 found that throughout his time in the United Kingdom the claimant had lived with Khaled, his brother, and with his brother's wife and children.  It appears that in July of 2008 Mrs Hacini (that is, the French citizen whom Khaled Hacini had married) was diagnosed with a serious illness.  She regularly was treated for this serious illness, and Mr Khaled Hacini apparently felt obliged to give up work in order to concentrate on running the home and caring for his wife and children.  The claimant during this time, who was in work, contributed to the finances of Mr Khaled Hacini's household.  He also contributed to the childcare.  
7.	In November of 2008, he made an application for the issue of a residence card as the extended family member of an EEA national, again, Mr Khaled Hacini.  In January of 2010, the application was refused.  
8.	So it was that the appeal against that refusal came before Immigration Judge Gillespie, who by his decision of 3 June 2010 allowed the appeal against the refusal.  As a result of that, in February of 2011 the Secretary of State issued a residence card to the claimant which was valid up until 4 February of this year, 2016.
9.	In the course of his decision, Immigration Judge Gillespie reviewed in some detail the nature and extent of the membership of the household of the EEA national that was established by the claimant.  He referred to the fact of the illness of Mr Khaled Hacini's wife and to the financial and other contributions that were being made as a result of the illness of Mrs Hacini.  The Immigration Judge noted that the membership of and participation in the household of Khaled Hacini was not only recent but current and ongoing.  He went on to say that the period of Mr Hacini's employment had been constant since 2007.  That was the position as found by  Immigration Judge Gillespie.  
10.	In June of 2013, the claimant made his first application for naturalisation.  That application was refused.  I do not propose to review that matter, because it is not that decision against which this application for judicial review is directed.  The decision against which this application is directed is the decision that was made in 2015 as a result of a further application for naturalisation made by the claimant on 17 December 2014.  
11.	The decision was communicated via his solicitors to the claimant on 26 June 2015.  The letter was in what may be termed standard form.  The paragraph which descended to the particulars of Mr Hacini's application reads as follows:
i.	"As your client was married on 27 October 2011 he has not been married to an EEA national for a continuous period of 5 years.  Furthermore your client's spouse has to have been exercising treaty rights in the United Kingdom for a continuous period of 5 years, therefore your client does not meet the requirement which can which are set out on our website" 
12.	and then the website is described.  This paragraph concludes, "and your client's application has been refused".  The reference to a spouse who is an EEA national is a reference to the fact that Mr Hacini had in the intervening period married a lady who was an EEA national.
13.	The response of the claimant to that decision was via a letter from his solicitors dated 14 July which set out the history, including the history of Immigration Judge Gillespie's decision.  The letter referred to the decision and the paragraph which I have just rehearsed, and then said this:
i.	"We reiterate the fact that our client's application was made on the basis of his having acquired permanent residence subsequent to his application for a residence card as a dependent of his French citizen brother and not as a family member of his spouse.  Please see the enclosed determination of Immigration Judge MJ Gillespie of"
14.	and then in fact the wrong date is cited, but there is no dispute that that was the 2010 decision which was enclosed, and attention was drawn to relevant paragraphs.  Following that and a pre‑action protocol letter, these proceedings were issued.  
15.	A review was conducted by the Secretary of State and a letter was written on 15 January 2016 which in essence, notwithstanding the earlier letter from the claimant's solicitors, repeated the reference to the claimant's marriage.  The part of the letter which was particular to him, as opposed to generalised rehearsal of the legal provisions, was in these terms:
i.	"In this instance we are aware that your client only entered into his marriage to a Hungarian citizen namely Mrs Gabriella Hacini ... on the 27 October 2011.  We are accordingly unable to accept that your client qualifies for an issue of 'permanent residence' status in the United Kingdom on the basis of his marriage to an EEA national ..." 

16.	It is now accepted by the defendant that that basis of refusal was misconceived.  How it came to be made in those terms on the papers I have is not entirely clear.  There has been at least one occasion when a covering letter provided with an application for naturalisation (a covering letter written by the claimant's solicitors) mistakenly referred to his marriage as being the basis for the application.  Whatever the position, it is plain that the Secretary of State first made her decision and then as significantly reaffirmed it by reference to a factor which now is not a factor being relied on by the claimant.  
17.	The claimant seeks to rely on the relationship he had with his brother Khaled.  He sought to bring himself within the provisions of the relevant regulations, namely that he was somebody who was the member of a household of an EEA national.  Given that the Secretary of State on the face of her decision never considered that issue at all, I am satisfied that the decision, on that basis, must be quashed.  It was reached without consideration of the actual issues that the claimant wished the Secretary of State to consider.
18.	However, the quashing of the decision is for the claimant not the end of the matter.  Indeed, the quashing of the decision in one sense is not the end of the matter for the defendant.  The defendant argues that pursuant to section 31 of the Senior Courts Act as relatively recently amended I should in fact refuse to grant any relief because it would be highly likely that the outcome for the claimant would not have been substantially different even if the Secretary of State had considered the relevant factual material.  In relation to the claimant, it is argued that not only was the decision made and reaffirmed in 2015 and 2016 wrong on its face, but because it was so misconceived and because there are no other reasons why naturalisation should not have been granted, I should make a declaration that the claimant should be granted a certificate of naturalisation as a citizen of the United Kingdom.  
19.	I do not accede to either of those relative extremes.  In respect of the defendant's argument I am unable to say what the outcome would have been if the Secretary of State had considered the claimant's application on a proper and appropriate basis.  If the conduct complained of had not occurred, that is, if the Secretary of State had not proceeded on the premise that the entire application was based on the marriage of the claimant to an EEA citizen, it may be that the outcome would have been the same. But I have insufficient evidence to conclude that a similar outcome would have been highly likely. I do not consider that section 31(2)(a) of the Senior Courts Act 1981 can be applied as argued by the Secretary of State.
20.	However, the decision made by the Secretary of State was an exercise of her discretion under section 6(1) of the British Nationality Act.  It is agreed, that the terms of the section allow the Secretary of State, if she thinks fit, to grant a certificate of naturalisation to a relevant citizen.  That is a discretion.  Of course, it must be exercised lawfully and rationally, but it is a discretion that carries with it a number of different factors and criteria.  
21.	The claimant suggests that because the only issue relied upon by the Secretary of State was an issue that in fact was misconceived and mistaken, it should be taken that there would be no other barrier to the claimant being granted naturalisation.  I am quite satisfied that that argument cannot possibly be right.  First, it does not deal with the general discretion that is available to the Secretary of State, a discretion which would be exercised by reference to all relevant material and which the Secretary of State, because she considered the first hurdle had not even been overcome, may or may not have exercised.  
22.	Second, the argument as put in the skeleton argument that because the Secretary of State has not, for instance, identified any issue of bad character that must mean that there is no issue of bad character, is simply unarguable.  The issue simply has not been addressed. Nor have other issues relevant to the exercise of the discretion under section 6(1) of the Act.  Plainly in any further decision‑making it they will be.
23.	In my judgment, the consequence of the application and the reasoning I have outlined is that the Secretary of State's decision of 26 June 2015, as confirmed on 15 January 2016, must be quashed.  The decision therefore will have to be made again on the basis of the material thus far provided to the Secretary of State.  What that decision will be is entirely a matter for her.  
24.	It so happens that there is in train, for reasons with which I do not need to deal, an application for permanent residence and that decision will be made apparently relatively shortly.  That, of course, is a different decision, though if granted it will circumvent a number of difficulties that may have arisen subsequently in relation to any naturalisation application.  In any event the claim, to the limited extent that I have indicated, succeeds and I grant relief to the extent of quashing the decision of the Secretary of State to refuse a grant of naturalisation.
25.	Yes?
26.	MISS ANIFOWOSHE:  I am grateful, my Lord.  The only issue remaining or matters remaining that would be are in relation to costs.
27.	MR JUSTICE WILLIAM DAVIS:  Do you apply? 
28.	MISS ANIFOWOSHE:  Costs schedules have been exchanged.  May I just confirm if the court has received our ‑‑ 
29.	MR JUSTICE WILLIAM DAVIS:  Well, I have had the defendant's.  I am not sure I have had yours, but never mind the amount.  On the principle ‑‑ 
30.	MISS ANIFOWOSHE:  It has been provided ‑‑ 
31.	MR JUSTICE WILLIAM DAVIS:  Do not worry.  I want the principle first.  Why should I grant you your costs? 
32.	MISS ANIFOWOSHE:  My Lord, this matter did not have to proceed this far.  Litigation ought not to have been brought, because the Secretary of State was put on notice immediately after the refusal in June 2015 that the decision had been wrongly considered.  Had she taken it upon herself at that point to correct her mistake and then issued a proper decision considering the basis upon which the claimant made his application, then maybe the claimant may not have brought these proceedings.  However, the fact remains that these proceedings are as a result of the Secretary of State not properly considering the basis upon which the application was made.  
33.	There was a pre‑action protocol letter also submitted in September 2015.  That was another opportunity for the Secretary of State to make amends as to her wrongful consideration of the application.  She did not do so.  So it is my submission on behalf of this claimant that had the Secretary of State taken the opportunity at the different points she was given by the claimant to properly address her mistake, the claimant may not have proceeded with a judicial review claim.  As a result of her not doing so, the claimant finds himself here today having not only accrued the cost of making the application which was wrongly refused, but then also solicitors' fees and costs for making this application for judicial review, which my Lord has on the one basis, provided relief for in quashing the Secretary of State's decision.  So it is my respectful submission on behalf of the claimant that he should be awarded his costs up to the date of today's hearing, my Lord.  May I pass a copy of the schedule?  (Handed up) 
34.	MR JUSTICE WILLIAM DAVIS:  Yes, certainly.  Thank you very much.
35.	Yes?
36.	MISS ANIFOWOSHE:  Unless my learned friend has ‑‑
37.	MR JUSTICE WILLIAM DAVIS:  Well, I will hear from the Secretary of State on the principle of costs before I start descending to summary assessment.
38.	MS THELEN:  As your Lordship anticipated, I have submissions on both, on detail and principle.
39.	MR JUSTICE WILLIAM DAVIS:  Can we just restrict ourselves to principle to start?
40.	MS THELEN:  With pleasure.  Essentially, my submission is that the claimant has not got the relief sought.  The real object of the claimant's claim was the naturalisation determination.  What the claimant now has is a quashing, and a reconsideration will follow, and as my submissions already covered that is no more than what was due to the claimant anyway by virtue of his permanent residency application, effectively.  So on that basis the Secretary of State's position is that the claimant should not be entitled to his costs.  
41.	With respect to my learned friend's submission that if the Secretary of State would have issued a further reconsideration letter the position might have been different, I simply do not accept that, because the analysis was set out in the detailed grounds and that did not stall the proceedings in any way.  We carried on on the basis and had the argument that we would have had had there been a further letter, a form of further letter as opposed to the analysis being set out in the detailed grounds.  So in my submission that does not assist my learned friend.
42.	In principle the claimant has not got what they were after.  If we look at the claim form, what we start with was the declaration that the claimant was entitled to naturalisation and as I said, effectively the relief order, the quashing order, which ‑‑ I accept that the claimant did receive that, but that takes the matter no further.  So, then, my submission is that that would have been what the claimant had coming to him in any event as a result of his residency application.  
43.	Another factor that I say is relevant is the fact that the claimant did not choose to follow the simpler route, if I may put it that way, with respect to the permanent residency application.  So for these reasons I say that the claimant is not entitled to his costs, or at least all of his costs, if your Lordship is not with me on my submissions on costs in principle. 
44.	MR JUSTICE WILLIAM DAVIS:  All right, thank you very much indeed.  I shall rule on the principle of the matter.
45.	The claimant has succeeded in this claim to the extent that the decision of the Secretary of State has been quashed.  However, the claim as brought and as argued with tenacity before me this morning has always been that the quashing order was merely a stepping stone to a declaration that the claimant was entitled to naturalisation.  In my judgment the essential purpose of the claim was to achieve such an order.  The developments since the issue of these proceedings, namely application for permanent residence and apparently a likely resolution of that within a matter of weeks, are not immediately relevant to the claim for naturalisation but they do form a significant backdrop.
46.	The award of costs in any given case is a matter of discretion, which of course I must exercise judicially, but I am quite satisfied that the gravamen of the claimant's case was the application for the declaration.  That is how it was put in writing and in oral argument.  On that issue the claimant has not succeeded, and in my judgment the proper order is that there shall be no order for costs.  
47.	Yes, thank you very much.
48.	MISS ANIFOWOSHE:  My Lord, I have to rise at this point and respectfully make an appeal against your decision against costs, my Lord.
49.	MR JUSTICE WILLIAM DAVIS:  Sorry, you are seeking leave to appeal?
50.	MISS ANIFOWOSHE:  Yes, my Lord ‑‑  
51.	MR JUSTICE WILLIAM DAVIS:  Yes, all right.
52.	MISS ANIFOWOSHE:  ‑‑ on the basis that on the face of the application of claim form on page 3 it is clearly stated that the relief being sought ‑‑ number 1 being a quashing order.  You have clearly granted a quashing order today.  So this claimant has achieved part of his relief sought.  In my respectful submission, my Lord, it would be wrong to make a no costs order, in effect, because the claimant has put in both written and oral argument today that he is seeking a quashing order and a declaration.  So it was not the case that a quashing order was merely a stepping stone to him getting a declaration.  He is seeking both and he has achieved one of the two, so in my respectful submission it is wrong to make the decision that the claimant not be awarded all of his costs up to today.  The matter proceeded all the way to today's date and was heard, and my Lord has granted him a quashing order quashing the decision from which this claim has arisen.  So had there been no quashing order then it may be right to make that decision not to grant him, or not to award him any costs, but he has partly succeeded in the relief he seeks.  So on the basis of the written submissions of the claimant and the oral arguments today, my Lord, I would respectfully request leave to appeal that decision against costs.
53.	MR JUSTICE WILLIAM DAVIS:  Yes, all right.  Thank you very much.  
54.	MISS ANIFOWOSHE:  I am grateful.
55.	MR JUSTICE WILLIAM DAVIS:  Yes, application is made for permission to appeal against part of my order, namely the order in relation to costs, that order being that there shall be no order as to costs.  The argument is that because the claimant has on the face of it in part succeeded it is wrong in principle not to give him his costs of this claim.  
56.	For the reasons I have already set out, in my judgment using the discretion I have in relation to costs, the order I make is the appropriate one and therefore I refuse permission.
57.	Yes, could I ask you please to draw up the order?
58.	MS THELEN:  Yes, of course.
59.	MR JUSTICE WILLIAM DAVIS:  Thank you very much indeed.