England and Wales High Court (Administrative Court) Decisions

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Cite as: [2016] EWHC 3719 (Admin)

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		Neutral Citation Number: [2016] EWHC 3719 (Admin)
		Case No CO/4278/2016

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

Royal Courts of Justice
Strand
London WC2A 2LL

14 December 2016

B e f o r e :

ROBIN PURCHAS QC
(Sitting as a Deputy High Court Judge)
____________________

Between:

	THE QUEEN ON THE APPLICATION OF MAHARJAN	Claimant
	v
	SECRETARY OF STATE FOR THE HOME SECRETARY	Defendant

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

Mr P Saini (instructed by MTG Solicitors) appeared on behalf of the Claimant
Mr R Harland (instructed by Government Legal Department) appeared on behalf of the Defendant
____________________

HTML VERSION OF JUDGMENT (APPROVED)
____________________

THE DEPUTY JUDGE: In this application the claimants seek permission to apply for judicial review of the defendant's decision on 22nd July 2016 to reject their application for leave to remain on humanitarian grounds under the immigration rules and its certification as clearly unfounded and also their detention from 22nd July 2016. The claim was filed on 22nd August 2016.

I make clear that the issue for me is whether there is an arguable case for judicial review of that decision on 22nd July 2016 and the detention from 22nd July 2016 until this claim was made. Permission was refused on the papers by Mr Jonathan Swift QC as a Deputy High Court Judge.

It is helpful to put this in context factually. The claimants respectively entered the country in 2010 and 2012 as Tier 4 students. On 28th January 2012 the first claimant's leave was curtailed, with no right of appeal, and on 28th August 2014 the second claimant's leave by then, for post study work, had expired.

On 14th October 2014 the claimant's application for what had been leave under Tier 2 was amended to seek leave to remain on the basis of Article 8 humanitarian considerations. That was refused and certified by the defendant in a decision made on 5th October 2015, which included a false certificate of sponsorship that had been submitted by those at that time advising the claimants. The decision letter considered whether leave should be granted on humanitarian grounds or as a matter of discretion and rejected the application. There was no challenge to that decision.

On 24th February 2016 the claimants were encountered and arrested. They were released on reporting restrictions. On 25th February 2016 they made further representations under Article 8, including the explanation about the false certificate that it had been supplied to them by Amateur Solutions. When they discovered this, they reported it to the relevant authorities. That was set out in the representations.

Removal directions were made on 15th April 2016 but cancelled when the claimants failed to report and on 22nd July 2016 the Secretary of State's decision on the further representations was made. As part of its approach the letter referred back to the earlier decision which, as I have said, expressly addressed humanitarian grounds and identified those new matters which had not previously been considered in the previous letter. That included the action of the unscrupulous solicitor, as he is described in the representations, relying on a false sponsorship number. The letter noted the representations that the claimants had reported this to the authorities saying that they should be allowed to remain on those grounds having regard to others in the same situation that had been granted leave.

That was a matter expressly before the defendant. She dealt with it in the letter and came to the view that, while she had sympathy for their circumstances, she could see no reason why that was a reason enough to grant leave to remain and makes the point that no two cases are the same.

In this court, although the point is generally made about other cases, there is no evidence at all to demonstrate that, on the facts of this case, there was inconsistency with other decisions that could make this decision unfair or administratively unlawful. In my judgement that is unarguable as a point.

The letter went on to consider the question of certification. There is no arguable basis, in my judgment, to conclude that the approach of the Secretary of State to certification that the claim was clearly unfounded was erroneous in law. The letter refers expressly to anxious scrutiny being used and to the question of the case being presented to the immigration judge, in respect of which it concludes that there would be no realistic prospect of success. In my judgement, again this ground is wholly unarguable.

Finally, with reference to the exceptional circumstances the Decision Letter refers to exceptional circumstances, which would embrace the matters put before the Secretary of State but in the light of the consideration she had given to exceptional circumstances the previous year. In my judgment, for the reasons that I have already given, this ground of challenge is unarguable.

I turn then to detention. On 22nd July the decision was taken in a position where these claimants had earlier not reported for removal. In April 2016 the intention was that they should be removed. At that time there was no reason why they should not be removed other than takin the administrative steps to do so. The point is made that in fact removal directions were not given until September, albeit on 4th August a notice of removal was given in advance of those directions. In my judgment, the period of detention here in the circumstances I have described was such that it was clearly open to the Secretary of State to detain these claimants with a view to removal under her powers. In my judgment, there is no arguable case to support judicial review. In those circumstances this application is refused.

THE DEPUTY JUDGE: There was an order for costs I think last time. It was limited to where there was a reconsideration, so I need to deal with it on this occasion.

MR HARLAND: In fact it may be saying if they seek a reconsideration ... in any event --

THE DEPUTY JUDGE: It says in terms: "Where the claimant seeks a reconsideration costs are to be dealt with on that occasion."

MR HARLAND: I am saying it should stand.

MR SAINI: My Lord, with respect, my learned friend has done most of the work for the Secretary of State today. These grounds say absolutely nothing pointing to the issue in terms of grounds 2, 3 and 4. The only term that has been required, unlawful detention provided day to day and providing for what are quite frankly formulaic grounds in terms of the authorities.... so of true submissions. It is clearly not £1000's worth of work. My Lord, I ask you to summarily assess it in a smaller amount.

THE DEPUTY JUDGE: Thank you very much.

There will be costs of the acknowledgement of service to be paid by the claimant to the defendant which I assess in the sum of £1060. Thank you very much indeed.