Guttierez v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Michael Fordham |
| Judgment Date | 17 January 2014 |
| Neutral Citation | [2014] EWHC 351 (Admin) |
| Docket Number | CO/10719/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 January 2014 |
[2014] EWHC 351 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Michael Fordham QC
(Sitting as a Deputy High Court Judge)
CO/10719/2009
Mr A Jafar (instructed by Thoree and Co Solicitors) appeared on behalf of the Claimant
Ms J Anderson (instructed by the Treasury Solicitors) appeared on behalf of the Defendant
THE DEPUTY JUDGE: This is my ruling in relation to consequential matters arising out of the judgment which I gave earlier today in this case. The first consequential matter is an application for costs by the claimant. That is not resisted by the Secretary of State. I am quite satisfied that it is appropriate for the claimant to have the costs of these judicial review proceedings, to be the subject of detailed assessment if not agreed.
The second consequential matter is as to what orders are appropriate in relation to the decision letter of 21 January 2009. For reasons that I gave in my judgment, I concluded that that decision and the decisions embodied within it were contrary to law. In my judgment, the appropriate course to take in those circumstances is to quash the decision of 21 January 2009. I am asked also to declare that the Secretary of State acted unlawfully in the making of that decision, for the reasons given in the judgment. In the unusual circumstances of this case, I am prepared to make that declaration, although on one view it merely duplicates the judgment that I have given.
The next topic in relation to consequential matters is the question of removal. When the January letter came to be served, it was accompanied by a notice of removal. The submission on behalf of the claimant is that the court should declare that the Secretary of State acted unlawfully in removing the claimants. The platform for that submission is squarely that it is said that it follows in logic and in law that if the decision of 21 January 2009 was contrary to law, which I held that it was, then it must follow that the removal was unlawful.
Mr Jafar cited rule 353A of the immigration rules which refers to the duty not to remove in certain circumstances until representations have been considered. He invites me to conclude that this rule demonstrates that if representations are held subsequently not to have been considered lawfully, that it must follow that any parasitic act of removal was contrary to law for that reason. I am not persuaded by that submission. It seems to me that, if it is the position that the link between the decision to refuse leave to remain and the subsequent decision to remove is so close and clear under the statutory scheme and on the authorities that the unlawfulness of the prior decision infects the lawfulness of the removal, that answer is to be found somewhere more fundamental than rule 353A. That rule, on its face, seems to me to be concerned with ensuring that the Secretary of State turns her mind to representations before acting.
Ms Anderson for the Secretary of State disputes that there is such a necessary link between a decision to refuse leave to remain and a subsequent decision to remove, even where it follows on from that first decision. I am in the difficulty that I have not been shown by either side, notwithstanding that this matter carried over to today from yesterday, materials which enable me to be satisfied as to who is right in relation to what both parties are saying is a blindingly obvious point in their favour. I will come back to that, but I need to explain the importance of the declaration that Mr Jafar was seeking. The declaration sought, as to the unlawfulness of the removal, has two consequences. The first is that it would be the platform for Mr Jafar's application for an order for reinstatement or return of the claimants to the United Kingdom. The second is that it would be a very important feature, Mr Jafar says, in the reconsideration by the Secretary of State of what should happen next in this case and the question of what has been called in the authorities "historic injustice". I have had to consider whether to adjourn this case, again, for further submissions in relation to this point or whether to make directions for written submissions in relation to this point.
As to the question of reinstatement, on the premise that he is right that the lawfulness of the removal is simply parasitic on the unlawfulness of the decision letter that he successfully challenged, Mr Jafar then submits that this is a case in which the court should exercise its discretion to grant the remedy to order the Secretary of State to make best endeavours to return the claimants to the jurisdiction pending a reconsidered decision in their case.
The authority on which Mr Jafar has relied in relation to that consequential application is the case of N [2009] EWHC 873 (Admin), a case in which the court was concerned with a removal which was conceded to have been unlawful. The request was for a mandatory order for reinstatement which the court granted. The judge explained that consideration needed to be given to the nature of the unlawful conduct and appropriate characterisation of the gravity of the conduct, the consequences as they affected the claimants, and any other public interest considerations.
That case does not help me on the question of link between refusal of leave to remain and unlawfulness of the removal. I ought to say that Mr Jafar submitted, in response to questions from me, that his logic would also extend to the lawfulness of detention with a view to remove which he submitted was also parasitic. N does not help me on the unlawfulness of removal because it was squarely a case which was about the act of removal. There, the judge (Sir George Newman) describes in the judgment how what had happened in that case was an authorisation that removal should continue on the same day without any need for a 72-hour period to allow it to be challenged. The judge granted the order he did for reinstatement, in the exercise of his discretion, in circumstances where he regarded the actions of the Secretary of State as being "very serious", a decision "to which nobody should have come", and a "completely wrong-headed approach" to the 72-hour requirement. He called it "manifestly unlawful" and, in all the circumstances, directed that there should be all best endeavours to secure the return of the claimant.
In my judgment, even on the premise that Mr Jafar is right in his link between an unlawful decision refusing leave to remain and a consequential decision notifying removal, and assuming for the moment that his analysis is correct on that point, I would not be prepared in the circumstances of this case to make on order along the lines as did Sir George Newman in the case of N. So far as the fairness of the procedure adopted by the Secretary of State and the timing of the opportunity to challenge in this case is concerned, that was a ground for judicial review which I rejected. Moreover, it is relevant, in my judgment, that this was a case where there was the opportunity for judicial review which was taken but that, in the event, no court order or undertaking was secured. There is no challenge in this case to the circumstances of the 72 hours. The process challenge was the one to which I have referred and with which I have dealt in the judgment. The conclusions which I have reached and which have led to the quashing of the decision of 21 January involve a decision maker, in an otherwise conscientious decision, making an error of law in the approach to the relevant policy. That justifies the relief that I have granted. It would not, in my judgment, of itself and without more, justify the grant in the exercise of my undoubted discretion of a mandatory order for return.
Mr Jafar submits that the unlawfulness in the decision letter gives rise to what has been described as a "historic injustice" that needs to be taken into account and remedied to the extent that it can be by the actions both of the Secretary of State and the court. He says the court plays its part in remedying historic injustice by ordering the mandatory reinstatement so that the claimants can be returned to the United Kingdom. That is an attractive submission. However, in my judgment, it faces this insurmountable difficulty. The authorities on "historic injustice" arise in circumstances where it is accepted that a fresh decision would in principle fall to be made on the current facts. The question of "historic injustice" arises because the past unlawful decision is said to have deprived the claimants of the benefit that they would have received from a lawful decision. Those authorities make clear that the question of "historic injustice" is — in the first instance and primarily — a question for the Secretary of State. In is therefore in principle, in my judgment, an issue with which the Secretary of State would need to be concerned.
None of this, nor the anxious circumstances relating to this family of three, who were removed following what I have found to have been an unlawful refusal of leave to remain and who have subsequently, for an extended period, been left overseas to seek to pursue a judicial review, can, in my judgment, justify the making of an order for their mandatory return, even assuming that Mr Jafar is right as to the lawfulness of the decision letter in law infecting the lawfulness of the removal.
I turn then to the question of "historic injustice". In circumstances where there is no...
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