Namit Jetly v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 11 February 2019 |
| Neutral Citation | [2019] EWHC 204 (Admin) |
| Docket Number | Case No: CO/3300/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 February 2019 |
[2019] EWHC 204 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Andrews DBE
Case No: CO/3300/2017
Mr Abdurahman Jafar (instructed by Aaron & Ace Solicitors) for the Claimants
Mr Zane Malik (instructed by the Government Legal Department) for the Defendant
Hearing date: 11 December 2018
Approved Judgment
INTRODUCTION
This is an application made by the Claimants, who are brothers and nationals of India, for judicial review of a decision by the Defendant (“the SSHD”) made on 10 April 2017 refusing their applications for registration as British citizens under section 4C of the British Nationality Act 1981 (“the 1981 Act”); and a further decision of 26 June 2017 in response to a pre-action protocol (“PAP”) letter, maintaining that refusal. Both Claimants are adults, in their forties; Mr Namit Jetly was born on 2 August 1974 and his brother Vinit was born on 17 June 1977.
The PAP letter was sent to the SSHD on 14 June 2017 on paper bearing the letterhead of a firm named Archbold Solicitors (SRA ID 636856) (“Archbold”). The letterhead gave an address for Archbold at 319–320 Victory Business Centre, Portsmouth, PO1 1PJ. The letter bore the reference PM/MA/Sudha. Sudha is the first name of the Claimants' mother.
The SSHD responded to that letter on 26 June 2017. That response stated that the case had generated approximately eight previous decision letters or decision related letters, all of which supported the SSHD's position that the solicitors' clients did not qualify for British Citizenship. The letter identified as a central issue the fact that the Claimants' mother, Mrs Sudha Bala Jetly, had no entitlement to a right of abode in the UK at the time of their birth. The writer said that she held a British Overseas Passport and was not registered as a British Citizen until 1 November 2004.
The Claim Form was issued on 14 July 2017 and served on 21 July that year. The box on the first page for “ Claimant's or claimant's legal representatives' address to which documents should be sent” was filled in with the name of Archbold and the address at Victory Business Centre stated above; a telephone and fax number, and an email address: kumar@archboldsols.com. The person named as the intended signatory of the statement of truth was Maxy Augustine, who is a solicitor and one of the three partners in Archbold.
The statement of truth on the Claim Form was not signed, but this was not picked up in the Administrative Court office or by the Government Legal Department (“GLD”) at the time. By virtue of CPR 22.2(1) failure to verify the Claim Form by a statement of truth renders it vulnerable to being struck out, and the party concerned may not rely on the statement of case as evidence of the matters set out in it. That includes, in a judicial review claim, the facts set out in the grounds for judicial review. The Court has the power to strike out such a statement of case of its own motion under CPR 22.2(2).
CPR Part 42.1 (1) provides that where the address for service of a party is the business address of that party's solicitor, the solicitor “ will be considered to be acting for the party until the provisions of Part 42 have been complied with”. Part 42, and the Practice Direction which supplements it, address the situation where a client wishes to instruct a new solicitor, or where the solicitor who is on the record has ceased or wishes to cease acting for the client. In the former situation, the party or his solicitor (where one is acting) should file notice of change with the court. He must serve that notice on every other party (including the former solicitor) and confirm to the court that such notice has been served.
In the latter situation, the solicitor must apply to the court for an order declaring that he has ceased to be the solicitor acting for a party under CPR 42.3. This is known as “coming off the record”. Unless the court directs otherwise, the solicitor must give notice of that application to the client, but he is not obliged to notify the other party to the litigation prior to the order being made. The application must be made by application notice in accordance with CPR Part 23 (see 42PD 3.2) and supported by evidence. When such an order is made, it must be served on every party to the proceedings and, if service of the order is to be effected by the solicitor, a certificate of service must be filed with the court.
The rules do not expressly cater for the situation in which someone purports to issue proceedings on behalf of a claimant, giving a solicitor's address for service, without the knowledge and/or authority of the solicitor concerned. On the face of it, CPR Part 42.1 treats the unsuspecting solicitor as acting for the claimant until he is removed from the record, yet in such circumstances, the solicitor never consciously came on the record. I can understand why the solicitor concerned might take the view that it would be unfair to require him to issue (and pay for) a formal application to come off the record instead of simply alerting the court to the situation. However, the lay client is entitled to know if there is a problem which may adversely affect the conduct of his case, as he may be wholly innocent, and could be severely disadvantaged by the conduct of the person usurping the solicitor's function. CPR Part 42 ensures that he is put in the picture.
It is a moot point whether CPR 42 requires it, but the better course in such a situation would be for a formal application to be made by the solicitor to come off the record, under CPR 42.3, once he realises what has happened. Service of the evidence in support of the application would alert an innocent lay client to the fact there is a problem. On the other hand, if it transpires that the lay client was a party to the deception, this course will enable the court to get to the root of the matter and take appropriate action.
The SSHD filed an Acknowledgment of Service and Summary Grounds of Defence on 11 August 2017. The matter was placed before a judge to consider whether to grant permission to apply for judicial review on 12 October 2017, but he was unable to make a decision on the application because the Claim Form was not accompanied by key documents (including the two impugned decision letters), despite the relevant box in section 10 of the Claim Form being ticked to indicate that it was. He directed the Claimants to file those documents within 14 days. It is not clear when that order was complied with, but it must have been, because another judge considered the permission application on the papers on 13 November 2017 and refused permission.
The application for permission was renewed to an oral hearing. The notice of renewal is dated 21 November 2017, and it bears a similar reference, PM/ 17026/MA, to the one which appeared on the PAP letter. It appears to be signed, though the signatory is not identified.
On 8 January 2018 at 14.50 hours an email was sent to Ms Suki Deo, a lawyer at the GLD, attaching the renewal grounds. The email, which appears to have been prompted by an email sent by Ms Deo on 4 January, stated that “ we take this opportunity to forward the bundle submitted in the matter of the application for permission to apply for JR as well. If you require any further documents, please let us know.” The email was sent from the email address tunde@archbolds.com. That was the email address of Tunde Salami, who was at that time a paralegal working in Archbold. He is not a qualified solicitor, barrister or legal executive.
Permission to bring judicial review was granted by Michael Kent QC, sitting as a deputy High Court Judge, at an oral renewal hearing on the following day, 9 January 2018. It was limited to a single ground: whether the Claimants met the third condition set out in section 4C(4) of the 1981 Act, namely, that they would have had a right of abode in the UK by virtue of section 2 of the Immigration Act 1971 had they become Citizens of the United Kingdom and Colonies (“CKUC”) at some point before 1 January 1983. It appears from the Order made following the renewal hearing that both parties appeared by counsel. The fact that the statement of truth on the Claim Form had not been signed was still not noticed by anyone concerned, including the judges who had dealt with the matter up to and including that hearing.
The Court record shows that following the grant of permission to bring judicial review, the Claimants or someone acting on their behalf sought a fee remission for the continuation fee, which was rejected on two occasions. That correspondence from the Court fees office was sent to Archbold as the solicitors on record.
The Court of Appeal in R (Harrison) v Secretary of State for the Home Department [2003] EWCA Civ 432 gave guidance as to the role of this Court in judicial review claims involving disputes as to a person's nationality. Keene LJ (with whom May and Arden LJJ agreed) stated at [34] that where a person brings proceedings for a declaration that he is entitled as of right to British citizenship under the 1981 Act:
“ in determining that matter the court will itself resolve any issues of fact as well as any issues of law… It will find the facts for itself according to the evidence before it” [emphasis added].
The burden of proof that they are entitled to British Citizenship lies on the Claimants as the party asserting such an entitlement (see section 3(8) of the Immigration Act 1971), and the standard of proof is the balance of probabilities. Therefore, this is the rare type of case in the Administrative Court where witnesses may be...
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