R ((1) S (2) D (3) W) v First-Tier Tribunal (IAC) (Secretary of State for the Home Department (Interested Party)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BEATSON |
| Judgment Date | 01 February 2011 |
| Neutral Citation | [2011] EWHC 627 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 February 2011 |
| Docket Number | Case No: CO/8648/2010 CO/6369/2010 |
[2011] EWHC 627 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at: Birmingham Civil Justice Centre Priory Courts
33 Bull Street Birmingham B4 6DS
Before: MR JUSTICE BEATSON
Case No: CO/8648/2010
CO/10681/2010
CO/6369/2010
Mr McKenzie (instructed by TRP Solicitors) appeared on behalf of the Claimants.
The Defendant did not appear and was not represented.
Mr Mandalia (instructed by the Treasury Solicitors) appeared on behalf of the Interested Party.
MR JUSTICE BEATSON
1.These three cases concern the entitlement to appeal against a rejection of a claim to asylum under section 83 of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act"). Section 83 provides that:
"(1) This section applies where a person has made an asylum claim and—
(a) his claim has been rejected by the Secretary of State, but
(b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).
(2) The person may appeal to the Tribunal against the rejection of his asylum claim."
Permission has been granted in S's case, but not in those of D and W. It has been agreed on behalf of the Secretary of State that their applications should be considered on a "rolled up" basis. There are other differences in the circumstances of the three cases. In particular, D and W respectively had and unsuccessfully exercised a right of appeal under section 82 of the 2002 Act against an immigration decision. D's appeal was dismissed in December 2003 and W's was dismissed in August 2004.
All three cases, however, have a number of common features. The first is that an application for asylum was rejected and, at the same time, either no leave to remain or less than a year's leave to remain was granted. Secondly, at a later stage further representations were submitted and it was asserted that a fresh asylum claim arose. Thirdly, after the submission of the further representations, the Secretary of State granted indefinite leave to the claimants to remain outside the Rules, but made no decision on the applications asserting the fresh asylum claim and stated that unless told otherwise within 14 days would treat them as withdrawn.
The question that arises in the three cases is whether in these circumstances the grant of indefinite leave to remain ("ILR") gives rise to an entitlement to appeal against the earlier rejection of the individuals' claim to asylum. In each of the three cases immigration judges —two in Birmingham and the third in Loughborough —ruled that the decision against which the claimant was seeking to appeal was not one in which there is an exercisable right of appeal to the First-tier Tribunal or is one where the notice of appeal falls within rule 9(1A)(b) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230) and that the notice of appeal lodged was invalid.
These proceedings were launched by W on 4 June 2010, by S on 13 August 2010, and by D on 12 October 2010. W, S and D's solicitors are TRP Solicitors Limited ("TRP"). Mr McKenzie appeared on behalf of all three at the hearing. Mr Mandalia, instructed by The Treasury Solicitors, appeared on behalf of the Secretary of State, the interested party. I am grateful to both of them for their clear and helpful skeleton arguments and oral submissions.
The evidence on behalf of S and D consists of two statements by Mr Shotton, a solicitor at TRP, respectively dated 9 August and 1 October 2010, exhibiting the relevant documents. In the case of W there is no statement, but Ms Finch, described as a director/solicitor of TRP, signed a Statement of Truth (on page 4 of the N461) which was filed on 3 June 2010 and the statement of facts and grounds refers to a number of documents, including the decision to grant W indefinite leave to remain and the Tribunal's decision.
In all three cases the Tribunal has filed an Acknowledgment of Service stating it a tribunal and does not intend to make a submission. Evidence on behalf of the interested party, the Secretary of State, has only recently been filed in the form of a statement of Mr McGirr, a senior executive officer in the United Kingdom Border Agency ("UKBA") Specialist Appeals Team. His statement is dated 26 January 2011. Mr Magur is currently responsible for organising UKBA's response to all appeals allowed by immigration judges and all judicial reviews concerning the appeals process.
The interested party, the Secretary of State, has taken a different position in relation to the different claims. The case of D is the most straightforward from this point of view. An acknowledgment of service was filed on 22 October. It was late. In it the Secretary of State submitted that the claim was factually inaccurate, as the claimant had not had his further submissions rejected, either explicitly or implicitly, and stated the Secretary of State was willing to consider the submissions further and if she refused them that would amount to a decision that would be appealable under section 83. On 20 November 2010 HHJ McKenna ordered the application for permission to be listed for a hearing.
The case of W is procedurally more complicated. On 27 July 2010 the Secretary of State filed an Acknowledgment of Service stating in section A that she did not intend to contest the claim and in section C that "the defendant is an interested party", and "the defendant does not oppose the claimant's application to restore her right of appeal, pursuant to section 83 [of the 2002 Act] to the First-tier Tribunal". Not surprisingly, in view of that on 22 September HHJ Kirkham granted permission on the papers. The Treasury Solicitor subsequently wrote to the court querying the order which, also understandably in the light of the terms of the Acknowledgment of Service, referred to the Secretary of State as being the defendant. The letter suggested that it appeared the Tribunal had not been served with a claim.
In the light of this, following consideration of the correspondence on 10 December 2010 HHJ Robert Owen QC discharged Judge Kirkham's Order as having been made in error. HHJ Robert Owen QC stated that unless the defendant filed an acknowledgment of service for the purpose of defending the claim within 14 days of the order, the relief sought by the claimant would be granted. The judge did so because the proceedings appeared to be uncontested and in those circumstances there was no useful purpose in permitting the claim to proceed as if it was contested.
Unfortunately, due to a typographical mistake, the order stated that the grounds of defence were to be filed by 4.00pm on 10 December, the date on which the order was made. Moreover, the Order was apparently not served on the parties. It was re-issued by HHJ Purle QC with a fresh Order amending the time for filing grounds by the defendant to 10 January 2001.
Following that, on 29 December the defendant filed an Acknowledgment of Service in the terms to which I have referred. And on 6 January 2011, the Secretary of State filed an amended acknowledgment of service and summary grounds indicating an intention to contest the case.
The matter came before the Recorder of Birmingham, HHJ Davies QC, on 18 January. He found that the amended Acknowledgment of Service met the requirements of the amended order and adjourned the application for permission to be heard, together with the cases of S and D.
I deal with S's case, which in a sense became the lead case first. Although it is procedurally less complicated, the way that those representing and acting on behalf of the Secretary of State had proceeded is not satisfactory. The Secretary of State did not file an Acknowledgment of Service. On 5 October HHJ Oliver Jones QC granted S permission on the papers and directed that any person who wished to contest the claim filed detailed grounds and evidence within 35 days. No grounds or evidence were filed within that period. Detailed grounds dated 13 January were however filed and last week on 24 January, very shortly before this hearing, I granted the Secretary of State permission to rely on the grounds, provided an application to do so was made before the hearing. An application dated 25 January was made.
The reason given by an unnamed lawyer in the Treasury Solicitor's department for not submitting grounds in accordance with HHJ Oliver Jones's directions and the requirements of CPR 54.9(1)(b) and 54.14(1)(b) is that the Secretary of State "intended to make a decision" regarding S's outstanding application "thus rendering the current proceedings academic and saving all parties additional costs and use of valuable court time", but "this has not proved possible within the available time frame". The court was not informed about this intention at any prior stage. That in itself is not satisfactory. Nor does the application provide any explanation for the different stance taken by the Secretary of State in the cases of S and those of D and W.
The court is aware of the heavy case load on those acting on behalf of or representing the Secretary of State, but the late submission of detailed grounds in breach of the directions given and the Rules, with no explanation until the court explicitly required one, suggested a somewhat casual approach to the court and the Rules, which those acting on behalf of the Secretary of State regularly argue should strictly be complied with by claimant's representatives.
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