R Abbas Mohammadi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Prof. Christopher Forsyth |
| Judgment Date | 09 July 2014 |
| Neutral Citation | [2014] EWHC 2251 (Admin) |
| Docket Number | Case No: CO/9702/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 July 2014 |
[2014] EWHC 2251 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Professor Christopher Forsyth
(Sitting as a Deputy Judge of the High Court)
Case No: CO/9702/2012
Mr David Ball (instructed by Messrs Duncan Lewis) for the Claimant
Mr William Hansen (instructed by Treasury Solicitors) for the Defendant
Hearing date:8th April 2014
This is an application in which the Claimant, a failed asylum seeker, seeks judicial review of the Secretary of State's refusal of a "Fresh Claim" for asylum. Such claims are governed by para 353 of the Immigration Rules which is designed to ensure that failed applicants cannot apply for asylum over and over again without putting forward new material that is significantly different from that already considered. Para 353, the application of which will form the heart of this judgment, is in these terms (omitting currently irrelevant words):
"When a human rights or asylum claim has been refused or withdrawn… and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) has not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection…."
Preliminary Procedural Issue
Before turning to the application of para 353 there is a preliminary procedural point to consider. Permission to apply for judicial review was granted on the 2 nd May 2013 by HHJ Thornton QC. Under CPR 54.14 the Defendant had thirty five days from the grant of permission (i.e. until the 7 th June 2013) to file her detailed grounds (and written evidence) for contesting the claim. And in granting permission HHJ Thornton QC had so ordered. None the less, the Secretary of State only filed her Detailed Grounds of Defence on the 29 th March 2014, about nine months late.
In these circumstances Mr Ball, for the Claimant, submitted that I should exercise my powers under CPR 3.4(2)(c) that arise on non-compliance with a court's order and strike out the Defendant's Detailed Grounds of Defence. Mr Ball submitted that this would be in accordance with the "new robust approach" of Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 of not generally "granting relief to defaulting parties from the consequences of their defaults" (Lord Dyson MR, para 34). This "robust approach" was adopted in reaction to the fact that "courts at all levels have become too tolerant of delays and non-compliance with orders. In doing so, they have lost sight of the damage which the culture of delay and non-compliance is inflicting upon the civil justice system. The balance therefore needs to be redressed." (ibid, but citing Sir Rupert Jackson's Final Report Ch 39, para 6.5).
But as Mr Hansen, for the Secretary of State, pointed out, the current matter is in the Administrative Court and this distinguishes it from Mitchell which was private law litigation (in fact concerned with costs budgets in litigation between individuals). Mr Hansen went on to argue that there was a public interest in judicial review litigation that was absent in private law litigation. Although Mitchell was not in terms restricted to private law I recognise that there is a public interest in securing the lawful exercise of public power that transcends the interests of the litigants immediately involved. This public interest is not consistent with striking out the Detailed Grounds and thus deciding this case on an artificial basis.
I note also that Mitchell was concerned not with the power to strike out a pleading but with CPR 3.9 which is concerned with granting relief from any sanctions imposed for a failure to comply with a rule, practice direction or court order. As Mr Hansen pointed out there was no sanction imposed in this case.
Moreover and significantly the courts under CPR 3.9 are particularly directed to consider "the need…for litigation to be conducted efficiently and at proportionate cost; and… to enforce compliance with rules, practice directions and orders". But there is no such particular direction in rule 3.4 – the power I am asked to exercise. Thus I decline to strike out the Defendant's Detailed Grounds of Defence. I note, however, the inordinate delay by the Defendant without any particular explanation advanced to the court.
The application of the new "robust approach" of Mitchell to public law litigation will doubtless be considered in other cases; but this is not the case in which to do so.
The facts
I turn now to consider the application of para 353 in the context of the facts of this case. The Claimant, an Iranian citizen, entered the UK clandestinely, and was discovered by immigration officers on the 10 th of September 2008. He claimed asylum the same day. His claim for asylum was refused on the 9 th October 2008 and his appeal to the Asylum and Immigration Tribunal was dismissed by Immigration Judge M Davies on the 11 th December 2008. The Claimant was not represented at the AIT hearing or at the earlier Case Management Hearing. The Claimant applied for reconsideration to the High Court; that application for reconsideration was dismissed on the 28 th May 2009.
But the High Court judge (Beatson J as he then was) ordered that the documents be placed before the president of the AIT to determine whether the Tribunal had told the Claimant (as the Claimant claimed) that the court interpreter at the hearing would translate the Claimant's documents. In the event the Deputy President of the AIT reported that there was "no reason" to conclude that the AIT had indicated that the court interpreter would provide this service to the Claimant. But while this is conclusive as far as the AIT is concerned it seems clear that the Claimant and the Home Office Presenting Officer at the CMH formed a different impression (see the Determination of the Immigration Judge at para 20). This is the "Translation" issue to which we shall return.
The asylum claim having failed the Claimant applied to return to Iran in April 2010 but in early 2011 he turned up in Ireland and claimed asylum there. However, on the 12 April 2011 he was returned to the UK under the Dublin Convention. He was detained and he made further submissions (which were refused on the 24 th April 2011), further submissions were made on the 19 th December 2011 and more on the 6 th January 2012. After consideration all these were refused by the Defendant on the 12 June 2012. It is this refusal that is the subject of this challenge.
A word should be added here about the nature of the fresh submissions. At the hearing before IJ Davies the Claimant wished to have considered a series of documents (called by the Claimant books) of some 180 pages in length (written in Kurdish and Farsi) which consisted (according to the Claimant) of criticisms of the Shia religion and the Iranian government. According to the Claimant these documents were written by him. These were the documents that were the subject of the "Translation" issue. The fresh submissions of the 21st November 2011 had as their central feature translations into English of these documents. In addition there were other documents such as the Claimant's birth certificate (with translation) and letters from the...
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