R (Bibi) v Secretary of State for the Home Department

JurisdictionEngland & Wales
Judgment Date05 August 2009
Neutral Citation[2009] EWHC 2322 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/3481/2009,CO/8654/2008
Date05 August 2009

[2009] EWHC 2322 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Before: His Honour Judge Pearl

CO/3481/2009

Between
The Queen on the Application of Bibi
Claimant
and
Secretary of State for the Home Department
Defendant

MR A MUSTAKIM appeared on behalf of the Claimant

MR N SHELDON appeared on behalf of the Defendant

1

THE DEPUTY JUDGE: This is an application for permission to apply for judicial review. The application was dealt with by Keith Lindblom QC on the papers and this is a renewed oral application.

2

I deal first of all with the procedural matters that were drawn to my attention by Mr Mustakim which are referred to in his skeleton argument. The matter first, in fact, on the papers went to Mr Christopher Simmons QC on 23 April 2009. He, when looking at the papers that were in front of him, which did not contain the acknowledgement of service, granted permission for the matter to be listed for an oral hearing. As Mr Sheldon correctly draws to my attention, that really was a decision taken without notice on the basis of the papers that were in front of him at that time. The matter went back in front of Sir George Newman on 18 May. What he had in front of him was an application that the case should be removed from the list and Sir George Newman, having considered the documents lodged by the parties, made a decision on that, saying that there was no need for an oral hearing of the permission application on the basis of the material now before the court and that it should be vacated. In consequence, the matter then went in front of Mr Lindblom where he did have the acknowledgement of service, as well as the application and the grounds upon which relief was sought. He refused the permission to apply for judicial review on the papers.

3

In so far as it is argued that contradictory decisions have been taken by judges sitting in this court, I do not take the view that there have been contradictory orders. It is quite clear to me what did happen in the procedural matter that arose, that first of all, a judge dealt with it without notice; secondly, and rightly so in my view, another judge made an order that the listing should be vacated; the acknowledgement of service was then provided to Mr Lindblom QC sitting as a deputy, and he made the decision to refuse permission. It is that matter which is now in front of me on a renewal. I do not think, Mr Mustakim, that there is anything in that particular observation that you made in your skeleton argument as to the procedural way in which this case has come to me.

4

This is a case that deals with the new paragraph 277 of the Immigration Rules, which in effect is the rule that states that both the spouse and the sponsor have to be over the age of 21 for entry clearance to be given to the applicant. The basis upon which the matter has come to me for judicial review, if I may put it in this way, is that notwithstanding the statutory appeal remedy to the AIT, in other words notwithstanding an alternative remedy, nevertheless judicial review should be proceeded with. In other words permission should be granted for a judicial review in this court, firstly, because of the public importance surrounding paragraph 277; secondly, that in any event, the alternative remedy would take a long time to deal with; thirdly, as it has been suggested and submitted, any appeal to the AIT is, in the words of Mr Mustakim, doomed to failure; fourthly, issues relating to the merits of the claim; and fifthly, that the husband would not be a party to the appeal in front of the AIT; and then finally, a sixth point, that the AIT has no power to make a declaration of incompatibility.

5

I have looked carefully at all of those arguments that have been ably presented by Mr Mustakim, both orally and in his skeleton argument, but I have to say that, on consideration of all of those points, I am not with him and I refuse this renewed permission to apply for judicial review.

6

Mr Sheldon, on behalf of the Secretary of State, is absolutely right that the general approach of this court is not to grant permission to apply for judicial review when there is a statutory appeal remedy available, and there is in this case. It is quite clear to me on the chronology that that appeal remedy at least was commenced by the claimant in this case, although that particular appeal has been withdrawn. The reason why it has happened is not a matter for me to consider this morning.

7

As to the grounds which have been advanced, first of all the point that this is a matter of importance, the change in the rules, moving the age from 18 to 21, is obviously important. We all know the reason why it was done, and the reading of the documents that Mr Mustakim has attached to his skeleton argument make it quite clear that there are concerns, and very significant concerns, about forced marriages and pressure which is introduced in some cases in relation to young people, and that is the reason why the rule has been changed. Well, if those are matters of importance, I agree with Mr Sheldon that there is no reason whatsoever why they should not be dealt with by a specialist Tribunal, and the Asylum and Immigration Tribunal is a specialist Tribunal. It may well be this is the sort of case where in fact the Tribunal would be able to deal with just those points in a way that this court would not necessarily have the expertise to deal with.

8

As far as the time is concerned, procedures do take time. Yes, indeed, we all know that there has been, at some stage, whether now I am afraid I am not able to say, delays in matters going towards a hearing at the AIT. But, again, as Mr Sheldon has drawn to my attention, there are procedures for expedition and in these circumstances that could be achieved.

9

I am then referred to the case of EN Serbia on the basis that an appeal to the AIT is basically doomed to failure, and therefore there is a reason why the matter should be brought on judicial review. Here, again, Mr Sheldon has the answer to that, and I agree with him: that this is a paragraph of the Immigration Rules 277, a matter of policy. It is not therefore the same as a statutory instrument and the EN Serbia case which has been drawn to my attention deals of course with statutory instruments not with Immigration Rules. It is certainly at least prima facie possible, and has been done by the AIT and its predecessors, to make statements relating to the lawfulness or otherwise of Immigration Rules, in particular on human rights grounds.

10

I am then obviously drawn to the question of the merits of the claim, and here Mr Mustakim, I think, is making observations which do not impact on the issue which is in front of me this morning, and that is the question of whether I should or should not grant permission to apply for judicial review. The merits, the substance of the claim, do not impact on the question of the appropriate forum.

11

As far as the rights of the husband are concerned, who would not be a party to the appeal in front of the AIT, there again the answer and the response given by Mr Sheldon has considerable weight. That is that the AIT of course, as is quite clear from the case law both in the AIT and in these courts, are bound to take into account issues relating to Article 8, for instance, in the context of both the applicant to the AIT and the sponsor, in other words, all family members.

12

Then finally, so far as it is relevant, the issue relating to a declaration of incompatibility. This is a subsidiary matter, because there may well be a live issue as to whether this court can or needs to make declarations of incompatibility in relation to Immigration Rules, which of course are policy documents as opposed to statutory instruments or statutes. It is not necessary for my decision this morning, but suffice it to say, at least on first impression, I would again agree with Mr Sheldon that a declaration of incompatibility is not available to a court, because it is not necessary when issues are raised as to the vires, the rationality and the legality of the Immigration Rules.

13

So, for all of those reasons, and I hope I have been comprehensive, I am against you, Mr Mustakim, and I refuse.

14

Your Lordship, this matter is legally aided. I would be obliged for a usual costs order in this respect.

15

THE DEPUTY JUDGE: Do you have any application for costs? I am not quite sure what the situation is. Is there an application that you would make?

16

Well, my Lord, in refusing permission on the papers, Mr Lindblom did make an order in the defendant's favour for the costs of preparing the file and the acknowledgement of service, less than £160. My instructions are to apply for that order to remain in place and also to add the costs of the summary grounds which were subsequently drafted, which hopefully my Lord has found of assistance. So a total of £500 is my application.

17

THE DEPUTY JUDGE: There is an application for £500 for costs. I am not sure you can really resist that can you?

18

Your Lordship, it is just that this was a case which was brought in the circumstances which I have described—

19

THE DEPUTY JUDGE: Well, no we do not need to go through all of that. I think you are entitled to your costs.

20

I am grateful, my Lord.

21

Your Lordship, in relation to legal aid taxation, I would be obliged if—

22

THE DEPUTY JUDGE: Yes, of course, absolutely. Thank you very much indeed.

[2009] EWHC 2322 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Before: Mr Justice Silber

CO/8654/2008

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