R Ehsan v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | D Gill |
| Judgment Date | 20 August 2013 |
| Judgment citation (vLex) | [2013] EWHC J0820-1 |
| Docket Number | CO/3120/2013 |
| Date | 20 August 2013 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC J0820-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
D Gill
(Sitting as a Deputy High Court Judge)
CO/3120/2013
Mr Z Malik (instructed by Mayfair Solicitors) appeared on behalf of the Claimant
Mr R Kohli (instructed by Treasury Solicitor) appeared on behalf of the Defendant
PROCEEDINGS
THE DEPUTY JUDGE: I have some questions on this before we start. The first thing is that I received all of this at 10.05 am and so I have had an opportunity only to flick through the papers because I also received the skeleton arguments in other cases at the same time, all of which I have read but I could only do so much with the bundle. So if there is anything here — in fact, I do not think there is anything here that I have not already seen in my original bundle, you have just put forward the same documents, have you not?
MR MALIK: Yes, my Lady.
THE DEPUTY JUDGE: There original grounds et cetera, and there are your renewed grounds in here as well. All right. Now, I have a few questions. The first is this: when did the claimant first raise the point that the letters of 10 January 2012 and 24 February 2012 had not been received by the claimant?
MR MALIK: My Lady, I understand that is something that was referred to in the judicial review claim form but, just to save time, I am not going to rely on that at all in the course of my submission.
THE DEPUTY JUDGE: You are not relying on that?
MR MALIK: My Lady, if it assists, I can tell you in a nutshell what my case is. My Lady, I make two points and it is only on those two points I seek permission. The first point, my Lady, is that the Secretary of State's conclusion that the claimant's leave expired on 28 December 2011 and that she had no leave at the time of her application to the Secretary of State is wrong in law.
THE DEPUTY JUDGE: That is a point that has already been made before but what is the reason for saying wrong in law? Before we get onto your submissions, as I indicated, I have a few questions. So you helpfully explain that you are not relying on the claimant saying that he never received the letters inviting him to make an appointment to give his biometric information.
MR MALIK: I am not, my Lady, no.
THE DEPUTY JUDGE: That goes away, that is fine. There is another point about the renewed grounds, which is that they challenge the lawfulness of the decision of 26 March 2012 on a basis not previously mentioned.
MR MALIK: Yes.
THE DEPUTY JUDGE: Now, there are, of course, two problems because the claim was lodged on 29 April 2013, and so if the challenge is to the decision of 29 March 2012, you have an out of time issue.
MR MALIK: Yes, My Lady.
THE DEPUTY JUDGE: The second problem is that the basis of the complaint in the renewed ground was not raised previously. So you are not relying on those either?
MR MALIK: My Lady, there is actually another problems with these grounds that were settled by my solicitors. My solicitors have made two points as to the legality of the decision that was made in March last year and, my Lady, you will see that they refer to the Biometric Regulations of 2012 but the quotation is not actually from those Regulations, the quotation is from the 2008 Regulations that are of no assistance in this case and therefore the point that was made by my solicitors does not assist us at all.
THE DEPUTY JUDGE: So you do not rely on the renewed grounds at all?
MR MALIK: No, my Lady, save as to a short point that is made towards the end of those grounds. That is the only point that I was hoping to develop before your Ladyship along with my second point.
THE DEPUTY JUDGE: In developing your short point you need to ensure that you are not developing your short point beyond the ambit of your original grounds because if you are, you have not made an application to amend your grounds and it is not open to you to launch into new grounds on your feet without giving the other side any advance notice.
MR MALIK: My Lady, an application to amend the grounds was actually made last week. There is a written application that should be in the bundle. I understand that that was served on the Secretary of State as well. My Lady should have a copy of that application.
MR KOHLI: My Lady, I have certainly got a copy of the application but the thing that I am confused about, my Lady, that may also confuse your Ladyship, is that although there is an application to amend the grounds, what is sought to be amended is, in fact, the renewal grounds for the oral hearing, so far as I can tell. The amendments that are suggested are underlined within the renewed grounds. So I am not quite sure what arguments are in play and which are not and I would outline the position as to whether the Secretary of State should have an opportunity to respond or not depending on how Mr Malik proceeds.
THE DEPUTY JUDGE: All right, well, let me see where I can find this application notice.
MR MALIK: My Lady, if you have the bundle that was filed last week then the application notice starts on page 1, this is the very first document.
THE DEPUTY JUDGE: You mean this bundle here?
MR MALIK: Yes, my Lady, this is a bundle of 91 pages with an index with three tabs.
THE DEPUTY JUDGE: This is the bundle I received at 10.05 am.
MR KOHLI: My Lady, I hesitate to rise again, just to say, I do not have that bundle, so I would be grateful if both Mr Malik and your Ladyship would just be mindful of that when referring to documents because the page numbers will not make sense to me.
THE DEPUTY JUDGE: You do not have this bundle?
MR KOHLI: My Lady, no. That has not been given to me. I cannot say whether it has been given to my solicitors or not but it has not made its way to me.
THE DEPUTY JUDGE: Where do I find this application to amend?
MR MALIK: My Lady, page 1. My learned friend has a copy of this. This is form PF244. Then, my Lady, there are two witness statements. Then, my Lady, there are renewal grounds for oral hearing, and my Lady will see that the renewal grounds at page 15 say that the claimant now submits these grounds in addition to the grounds previously submitted and also challenges the defendant's decision of 26 March 2012.
THE DEPUTY JUDGE: I checked this against what I saw as your renewal grounds and they seemed the same to me on a quick comparison page by page.
MR MALIK: My Lady, the only new point is a point based on the Regulations in the sense that the renewal grounds challenge the Secretary of State's conclusion that the leave expired on 28 December 2011 and the claimant had no leave when she made the latest application for leave to remain.
THE DEPUTY JUDGE: I am sorry, I thought you said just now, Mr Malik, that you were not relying on the renewal grounds save one last sentence which you were seeking to enlarge upon.
MR MALIK: Yes.
THE DEPUTY JUDGE: Let us identify what is that last sentence. I go back to my copy of the renewal grounds, which is what I worked on.
MR MALIK: My Lady, if one looks at paragraphs 5 and 6 of the renewal grounds, they are at page 19 of the bundle.
THE DEPUTY JUDGE: So you say 5 and 6 as lodged previously is different to 5 and 6 as lodged in this application?
MR MALIK: That appears to be the case, my Lady, yes.
THE DEPUTY JUDGE: I do not see it. Paragraphs 5 and 6. There are two paragraphs 5 and 6. All right. Yes, it is the same. It is submitted that the defendant has failed to show that she had exercised discretion and failed to show that she has considered refusing and acted disproportionately in rejecting this application.
MR MALIK: Yes, my Lady. My Lady, this is not something which was raised in the initial judicial review grounds as advanced in the claim form.
THE DEPUTY JUDGE: That is the whole point, it was not raised previously.
MR MALIK: It was not, no, my Lady, but, of course, there is an application from us to permit us to rely on this point and that, in my submission, is part of the argument in any event. If my Lady would permit me, I will make brief submissions on the two points on which I was proposing to make submissions.
THE DEPUTY JUDGE: You have two problems with these renewed grounds. One is they concern a decision which is historic. So to the extent that your entire focus now is to challenge a historic decision for which you are out of time, you have an uphill struggle because you are well out of time. Then there is the fact that this argument was not brought in the original claim, you are raising it extremely late and Mr Kohli says he was not quite clear what argument you were pursuing, so he was not quite clear what instructions he had to take. Those are the points that you will need to address me on.
MR MALIK: My Lady, if it assists at all I can further clarify that in my submissions I am not going to directly challenge the decision of 26 March 2012, my submissions would be focused on the decision that has been challenged in these proceedings ie a refusal of the application for leave to remain made on 9 January 2013.
THE DEPUTY JUDGE: You will be aware that even if you do not directly challenge the decision of 26 March 2012, if in substance that is in fact what you are doing, you will still have the out of time point to deal with.
MR MALIK: My Lady, in the decision of 9 January 2013, that being...
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