R Karsaiye v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Simon Bryan |
| Judgment Date | 20 May 2014 |
| Neutral Citation | [2014] EWHC 1738 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 May 2014 |
| Docket Number | CO/11596/2012 |
[2014] EWHC 1738 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Simon Bryan QC
(Sitting as a Deputy High Court Judge)
CO/11596/2012
Mr Z Malik (instructed by MLC Solicitors) appeared on behalf of the Claimant
Ms S Blackmore (instructed by Treasury Solicitor) appeared on behalf of the Defendant
THE DEPUTY JUDGE:
This matter comes before me on a substantive hearing for judicial review. The manner that this matter came before me first thing this morning was in the form of a draft order which had been signed by both solicitors for the claimant and by the treasury solicitor for the defendant.
The order was in these terms:
"Upon the claimant reserving his position as to the correctness of decisions in R(Hamzeh) v Secretary of State for the Home Department [2013] EWHC 4113 (Admin), R(Geraldo) v Secretary of State Home Department [2013] EWHC 2703 (Admin) and R(Jaku) v Secretary of State for the Home Department [2014] EWHC 605 (Admin); upon the claimant reserving his position to seek permission to appeal on the above basis from the Court of Appeal and upon consideration of the claimant's note dated 14 May 2014, it is ordered that:
(1) the claim for judicial review be dismissed,
(2) the claimant to pay the defendant's costs to be subject to detailed assessment if not agreed and,
(3) permission to appeal to the Court of Appeal be refused."
That was an order which I was invited, as the judge trying this case, to endorse as my own, as it were.
It seems to me in principle that it is not appropriate for an order in such terms to be entered, not least because there had been no consideration of the claim for judicial review and there had been no judgment given in relation to that. The consequence of that will be, in the absence of any determination or judgment, that there could not be a proper consideration on an application for permission to appeal to the Court of Appeal, which in itself has not happened. In any event, the reason that this order in this form has been drafted is because the claimant wishes to reserve the possibility in this, which is a legacy case, and which the claimant accepts, as I shall address in due course, stands no prospect of success at first instance, may possibly be joined with in due course any cases in relation to legacy which reach the Court of Appeal.
It seems to me that there is no basis on which a Court of Appeal could be properly assisted as to the particular facts of this case and the decision that is reached in this case without there being a judgment, however brief, in relation to this matter so that a court, if an application is made in due course to the Court of Appeal for permission to appeal, is in a position to know both the factual position in this case and any similarity or difference with any other case that is before the courts at the moment; and, also, whether the particular facts of this case are such that it would be appropriate, if the Court of Appeal felt it appropriate, for permission to be given in this case.
I therefore required that both parties attend before me this morning in order that the judicial review hearing could proceed and that a judgment could be produced as a result. That is what has now happened before me this morning. I have been addressed on that and, against that background, I now give my judgment on the application.
The claimant, Mr Singh, is a citizen of India and was born on 11 January 1987. Mr Singh is a failed asylum seeker, having claimed asylum on 20 February 2006 on arrival at a UK port, with his asylum claim being refused on 1 March 2006 and certified as clearly unfounded. After being released from detention on temporary admission with a requirement to report, Mr Singh failed to comply with his reporting requirements over the ensuing years, save for one period. Over the years, solicitors acting for Mr Singh have written a number of letters to the Secretary of State for the Home Department enquiring whether his case would be considered under the legacy programme.
The claimant issued judicial review proceedings on 13 October 2012 asserting that "the Secretary of State for the Home Department's failure to make any decision and/or regularise his stay in the United Kingdom" under the legacy programme was unlawful. The acknowledgment of service was filed on 13 January 2013. Permission to apply for judicial review was granted by His Honour Judge Thornton QC on paper on 25 June 2013. The Secretary of State for the Home Department made the decision refusing to regularise the claimant's stay under the legacy programme on 7 October 2013.
The claimant raised two grounds of challenge in his application for judicial review, first that the "continued failure" to make a "decision" or a "substantial decision" in his case and, secondly, he alleges that the Secretary of State for the Home Department's conduct is unlawful and irrational based on excessive delay. These are familiar grounds of challenge in the numerous legacy cases that have been brought before this court and have resulted in a large number of first instance decisions of this court in which such legacy cases have been found to be ill-founded. I would refer in particular to the R(Geraldo) v Secretary of State for the Home Department [2013] EWHC 2703 (Admin), R(Hamzeh) v Secretary of State for the Home Department [2013] EWHC 4113 (Admin) and, most recently, R(Jaku) v Secretary of State for the Home Department [2014] EWHC 605 (Admin), a decision of Ouseley J, the lead judge for the Administrative Court. Despite this body of authority, substantial judicial review hearings continue to be pursued in cases indistinguishable from the issues arising in those cases. A recent example is the R(Mohammed) v Secretary of State for the Home Department [2014] EWHC 1405 (Admin).
For some considerable time before this hearing, the Secretary of State has invited the claimant to withdraw these judicial review proceedings in the light of the case law that followed the grant of permission in this case, but the claimant has declined to do so. Under cover of an email of 14 May 2014 from the claimant's solicitors, ie very shortly before this hearing, the claimant served the claimant's note dated 14 May 2014 setting out the claimant's stance on this substantive hearing.
Paragraph 4 of that note provides as follows:
"The claimant appreciates the difficulty that he faces in this court on the current authorities. The...
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