R (Kumar) v Secretary of State for Consititutional Affairs (Leave to Appeal)

JurisdictionEngland & Wales
JudgeLord Justice Brooke
Judgment Date13 July 2006
Neutral Citation[2006] EWCA Civ 990
Docket NumberCase No: C1/2004/2418 and C1/2004/2418/B
CourtCourt of Appeal (Civil Division)
Date13 July 2006
Between:
The Queen on The Application of Ranbir Kumar
Claimant/Appellant
and
Secretary of State for Constitutional Affairs
Defendants/Respondents

[2006] EWCA Civ 990

[2004] EWHC 3362 (Admin)

Before:

Lord Justice Brooke,

Vice-President of The Court of Appeal (Civil Division)

Lord Justice Dyson and

Lord Justice Lloyd

Case No: C1/2004/2418 and C1/2004/2418/B

IN THE SUPREME COURT OF JUDICAT

COURT OF APPEAL (CIVIL DIVISI

ON APPEAL FROM THE ADMINISTRATIVE CO

Mr Justice Moses

Royal Courts of Justice

Strand, London, WC2A 2LL

The Appellant appeared in person

Adam Tolley (instructed by the Treasury Solicitor) for the Respondents

IN

Part Paragraph

1

The Background Facts. 1

2

Action 1. 7

3

Action 2. 20

4

Action 3. 24

5

Action 4. 28

6

Action 5. 31

7

Action 6. 33

8

Action 7. 42

9

The application for permission to appeal. 46

10

The appeal against the general civil restraint order. 48

11

Did the CPR confer a power to make a general CRO in this case?. 49

12

Did the inherent jurisdiction of the court confer such a power?. 51

13

Was it open to Moses J to make an extended CRO on 8th November 2004? 64

14

Should this court make an extended CRO?. 76

15

Some Concluding Remarks. 78

Lord Justice Brooke

Lord Justice Brooke: This is the judgment of the court.

1

The Background Facts

1

Mr Kumar was born in India in 1967. On 10th September 2002 the British Embassy at Dusseldorf granted him a visa entitling him to pay multiple visits to the UK over a six-month period, so long as he did not work or have recourse to public funds. He flew to Stansted on 13th November 2002 and attended an open day organised by the Legal Practice Course at Staffordshire University. He says he was told that if he enrolled for the course his tuition fee could be paid in seven instalments of £1,000. He has also said that he borrowed money from his brother and his mother to pay the fee, and that he promised he would finish the course in a year. He then returned to Germany.

2

On 27th December 2002 he applied at the Embassy for a student visa. He produced a letter dated December 2002 addressed to "Dear New Student" from the Course Director. It appeared to offer the addressee a place on a LLM programme commencing in January 2003. After referring to financial and other requirements, the letter stated that enrolment would take place in the week commencing 13th January, and that the course would start on 20th January. The Embassy was not willing to issue a student visa that day. In due course he was asked to attend an interview on 13th February.

3

His application was refused that day on the grounds that the Entry Clearance Officer ("ECO") was not satisfied that he had been accepted for the course of studies he intended to partake in. It appears that the ECO telephoned an identified member of the staff of the university who told him it was now too late to start the course, for which he would need to remain in England for 18 months. He deleted the printed words "Furthermore I am not satisfied that you will be able to meet the costs of your course and accommodation and the maintenance of yourself." Instead he wrote "Applicant argued that he had sufficient. I crossed this out. Refusal reasons". The ECO was later to say in an Explanatory Statement justifying his refusal that Mr Kumar had declined to sign the refusal notification and that he had also refused to leave the waiting room until the ECO had deleted the last sentence of the printed grounds for refusal. He did this simply to get him to leave the office.

4

He was told on the form that he was entitled to apply to the appellate authorities, and that if he did so his appeal would be dealt with in England. The papers now before this court do not contain any advice that he must file his notice of appeal at the Embassy, which is the appropriate procedure. Apparently if an ECO is then unwilling to reconsider his decision, he will then prepare a bundle of documents and send them to the Home Office for forwarding to the Immigration Appellate Authority ("IAA") . Mr Kumar says that he contacted the Immigration Advisory Service ("IAS") by telephone or email from Germany and that he could not obtain proper advice from them. He then flew to England on his visitor's visa, which was due to expire on 13th May 2003. He went to the university, and he has produced a letter from the acting student information manager (Student Records) to the effect that he entered on Year One of the full-time one-year Master's programme in the School of Law on 18th February 2003, and that the course would end in July 2004. The letter also stated that the tuition fees for each year of the course were £7,000, and that these had been paid in full. He has said that he also had about 1,000 Euros in a bank account in Germany at this time.

5

On 3rd March 2003 he says he could not obtain proper advice about the appeal procedures from the IAS's offices in Birmingham. However, when he visited the Home Office's Public Enquiry Office in Birmingham the same day, he says he was advised to send the appeal notice, together with his passport and other relevant documents, to a division of the Home Office at Croydon. He complained in his grounds of appeal that the ECO had treated the acceptance letter from the law school as a non-acceptance letter, even though he had been accepted for the course. He says the Home Office received his appeal notice and the other documents on 7th March.

6

He says that nothing then happened. He telephoned the Home Office on 10th April, and he also wrote to them on 25th April and 15th May with no result. He has produced copies of these letters. On 25th April, for instance, he asked for the return of his passport by recorded delivery. On 15th May he made inquiries by telephone of the IAA's Customer Service Centre at Loughborough, only to be told that they had not received the appeal papers or the explanatory statement from the Home Office. Mr Kumar has said that because he could not get his passport back, he lost contact with his family and was unable to visit them in the summer vacation. They had stopped supporting him because he had stopped studying.

2

Action 1

7

On 19th May 2003 he filed a claim form in the District Registry of the High Court at Stoke-on-Trent (SQ303193) . I will call this "Action 1". He claimed damages from the Home Office pursuant to s 8(2) of the Human Rights Act 1998 ("the HRA") in relation to the detention of his passport and the Home Office's unwillingness or refusal to process his appeal against the refusal of a student visa. He advanced his claim under Articles 14 (linked with Articles 3, 5, 6 and 10 and Article 2 of the First Protocol) and 8 of the European Convention on Human Rights. He claimed that his passport was being kept under illegal custody despite repeated requests, that he had not received a student visa, and that he could not open a bank account without a passport. The claim form was issued on 20th May.

8

On 29th May Mr Kumar made inquiries at the district registry because he had not received a notice of issue of his claim. A court officer wrote down on a piece of paper the words "Claim SQ303113 Date of service 29 May 2003" from the data held on a computer. It is not clear why postal service was delayed for nine days following issue, although a bank holiday weekend did intervene. He then received notice of issue through the post. This referred wrongly to the Stoke-on-Trent County Court as the court of issue. The original computer print-out read:

"Your Claim was issued on 20 May 2003. The court sent it to the defendant by first class post on 23 May 2003 and it will be deemed served on 29 May 2003. The defendant had until 12 June 2003 to reply."

9

Nobody seems to have taught the court staff at Stoke-on-Trent about the effect of the decisions of this court in Godwin v Swindon BC [2001] EWCA Civ 1478, [2002] 1 WLR 997 and Anderton v Clwyd CC [2002] EWCA Civ 933, [2002] 1 WLR 3174, which interpreted the rules as meaning that deemed service occurred two days after postal service, without allowance being made for weekends or bank holidays.

10

In fact someone had altered the last three dates on the computer printout in manuscript, so that they now purported to read 29 May, 03 June and 18 June. Mr Kumar was later to accuse the Court Service of impropriety in making these alterations.

11

On 6th June the Treasury Solicitor's office wrote to Mr Kumar. The author of the letter, Venetia Jackson, told him that the claim form and particulars of claim were received "at this office" on 6th June. She asked for a 28-day extension of time for serving the defence while the matter was investigated. He did not respond. On 24th June she sent him a similar letter, on this occasion enclosing the Home Office's acknowledgment of service, which was filed with the court on the same day.

12

In the meantime he had endeavoured to obtain a default judgment. On 13th June he asked the court to enter a default judgment in his favour in the absence of an acknowledgment of service or a defence. On 16th June District Judge Chapman gave directions, which Mr Kumar says he complied with. He made further such applications on 27th June and 2nd July. On the latter occasion the court directed that his application should be heard on 7th August.

13

In the face of Mr Kumar's continuing unwillingness to respond to the requests for an agreed extension of time for filing a defence, on 3rd July the Treasury Solicitor applied to the court for an order that the claim be stayed for three months, alternatively for an extension of time for the defence until 1st August. Complaint was made that Mr Kumar had not sent a letter before action,...

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