R Osman Omar v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 30 November 2012 |
| Neutral Citation | [2012] EWHC 3448 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 November 2012 |
| Docket Number | Case No: CO/10040/10699/2010 |
[2012] EWHC 3448 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
The Honourable Mr Justice Beatson
Case No: CO/10040/10699/2010
Alasdair MacKenzie (instructed by Sutovic and Hartigan) for the Claimant
Jeremy Johnson QC (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 29 November 2012
The claimant, Osman Omar, is a national of the Cameroon, now aged between 38 and 40. In 2003 he married a Somali national, who is now a naturalised United Kingdom citizen. They have two children, now aged 8 and 6. On 13 September and 12 October 2010, he lodged two applications for permission to apply for judicial review, CO/10040/2010 and CO/10699/2010. They were consolidated when Hickinbottom J gave permission on 6 May 2011 and set a timetable for the filing of consolidated amended grounds. For reasons I shall give later in this judgment, the submissions raised in the first of these applications for judicial review are no longer pursued.
The claimant filed amended grounds on 3 June 2011. It was subsequently agreed that it was necessary for the claimant to further amend the grounds of claim and, in an order made on 30 May 2012, HHJ Cooke vacated the hearing that was listed for 24 July and gave permission to the claimant to file amended grounds of claim, and to the defendant to file detailed grounds of defence in response. He also ordered that the issue whether the claimant has permission to rely on the amended grounds of claim was to be dealt with at this hearing. It is accepted by Mr MacKenzie, on behalf of the claimant, that he does require permission to re-amend the grounds. I give that permission. As will be seen, the re-amended grounds include a ground outside those for which Hickinbottom J gave permission. That part of the case has, by consent, been dealt with on what is effectively a "rolled up" basis.
There are now only three issues before the court. The first is whether the Secretary of State for the Home Department acted unlawfully on 12 July 2010 in refusing to accept the claimant's application for an extension of discretionary leave without a fee. This involves a challenge to the decision made on 12 July 2010, to the vires of the relevant regulations, which provide for a fee and do not provide for it to be possible for the Secretary of State to waive it in the case of an applicant who seeks leave on human rights grounds but cannot afford the fee because he is either destitute or in receipt only of NASS support. It is the challenge to the regulations which requires permission. The second is whether, in the light of the defendant's decision on 9 November 2011 to grant the claimant three years discretionary leave, there remains no live issue in these proceedings. The third is whether, if no live issue remains, the court should nevertheless deal with the first issue on the ground that it raises wider points of public importance because of the number of similar cases that exist or are anticipated and because the decision sought is not fact-sensitive: see R v SSHD ex p. Salem [1999] 1 AC 450 at 456 – 457 and R (Zoolife International) v Secretary of State for the Environment [2007] EWHC 2998 (Admin) at [36].
In resolving these issues, I have been assisted by clear and focussed submissions by Mr Alasdair Mackenzie on behalf of the claimant, and by Mr Jeremy Johnson QC on behalf of the Secretary of State. I first set out the material facts. I then summarise the legal framework, before turning to the submissions and my decision.
In approximately March 2004, the claimant entered the United Kingdom unlawfully to seek his wife, using a false Dutch passport in the name of Oliver Kumba. On 10 March 2006 he was sentenced to 22 months imprisonment for kidnapping. On 11 July 2006 he was served with a notice of deportation. During his time in prison, he suffered from serious health problems including hydrocephalus, TB, and meningitis. These led to continuing neurological problems and to the insertion of a shunt, which required him to be monitored regularly for complications and blockages, and which might require further surgery.
On 13 December 2006 an appeal by the claimant against the notice of deportation was allowed by the Asylum and Immigration Tribunal. The Secretary of State was granted an order for the reconsideration of the appeal by the Tribunal on a number of grounds. The matter then came before another Immigration Judge. In a determination promulgated on 18 September 2007, the appeal was again allowed, on the grounds of the claimant's strong family ties to the UK, his medical condition, and because medical services in Cameroon were of sufficiently poor quality that the he would not receive the treatment he needed were he returned there.
On 9 December 2007 a Senior Immigration Judge granted the Secretary of State permission to appeal. However, the Secretary of State did not file an appellant's notice in time. She did not do so until 1 September 2008, ten months after permission was granted. The Court of Appeal (see [2009] EWCA Civ 383) refused to extend time for this appellant's notice to be filed. It did so because there was no reasonable explanation for the delay, and because the Secretary of State's failure to act was contrary to her own assertion that the public interest demanded the claimant's removal from the United Kingdom. The delay, and the errors in handling the claimant's case, may well, as Moses LJ stated at [30] be attributable to pressure of work on "the system", i.e. those administering immigration control on behalf of the Secretary of State. As those familiar with immigration cases in this court know, there are likely to be continued delays in dealing with the positions of individuals who are in this country without leave, either because they never had leave or because they have overstayed. That position is relevant background to the submissions made in this case.
On 27 June 2009 the claimant's then solicitors, the Immigration Advisory Service, wrote to the Secretary of State asking for immigration status papers for the claimant to be issued. They also invited her to grant indefinite leave to remain in the light of the delays in the case. On 22 December 2009, some 27 months after the second appeal had been allowed by the Tribunal, and more than seven months after the Court of Appeal had indicated that delay was fatal to the Secretary of State's application for an extension of time, the Secretary of State granted the claimant six months discretionary leave to remain in the United Kingdom, i.e. until 14 June 2010. The document granting this leave was, however, issued in the name of Oliver Kumba, the false name on the Dutch passport which the claimant had used to enter the United Kingdom. In an email dated 7 January 2010, the claimant's solicitors informed the Secretary of State of this error and asked her to reissue the documents in the correct name. As no reply had been received by 13 February, the claimant's solicitors wrote threatening to institute judicial review proceedings. The Secretary of State, in a letter dated 16 March 2010, agreed to issue an immigration status document in the claimant's correct name.
Subsequently, there was further correspondence as to whether it was appropriate for the discretionary leave to be granted for only six months. In a letter dated 10 May 2010, the Secretary of State issued an immigration status document in the claimant's correct name. The residence permit issued was, however, dated 22 December 2009, the date of the previous document, and was valid for a six month period from then, i.e. until 14 June 2010, about a month after it was issued.
On 11 June 2010, the Immigration Advisory Service applied on the claimant's behalf for an extension of his leave to remain. The application was for further discretionary leave to remain in the United Kingdom on the ground that failure to do so would lead to a breach of the claimant's Article 8 rights. The application stated that, due to the delay and the claimant's lack of status, he and his wife were experiencing difficulties in their marriage. As she could not support him and the children, he had left the family home to reside in NASS accommodation, but he maintained regular contact with his children, who stayed with him every weekend.
The solicitors made the application on two application forms, FLR(O) and HPLD. They stated they did so because it was not clear which form was relevant to his application. Although they had in fact been instructed for almost a year, they said that this was because they had only been recently instructed, and they did not have all the papers relevant to the claimant's case, so that it was not clear to them whether he had made a previous asylum claim. They also stated that it was unclear which form was to be used when applying for further discretionary leave to remain. They maintained that, because the application was for leave outside the rules and was in relation to the potential breach by the United Kingdom of the claimant's Article 8 rights, FLR(O) was not the appropriate form.
The claimant's solicitors also raised the issue of the fee. They stated that the defendant was aware that there is no fee in relation to application for further leave using form HPDL, whereas there is a fee for form FLR(O). They stated that they did not consider the claimant should have to pay the fee...
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