R Rathakrishnan v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | 1. Mr Justice Ouseley |
| Judgment Date | 15 April 2011 |
| Neutral Citation | [2011] EWHC 1406 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No CO/9833/2010 |
| Date | 15 April 2011 |
[2011] EWHC 1406 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
Case No CO/9833/2010
The Claimant was not represented, did not attend
Mr Honey (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
This is a slightly curious case with a chequered procedural history. The claimant is a Sri Lankan national who, having entered the United Kingdom in March 2008 and claimed asylum, proceeded through the appeal process. His rights were exhausted on 10 March 2009. As is common place, within a few days the claimant made fresh representations which the Secretary of State declined to treat as a fresh claim in her refusal letter of 9 September 2010. The claimant was detained for removal but the day before he was due to be removed he lodged an application for judicial review.
The Secretary of State considered representations that had previously been considered together with the points set out in the claim form to see if all of that amounted to a fresh claim and, in a letter of 11 October 2010, concluded that it did not. That decision was, in its turn, challenged by way of judicial review. The matter came on before Mr Justice Sales who refused permission on paper on 13 October 2010. An expedited renewal hearing was ordered which, on 10 December 2010, came on before Mr C M G Ockelton (sitting as a Deputy High Court Judge). He took the view that it was arguable that the terms of the letter of 11 October 2010 were unduly formulaic and had not grappled with all of the substance of the points raised. He made it clear that he was not suggesting that a properly reasoned letter could not lawfully reach precisely the same conclusion.
The claimant also sought to put before the court by way of challenge to the October 2010 letter an expert's report which had been produced after the Secretary of State's decision and indeed but a few days before the 10 December hearing itself. Mr Ockelton, quite rightly, declined to have regard to that report because it could not show that the decision of 11 October 2010 was unlawful.
Following the grant of permission, the Secretary of State decided that she would no longer rely on the decision of 11 October 2010 because the point made by Mr Ockelton might be well founded. She would also proceed to issue a further decision which would deal with the representations made for the purposes of the 11 October letter, the grant of claim and dealing with the expert's report dated 6 December 2010. This was all to be in accordance with paragraph 353 of the Immigration Rules which meant that until a decision had been reached on the representations the claimant could not be removed from the United Kingdom.
The Secretary of State invited the claimant to agree that the decision of 11 October 2010 be quashed and that she be ordered to reconsider the representations in the manner I have described. The claimant was unwilling to agree to so signal a victory and wished to have the proceedings stayed. The thinking behind that was that if the fresh decision was adverse to the claimant's interests and was arguably an unlawful decision, that further decision could be challenged within the same proceedings.
There was a hearing on 15 March 2010, which was envisaged as being a brief disposal, but at which Miss Jegarajah for the claimant turned up and contended that the claim should merely be stayed rather than successful so that any further challenge could be brought within its confines. She submitted that that was the approach enjoined upon the Administrative Court by the Court of Appeal in R v Secretary of State for the Home Department ex p Turgut [2001] All ER 719. She also submitted that there was a disadvantage to claimants if a decision were quashed putting an end to the proceedings, whereby a further challenge had to be the subject matter of a further application for judicial review in this way. The enforcement guidance issued in respect of removals was to the effect that if, within the three months following the conclusion of judicial review proceedings, further judicial review proceedings were launched there would be no policy of staying removal directions and an injunction to achieve that end would have to be sought from the court. She submitted that that guidance applied whether the claimant had been successful in the judicial review proceedings or had been unsuccessful.
The claimant is not represented; his solicitors wrote to the court two days ago to say that they were no longer instructed. Next day, they wrote indicating they would accept a consent order. After this judgment had been delivered a consent order signed by them was received. No reference was made to their continuing authority to act.
It is my judgment, for the reasons given in the helpful skeleton argument prepared by Mr Dennis Edwards for the Treasury Solicitor for the purpose of the hearing on 15 March 2010, that these proceedings should be ended by the quashing of the decision and an order made for the reconsideration of the decision together with the expert's report, all in accordance with paragraph 353.
It would be a wholly exceptional case in which a claimant could postpone the effective quashing of the decision which he sought to have quashed in order that he might at some later stage bring a...
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