R (YA) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson,His Honour Judge Gosnell |
| Judgment Date | 28 October 2013 |
| Neutral Citation | [2013] EWHC 3329 (Admin),[2013] EWHC 3229 (Admin) |
| Docket Number | Case No: CO/4849/2012,CO/1858/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 October 2013 |
[2013] EWHC 3229 (Admin)
Mrs Justice Patterson
Case No: CO/4849/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey QC and Rebecca Chapman (instructed by Elder Rahimi) for the Claimant
David Barr (instructed by Treasury Solicitor) for the Defendant
This is an application for judicial review of the restricted discretionary leave policy adopted by the defendant on 2 September 2011. The issues raised are:
i) Is this claim for judicial review academic?
ii) Whether, in the light of the decision in R (Alvi) v Secretary of State for the Home Department [2012] 1WLR 2208, the defendant was entitled to effect a substantial variation to her restricted discretionary leave policy without laying the changes before parliament?
iii) Whether the changes to the restricted discretionary leave policy violated the claimant's rights protected by Article 6, 8 and 14 of the ECHR?
iv) Whether, if the above are rejected, the defendant has given adequate reasons for her decision to impose conditions on the claimants leave and has failed to provide sufficient guidance on how the discretion should be exercises?
Background
The claimant is a national of Turkey, born on 2 nd October 1980. He arrived in the United Kingdom on the 2 nd May 2008. He made an asylum application on the 13 th May 2008 based on his non violent political activities for the organisation ERNK, and the fact that he was sentenced to a period of imprisonment in Turkey as a result. The ERNK is a front organisation for the PKK which is a proscribed organisation under the Terrorism Act. The claimant was interviewed by the Home Office on the 4 th June 2008.
As the claimant's application for asylum was not decided within 12 months his solicitor applied for permission for the claimant to work which was granted. The claimant began employment shortly after being issued with a National Insurance number and worked as a chef in a restaurant.
On the 2 nd August 2008 the claimant met Katie Tyma and began a relationship with her. The claimant had moved to Scunthorpe to be with Miss Tyma, in addition to working he began to study English at the North Lindsey College in Scunthorpe.
On the 3 rd August 2010 the defendant accepted that the claimant's asylum application was credible and that he would have a well founded fear of persecution in Turkey. However, he was excluded from the protection of the 1951 Convention on The Status of Refugees (The Geneva Convention) under Article 1F(c) because there were serious reasons for considering that he was guilty of committing acts contrary to the principles and purposes of the United Nations which in his case consisted of the fact that he had raised funds for and supported the activities of the PKK. As a result of the application of Article 1F(c) the defendant issued a certificate to the effect that the claimant was not entitled to the protection of Article 33.1 (of the Geneva Convention) and determined that his asylum claim was refused. However, the decision letter indicated that the claimant would be granted limited leave to remain in the United Kingdom in accordance with the then published Home Office policy. That was because there was a real risk that the claimant would suffer treatment contrary to Article 3 of the European Convention of Human Rights should he return to Turkey. As a result discretionary leave was granted for the claimant to remain on the 10 th August 2010 without conditions.
On the 6 th January 2011 the claimant made an application for an extension of leave to remain. On the 28 th January 2011 a certificate of approval was granted to enable the claimant and Katie Tyma to marry which they did on the 16 th April 2011. In June 2011 the claimant began a course in plumbing at New Careers College in Doncaster.
On the 14 th February 2012 the defendant granted the claimant restricted leave to remain for a period of 6 months. That decision letter placed restrictions upon the claimant's ability to work, his freedom to take up any course of study, required the claimant to report on a fortnightly basis to the local UK Border Agency office who he had to notify of his home address and register with the local police. On the 12 th March 2012 the claimant's solicitors sent a letter before action.
On the 10 th May 2012 the application for permission to apply for judicial review was lodged. On the 16 th June 2012 summary grounds of defence were served by the defendant. On 21 st August 2012 Mrs Justice Dobbs refused permission to apply for judicial review.
On the 31 st October 2012 the defendant granted the claimant restricted discretionary leave to remain for a period of 6 months. Again, consistent with the new restricted leave policy which took effect from 2 nd September 2011 restrictions were imposed upon the claimant's leave to remain.
On the 23 rd November 2012 permission to apply for judicial review was granted at an oral hearing by Michael Kent QC sitting as a High Court judge.
On the 14 th March 2013 a hearing took place before the First-Tier Tribunal sitting in Bradford which concluded that the evidence relied upon by the defendant fell short of that which was required to establish that the claimant should be excluded from the protection of the Geneva Convention. It further concluded that the certificate made under section 55 of the Immigration, Nationality and Asylum Act 2006 was wrongly made. The appeal was, therefore, allowed under the Geneva Convention and under Article 3 of the ECHR. The defendant was then granted leave to remain in the United Kingdom as a refugee. His leave to remain continues until 19 th May 2018. The leave contains no restrictive conditions.
It is immediately apparent that by virtue of the grant of leave to remain for a period of 5 years until May 2018 there is a real issue as to whether the matters raised in this claim are academic. I turn now to deal with ground one.
Ground one: Is the claim academic?
As originally put the claim was seeking:
i) That the defendant reconsider her decision to exclude the claimant from the protection of the Refugee Convention;
ii) A declaration that the defendant had acted unlawfully in granting the claimant only a 6 month period of discretionary leave with restrictions;
iii) Such other relief as the court thought fit.
By the time of the oral hearing seeking renewal of permission the claimant had filed a skeleton argument and amended grounds which raised the first two substantive grounds of challenge as are raised in these proceedings. After the grant of permission amended grounds were served which sought:
i) a quashing order in respect of the defendant's policy to grant discretionary leave for a limited period and subject to restrictive conditions to those entitled to protection under Article 3 of the ECHR but excluded from the Refugee Convention;
ii) a quashing order in respect of the defendant's decision dated 31 st October 2012 to grant discretionary leave to the claimant for a limited period and subject to restrictive conditions;
iii) such other relief as the court thinks fit;
iv) costs;
v) damages for breaches of Article 6 and 14.
Detailed grounds of defence were served by the defendant on the 6 th March 2013.
Is the claim academic?
The legal framework
In R v Secretary of State for the Home Department ex parte Salem [1999] 1 AC 450 Lord Slynn accepted that in a case where there was an issue involving a public authority on a question of public law there was a discretion to hear an appeal even if there was no longer a lis to be determined directly affecting the parties rights and obligations; but that such discretion should be exercised with caution. He continued:
“The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”
That approach was considered in the case of R (on the application of Zoolife International Limited v Secretary of State for the Environment, Food and Rural Affairs [2007] EWHC 2995 Admin when Mr Justice Silber reviewed the authorities as follows:
“34. These statements refer to the approach of the House of Lords but there is no reason why they should not apply with equal force to other courts. This approach to academic issues was considered further in the speeches by the members of the Appellate Committee in R (on the application of Rushbridger) v. Attorney General [2004] 1 AC 357 in which:
(a) Lord Hutton explained that “it is not the function of the courts to decide hypothetical questions which do not impact on the parties before them” (page 371 E [35]);
(b) Lord Hutton expressly approved at page 371 [35] the statement of Lord Justice-Clerk (Thompson) in Macnaughton v Macnaughton's Trustees [1953] SC 387–392 that “our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should...
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