R v Secretary of State for the Home Department ex parte Alice Kayitesi BENDA [QBD (Admin), 25/01/2002]
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MAURICE KAY,MR JUSTICE COLLINS |
| Judgment Date | 03 September 2002 |
| Neutral Citation | [2002] EWHC 2101 (Admin),[2002] EWHC 127 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 September 2002 |
| Docket Number | CO/2250/1999,CO/954/2002 |
[2002] EWHC 127 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
In the matter of an application for leave to move for Judicial Review
Mr Justice Maurice Kay
CO/2250/1999
MR MARK HENDERSON (Instructed by McMillen Hamilton McCarthy, London, E1 BDE) appeared on behalf of the Applicant.
MR ASHLEY UNDERWOOD QC (Instructed by The Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London, SW1H 9JS) appeared on behalf of the Respondent.
This case comes back before me in unusual circumstances. The claimant commenced proceedings in 1999. Those proceedings sought permission to apply for judicial review in order to challenge a certificate issued under Section 2 of the Asylum and Immigration Act 1996. By that certificate, the Secretary of State declined to deal with the claimant's asylum claim and indicated his intention to return her to France under the terms of the Dublin Convention as being the appropriate country for the consideration of her claim. She was not by that certificate being refused asylum. What was happening was that the Secretary of State was seeking under the terms of the Convention to ensure that her claim was processed in that other country. The proposed challenge was on the basis that France was not a safe country.
This case and many others were stood out of the list pending developments higher up the court system. A number of decisions were awaited, including that in the case of Adan and Aitseguer and more recently cases such as Thangarasa and Yogathas in the Court of Appeal.
The upshot of all that is in relation to this claimant on 26 November 2001 the Secretary of State, through one of his officials, wrote to the claimant's solicitors indicating his intention to withdraw the certificate under Section 2 of the 1996 Act, but to re-certify the claimant's claim under Section 11 of the Immigration and Asylum Act 1999. In so doing, he set out the terms of Section 11 and referred to the decision of the Court of Appeal in Ibrahim of 6 April 2001 in which the Court of Appeal considered an argument about the safety of France. In the course of his judgment in that case Simon Brown LJ said:
"Parliament has made it clear in unambiguous terms that, henceforth, France is to be regarded as a safe third country. Of course, the Secretary of State is not bound to certify in every case but, where he chooses to do so, his decision cannot be impugned on the grounds that France is not a safe third country."
That view has been reaffirmed in Thangarasa. In the light of all that, this is one of a large number of cases to have been listed recently in this court so that they can be disposed of in the appropriate way and by reference to the prevailing law.
On 22 November 2001 Scott Baker J, as the lead judge of the Administrative Court, issued a notice to all applicants and their advisers who came within this category of cases. It included this direction given pursuant to Part 3.1 of the Civil Procedural Rules:
"Skeleton argument incorporating any proposed amendment of the grounds must be delivered to the Administrative Court Office and must be served on the Treasury Solicitor no later than seven clear working days before the hearing date. Failure to comply with this direction may result in the amendment being disallowed or an award of costs against the applicant or his representatives."
It is my experience and the experience of, I think, all my colleagues who have been dealing with these cases that the vast majority of them have been withdrawn by claimants or simply not pursued through attendance or representation, as a result of which they have been dismissed.
So far as the present case is concerned, the claimant's solicitors, by a letter dated 17 January 2002, indicated an intention to withdraw the application that had been lodged as long ago as 1999. The letter continued:
"We would however advise that the Claimant intends to bring fresh proceedings to challenge a decision of the Secretary of State to re-certify the Claimant's claim for asylum under Section 11 of the Immigration and Asylum Act 1999."
That was frank of the claimant's solicitors. There is an apprehension that many other claimants who have withdrawn without making any similar statements have done so harbouring an as yet unspoken intention to do precisely what the solicitors in the present case indicated that they intended to do. When this case came before me earlier in the week Mr Underwood QC appeared on behalf of the Secretary of State and Mr Henderson on behalf of the claimant and there was some debate before me about the circumstances to which the solicitor's letter gave rise. I was being invited by Mr Underwood to impose terms upon the withdrawal such that the claimant would have been prohibited from commencing a later challenge to the recertification under Section 11. It rapidly became apparent that the limited time available on that day was insufficient and that, accordingly, I adjourned the matter until today for further argument during which I have been assisted again by Mr Underwood and Mr Henderson.
It has been made clear to Mr Henderson that the Court would be willing to consider an application for amendment so as to refocus the application on to Section 11. The Secretary of State would be more than willing for the matter to proceed in that way. It is, in my view, a pragmatic way of dealing with the case and Mr Henderson has not been able to point to any authority that would prevent the Court from dealing with the matter in that way. However Mr Henderson, no doubt on instructions, declines to make such an application and reiterates his intention to commence separate proceedings to challenge the recertification under Section 11. The position so far as those indicated proceedings are concerned, is interesting. I have already referred to the decision in Ibrahim which, on the face of it, seems to me to present the claimant with an insuperable obstacle. When the matter was before me earlier this week I was told that Turner J was about to hand down a judgment in the case of Mohammed v The Secretary of State, which judgment was handed down yesterday, and I have been provided with a copy of it. I cannot avoid the conclusion that on the basis of the law, as it has been pronounced, the claimant does face insuperable obstacles.
So far as Mr Underwood's invitation the other day to impose conditions on the withdrawal is concerned, I have come to the conclusion that there probably are difficulties about that. He seeks to rely on Part 38.4 of the Civil Procedure Rules. I am not minded to go down that road, but that does not inhibit me from expressing views about the current circumstances surrounding this case. I make those views specifically in the context of this case, although I expect that there are many other cases in relation to which the same views would be appropriate. Of course if ingenuity can produce an arguable case or challenge to the Section 11 certificate, so be it. I have pressed Mr Henderson about that arguable case and what he has told me disposes me to the view that it does not exist. He put it essentially in the form of the challenge on the same basis that was rejected by Turner J yesterday in terms entirely consistent with what the Court of Appeal has previously decided in other cases and in so doing he refused permission to appeal to the Court of Appeal. I am unmoved by the information that leading counsel in that case is encouraging a further appeal. I say this with some hesitation, but in this field one can sometimes gain the impression that there is a culture in which no decision of the Secretary of State and no decision at first instance or even on appeal is thought not to warrant further challenge.
In this context, as in all others, it is of course incumbent upon legal practitioners not to present applications which are manifestly unarguable and spurious, particularly so when they are publicly funded. It behoves those responsible for decisions on the public funding of litigation to scrutinise with rigour repeated applications in the face of cumulative authority which points all one way. And it behoves this court to scrutinise with rigour successive applications which emerge through a history of the kind I have described, embracing an opportunity to bring the case forward at an earlier stage by an application to amend. As I have said, I do not think it appropriate to impose conditions because I am concerned about the power to do so in the circumstances that currently exist in this case. I also repeat my deference to the product of ingenuity where it can be brought to bear, but if disingenuousness produces unarguable, misconceived or abusive applications then those who formulate them are on notice that this court will consider all sanctions at its disposal. It is right that that should be said and should be understood. Accordingly, so far as this case is concerned, upon the withdrawal that has been proffered, the application is dismissed and I expect very careful consideration to be given to any future application, if anyone is minded to pursue it. I shall direct an expedited transcript of what I have just said.
Order: Application dismissed.
[2002] EWHC 2101 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Collins
CO/954/2002
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