The Queen ((on the application of Ms Khatuna Goloshvili) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Martin Spencer |
| Judgment Date | 15 March 2019 |
| Neutral Citation | [2019] EWHC 614 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/272/2018 |
| Date | 15 March 2019 |
[2019] EWHC 614 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Martin Spencer
Case No: CO/272/2018
and
Mr Toby Vanhegan and Mr Riccardo Calzavara (instructed by Camden Community Law Centre) for the Claimant
Mr David Pievsky and Mr David Lowe (instructed by Government Legal Department) for the Defendant
Mr Martin Westgate QC, Mr James Kirk and Mr Daniel Clarke (instructed by Liberty) for the Intervenor
Hearing dates: 18, 19, 20 and 21 December 2018
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This claim, which was heard with, and in association with, the claim of the Joint Council for the Welfare of Immigrants against Secretary of State for the Home Department (the “JCWI claim,” see the judgment in [2019] EWHC 452 (Admin)) concerns the lawfulness of the issue by the Defendant of a “Notice of Letting to a Disqualified Person” (“NLDP”) in respect of the Claimant on 19 October 2017. The issue for decision is whether the issuing of a NLDP amounts to direct discrimination on the grounds of nationality and is unlawful under the Equality Act 2010.
The NLDP was withdrawn by the Defendant when it became appreciated that its issue had been an error. In those circumstances, whether the NLDP was or was not lawful is now academic so far as this Claimant is concerned. It is the Defendant's case that the court should not entertain a claim which is academic and, in any event, the decision to issue the NLDP did not amount to discrimination on the basis of nationality: the Claimant was issued with the NLDP because of her immigration status and was treated no differently from anyone else who does not have Leave to Remain. It is further the Defendant's case that nationality discrimination is not unlawful in this context.
The facts
The Claimant was born on 2 January 1982 in Akhalgori, Georgia, and came to the UK in 2004 as a student. Thereafter she made further applications for Leave to Remain, the most recent being on 28 January 2008 when she was granted further Leave to Remain until 28 February 2009. Notice of the decision together with her Georgian passport and supporting documents were sent by the Border and Immigration Agency to the wrong address and were never received. The Claimant said that, since May 2009, she had been trying to obtain a new passport from the Georgian Embassy but had been unable to do so because she was unable to produce her old passport. By a letter dated 23 February 2017 the Home Office wrote to the Georgian Embassy confirming that the Claimant had submitted her Georgian passport to the Home Office in support of an application for a variation of Leave to Remain in the United Kingdom and, despite an extensive search having been undertaken, the Home Office had been unable to locate the passport and the Claimant had been advised to obtain a replacement document from the Georgian Embassy. The letter stated:
“We respectfully request your most urgent consideration in regards to its issue.”
It is now agreed that the Claimant had had Leave to Remain since 2008 by virtue of the provisions of Section 3C of the Immigration Act 1971 because the decision in July 2008 to grant her Limited Leave to Remain had not been properly communicated to her, with the result that her application for that leave remained outstanding and Section 3C operated to give her Leave to Remain pending the determination of that application.
In October 2017, the Claimant was granted an assured shorthold tenancy of premises at Manor Park Crescent, Edgware, Middlesex by a Mr Bardi and on 8 October 2017, the Claimant paid Mr Bardi a deposit of £220 and one week's rent in advance.
On 19 October 2017, Mr Bardi contacted the Home Office Landlord Helpline to request that a NLDP be issued to him as he did not believe that the Claimant had a right to rent in the UK. On the same day, Immigration Enforcement issued a NLDP which contained the following:
“Your property is being occupied by one or more persons who are not allowed to rent in England due to their immigration status (‘disqualified from renting’). It is an offence under Section 33A of the Immigration Act 2014 to rent property to someone if you know, or have reasonable cause to believe, they are disqualified from renting due to their immigration status. You could face an unlimited fine or be sent to prison for up to five years.”
The Notice then gave details of the disqualified person, the Claimant, and set out the options available to Mr Bardi for ending the tenancy including reliance on the NLDP to begin the process to recover vacant possession.
On 26 October 2017, Mr Bardi served on the Claimant a Notice of Seeking Possession relying upon the receipt by the landlord of the NLDP naming the Claimant as a person not allowed to rent in England due to immigration status. This was followed by a claim for possession in the County Court on 15 November 2017. A defence was served and filed, contesting the claim and asserting that the NLDP amounted to a breach of her rights under Article 14 ECHR.
By letter dated 22 December 2017, the Claimant wrote to the Defendant requesting the withdrawal of the NLDP and the grant of permission to rent pursuant to Section 21(3) of the Immigration Act 2014. On the same date she sent a pre-action protocol letter for judicial review proceedings.
On 10 January 2018 Immigration Enforcement replied refusing to withdraw the NLDP and refusing to grant permission to rent. On 12 January 2018 the Claimant requested an internal review of the decision not to grant her permission to rent and by a letter dated 25 January 2018 Immigration Enforcement upheld its prior decision to refuse the Claimant permission to rent.
In the meantime, the Claimant had filed this claim for judicial review on 18 January 2018 and this was amended in the light of the review decision contained in the letter of 25 January 2018.
So far as the possession proceedings were concerned, on 12 February 2018 Mr Bardi issued a second possession claim based on arrears of rent and the defence and counterclaim were on similar terms as in the previous possession proceedings but additionally sought damages for disrepair. The claim was settled on 2 August 2018 on the basis that the Claimant gave up possession: by that stage, it had been recognised that she had a right to rent and she wished to move elsewhere.
On 3 May 2018, a solicitor at the Liverpool Law Clinic attached to the University of Liverpool wrote further to the Defendant on behalf of the Claimant stating:
“Please note that we believe that Miss Goloshvili has continuing Leave to Remain under Section 3C of the Immigration Act 1971. She is being treated by the Home Office as having no Leave to Remain.”
Having set out the terms of Section 3C of the Immigration Act 1971 and having referred to the case of Syed [2013] UKUT 144 dealing with the question of effective service, the letter went on to say:
“The decision (to extend her leave) has not been communicated to Miss Goloshvili. It is therefore not effective. The application she made in February 2008 therefore remains outstanding and Miss Goloshvili has Leave to Remain on the same terms as those in place when she made the application. Indeed this was the position which appears to have been taken by the Home Office.”
This letter hit home. On 24 May 2018 the Defendant accepted that the Claimant had Section 3C leave and on 25 May 2018 the Defendant notified the Claimant that the NLDP was withdrawn. On 5 August 2018, pursuant to a further application, the Claimant was granted Indefinite Leave to Remain.
These proceedings
Prior to the acceptance by the Defendant that the Claimant had Section 3C Leave to Remain and the withdrawal of the NLDP, Dove J had, on 8 May 2018, given the Defendant 21 days to file and serve an acknowledgment of service and summary grounds for defending the claim: although these documents had been completed on 5 March 2018, they were not received by the Claimant until 31 May 2018.
On 28 June 2018, permission to bring judicial review was refused on the papers by Walker J on the basis that the claim was academic save for the challenge based on the Human Rights Act 1998 and this was already in issue before the court in the JCWI claim.
The Claimant renewed her application for permission on 3 July 2018 and this was heard by Roger ter Haar QC sitting as a Deputy High Court Judge on 24 July 2018 when permission was granted on two grounds: (1) the “Public law challenge” alleging that the decision to issue the NLDP and to refuse to withdraw it were unlawful for the reasons set out in paragraphs 46 – 54 of the amended grounds; (2) discrimination under the Equality Act 2010. Permission was refused in relation to the other ground alleged, namely breach of Article 14 ECHR.
By notice dated 2 August 2018, the Defendant applied to set aside the grant of permission because the grounds were academic, but this application was refused by Richard Clayton QC sitting as a Deputy High Court Judge on 22 August 2018.
In these proceedings, the Claimant has not pursued the Public Law challenge, the Defendant having indicated an intention to change the procedure for issuing NLDPs. On 23 October 2018, Liberty had applied for, and been granted, permission to intervene in relation to the Claimant's Public Law challenge, in order to make submissions on the fairness of the Defendant's procedure for service of a...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2019-08-16, JR/01626/2019
...good reason in the public interest being required, which also applied to judicial review hearings, applying R v SSHD ex P Goloshvili [2019] EWHC 614 (Admin). Addressing the argument that permission was granted, Mr Dunlop argued that this was not determinative in that the grant of permission......