Upper Tribunal (Immigration and asylum chamber), 2021-12-06, JR/01696/2020
| Jurisdiction | UK Non-devolved |
| Date | 06 December 2021 |
| Published date | 13 December 2021 |
| Hearing Date | 19 January 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/01696/2020 |
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In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review |
JR/1696/2020 |
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In the matter of an application for Judicial Review |
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The Queen on the application of |
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MR (ANONYMITY ORDER MADE) |
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Applicant |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
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Respondent |
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ORDER |
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BEFORE Upper Tribunal Judge O’Callaghan
HAVING considered all documents lodged
UPON hearing Ms. M Knorr, Counsel, instructed by Bhatt Murphy Solicitors, for the Applicant and Mr. G Lewis QC, Counsel, instructed by the Government Legal Department, for the Respondent at a hearing held at Field House on 9-10 November 2020 and 19 January 2021
AND UPON the Tribunal granting remedies as set out in the order of 19 October 2020 by consent
IT IS FURTHER ORDERED THAT:
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There be a Declaration that the Respondent’s refusal of the Take Charge Request made by the Greek authorities breached the Applicant’s private life rights under Article 8 of the European Convention on Human Rights and Article 7 of the Charter of Fundamental Rights of the European Union.
PERMISSION TO APPEAL
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The Applicant confirmed at the hearing held on 3 December 2021 that he did not seek permission to appeal to the Court of Appeal.
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The Tribunal is required by rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to consider at the hearing whether to give or refuse permission to appeal in the absence of an application being made.
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Permission to appeal is refused. For the reasons detailed in the judgment, there would be no merit in an appeal.
IT IS DIRECTED
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With respect to damages:
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The Parties are (1) to provide disclosure, and (2) file and serve further evidence relevant to damages by 4pm on 28 January 2022.
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The Applicant is to file and serve a consolidated document comprising (1) particulars on damages, and (2) written submissions, by 4pm on 18 February 2022.
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The Respondent is to file and serve a consolidated document comprising (1) defence, and (2) written submissions, by 4pm on 11 March 2022.
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The Applicant is to file and serve a reply, if so advised, by 4pm on 18 March 2022.
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The Parties are to inform the Tribunal by 4pm on 25 March 2022 as to whether they are in agreement that consideration of damages be undertaken on written submissions or as to whether there is a requirement for a further hearing. If a further hearing is required, the parties are to provide an agreed time estimate.
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The parties have liberty to apply on 24 hours' notice.
COSTS
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The Respondent is to pay the Applicant’s reasonable costs up to and including 10 November 2020 and then from receipt of the draft judgment on 26 November 2021.
Reasons
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The Tribunal enjoys a wide discretion as to how it deals with the issue of costs in judicial review proceedings.
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The Applicant is properly to be considered the successful party and enjoys the benefit of the general rule that costs follow the event. This starting point does not cease to apply simply because the successful party raises issues or makes allegations on which it ultimately fails.
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Though the claim advanced in respect of family life rights was ultimately unsuccessful, the Applicant did not pursue a hopeless, unsustainable or unarguable claim. The Applicant did not act unreasonably.
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However, at the Applicant’s request the Tribunal granted expedition and the substantive hearing was listed on 9 and 10 November 2020. The Tribunal confirmed its expectation that a draft judgment would be circulated within 7 days of the conclusion of the hearing. There was a failure on the part of the Applicant to adopt appropriate time management during the hearing, resulting in a third day being required and the benefit of expedition being lost.
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The costs incurred by the Respondent from 10 November 2020 to the provision of the draft judgment by the Tribunal on 26 November 2021 were unnecessary, and it is proportionate that the parties bear their own costs during this period.
Signed: D O’Callaghan
Upper Tribunal Judge O’Callaghan
Dated: 3 December 2021
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 06/12/2021
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR/1696/2020
In the Upper Tribunal
(Immigration and Asylum Chamber)
Field House
Breams Buildings
London, EC4A 1WR
3 December 2021
Before
UPPER TRIBUNAL JUDGE O’CALLAGHAN
___________________________________________
Between
REGINA
On the application of
MR
(ANONYMITY ORDER MADE)
Applicant
-and-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Michelle Knorr (instructed by Bhatt Murphy Solicitors) for the Applicant
Gwion Lewis QC (instructed by the Government Legal Department) for the Respondent
Hearing dates: 9 and 10 November 2020 and 19 January 2021
Further Written Submissions: (Applicant) 8 February 2021, 15 March 2021, 21 May 2021 and 15 October 2021; (Respondent) 8 February 2021, 15 March 2021, 27 May 2021 and 14 October 2021
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JUDGMENT
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The Tribunal confirms the anonymity order made by UTJ Finch in the following terms:
Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the applicant. This order applies to, amongst others, the applicant and the respondent. Any failure to comply with this order could give rise to contempt of court proceedings.
By the same Order UTJ Finch directed that the applicant’s uncle, “HR”, was to conduct proceedings on the applicant’s behalf as a Litigation Friend. No reasons were provided in respect of the appointment. As the applicant is not a protected party, the appointment of HR as litigation friend ceased on 1 January 2021, the applicant’s 18th birthday: CPR 21.9(1).
Judge O’Callaghan:
This judgment is in six main parts, as follows:
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Overview Paras. 1 to 8
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Legislative Framework Paras. 9 to 35
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The Facts Paras. 36 to 49
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Remedies Sought Paras. 50 to 60
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Conclusions Paras. 61 to 101
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Further Steps Para. 102
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Overview
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An anonymity order was made by UTJ Finch on 13 August 2020 when granting the applicant permission to apply for judicial review. Neither party requested that the order be set aside. I note that the applicant was a minor at the date of the order. He is now an adult. I observe that he seeks international protection. Having carefully considered the circumstances arising in this matter I conclude that the applicant’s rights protected under article 8 of the European Convention on Human Rights (‘ECHR’) outweigh the public interest in open justice, as protected by article 10 ECHR. I am satisfied that it is...
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