Upper Tribunal (Immigration and asylum chamber), 2022-02-02, JR/01250/2021
| Jurisdiction | UK Non-devolved |
| Date | 02 February 2022 |
| Published date | 08 February 2022 |
| Hearing Date | 24 November 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/01250/2021 |
Appeal Number: JR/1250/2021 (V)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: JR/1250/2021
THE IMMIGRATION ACTS
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Heard at Field House |
Judgment |
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On 24 November 2021 |
On 2 February 2022 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE KOPIECZEK
Between
LEONARD OGILVY
(ANONYMITY DIRECTION not made)
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
and
CELINE D. OKOU
Interested Party
Representation:
For the applicant: Mr Arfan Khan, instructed by C W Law Solicitors
For the respondent: Ms H Higgins, Senior Home Office Presenting Officer
JUDGMENT
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We have both contributed extensively to this decision.
A. INTRODUCTION
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This is an oral reconsideration of a decision by Upper Tribunal Judge Hanson dated 11 August 2021 refusing permission to bring judicial review proceedings. At the same time as refusing permission, Judge Hanson refused an application for interim relief.
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The applicant’s partner, Celine D. Okou is named by the applicant as an Interested Party. However, she has not taken any part in the proceedings.
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The applicant’s claim was lodged at a time when he was not legally represented. At section 3 of the claim form it gives details of the two decisions that he seeks to challenge. The first is a fresh claim decision dated 3 August 2021; the second is a decision dated 15 June 2021 being a refusal to grant him a Home Office Travel Document (“HOTD”).
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The respondent did not provide an acknowledgement of service as required by rule 29 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Procedure Rules”). That being the case, rule 29(3) of the Procedure Rules provides that the respondent may not take part in the application for permission “unless allowed to by the Upper Tribunal”.
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Having regard to the issues in the case, the fact that both parties have served skeleton arguments and hearing and authorities bundles, and there having been no objection on behalf of the applicant to the respondent taking part, we decided to allow the respondent to take part in this application for permission.
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Before further consideration of the grounds of claim, we must first address the issue of the applicant being subject to a general civil restraint order made in the High Court.
B. THE CIVIL RESTRAINT ORDER
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On 12 May 2021 Mostyn J, sitting in the Queen’s Bench Division, made a general civil restraint order in respect of the applicant. Mostyn J used form N19B. This is one of the forms annexed to CPR Practice Direction 3C (Civil Restraint Orders).
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Mostyn J’s order recorded that the applicant had been found to be a person who “persists in issuing claims or making applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate”.
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The applicant was “ordered that you be restrained from issuing any claim or making any application in:
“☒ Any Court
☐ The High Court or any county court
☐ County Court
without first obtaining the permission of
N
Any full-time High Court Judge sitting in the Administrative Court
If unavailable
…”
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The order was expressed to remain in effect until 12 May 2023. The order also said:
“You must obey the directions contained in this order. If you do not you will be guilty of contempt of court and you may be sent to prison”.
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Mostyn J made the general civil restraint order after considering, on the papers, an application for permission to apply for judicial review in case CO/313/2021. He certified that application as totally without merit.
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At the beginning of paragraph 5 of his written reasons, Mostyn J noted that since 1997 the applicant had made 21 applications against state bodies (including CO/313/2021). All except one were refused permission. The exception was dismissed following a substantive hearing. Two applications had been certified as totally without merit, excluding CO/313/2021.
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Mostyn J ended as follows:
“6. In such circumstances it is incumbent on me to consider whether to impose a civil restraint order. In view of the very large number of applications, and their wide-ranging nature, I have decided that the time has come to impose on the claimant a requirement to obtain prior permission before he makes any application (including an application for permission to seek judicial review). I therefore make a general civil restraint order to last for two years in the terms of the schedule to this order [that being the general civil restraint order]. I have concluded that I must deploy my powers to their fullest extent in view of the high degree of vexatiousness of the numerous applications made previously by the claimant.”
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The applicant sought permission from the Court of Appeal to appeal against the general civil restraint order. On 26 July 2021, Macur LJ refused permission, certifying it as totally without merit. On the same day, she also refused permission against an order of Martin Spencer J, refusing interim relief to the applicant. In her order, Macur LJ stated:
“The General Civil Restraint Order is extended to cover applications made to the Court of Appeal.”
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The applicant’s present claim for judicial review was filed in the Upper Tribunal Immigration and Asylum Chamber on 10 August 2021. As we have already noted, Upper Tribunal Judge Hanson refused permission and interim relief on 11 August 2021.
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On 19 August 2021, Ms Victoria Mascord of the Government Legal Department wrote to the Upper Tribunal to inform it that the respondent had not been served by the applicant with the judicial review claim, observing, “Regrettably, this is not the first time that the Applicant has failed to serve proceedings on the Respondent.”
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Ms Mascord’s email requested that the applicant be directed to serve the claim on the respondent, or else the claim should be struck out. The email then said the following:
“Furthermore, the Respondent wishes to draw the Tribunal’s attention to the fact that the Applicant is subject to a General Civil Restraint Order, which was recently upheld by the Court of Appeal – see attached order and decisions by the Court of Appeal.
The Tribunal is also invited to consider whether the GCRO prevents the Applicant from initiating proceedings in the Upper Tribunal without the requisite permission.”
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On 4 October 2021, Upper Tribunal Judge Kopieczek directed the parties in the present proceedings to file and serve written submissions on the question of whether the civil restraint order of Mostyn J applied to these proceedings. We received oral and written submissions from Mr Khan, on behalf of the applicant, and Ms Higgins, for the respondent. We wish to record our gratitude for their assistance.
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CPR 2.3(1) defines a “civil restraint order” as follows:
"'civil restraint order' means an order restraining a party –
(a) from making any further applications in current proceedings (a limited civil restraint order);
(b) from issuing certain claims or making certain applications in specified courts (an extended civil restraint order); or
(c) from issuing any claim or making any application in specified courts (a general civil restraint order)."
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CPR 3.11 reads as follows:
“Power of the court to make civil restraint orders:
3.11. A practice direction may set out –
(a) the circumstances in which the court has the power to make a civil restraint order against a party to proceedings;
(b) the procedure where a party applies for a civil restraint order against another party; and
(c) the consequences of the court making a civil restraint order.”
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Practice Direction 3C (hereafter PD3C) provides, at paragraph 1, that the practice direction applies where the court is considering whether to make inter alia “(c) a general civil restraint order, against a party who has issued claims or made applications which are totally without merit”.
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PD3C.3 provides for the making of an extended civil restraint order, where a party has persistently issued claims or made applications which are totally without merit. PD3C.3.2 provides that, unless the court otherwise orders, an extended civil restraint order requires the person against whom the order is made to obtain permission before issuing claims or making applications “concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made”.
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PD3C.4 deals with general civil restraint orders. It provides as follows:
4.1 A general civil restraint order may be made by –
(1) a judge of the Court of Appeal;
(2) a judge of the High Court; or
(3) a Designated Civil Judge or their appointed deputy in the...
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