Upper Tribunal (Immigration and asylum chamber), 2023-03-09, JR-2022-LON-000085
| Appeal Number | JR-2022-LON-000085 |
| Hearing Date | 25 January 2023 |
| Published date | 13 March 2023 |
| Date | 09 March 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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JR-2022-LON-000085 |
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In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review |
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In the matter of an application for Judicial Review |
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The King on the application of |
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Professor Lisa Short (NO ANONYMITY DIRECTION MADE) |
Applicant |
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versus |
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Tech Nation |
Respondent |
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-and- Secretary of State for the Home Department |
Interested Party |
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NOTIFICATION of the Judge’s decision |
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UPON Upper Tribunal Judge Allen having heard Mr T Wilding, Counsel, instructed by the Applicant, Mr R O’Ryan, Counsel, instructed by the Respondent, and Ms J Anderson, Counsel, instructed by the Government Legal Department on behalf of the Interested Party at hearings on 21 September 2022 and 25 January 2023
AND UPON the judgment of Judge Allen, dated 10 February 2023, being handed down on 9 March 2023 by Upper Tribunal Judge Norton-Taylor following Judge Allen’s retirement
AND UPON consideration of an application for permission to appeal to the Court of Appeal by the Applicant and consideration of costs submissions made by the Applicant and Respondent
IT IS ORDERED THAT:
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This application for judicial review is dismissed on all grounds.
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The Applicant shall pay the Respondent’s costs following a detailed assessment, if not agreed, and the assessment shall be conducted on the standard basis;
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The Applicant shall pay 25% of the Respondent’s claimed costs on account, that payment being £12,964.33. That payment shall be made no later than 14 days after the handing down of Judge Allen’s judgment on 9 March 2023;
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That there be no order as to costs in respect of the Interested Party’s costs in these proceedings;
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Any application to vary the order at (3), above, must be made on at least 48 hours’ notice to the other party.
Permission to appeal to the Court of Appeal
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Judge Allen’s conclusion at [48] that the Respondent’s decisions were not procedurally unfair has not been challenged in the application for permission to appeal.
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None of the grounds put forward by the Applicant justify a grant of permission.
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Ground 1 asserts that Judge Allen erred in his conclusion at [81] that the Respondent’s review did not contain any new reasons. However, the Judge was unarguably entitled to conclude as he did at [76] and [81]. Essentially, the Judge found that no new reasons of any material substance had been relied on in the review. There was nothing arguably erroneous in the conclusion that the same points had been reiterated in the review, albeit with “slightly more detail”.
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Ground 2 contends that Judge Allen failed to resolve a matter in dispute, namely reliance by the Respondent on points contained in the guidance when rejecting the application. This ground is unarguable. The Judge’s analysis at [92] is clear. He was unarguably entitled to conclude that the Respondent committed no public law error by taking the guidance into account, whilst at the same time not considering itself bound by that guidance. Indeed, what is said at paragraph 10 of the grounds provides the answer to the proposed challenge: guidance is there to assist; that is precisely what the Judge found had occurred.
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Ground 3 is based on alleged irrationality on the part of the Respondent and Judge Allen’s alleged erroneous approach to the arguments put forward by the Applicant. With respect, there is clearly nothing of substance in this ground. At [93]-[122], the Judge considered the relevant arguments in great detail. The subsequent discussion at [123]-[131] must be seen in the context of what preceded it. The analysis and conclusions were unarguably open to the Judge.
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Ground 4 asserts that Judge Allen failed to take account of additional evidence. It is said that this new evidence went to the issues of whether new reasons had been relied on in the review and/or whether the Respondent’s decision-making was irrational. In my view, the underlying basis of ground 4 is effectively relying on allegations of bad faith and bias, both of which were expressly withdrawn during the course of proceedings. In any event, I can see no arguable basis in respect of the new evidence which could have gone to impugn the review process which had been the subject of challenge before the Judge.
Costs
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I have considered the range of powers under rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008. I have considered the written submissions provided by the Applicant and Respondent (including the Respondent’s response dated 8 March 2023). I acknowledge that the Applicant and Respondent are agreed that there should be a summary assessment of costs. However, I am not bound by such an agreed position.
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The costs in play are significant (being £51,857.32, as now claimed by the Respondent). The Applicant’s costs submissions make a large number of specific points relating to the reasonableness and/or proportionality of the costs claimed. Having regard to all the circumstances and notwithstanding the agreed position, in my judgment it is appropriate for costs to be subject to a detailed assessment. That assessment shall be on the standard basis.
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I am not bound to make an order for an interim payment of costs by the Applicant to the Respondent pending the detailed assessment, although such an order may be appropriate in the exercise of my discretion: rule 10(10) of the 2008 Rules. Upon a detailed assessment, there is a realistic possibility that the costs claimed by the Respondent will be reduced. In all the circumstances, an order for an interim payment of costs is appropriate, but only to the extent of 25% of the costs claimed by the Respondent. In my judgment, that represents a reasonable sum at this stage.
Signed: H Norton-Taylor
Upper Tribunal Judge Norton-Taylor
Dated: 9 March 2023
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): 9 March 2023
Solicitors:
Ref No.
Home Office Ref:
IAC-FH/ah-CK/sc-V1
IN THE UPPER TRIBUNAL
JR-2022-LON-000085
Field House,
Breams Buildings
London
EC4A 1WR
21 September 2022 and 25 January 2023
R
(ON The application OF Professor Lisa Short)
Applicant
and
TECH NATION GROUP LIMITED
Respondent
Secretary of State for the Home Department
Interested Party
Before
UPPER TRIBUNAL JUDGE Allen
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Mr T Wilding, directly instructed, appeared on behalf of the Applicant.
Mr R O’Ryan, instructed by Ward Hadaway Solicitors appeared on behalf of the Respondent.
Ms J Anderson, instructed by the Government Legal Department appeared on behalf of the Interested Party.
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ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
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JUDGE ALLEN: The applicant seeks judicial review of two decisions of the respondent. The first of these is a decision of 2 September 2021 not to endorse the applicant’s application for endorsement under Part W7.6 of the Immigration Rules and secondly, a decision of 16 December 2021, upholding, upon endorsement review, the decision of 2 September 2021. Permission to apply for judicial review was granted by Upper Tribunal Judge Kamara.
2. The applicant applied under Appendix W of the Immigration Rules on 15 November 2020. This concerns the “Global Talent” category and she sought endorsement in the area of digital technology. The respondent is the relevant “endorsing body” for the purposes of an application under Part W7.6 of Appendix W. That application was refused on 28 November 2020 and a subsequent endorsement review was refused on 4 January 2021. However, in the course of a subsequent application for judicial review of those decisions the respondent decided to withdraw both of the earlier decisions and make a fresh decision of 2 September 2021, the first decision under challenge. Following that refusal, an endorsement review decision of 11 October 2021 upheld the decision to refuse endorsement but that decision was subsequently withdrawn following the letter before claim and a further endorsement review decision, the further subject of the current challenge, was made as set out above on 16 December 2021.
Jurisdiction
3. There is an issue as to whether Tech Nation are an entity amenable to judicial review, and it will be appropriate to address that matter before going on to consider...
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