LORD JUSTICE SIMON BROWN: Mr McCullough, is there anything else?

MR MCCULLOUGH: My Lord, I have no application in relation to costs, on the basis of my understanding that the appellant is in receipt of public funding.

LORD JUSTICE SIMON BROWN: What about the appellant's position? It is rather surprising that nobody has any idea at all when Ullah is for hearing because, on the face of it, it ought to be accelerated if possible. One is in their Lordships' hands, of course, but presumably somebody has made plain that there will be a large number of cases hanging on it.

MR MCCULLOUGH: The position in relation to Ullah is this. No petition has as yet been presented, somewhat surprisingly given that permission to appeal to the House of Lords was granted at the same time as the judgment was handed down.

LORD JUSTICE SIMON BROWN: In December.

LORD JUSTICE LAWS: They are way over time.

LORD JUSTICE SIMON BROWN: That is extraordinary.

MR MCCULLOUGH: The difficulty, I am told by my instructing solicitors -- and I was told this last week -- was some sort of funding difficulty with the Legal Services Commission.

LORD JUSTICE SIMON BROWN: They are a remarkable body. They fund the most absurd and hopeless applications and then when the Court of Appeal itself gives leave, in an obviously seminal decision, to go to the Lords, they jib at that. It is extraordinary.

LORD JUSTICE SEDLEY: In the old days it might have been because something had happened to the two applicants which put them in safety, but nowadays the law has been changed to allow the LSC to fund issues because of their public interest, whereas public interest used to be a death warrant to funding.

MR MCCULLOUGH: My Lord, I say anyway, our position, because of course my learned---

LORD JUSTICE SIMON BROWN: It does not look very imminent but what is the position? I mean, alas, nor perhaps does the possibility of a return to Zimbabwe.

MR MCCULLOUGH: My Lord, the latest position is that my instructing solicitors understand that the funding difficulties have now been resolved and so a petition is expected imminently.

LORD JUSTICE SIMON BROWN: I see.

MR MCCULLOUGH: Before this particular delay it was expected that the appeal to the House of Lords would be heard before the end of the summer term. Whether or not that position is maintained, following the delay---

LORD JUSTICE SIMON BROWN: It is extraordinary that that has been imperilled by ....

MR MCCULLOUGH: Gravely imperilled, one would have thought.

LORD JUSTICE SEDLEY: Do those instructing you know how many cases are pending in this court to which a response such as yours would be appropriate? In other words, that Ullah has now intervened to mean that the case must fail short of Ullah 's being overturned in the Lords? Because we do not want -- I may be speaking out of turn, but I do not think we want -- a succession of days like this.

LORD JUSTICE SIMON BROWN: No.

MR MCCULLOUGH: Indeed, but there is another one, in which Miss Harrison and I appear again on opposite sides, which was due to be heard and was adjourned a week or two ago, not pending the outcome of the House of Lords' decision in Ullah but because of an administrative difficulty on the claimant's side.

LORD JUSTICE SIMON BROWN: Well, one hopes that it will not be thought necessary, if it is otherwise on all fours with this, to weary this court again.

MR MCCULLOUGH: My Lord, as far as first instance appeals, I have been involved in a number and in all of them thus far that have been contested, they have been disposed of on the facts as well as a result of the binding effect of Ullah .

LORD JUSTICE SEDLEY: That would be appropriate at first instance, but -- anyway, some kind of weeding can be done; some kind of, presumably, accommodation reached pending their Lordships' decision.

LORD JUSTICE SIMON BROWN: How should we deal with this? Are you prepared to agree not to return this appellant to Zimbabwe until the House of Lords decision in Ullah?

MR MCCULLOUGH: My Lord, I do not have instructions to that effect but, of course, as the court has already indicated and as is the case, there are no ongoing returns.

LORD JUSTICE SIMON BROWN: I know. Well, we could deal with it, I suppose, by requiring you to give notice if you propose to return before, and then liberty to apply to this court.

MR MCCULLOUGH: My Lord, that is what I would, with respect, be proposing.

LORD JUSTICE SIMON BROWN: Or are we functus ?

LORD JUSTICE LAWS: I am not sure if we have the jurisdiction, absent a live application to appeal to their Lordships' House in this case. Our judgment is the end of the road. I do not think we have any power to make that ancillary order.

MR MCCULLOUGH: Unless an application to this court were made out of time, as to which there would be jurisdiction for this court to ....

LORD JUSTICE LAWS: That would have to be considered if it arose, I suppose.

LORD JUSTICE SEDLEY: Is it accepted that if the appeal in Ullah is prosecuted and succeeds, a fresh look would have to be taken at cases like this?

LORD JUSTICE SIMON BROWN: It would rather depend on the terms on which it succeeds, if it does succeed.

MR MCCULLOUGH: And on the facts of any individual case.

LORD JUSTICE SIMON BROWN: Yes. But surely the position, really, would be this. Obviously you would have to put him on notice anyway, because removal requires notice. If it was before Ullah , then I would have thought that it would be a fairly silly thing for your people to do, and if they do it I should have thought it would be vulnerable itself to a separate and distinct challenge in the Administrative Court. So it would be a silly thing to do. It would just be challenged as an inappropriate and irrational thing to do, not least if anybody bothers to transcribe what we are saying today.

LORD JUSTICE LAWS: I do not think we are--

LORD JUSTICE SIMON BROWN: So maybe that would be the way forward. Then, obviously, if it were successful in such a way as actually to reactivate any serious hope for this appellant .... Because if it avails him, it will avail huge numbers of people. There is nothing very remarkable about this case: most of Africa practices this sort of hostility.

LORD JUSTICE SEDLEY: There would in that event be a proper opportunity to recanvass the matter with the Home Secretary.

LORD JUSTICE SIMON BROWN: Quite; and I think it would itself have to be the subject then of some further and separate challenge. So I think probably that is the way it works out. So you do not really need even to give an undertaking because it would have way. Miss Harrison, it seems to me you are more than adequately protected, not least in the light of the remarks we have been making.

MISS HARRISON: My Lord, so be it.

LORD JUSTICE SIMON BROWN: Very good.

MISS HARRISON: My Lord, the only application--

LORD JUSTICE SIMON BROWN: Yes. That is it, Mr McCullough.

MISS HARRISON: Sorry.

MR MCCULLOUGH: Thank you.

MISS HARRISON: -- my Lord, is as my learned friend suggested, we do have the benefit of public funding in this case and we would ask for a detailed assessment of the claimant's costs -- sorry, the appellant's costs.

LORD JUSTICE SIMON BROWN: Miss Harrison, this is public money and we really do not -- subject to anything you want to add -- think we can properly give you costs beyond 16 January. That happens to be one week after Mr McCullough's skeleton argument. We really do not believe that after that you properly could have pursued this appeal. Now the fact is that not only have you caused costs expenditure on your side but you have caused costs expenditure on their side too.

MISS HARRISON: My Lord, you have seen how we responded in the skeleton argument to the argument advanced by Mr McCullough. Certainly as far as my instructing solicitor is concerned, obviously that was on the basis of my advice to him, and I have advanced the arguments in the skeleton argument. So I would ask your Lordships to consider whether or not to draw a distinction between my costs and their costs because, properly, they were acting on my advice and I would have to accept that. If your Lordships are of the view that that was plainly wrong, as you have indicated, then perhaps it is something that I should bear the brunt of and not them.

LORD JUSTICE SEDLEY: Your arguments in response to Mr McCullough's were, on paper, firstly that there was still a flagrant breach.

MISS HARRISON: Yes, my Lord.

LORD JUSTICE SEDLEY: You have not sought to develop that. I quite understand why. There is no authority to support it: it is simply a vacuum. Your second proposition is that there is a distinction within Article 8 but, again, that has not been advanced either. Your third proposition is that Ullah left Z standing, but that simply has not been a runner. Your fourth proposition is that Ullah itself was wrongly decided and that is your argument today: that is the basis on which you started and finished your case today.

MISS HARRISON: I would have to say, with respect, that part of the reason why the original initial arguments were not advanced IS because of the way in which I responded to propositions that were put by the court, which was plainly from the outset treating as Ullah as determinative. So I assumed from that and observations made in particular by my Lord, Lord Justice Simon Brown, that none of those other arguments were going to succeed.

LORD JUSTICE SIMON BROWN: That was my very plain view. There was nothing in any of them.

MISS HARRISON: So I did not abandon those arguments, but I took my cue from the court--

LORD JUSTICE SIMON BROWN: Yes.

MISS HARRISON: -- which was either you can show me that Ullah is not to be followed, or that is the end of it.

LORD JUSTICE SIMON BROWN: Yes.

MISS HARRISON: So I had not not intended to advance those arguments, but it was really in response to how the court presented the propositions.

LORD JUSTICE SEDLEY: You had intended flagrant breach, for example, to stay alive, even accepting that Ullah stood and was binding?

MISS HARRISON: That was the on basis of the way in which the court said that if it is flagrant breach, that may amount to the same thing as requiring it to be an Article 3.

LORD JUSTICE SIMON BROWN: It is only Article 3 with another shade of lipstick.

MISS HARRISON: Yes, but if was a flagrant breach then obviously that allows for the possibility that a very fundamental infringement of the right to private life could begin to possibly engage the Convention. That is why in the skeleton we referred to the case of Smith v Brady , that does recognise that certain violations of private life do get into the territory of degrading treatment.

LORD JUSTICE SEDLEY: So it was a further Article 3 argument, rather than a separate Article 8 argument?

MISS HARRISON: My Lord, it was taken from the paragraph in the judgment -- I think it is 62 -- that says it probably amounts to the same submission. It is a flagrant breach. That was the alternative submission of Miss Carrs-Frisk QC.

LORD JUSTICE SIMON BROWN: For my part I have no doubt at all that you were right not to seek to pursue that as some discrete argument, because it does not amount to one. So it is really a question as to whether your solicitors. . .

LORD JUSTICE SIMON BROWN: Well, Miss Harrison, you can have your costs until the date I mentioned, and with very considerable misgivings, your solicitor's costs, with the aside that, frankly, it should have been as plain to them as to you that this case should not have proceeded further; and with this further addendum that if anybody seeks to reopen Ullah , or not to recognise the effect of Ullah again, they cannot look for any sort of costs at all. Indeed, it may well be that the costs would be payable by them to the respondent.

MISS HARRISON: My Lord, so be it. On behalf of my instructing solicitors I am grateful.