Vousden, R (on the application of) v Special Adjudicator Secretary of State for the Home Department & Anor

MR JUSTICE HOOPER: By these proceedings the claimant seeks to challenge the refusal of the Chief Adjudicator to accept jurisdiction in the appeal which the claimant was seeking to bring against the decision of the interested party. It is the claimant's case that the Chief Adjudicator did have jurisdiction, pursuant to section 58(5) of the Immigration and Asylum Act 1999. The interested party accepts that the Immigration Appellate Authority has jurisdiction over an appeal under Part 4 of the Immigration and Asylum Act 1999 or the Immigration (European Economic Area) Regulations SI2000/2326, in which the appellant has duly given notice of appeal in accordance with rules 5 and 8 of the Immigration and Asylum Appeals (Procedure) Rules SI2000/2333, notwithstanding that the respondent may not yet have forwarded to the adjudicator any or all of the documents listed in rule 10 of SI2000/2333 (the appeal bundle).

Mr Tam, who appears for the Lord Chancellor's Department, has, understandably, declined to address me as to whether or not the common position now taken by the claimant and the interested party is correct.

After the claimant lodged this application for judicial review, the Secretary of State, on 23 August 2002, granted him permission to remain indefinitely, under rule 257 of the Immigration Rules. It follows that the claimant has no further personal interest in these proceedings.

It seems to me that this application should now be dismissed and that the Chief Adjudicator be invited, should this matter be raised again in some other case, to consider whether or not there is jurisdiction, in the light, particularly, of the views of the Secretary of State. In my judgment, it is inappropriate for me to make a declaration that there is jurisdiction for at least two reasons. Firstly, there may well be others who take the view that the adjudicator does not have jurisdiction. Secondly, if there is jurisdiction, there are a number of practical consequences with which I could not deal.

If the Chief Adjudicator were to decide that the Tribunal does have jurisdiction, I would further invite him to give guidance as to how that jurisdiction is to be exercised. For the purposes of this case, I have been provided with two very helpful witness statements, one from Keith Lambert, dated 20 December 2002, and the other from Martin John, dated 19 December 2002. Both of these witnesses have extensive experience of the practical problems of processing appeals of this kind.

In the light of these considerations, it seems to me that it would not be right to continue with this application and, in those circumstances, this application for judicial review is dismissed.

Is there an issue of costs now?

MR EICKE: My Lord, this being our application and you having dismissed the application, the normal course would obviously be, at best in a sense, no order for costs. I would, however, ask your Lordship to consider the background to this case and the reason why we were here, in a sense. It was billed as a test case, in order to resolve this issue. The appellant got the arguments up and brought them before your Lordship. It is our respectful submission that, in those circumstances, it would be appropriate for the claimant to have an order for costs. In particular, I might add that he is legally aided in order to argue this case in the public interest.

MR JUSTICE HOOPER: I make it clear that this application was properly brought but, in all the circumstances, I feel that the proper order is no order as to costs. I would not want the Legal Services Commission to think that you were wrong to bring this case; you were quite right to bring it, but, having regard to the way it has resolved, that is the order I make.

MR EICKE: My Lord, could I then ask for a detailed assessment of my publicly funded costs -- whatever the phraseology nowadays is, my Lord.

MR JUSTICE HOOPER: You can have that. The associate will give it to you in better language than you or I are to be able to express it.

MR EICKE: I am grateful, my Lord.

MR JUSTICE HOOPER: Thank you all very much for your efforts.