Husan, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE DAVIS: This is a renewed application for permission, permission having been refused by the single judge on the papers.

The background relating to this application, I must say, on the material that I have seen, strikes me as pretty unimpressive and it also seems to me that the detailed decision letter of 26th November 2003 raises points and conclusions which it is very hard to see could be the subject of successful challenge. I find it very hard to see that there could be a successful challenge to the decision to certify under section 94.

However, Mr Mustakim has resourcefully raised a point that the decision to include Bangladesh, the country from which this applicant originates, as a country within the list under section 94 is irrational and cannot stand. Although that may seem at first sight and, indeed, at second sight a very surprising proposition, Mr Mustakim is at least entitled to point to the Court of Appeal decision in Javed where just such a conclusion was reached in the case of Pakistan. It should be pointed out, however, as Mr Kellar has, that there are very clear potentially distinguishing features between that case and the present.

I have, all the same, decided to grant permission in this case, essentially for the reason I put to Mr Kellar. If this kind of point is being raised with regard to the decision to include Bangladesh in the list within the ambit of section 94, then I think that kind of consideration would benefit from a substantive hearing whereby an authoritative judgment can be given so that the position can be clearly established one way or another.

I appreciate Mr Kellar's observation that, so far as those instructing him know, other applicants from Bangladesh have not sought to raise the point. Nevertheless, I think it desirable that this point be sorted out at a substantive hearing. For that reason I grant permission. Because I grant permission for that reason, I think, on the whole, notwithstanding what would otherwise be my initial inclination, there should be permission on all the grounds raised.

Well, I had better say costs reserved, I think. How long do you think for the substantive hearing? A day?

MR KELLAR: My Lord, yes. More than half a day. It may take some analysis of the objective evidence.

MR JUSTICE DAVIS: Whether you would be allowed to go to the parliamentary debate, I know not. I think both of you had better put in skeleton arguments. Yours three weeks before the hearing and yours two weeks before the hearing. Is that too far in advance for you? Is that alright for you, Mr Kellar?

MR KELLAR: My Lord, I think I prefer a week.

MR JUSTICE DAVIS: Mr Mustakim, you two weeks before the hearing and then Mr Kellar responds to that one week before. We will make sure the bundle is in its final form. Anything else? Thank you both very much indeed.