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

MR JUSTICE SULLIVAN: This is an application for judicial review of a removal direction issued by the defendant in respect of the claimant dated 9th July 2004. In the claim form, it was asserted that the claimant had been granted indefinite leave to remain, which had been genuinely acquired, and it was further asserted that he had been resident in the United Kingdom for more than 14 years, therefore it would be unlawful to deport him; and, furthermore, that he has had a relationship with a lady for over five years. The lady is from the Czech Republic, which is now part of the European Union. She is in this country gainfully employed exercising her Treaty rights, so, again, it was submitted that it would be in breach of European Union rules, and indeed in breach of Article 8 of the European Convention on Human Rights, to remove the claimant from this country.

Permission was granted on the papers by Mitting J in the absence of any acknowledgment of service. Since permission was granted, matters have moved on to a considerable extent. The defendant agreed to consider whether the claimant should be able to take advantage of the 14-year concession. If a favourable decision had been issued to the claimant as a result of that consideration, that would have rendered the proceedings academic.

In due course, a very detailed decision letter was issued, dated 22nd November 2004. That set out the history of the matter in considerable detail. The claimant entered the United Kingdom on 23rd September 1989 as a visitor. He applied for an extension of leave to enter as a student, which was granted until 31st May 1991. An application for a further extension of leave was refused in November of that year. There was an appeal against that decision, which was dismissed on 27th May 1993. On 17th August 1992, the claimant applied for leave to remain as the spouse of a Dionne Oxley, a British citizen. He married Dionne on 6th August 1992 at Derby registry office. In due course, after certain temporary periods of leave were granted, an application for indefinite leave to remain on the basis of that marriage was made on 29th December 1993. That was refused on 19th June 1997 because the marriage was no longer subsisting. There was an appeal against that decision, which was dismissed on 4th June 1998. No appeal was made from the adjudicator's decision to the Immigration Appeal Tribunal.

On 29th August 2002 the claimant tried again. He submitted an application for naturalisation as a British citizen. That application was refused on 22nd August 2004 on the basis that the indefinite leave to remain stamp in the claimant's previous expired passport and his status letter were counterfeit. On 9th July 2004 the claimant was served with form IS151A as a person subject to administrative removal, as he had obtained indefinite leave to remain by deception. Removal directions were set for 12th July 2004, but they were cancelled due to notification of the intention to apply for judicial review. I have set out the grounds on which judicial review was claimed.

The letter dated 22nd November 2004 explains why the defendant concluded that the indefinite leave to remain stamp in the claimant's previous expired passport was counterfeit. The letter continues:

What had happened in respect of the former application was that the college attended by the claimant was visited by immigration officers in March 1991 and an investigation was carried out which revealed serious irregularities. As far as the application as a spouse made in 1992, again investigations were conducted and the adjudicator's determination stated that, when the claimant's spouse was visited by an immigration officer, she said that she had never lived with the claimant and that she had hardly seen him since their wedding day. Enquiries were made at the Benefits Agency. They revealed that the claimant and his spouse were living at two separate addresses and, indeed, his spouse was claiming allowance benefits as a single person.

When interviewed by an immigration officer in 1997, the claimant's wife had said that the marriage had been a sham. She had been promised £700 by a friend to go through with the ceremony. She had never lived with the applicant, and, to add insult to injury, she had not even been paid the £700.

It is against this background that the claimant's case falls to be considered. The letter deals specifically with the claim that it would be unlawful to remove the claimant because he has been resident in this country for more than 14 years. The relevant provisions of the Immigration Rules are set out, and it is clear from those extracts that the defendant has a discretion. There are circumstances in which, even though someone has resided in the United Kingdom for more than 14 years, there may be countervailing factors, such as a deliberate attempt to evade or circumvent immigration controls, which mean that the person will not be able to take advantage of the policy and will not be granted indefinite leave to remain.

Paragraphs 19 and 20 of the letter are in these terms:

The letter goes on to consider whether leave to remain should be granted exceptionally outside the Rules, but concludes that there are insufficient exceptional or compassionate circumstances to justify such a concession.

The claim form in the application for judicial review had referred to Article 6 of the European Convention on Human Rights. Paragraph 23 of the letter points out, correctly, that Article 6(1) is not applicable to decisions regarding the entry, stay and deportation of aliens. The letter then goes on to consider the Article 8 claim against the background of the alleged five-year relationship with the lady from the Czech Republic.

Various points are made, for example, on the long residency application form, the claimant gave some details of his partner, but said that she was not applying for "indefinite leave". The documents provided in support of that application did not show that he and Miss Moresova lived at the same address. The point was made that EU law did not recognise the unmarried partner of an EU national as a family member. In any event, the letter pointed out that no adequate evidence had been submitted to support the claim that this was a genuine and subsisting relationship, and, even if there has been a relationship for five years, the letter pointed out that the claimant would have been aware that his appeal rights had been exhausted when he met Miss Moresova, and he would also have been aware that he had subsequently obtained indefinite leave to remain by deception.

The letter says in conclusion that, even if removal would constitute an interference with the claimant's Article 8 rights to family life and/or to private life, such interference would be in pursuit of the legitimate aim of maintaining effective immigration control. For those reasons, the claimant's human rights claim was clearly unfounded, and it was certified under section 94(2) of the 2002 Act.

As I have said, this decision letter overtook the earlier events, in particular the claim that was the subject of this application for judicial review. Notwithstanding this fact, there has been no attempt to amend the claim form, or to provide amended grounds of claim to challenge the decision letter of 22nd November 2004. This failure has persisted, despite the fact that the Treasury Solicitor has pointed out the need for such an amendment to be made if the lawfulness of the decision letter of 22nd November 2004 was to be challenged.

The matter last came before the court on 14th January 2005. A skeleton argument was produced on behalf of the claimant, which, on its face, appeared to be challenging certain aspects of the letter dated 22nd November 2004, notwithstanding the fact that there had been no amendment to the claim form. In summary, it was submitted that there should be an adjournment for two reasons: so that the claimant and his solicitors would have an opportunity to listen to the tapes of the tape-recorded interview, when the claimant was detained and asked questions under caution about immigration offences, and, secondly, so that a forgery expert could be instructed on behalf of the claimant to examine the stamps that were said to be counterfeit.

Bennett J reluctantly granted an adjournment to enable those two matters to be dealt with. However, he granted an adjournment on stringent terms. The claimant's expert's report in relation to the allegedly counterfeit stamps could be filed, but only on the condition that it was disclosed forthwith to the defendant and upon the basis that no privilege would be claimed for it.

Since 14th January, there has been a great deal of correspondence between the Treasury Solicitor and solicitors then acting on behalf of the claimant. It is unnecessary to rehearse the detail, but understandably the defendant was only prepared to allow the tape to be examined and the immigration stamps to be compared against those in the claimant's documents on certain terms, for example the stamps had to be examined on the Immigration Service's premises. I am satisfied that those conditions were entirely reasonable in the circumstances, even though, for reasons best known to themselves, the claimant's then solicitors were not apparently prepared to accept them. I say "not apparently prepared to accept them" because there has been no reasoned explanation for their failure to take up the Treasury Solicitor's offers made on behalf of the defendant, both as to listening to the tapes and providing facilities for any examination that the claimant's forgery expert might wish to make.

As an indication of the defendant's reasonableness in this matter, the Treasury Solicitor even offered to pay the expenses of the claimant's expert witness in travelling to the Immigration Service's premises, on the basis that any examination would have to be conducted at those premises.

The position today, therefore, is that the two matters which prompted Bennett J to grant an adjournment have not been attended to. There has been no amendment of the claim form so as to challenge the letter dated 22nd November 2004 and, with the greatest of respect to the skeleton argument submitted on behalf of the claimant at the hearing before Bennett J on 14th January, it contains no coherent criticism of the letter dated 22nd November 2004.

The position is, in summary, that, far from having been granted indefinite leave to remain, it is plain that the only decision on file is a refusal of indefinite leave to remain and, moreover, that there was an unsuccessful appeal against that refusal. Even on the claimant's own case, the marriage was no longer subsisting and thus it is plain that the basis of the application for indefinite leave to remain was bogus. On the account of the claimant's wife, it is not simply that the marriage was no longer subsisting, but that the entire marriage had been a sham from the beginning.

The defendant has expressly considered whether or not the claimant should be allowed to take advantage of what is sometimes called the 14-year rule, and has concluded, for reasons which are readily understandable, that he should not.

That leaves the Article 8 claim. In her skeleton argument for the hearing on 14th January, Miss Anderson had referred to the decision of the House of Lords in Razgar [2004] UKHL 27, and submitted that, if the claimant was to succeed in his Article 8 claim, he would have to show that his case fell into the "very small minority of exceptional cases". Since Razgar, we now have the guidance of the Court of Appeal in the case of Huang, which makes it abundantly clear that, since this claimant has no entitlement to remain here under the Rules, in order to establish an Article 8 claim on the basis that his removal would be disproportionate, he would have to show a "truly exceptional case". Insofar as this case is exceptional, it is exceptional only to the extent that the case would appear to be utterly devoid of any merit, in that the claimant has managed to stay in this country for as long as he has simply by virtue of a series of deceptions of various kinds.

For these reasons, I am satisfied that there is no arguable challenge to the certification of the human rights claim as clearly unfounded, nor is there any other arguable error of law in the decision letter dated 22nd November 2004. I therefore dismiss the application on the merits.

There is a further reason why the application should be dismissed. That is because of a complete failure on the part of the claimant, not merely to attend today, but also to pursue his claim since the adjournment granted by Bennett J on 14th January. I do not propose to rehearse the details of the correspondence, but in a letter dated 21st April 2005, received in the Administrative Court office on 21st April 2005, the claimant, writing from an address in Slough, says:

It will be noted that there is no indication whatsoever as to when the claimant applied for legal aid and no correspondence with the Legal Services Commission has been produced.

A copy of the letter was faxed by the Administrative Court office to the Treasury Solicitor on 22nd April. The Treasury Solicitor replied on 25th April 2005, making it perfectly clear that he was instructed to oppose the application for an adjournment, and referring to the first paragraph of his note of Bennett J's judgment, which reads as follows:

The Treasury Solicitor sent a copy of his letter to the Administrative Court office and to the claimant's then solicitors. Despite extensive attempts to communicate with the solicitors, a letter was eventually received from VLS Solicitors, who are not on the record. That explains that the writer was the solicitor dealing with the matter at Collisons Makers Haywards, the solicitors on the record for the claimant. It says that the writer has left the firm and advised the claimant to go to a firm with a franchise in immigration for legal aid because the writer's current firm does not offer legal aid.

The solicitor in question is a Mr Michael Otobo. The Treasury Solicitor has written to Messrs Collisons Makers Haywards making it clear that they are still on the record:

It is plain from this correspondence, firstly, that the claimant himself is well aware of the hearing today; secondly, that Mr Otobo, his solicitor, is also well aware of the fact that the hearing was due to take place today; and, thirdly, that that knowledge must be shared with Messrs Collisons Makers Haywards, who remain on the record as acting on behalf of the claimant.

In these circumstances there is no excuse, in my judgment, for the complete failure of anyone to appear on behalf of the claimant and for the claimant's failure to appear himself. As I have said, there is no indication as to when Mr Otobo left Collisons Makers Haywards for VLS Solicitors; no indication as to when he advised the claimant to go to another firm which dealt with legal aid cases; and no indication as to when the claimant actually applied for legal aid, if indeed he has done so.

It seems to me that the claimant's conduct in this case is all of a piece with the history of the matter: a series of delaying tactics. I have little doubt that the offer to enable the forgery expert to inspect the documents was not taken up because it was realised that privilege would not be able to be claimed for the eventual report, in view of the only basis upon which Bennett J was prepared to agree to an adjournment.

For these reasons, therefore, because the case is utterly devoid of merit and because there has been no appearance today, I dismiss this application for judicial review. Do you have any further applications, Miss Anderson?

MISS ANDERSON: Yes, my Lord. I am instructed to apply for wasted costs against Mr Otobo and against the solicitors on the record. This is under Rule 48.7. You will recall, my Lord, that there are three different bases upon which wasted costs may be made: negligent conduct, unreasonable conduct and, in my submission, unreasonable conduct would be well made out in these circumstances. The litigation has been conducted in an unreasonable way, which has led to the wasted costs of the hearing today. The costs of the previous hearing were in fact granted against the claimant himself personally on the last occasion, so that would not form part of the costs order, but for various reasons it has taken up an awful lot of public time and expense.

Obviously all of that will not be reflected in the costs, but in my submission it is an appropriate case to put down a marker and say, at least come off the record. My Lord, if the firm say that they are not conducting the litigation any more, at least out of courtesy to the court if nothing else, they should have come off the record.

MR JUSTICE SULLIVAN: It seems sensible to confine it, I would have thought, to the costs following 14th January. I realise there are earlier costs going back to the start of things, but there is no point in trawling over all of those, and, as you say, one wants to put down a marker. But it is really the complete failure to follow up the opportunity given by Bennett J, really, I think, that is the gravamen of the thing. There is no point to trying to broaden out the enquiry to going back any further, I would have thought.

MISS ANDERSON: I certainly accept that with regard to the wasted costs --

MR JUSTICE SULLIVAN: Yes, that is what I meant by wasted costs.

MISS ANDERSON: I will come on to the other costs in a minute, but certainly under wasted costs it is my submission that there has been unreasonable conduct since January, and that is made out in the correspondence. Notice was given, in my submission, as required by the Rules to the solicitors to attend, and it would seem that in that circumstance the costs of a further hearing on this matter would seem totally unjustified.

MR JUSTICE SULLIVAN: They are to be dealt with on writing, unless --

MISS ANDERSON: In my submission, perhaps the appropriate order is an order to show cause why they should not pay the wasted costs of the conduct in writing within a reasonable period, my Lord. Some seven days would seem an appropriate time, and failure to do so would lead to a costs order being made in any event. I ask for that, my Lord, simply because there may be a risk of inaction.

MR JUSTICE SULLIVAN: Do not worry, I have in mind -- yes, shall we deal with this in turn, because we have costs overall and wasted costs.

MISS ANDERSON: Yes. In terms of the other costs of the action, your Lordship has indicated that it is an application with merit, and in my submission the normal course should follow, that costs follow the event and that the claimant should pay the costs.

MR JUSTICE SULLIVAN: Yes, I mean that can be tracked back from the date of -- yes, yes.

MISS ANDERSON: I am instructed to ask for indemnity costs, my Lord, on the basis that this was an unreasonable application to make, and also it has not been pursued by the claimant, so that if he had wanted to make his application, he should have followed it up, and in those circumstances indemnity costs would seem appropriate.

MR JUSTICE SULLIVAN: I would have thought indemnity costs are appropriate perhaps after 22nd November 2004. I mean it may well be that, with the benefit of hindsight, you can see that the whole thing was completely hopeless from the beginning, but on the other hand, the question is: is that obvious, or when should that have become absolutely crystal clear, and the answer is: once you have that letter of 22nd November. Unless he had a pretty good answer to that, it was hopeless. That would be the thing. Right, thank you very much.

The application is dismissed. As far as costs are concerned, the claimant is to pay the defendant's costs. Those costs are to be assessed on the standard basis, up until and including the service of the letter of 22nd November 2004 on the claimant's solicitors, thereafter the costs are to be paid on an indemnity basis. I explain the reason for that. Whatever doubts there may have been about the true position prior to that letter, following receipt of that letter, it was perfectly clear that, unless there was a very good answer, there was no proper basis upon which the claimant was entitled to remain in this country. No such answer has been provided.

As far as wasted costs are concerned, those costs should go for detailed assessment, particularly on the indemnity point, if not otherwise agreed.

Both Collisons Makers Haywards and Mr Otobo are to show cause as to why they should not be ordered to pay the costs of these proceedings incurred after the adjournment ordered by Bennett J on 14th January, up to and including the costs of today's hearing. They are to show cause in writing by letter filed with the Administrative Court and served on the defendant within 14 days of today's date. If they do not show cause within 14 days, then the court may proceed to make a wasted costs order without further notice.

MISS ANDERSON: My Lord, just to clarify the mechanics of how that might work without a further hearing, is this matter reserved to yourself, my Lord, so that you can deal with the issue of costs?

MR JUSTICE SULLIVAN: Yes. I think it would be sensible, Associate, if you would add in "by letter addressed to the Administrative Court office for the attention of Sullivan J and served on the defendant".

MISS ANDERSON: Can I have liberty to put in submissions if any written submissions do come in? I have in the past had this situation where some statements were made to the court which were demonstrably false on the documents, and we were able to submit documents to the court to say that that was not what happened.

MR JUSTICE SULLIVAN: Yes, I am quite happy to include that provision. Liberty to the defendant to respond to any submissions served by the claimant within, shall we say seven days? We will give them fourteen and give you seven.

MISS ANDERSON: Seven running from the time of receipt of their submissions?

MR JUSTICE SULLIVAN: Yes, indeed. Any more for any more?

MISS ANDERSON: No, my Lord, I am most grateful.

MR JUSTICE SULLIVAN: Thank you.