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

MR JUSTICE LLOYD JONES: This is an application by Mr Fripp on behalf of the claimant, to whom I shall refer as B. It is a renewed application for permission to apply for judicial review, permission having been refused by Mr CMG Ockelton, sitting as a Deputy Judge of the High Court, on 31st October 2008.

The background is that the claimant, who is presently in Ethiopia, is said to be aged 16 - her date of birth is said to be 2nd August 1992 - and an orphan. She wishes to apply for entry clearance to join her uncle, a Somali refugee, in this country and she seeks permission to challenge a decision of the Secretary of State, it is said, declining to consider that application without payment of the relevant fee.

The position of the claimant has undoubtedly shifted on a number of occasions so far as the proceedings are concerned. Earlier applications have been made before waiving the fee. At that time, the application was correctly made to the entry clearance officer who did have the power to waive the fee and who refused the application on the grounds that she could not make out the case that she was destitute, which at that time was the legal test. Since then, there has been a change in the legal framework in that since April of 2008 there has been no discretion in the entry clearance officer to waive this fee. There is, however, a discretion in the Secretary of State and the challenge in this case, it now emerges as a result of the helpful submission of Mr Fripp, is in fact to the decision of the Secretary of State in the letter of 18th August 2008. This refers to the two previous responses from the United Kingdom Border Agency International Group, dated 20th December 2007 and 21st February 2008.

The essential position taken in the letter of 18th August 2008 is that the client has yet to lodge an entry clearance application. Until such time her case cannot be considered. However, it goes on to say:

The acknowledgment of service in this case has in fact been lodged by the Treasury Solicitor on behalf of the entry clearance officer. At the hearing today, Mr Singh has appeared, instructed by the Treasury Solicitor, and he has been able to speak on behalf of the entry clearance officer and on behalf of the Secretary of State. There is in fact no acknowledgment of service lodged on behalf of the Secretary of State.

I have considered whether it would be appropriate to grant an adjournment in these circumstances to allow the Secretary of State an opportunity to put in her own submissions on the matter but I have decided against that course, in particular because her position has been stated with clarity, very helpfully, by Mr Singh. The essential points made by Mr Singh are, first, that the issue has already been considered on the merits by the entry clearance officer. That is true. However, there is no indication in the letter of 18th August that the Secretary of State is adopting the reasoning of the entry clearance officer in that regard. Moreover, if she had done so, it would arguably be open to challenge on the basis that it applied the wrong test, because a different test now applies under the new legal structure. Destitution is no longer the test since April 2008. Secondly, Mr Singh submits that the application cannot succeed in any event because it is not possible to bring this relationship, that of uncle and niece, within the Immigration Rules and moreover it is said that Article 8 cannot assist in these circumstances because there is no established family life.

Mr Fripp, on behalf of the claimant, accepts that he cannot get home under the rules but he does rely on the Entry Clearance Guidance - General Instructions and the policy set out in chapter 16 in relation to family reunion, in particular paragraph 16.2.

Without expressing any concluded view in relation to this matter, it seems to me that the claimant's case here is likely to be problematical but I am unable to say at this stage that it is bound to fail. In these circumstances I, consider the appropriate course is to grant leave to apply for judicial review. However, I would add this: that it is of course open to the Secretary of State to reconsider the matter at this stage and, if she were to do so, it may well be that that would preempt any further proceedings.

MR SINGH: My Lord, may I ask for some consequential directions?

MR JUSTICE LLOYD JONES: Yes.

MR SINGH: First of all, may I ask for permission to be formally refused to proceed against the entry clearance officer, because the acknowledgment of service was on behalf of the entry clearance officer. If the order can make clear that permission is granted against the Secretary of State --

MR JUSTICE LLOYD JONES: Mr Fripp?

MR FRIPP: My Lord, let me think about that on my feet.

MR JUSTICE LLOYD JONES: Well, you have made clear that the decision you challenge is that of the Secretary of State.

MR FRIPP: My Lord, I have no objection to that.

MR JUSTICE LLOYD JONES: That is the appropriate course. I am granting permission to proceed against the Secretary of State, not against the entry clearance officer.

MR SINGH: Yes, my Lord. The other order that would be needed would be that, because the Secretary of State did not acknowledge service, the Secretary of State would of course need permission to be involved in this claim. So may I ask for permission for the Secretary of State to serve detailed grounds lodged within a certain period of time.

The only other direction I would ask for, my Lord, is that would it be possible for the claimant prior the Secretary of State serving detailed grounds to set out in a single document which application she intends to make and why she says the Secretary of State should exercise her discretion. As you indicated my Lord, the case has shifted somewhat, so it is not completely clear what the claimant's case is and then, perhaps within 35 days of receiving that document, the Secretary of State could then be permitted to serve detailed grounds of defence.

MR JUSTICE LLOYD JONES: Yes. I think that may assist the Secretary of State in considering whether she wants to take a further decision.

MR SINGH: Yes, my Lord. Thank you.

MR JUSTICE LLOYD JONES: That seems a sensible course, Mr Fripp.

MR FRIPP: Yes. My Lord, if we could perhaps have 21 days to do that and the Secretary of State perhaps to have 28 days thereafter, displacing the time limits in the CPR. So 21 days for correspondence.

MR JUSTICE LLOYD JONES: So I will say the claimant to lodge within 21 days a summary of the case as it now stands.

MR FRIPP: Yes.

MR JUSTICE LLOYD JONES: And how long do you want thereafter?

MR SINGH: Well, my Lord, we did ask for 35 days, but I have no --

MR JUSTICE LLOYD JONES: 35 days. The Secretary of State to lodge detailed grounds --

MR SINGH: Yes, permitted to lodge detailed grounds.

MR JUSTICE LLOYD JONES: -- within 35 days thereafter. There it is. Thank you both very much for your assistance.

MR FRIPP: My Lord, one short matter. If I could perhaps have, because the matter has been publicly funded, detailed assessment under the relevant Community Legal Services Regulations in case the matter goes no further, once this exchange has taken place.

MR JUSTICE LLOYD JONES: Yes.

MR SINGH: I have no objection.

MR JUSTICE LLOYD JONES: Very well.

MR FRIPP: I am grateful, my Lord.

MR JUSTICE LLOYD JONES: Thank you both very much.