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

A preliminary issue has been raised in the application for judicial review. There is a so-called agreed bundle of evidence submitted by the claimant which is dated 24th July of this year, received by the defendant at the beginning of this week, 27th July, for this hearing. The so-called agreed bundle of evidence contains a number of documents which were not before the defendant at the time of the decision now under challenge. The defendant objects to the use of the bundle on the basis that (a) the bundle is not agreed, (b) it contains material not considered by the Secretary of State, and thus (c) it is inappropriate for them to be considered as they are incapable of disclosing any error of law in the decisions both of 8th September and 31st March. It is submitted that there has been no good reason provided as to why it was not served earlier. It follows from that that, because the documentation has been served so late by the claimant's representative, the Secretary of State has not had time to consider them in any event.

The chronology of the matter is set out in the skeleton argument of the defendant. The permission for the claim which related to the letter of 8th September 2008 was granted on 24th February 2009, permission having initially been refused on the papers. Following that grant of permission, the Secretary of State reconsidered the claimant's application by reference to the 1973 Rules. To put it in perspective, the challenge was that the letter of 8th September had indicated that the claimant was not entitled to the benefit of the standstill clause, the challenge being that the Secretary of State should have considered the application by reference to the 1973 Rules. The Secretary of State did so following permission being granted and refused the application under those Rules on 31st March 2009. On 1st April the Treasury Solicitor invited the claimant to amend his grounds for judicial review in the light of the decision. There was no response to that letter and so detailed grounds of resistance were filed on 5th May 2009. It was not until 26th June 2009 that any response was received from the claimant's solicitors. On that date a letter to the defendant asserted that no response could have been provided earlier because the claimant's solicitors had been without funds. Public funding had been granted with effect from 17th June. It was indicated that it was intended to amend the grounds which would be served by 17th July. It says in the chronology that no application for public funding had been made until 16th June and was then granted on an emergency basis for four weeks, expiring on 15th July. No amended grounds were forthcoming in that period. The defendant submitted that no explanation was offered as to the delay. The application for a full funding certificate was made on 22nd June and the solicitors received notice that the application had been granted on 22nd July. It was only then that the amended grounds were served. A witness statement from the claimant along with the index to the hearing bundle, was served the following day. As we know, the other documents were served dated 24th July, not received until 27th July.

Today and this morning, just before I came into court, I was given a statement made by Mr. Latif, dated today's date, who is a solicitor employed by Aman Solicitors Advocates, the solicitors representing this claimant. He sets out the history of public funding. Steps to secure public funding were commenced in early May 2009. We are given no date and no explanation as to why steps were not taken immediately on receipt of the Secretary of State's decision and particularly immediately on receipt of the letter of 1st April from the Secretary of State, which suggested that the claimant amend his grounds. An emergency application was not made until 16th June. It was granted the next day. It was valid for four weeks. It is not clear what the delay was between the steps taken in early May, which is at least four weeks of the actual application being made. It is said that the firm does not undertake work on a publicly funded basis until a full certificate is granted where there are reasons to believe that a full certificate may not be granted. Because the claimant here is a businessman and his wife was in employment (until she took maternity leave), his firm took the view that on a full assessment of the claimant’s means, it could result in them being disqualified. On 22nd June a full funding application was sent to the LSC. The solicitors wrote for an extension of time to lodge the bundles and the skeleton arguments. On 22nd July the certificate was confirmed as granted. Mr Latif then makes submissions which are in line with the submissions of Mr. Ali, that the claimant should be allowed to rely on documentation now produced, because the defendant has changed the case the claimant has to meet, has served pages of evidence that were not served before and that no permission had yet been granted by the court to allow the claimant to change his case, nor has permission been granted to adduce the evidence. It is submitted that if the claimant is not allowed to rely on the new evidence, then the court ought to deny the defendant the right to rely on the letter of 31st March 2009 and the evidence adduced in support.

I have been through the bundle, and it seems to me that up to divider 10 there is no problem because these documents, certainly up to divider 8 and indeed divider 9, are documents that were part of the pleadings. It is to be noted, however, that the detailed grounds of resistance anticipated, and rightly anticipated, in the light of the defendant's letter to the claimant dated 1st April, that there would be an application to amend the claim in the light of the decision letter of 31st March. Hence, documentation was produced together with the detailed grounds of resistance. I will be corrected if I am wrong, but all the documentation here must be documentation of which the claimant was fully aware because they are variously documents that related, first of all, to his claim to remain in this country as a businessman which he submitted. There is documentation in relation to whether or not he was living with his wife which related to the applications he made to remain in the United Kingdom as the spouse or partner of a person present and settled in the United Kingdom, such application being refused for the reasons that were given, the reasons which the claimant is fully aware of. I have not seen anything in this bundle of documentation which could come as a surprise to the claimant.

Divider 10 has the amended grounds for judicial review. There is no opposition from the defendant and permission has been granted for those grounds to be amended. The amended grounds, as rightly anticipated by the defendant, criticise the decision of 31st March, and those amended grounds are drafted by Mr. Basharat Ali and Mr. Nazir Naseem, the two advocates who appear today before the court. That is the basis of the amendment, namely challenge to the decision of 31st March 2009 on the basis that that decision did not follow the appropriate guidance.

Divider 11 contains a statement from the claimant dated 21st July 2009, in which he seeks to set out details of his business. Divider 12 is a letter dated 26th March 2009 from the UK Border Agency dealing with the claimant's application for a residence card or permanent residence which is dealt with by a different team with different premises in the city, and reference from the decision letter under challenge. Divider 13 contains miscellaneous receipts, none of which disclose who the purchaser was and which are difficult to reconcile, save for a few, with what follows in the next divider, divider 14, which is a series of 26 documents headed "statement", which is essentially an invoice book with entries from 12th March 2008 to 10th July 2009. The documents are said to be in respect of work done. It is to be noted that they are all in round figures and there is no breakdown between labour and parts. Divider 15 has pictures of some garden work being done somewhere and garden tiles being laid. Divider 16 is a Barclays Bank account which covers 19th May 2008, when the account was opened, to 18th June 2009. It is in the claimant's name showing money in and out. Some of the sums would seem to correspond to the invoices but not all. Divider 17 is a tax return for the year to 5th April 2008 showing a business turnover of £650 to that period, business turnover and a business profit of £650 for that period.

None of these documents were in front of the Secretary of State in support of the application to remain as a businessman, despite the letter from the claimant's then legal advisers dated 24th April 2008. It would appear that they were indicating that further documentary evidence would be provided as soon as possible. No further documentation was provided and, in particular, no evidence of finances, bank statements or the like. It is notable from the bank statements that have been provided that the bank account was opened one month after the letter written by the claimant's representatives to the Secretary of State. There is also no evidence in this new bundle of the £2000 in savings that the claimant claimed to have in his original application. The claimant argues that it would be unfair for the documents not to be taken into account, indicating that because of the legal aid funding problems the claimant was not able to have the benefit of legal advice. It is complained that the Secretary of State reconsidered the claim without notice and has now changed the goalposts, and that it would be unfair for this claimant not to be able to rebut the basis of the Secretary of State's decision with the documents that are contained therein.

The issue before this court, in light of the amended grounds, is the sustainability of the decision of the Secretary of State dated 31st March 2009 because, (although the Secretary of State makes no such concession as to the decision made on 8th September, that it was a decision that was wrongly made), the Secretary of State has now considered the claimant's application on the basis of the standstill clause, which was the basis of the original claim for which permission was granted. The reality is that that part of the claim is now academic, and therefore the issue is the sustainability of the decision of 31st March 2009 as set out in the amended grounds. This must be based on the information before the Secretary of State. It would be wrong and unfair to characterise a decision as irrational, relying for that proposition on documents which the Secretary of State had not considered. As indicated during the course of argument, a decision could be characterised as wrong with hindsight based on further information that came to light, but not irrational based on the information that was then available. I am not going to allow the documents which are in divider 11 onwards to be considered as they were not in front of the Secretary of State. They have been served very late in the day, not allowing any time for the Secretary of State, should he have wanted to make inquiry and investigation in relation to them. There is no reason, in my judgment, why they could not have been provided when the claimant was represented in February or, indeed, why they could not have been provided prior to the decision letter of 8th September 2008 because, as has already been noted, there are bank statements that relate from mid-May 2008 and bank statements and documents of such nature are clearly set out in the list of documents that are considered relevant for the Secretary of State's perusal in the application form. If the invoice book is also genuine, then there was evidence of invoices for work done prior to the decision letter, prior to the decision made in February 2009. Problems with legal aid funding or caution exercised by the claimant's solicitors in relation to legal aid funding do not excuse this lack of expedition by the claimant. It is said that he is a Turkish national and therefore he has difficulties with the language. He is making an application to remain in this country as a businessman. He has access no doubt to people who speak the language. The letter of 31st March 2009 made it clear that he had not provided documentation to properly provide evidence of his running a business. He did not need a lawyer to tell him to send in the documentation that he has now provided. It is a matter of common sense. If the claimant is a businessman, then he should be able to evidence it by proper business records. As I have found, despite the funding problems which are alluded to, the claimant has not proceeded with expedition. There is no reason why the claimant on receiving the letter could not have sent material to the Secretary of State following 31st March and asked the Secretary of State to consider that documentation as a result of that letter. It would have been preferable as well if the claimant's legal advisers had warned the Secretary of State that there was to be documentation in support of the claimant's case and in rebuttal of the Secretary of State's decision letter. There may not have been funding but they certainly, as a matter of courtesy, could have indicated to the Secretary of State that this was the position. It may well be that a slight delay to the hearing could have been sought in order for the Secretary of State to further consider the documents. In my judgment, it is not appropriate now for the claimant to introduce them. Therefore, they will not be considered.

MRS. JUSTICE DOBBS: This is an application for judicial review of the defendant's decision of 31st March 2009. The issue revolves around the defendant's refusal to allow the claimant to remain as a businessman pursuant to the ECAA agreement between the member states of the EU and Turkey. As already noted in my previous decision, the original application argued that the defendant should consider his claim under the 1973 Rules pursuant to article 41.1 of the Additional Protocol to the EC-Turkey Association Agreement, known as the standstill clause, whose effect is to prevent the UK from introducing more restrictive conditions on the freedom of establishment for Turkish nationals than those which were in force on 1st July 1973. The challenge then was to the defendant's refusal in the letter of 8th September to consider the claimant's position under the 1973 Rules on the basis that he was excluded from taking the benefit of the standstill clause by virtue of his fraudulent activities in establishing a business, having overstayed his previous leave to enter. Permission was refused by the Deputy High Court judge on 12th December 2008. The application was renewed on 22nd December and permission was granted by Irwin J on 24th February 2009.

Following the grant of permission, the Secretary of State reconsidered the claimant's case under the 1973 Rules and issued the decision dated 31st March refusing the application. The grounds have now been amended to challenge that decision, permission having been given for the amendment to be made.

The claimant's immigration history is set out in paragraphs 5-12 of the defendant's skeleton argument and is as follows:

The claimant's case in a nutshell is that the decision of 31st March 2009 is contrary to the published guidance and that the decision is irrational because it failed to take into account the guidance. More particularly, the first point that is made is that negative history, including unlawful presence in the UK, cannot of itself be conclusive in refusing an application. Relying on paragraph 4 of the general guidance in the document entitled “In-country guidance on persons intending to establish themselves in business under the Turkish-EC Association Agreement”, which is headed "non-fraudulent in-country cases, paragraph 4, extension of stay-switching non-fraudulent cases", and also relying on the extract in Appendix C, the penultimate page of that document headed "immigration history", it is argued that the guidance makes clear that overstaying and a previous breach of immigration history are not a proper basis for refusing the claimant's application to remain. Secondly, relying on paragraphs 4 and 21 of HC510, it is re-emphasised that the defendant erred in relying on the overstaying and negative history to refuse the claimant's application.

A number of other points are made by those representing the claimant, that the notice to a person liable to removal dated 16th January 2008 did not expressly prohibit the claimant from working, that it was unfair to hold against the claimant that he had provided no evidence of significant investment or creation of jobs in the country and, thirdly, in relation to the third area identified in the decision letter, that at the time that the claimant made his application to stay he had no bank statements to provide. Comments are made in the skeleton argument of Mr. Ali in relation to the defendant's detailed grounds of resistance, which it is said go outside the parameters of the decision letter, which are disputed by the claimant. I do not need to go into any furtherdetail.

The defendant's case is that the defendant did properly consider the guidance and all relevant circumstances. The immigration history was taken into account and particularly the fact that the claimant only started the business when he was illegally overstaying in the country. There were no positive factors to outweigh this, such as if the business had resulted in significant investment of assets or the creation of employment but, additionally, that the requirements of paragraph 21 were not met, given the claimant's failure to provide at the very least bank statements. This is said by the defendant to be an important factor because the absence of evidence of finance demonstrates or shows to the contrary that there is no evidence of funds for the start- up costs or evidence that the claimant was able to bear any liabilities. This is important, because paragraph 21 specifically requires that the evidence be provided to show that he has funds to invest and to bear liabilities. He has not demonstrated that he has funds to address all the matters that were set out in the business plan which formed part of the application. Counsel for the defendant has referred this court to a number of authorities but, as the court has indicated to both parties, the claimant can distinguish the facts of the cases relied on by the defendant and no doubt vice versa. It seems to me that it is a matter of applying common sense to the facts of this particular case.

It is submitted by the defendant that the claimant has misunderstood the import of paragraph 4 of the guidance as meaning that a person who meets the formal requirements of the rules cannot be refused on grounds of negative immigration history, but rather that a negative immigration history should not be treated as decisive in itself, thus rendering consideration of other considerations unnecessary. It is submitted that provided all matters are taken into account in a balanced way there can be no objection in law if the decision-maker rationally concluded that the circumstances of the case are such that the application should be refused under paragraph 4. The defendant has submitted alternative arguments with regard to the decision of 8th September 2008 but, as this court has indicated, what we are really concerned with now is the latest decision of 31st March.

Put in summary, the defendant says that the previous immigration history, the absence of any positive factors in the sense of investment and creation of jobs, and the failure to comply with paragraph 21, when taken together demonstrate that the decision was not irrational, nor there was any error of law made. The claimant in response puts the case and response shortly. Mr. Ali says that the Secretary of State has taken an irrelevant matter into account, namely, the issue of investment, has required something which the claimant did not have, namely the bank accounts, and thus the decision is left on the basis of the immigration history which is clearly in breach of the guidance as set out. The effect of what the Secretary of State has done is that, by saying that he will consider the decision under the 1973 rules, he has given with one hand but then taken away with another.

The decision letter is at divider 9 of the bundle. The letter first of all sets out the relevant paragraphs of HC 510, namely paragraphs 4 and 21, and then at page 95 goes into the factors affecting the decision. This provides as follows:

The relevant rules, as already indicated, are the 1973 Rules and in this case HC510. The relevant paragraphs are 4 and 21. Paragraphs 4 and 21 are as follows:

The claimant has already relied on the general guidance in the in-country guidance on persons intending to establish themselves in business under the Turkish-EC Association Agreement and in particular paragraph 4, under the heading "non-fraudulent in-country cases". Paragraph 4 reads: "extensions of stay switching - non-fraudulent cases.

Reliance is also placed on an extract from Appendix B of the document which relates to on-entry general guidelines referring to HC509 of the 1973 Rules. That extract, it is conceded, is not relevant for the purposes of this case. This case falls under HC510. However, reliance is placed on Appendix C of the document which relates to after-entry general guidelines referring to HC510 of the 1973 Rules to be applied where a business is already up and running. The section entitled "immigration history" is relied on and raised in court today at the last moment, and not previously. The paragraph which is headed "consideration and verification procedures", provides as follows:

I have referred to the sections of the guidance which the claimant relies on and I turn to them now in order. Dealing with the entry entitled "extension of stay switching - non-fraudulent cases", for the purposes of this argument it is accepted that the claimant can take advantage of the standstill clause as an overstayer, but that section also makes clear that applicants who do not meet the requirements of paragraphs 4 and 21 of the 1973 rules HC510 should be refused. The Secretary of State has considered the claim under the 1973 Rules, the standstill provisions, and has refused it on the basis of failure to satisfy paragraphs 4 and 21. That extract takes the case no further.

Reliance is placed on the guidance in relation to the immigration history, in which the guidance states that a negative history, including unlawful presence in the United Kingdom, cannot of itself be conclusive in refusing an application. That guidance does not mean that the Secretary of State cannot take this into account. It means what it says that the negative history cannot in itself be conclusive. The extract relied on in relation to consideration and verification procedures, as indicated, has been raised for the first time. The extract gives guidance to decision-makers as to situations where the decision-maker may not be able to make an informed and reasonable judgment, sometimes perhaps due no doubt about authenticity of documents or inconsistencies in evidence or significant omissions which are unlikely to be a result of oversights in the preparation of the application. Consideration should be given to interviewing the applicant before a decision is made. This obviously is something that is a matter for the Secretary of State, but it seems to me, on the materials before this court, that the Secretary of State was not obliged to interview the claimant. The letter of 24th April 2008, written by Peter Law, the claimant's then legal representative, which accompanied the application made and the documents that accompany the application, indicated that further documentary evidence in relation to their client's application would be submitted to the Secretary of State as soon as possible. It is clear from the list of relevant documentation that accompanies the application form that evidence of finances was something that was of relevance to any application. No documentation was sent to the Secretary of State either before the decision letter of 8th September 2008 or before the claim was issued or before the Secretary of State took the decision on 31st March, albeit it was a decision that was taken without reference to the claimant. The documentation was only provided at the beginning of this week.

I turn to paragraphs 4 and 21 of HC510 which is the guidance pertinent in this case. Paragraph 4 makes clear that, even if the formal requirements are met, a person can be refused leave. It makes clear that a relevant consideration is whether the person observed the time limits and conditions subject to which he or she was admitted. Paragraph 21 sets out a number of requirements, but what is clear from paragraph 21 is that permission will depend on a number of factors, including evidence that the paragraph then sets out. It is clear that this paragraph is not exhaustive. It is also clear from paragraph 4 that it does not purport to set out what all the relevant facts could be in a particular application. The effect of the decision of the defendant is this. The claimant's immigration history is taken into account as set out in the letter, noting in particular the issue of timing, that the claimant only started a business when his other claim was refused and indeed some time after it. This is obviously a matter that is relevant. The lack of positive factors in terms of no evidence as to investment and creation of employment was referred to by the Secretary of State. The defendant argues that this was not taken into account against the claimant but merely pointing to the fact that he did not have the benefit of such a factor, which might have changed the balance of the scales. The claimant argues that the defendant has in fact wrongly taken this into account. It seems to me that if that were to stand alone then the claimant may have a stronger case, but the fact of the matter is that paragraph 21 also came into play in the overall decision, when one strips down the reasons for the decision to bare bones. It must be said that the letter is written in rather a formulaic way and one therefore needs to extract what the reasons were overall for the decision. The third reason -- that is why in a sense the second reason is of less force -- is the finding that the requirements of paragraph 21 were not made out. As indicated, the claimant's representatives have suggested and submitted that, because the claimant had not opened a bank account until May and the application was made in April, he should not be penalized for not providing something that he did not have. But the fact of the matter is that there is the letter of 24th April which indicated that further material was to follow. There was nothing to substantiate the requirement that he had the funds to meet the start up costs that he had set out in his business plan, apart from a bare assertion. Mr. Ali says that he probably had the money, £2,000 in cash, under his bed, but there are ways of verifying the existence of funds by way of a sworn affidavit, by way of a legal representative checking the available funds and certifying that they had been seen. It was not necessarily even bank statements that might have been needed to show that. Also the claimant had not demonstrated that he had the means to bear any liabilities that the business might incur, again arising from a similar point that has just been made. In the meantime, documentation has been provided to the court now but that is documentation that could have been provided to the Secretary of State at any time during the course of the last year and two months or so since that application was made, certainly in relation to the application for judicial review. The claim was based on the application made by the claimant in April 2008, and the claim was criticising the decision of the 8th September on the basis that the wrong rules had been applied. Therefore, it was on that material submitted to the Secretary of State that a complaint was made. It seems to me, whether or not the decision is made in September or March, the same situation pertains. There has been no evidence with the application or indeed subsequently to satisfy the requirements of paragraph 21.

Taking the decision as a whole, discounting in essence the second reason as being neither positive nor negative but neutral, there was a decision made by the Secretary of State that cannot be characterised as irrational, unreasonable or indeed unlawful in view of the immigration history and in view of the fact that the claimant patently has not satisfied the provisions of HC510. As I indicated previously when dealing with the opposition of the defendant to the introduction of material which had not been seen by the Secretary of State, the claimant could and should have put the material before the Secretary of State after the decision letter and as a result no doubt a delay to these proceedings could have been arranged so that the Secretary of State could properly consider the new material presented, rather than leaving it to the last minute before the hearing and producing the documentation which the court is in no position at all to assess. Indeed, the court is not in a position to and should not assess the material against the decision made where the decision was made without the benefit of such material.

As I have already indicated, the claim in relation to the decision letter of 8th September 2008 is now academic. Thus, for the reasons I have given, this application for judicial review is refused.

MR. PALMER: I have an application for the Secretary of State's costs in this matter. In this case neither side has served a schedule of costs suitable for summary assessment. That is in part because of the late preparation of these proceedings but also because of the history of the extent to which the claimant has been publicly funded or not at different times and the effect of being only partially publicly funded

MRS. JUSTICE DOBBS: What are you asking for?

MR. PALMER: That the claimant pay the Secretary of State's costs to be assessed if not agreed, subject to the usual costs protection, under the Access to Justice Act 1999 to the extent that he is so protected.

MR. ALI: Insofar as we are publicly funded we are protected from paying the other side's costs. The costs before 17th June 2009 I cannot resist.

MRS. JUSTICE DOBBS: There has to be an order in proper form. You cannot resist the application in principle. We need an order that properly reflects the fact that you are publicly funded and you need detailed assessment as well. I grant those. I ask you to draft an order that the court can agree and sign.