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

MR JUSTICE WALKER: This is a renewed application for permission to apply for judicial review. The claimants are Mrs Anoma McGechan and Mr Robert Francis McGechan. They brought these proceedings on 20 January 2009.

Mr McGechan is a British citizen residing in this country. Mrs McGechan is an immigrant to this country. They wished to marry. In order to ensure that no harm was done to Mrs McGechan's immigration status they needed to ask the defendant (Secretary of State) for permission to marry. Their complaint initially included a complaint that there had been unreasonable delay in dealing with their application for permission to marry. It is some comfort to me that albeit only after these proceedings were issued the defendant has indeed granted permission to marry. Pursuant to that grant, the two claimants are now husband and wife.

I need to say something more about the chronology before I turn to the order of Mr Justice Calvert-Smith who refused to grant permission for judicial review. Mrs McGechan entered the United Kingdom on 15 April 2004 on a visitor's visa. On 25 May 2004, while out shopping, she lost her passport. This was passport number N1239323. Very properly, Mrs McGechan reported the loss to the police at Hornchurch Station.

There were unfortunate consequences to the loss of the passport. On 15 August 2004 an individual arrived in the United Kingdom using a passport in the name of Mrs McGechan's maiden name, Anoma Bandara Doloswala. This person claimed asylum at the port of entry. Examination of the passport at the port of entry showed that it was forged and that it had a forged bio-data page. When this was pointed out to the individual in question, she declared her identity to be a Ms Lingusari Nanadasalingham. That individual subsequently claimed asylum under that name. For convenience, I shall refer to that individual as "LN".

Only a few days later, on 20 August 2004, Mrs McGechan applied for an extension of her visa to pursue a career in nursing. A few days later, on 23 August 2004, the asylum claim made by LN was refused.

By April 2007 Mr and Mrs McGechan had met and had started going out together. Meanwhile various proceedings had been taking place in LN's case. On 11 July 2007 LN exhausted all her appeal rights.

On 29 October 2007 Mrs McGechan's application for an extension of her visa was rejected by Eaton removals casework.

I turn to 2008. It was on 3 January 2008 that Mrs McGechan applied for a certificate of approval to marry Mr McGechan. The next stage following that application was for an inquiry letter to be sent to the applicant. The address given on the application form was Mr McGechan's address, 60 Ladysmith Avenue, E6 3AR. The defendant sent the inquiry letter to that address. However at this stage an error was made. The letter was wrongly addressed to LN. On 28 March 2008 those responsible for considering the application for a certificate of approval, having no doubt looked at the file, refused the application for a certificate of approval. The reason was that no reply to the inquiry letter had been received. That is hardly surprising because the inquiry letter had been addressed to LN.

At this point another error was made. The refusal letter was sent to 31 Byron Way, Hayes, Middlesex UB4 8AT. That was the address of LN. On 13 May 2008 the refusal letter was returned to the Home Office under cover of a letter from a person who said that he was the landlord at 31 Byron Way. He asserted that LN was living at this address with another immigrant or would-be immigrant, and that any suggestion of a relationship with a Robert McGechan was fraudulent. He provided a copy of what he said was a forged tenancy agreement, adding that LN was working illegally in Greenford but he did not have a forwarding address for her. The upshot was that the refusal letter and the other material which had arrived on 13 May 2008 was simply put on the file.

By this stage Mr and Mrs McGechan were understandably becoming anxious as to what was going on. Mr McGechan sent his own British passport to the Passport Office by recorded delivery. The Home Office file records, and it is common ground, that Mr and Mrs McGechan had attended the relevant part of the Home Office in Croydon to inquire about the progress of their application for a certificate of approval. They were told that it had been refused because it had been sought on behalf of a failed asylum seeker. Mr and Mrs McGechan pointed out that there had never been any application for asylum.

That was followed up by a letter dated 23 June 2008, giving the address of Mr and Mrs McGechan as 60 Lady Smith Avenue. At this stage, at last, it became apparent to the Home Office that urgent steps needed to be taken to contact Mr and Mrs McGechan. An email was sent by a case worker. That led in due course to a telephone call by Mr McGechan to the department. In that call he explained that Mrs McGechan had never claimed asylum in the United Kingdom and had an application pending for some considerable time to extend her visit visa. He was told that the application for extension had been rejected and replied that he knew nothing about that.

The upshot was the department sent another inquiry letter, this time to the correct address. While the department managed to send it to the correct address, they did not manage to send it to the correct person. The letter was addressed to LN. Fortunately Mr McGechan nevertheless received the letter. He rang the department and explained that it had been addressed in the wrong name.

The next thing for the department was what to do. It was decided that an interview should be arranged with both LN and Mrs McGechan. Eventually on 27 October 2008 the relevant immigration officer accepted that LN was a different person from Mrs McGechan.

We have now reached November 2008. Not unnaturally Mr McGechan was anxious about his British passport. He emailed asking for its return on 3 November 2008. At last, on 18 November 2008, the Home Office managed to send an inquiry letter to the correct address and in the correct name. A reply was received by the department on 9 December 2008. By mid-January 2009 nothing further had happened. Mr McGechan very properly emailed the department warning them of his intention to issue legal proceedings. That met with no response. These proceedings were accordingly issued on 20 January 2009.

The issue of these proceedings in relation to the certificate of approval at least had the desired effect because the certificate was issued on 23 January 2009. It was sent by recorded delivery on 26 January 2009. The defendant then had to consider how to respond to the legal proceedings. A proposal was sent. The suggestion was that the defendant would agree to reconsider the application for further leave to remain which had been submitted in August 2004, to issue a fresh decision on that application, and to pay Mr and Mrs McGechan's reasonable costs. That met with a swift response on 16 February. Mr and Mrs McGechan regarded it as unsatisfactory merely to have an offer to reconsider the application for further leave to remain. Correspondence followed in which the defendant's representative elaborated on the reasoning for the proposals, but the stance of Mr and Mrs McGechan remained that the defendant's proposals were unsatisfactory.

An acknowledgement of service was lodged on behalf of the defendant on 22 April 2009. It recounted the history of events I have described and sought to explain the delay by saying that there had been "considerable confusion" precipitated by the loss of the passport and the subsequent attempts by an imposter - LN - to assume Mrs McGechan's identity. It was said, no doubt rightly, that there was a duty to investigate the matter thoroughly. It was urged that the appropriate way of resolving the issues between the parties was the proposal that had been rejected in correspondence.

The acknowledgement of service went through each of the points made in the claim form. The first of these concerns the certificate of approval. It was acknolwedged by the defendant that time scales laid down for consideration of such applications had been exceeded. However those time scales were for guidance only. Delays were said to be due to events which were, in great measure, beyond the control of the Home Office. As soon as the matter had been satisfactorily resolved a certificate of approval had been issued.

The claim form had then stated that the defendant should pay substantial compensation for "breaches of human rights", in particular Articles 5, 6, 8 and 12 of the European Convention on Human Rights. The acknowledgement of service pointed out that Article 5 was concerned with the right to liberty and security. There had been no breach of this right, it was said, for there had been no detention.

Article 6 concerned the right to a fair trial but there had been no trial in this matter. It was accepted that the decision refusing the application for further leave to remain was flawed. That decision would be withdrawn and a fresh decision would be taken. That was an adequate remedy. In any event Article 6 does not apply to matters of entry, stay and deportation.

As to Article 8, the nature of the alleged breach had not been particularised and it was not accepted that there had been a breach of the right to family and private life.

Finally, as to the right to marry, the acknowledgement of service said that the certificate of approval had been issued and therefore no breach was made out.

The final aspect dealt with in the acknowledgement of service concerned a claim that Mrs McGechan must now be granted indefinite leave to remain in the United Kingdom. The acknowledgement of service pointed out that further leave to remain would be considered, or rather reconsidered, following withdrawal of the admittedly flawed decision made earlier. As to indefinite leave to remain, the defendant could not properly - in law - fetter her discretion by predetermining the outcome of an application. The acknowledgement of service concluded by asserting that the defendant had offered an adequate alternative remedy and that the application for judicial review had therefore become academic. Permission to apply for judicial review should be refused. The court was asked to declare the claim to be wholly without merit as the proceedings were unnecessary given the defendant's willingness to offer the claimant an alternative remedy. An order was also sought requiring payment of the defendant's costs - for preparation and filing of the acknowledgement of service - in the sum of £640.

The matter came before Mr Justice Calvert-Smith for consideration on the papers. By an order dated 11 June 2009, he refused permission to apply for judicial review. He made the following observations:

Despite what had been said by Mr Justice Calvert-Smith, the application for permission was nonetheless the subject of a notice of renewal on 19 June 2009. In Section 3 of the renewal form the party is asked to set out the grounds for renewing the application. Three grounds were set out:

That led to further correspondence. In particular - by letter dated 7 September 2009 - the Treasury Solicitor, on behalf of the defendant, wrote as follows:

At the hearing today Mr McGechan has addressed the court on behalf of himself and his wife. He said that the catalogue of failures on the part of the Home Office had had a devastating effect upon his wife. The failures by the Home Office had been of such a basic nature that he would class them as "total incompetence". This was a department able to draw on expert investigative experience. It was only persistent pursuit by himself and his wife that resulted, in October 2008, in recognition by the Home Office that an error had been made. Even so, it was only after legal proceedings had begun that the certificate of approval granting permission to marry had been issued. Nonetheless that left outstanding the right of Mrs McGechan to remain in the United Kingdom.

One thing that had happened was that in July 2009, on considering the application made as long ago as 2004 for further leave to remain, there was a grant of a 6-month extension of a visitor's visa with no recourse to public funds.

Mr McGechan summarised the current situation in this way. His wife was legally married to a British national and had a child who was legally entitled to remain in the United Kingdom. Nonetheless the grant of a mere six-month extension meant that at any time after February 2010 the police or immigration service could turn up at their home address and remove his wife from her family and remove her to Sri Lanka. She has no recourse to public funds despite being married to a British national who pays taxes. Neither child benefit nor child tax credit could be claimed because his wife was unable to get a national insurance number which also enabled her to work. Thus for a period of four years she had been unable to earn a living, apply for education, to travel and indeed to travel back to her home country. Mr McGechan asserted that he doubted whether any prison could incarcerate any inmate as effectively as the Home Office had done to his wife.

As to what was said in relation to the human rights claim, Mr McGechan totally disagreed with the Home Office response. What had happened, by way of analogy, was that the department had dug a hole, pushed his wife into it breaking both legs and arms and, despite repeated attempts by her to climb out of the hole, the department had repeatedly dug the sand from under her feet. Had this happened in the street, his wife would be entitled to substantial compensation for injury, loss of earnings and costs. The department's offer of "reasonable expenses" was not worthy of merit.

After hearing Mr McGechan, I indicated to Miss Patry-Hoskins, who appears on behalf of the defendant today, that I would not need to call on her. I explained the reason for this to Mr McGechan, namely that when considering judicial review the court is concerned with limited public law grounds which may be deployed in order to complain about a particular decision or decisions. One of the principles of public law is that where continuing with the proceedings would not serve any practical purpose, the court would not normally grant permission to apply for judicial review.

Like Mr Justice Calvert-Smith, I am satisfied that in this case the grant of permission will not serve a useful purpose. First, as regards the certificate of approval, the legal proceedings brought by Mr and Mrs McGechan have to that limited extent achieved what Mr and Mrs McGechan wanted. The certificate has been granted.

The question of leave to remain in the United Kingdom: here too Mr and Mrs McGechan have been given to some extent what they wanted - although at this stage, only to a very limited extent. As Mr McGechan graphically pointed out orally, he is concerned that permission to remain will expire in February 2010. It had not been granted at the time Mr Justice Calvert-Smith was considering the matter. Mr Justice Calvert-Smith rightly pointed out though that at that time there was an agreement to reconsider the application for further leave to remain, and that on judicial review proceedings that was the most that Mr and Mrs McGechan could have hoped to achieve.

Here I need to stress the limited role of the court. The court does not take decisions under the Immigration Acts. Parliament has conferred that role on the Secretary of State. It is quite impossible for this court to usurp the functions of the Secretary of State and say that indefinite leave to remain must be granted. That is a question which Parliament requires the Secretary of State to consider, complying of course with relevant principles of public law. If the Secretary of State should in the future fail to comply with principles of public law in relation to such a decision, then the appropriate course would be, or may be, to seek permission to apply for judicial review in relation to that particular decision. However it is quite impossible at the present stage for this court to express any view whatever about the question of indefinite leave to remain.

That leaves the claims for substantial compensation for breaches of human rights. In that regard I indicated to Mr McGechan earlier that I could not agree with him in his description of events as involving "total incompetence" on the part of the Home Office. It will be abundantly clear from my account of the history that there were occasions when errors were made and when things could have been done rather better. Mr Justice Calvert-Smith said in his observations that there were no breaches of human rights for the reasons set out in the acknowledgement of service. I have summarised those reasons earlier in this judgment. I do not for a moment underestimate the anxiety that must have been caused to Mrs McGechan. Nor do I underestimate the serious impact which immigration restrictions have on those who are in this country and are applying for permission to remain further or indeed indefinitely.

The account of events which I have described does not in anyway tally with the analogy advanced by Mr McGechan in oral argument. As I indicated, there have been errors and, to an extent, those errors may have involved incompetence. Those errors do not, in my view, involve any such gross incompetence or gross delay as could give rise to arguable claims for damages.

For all those reasons I conclude that there is no useful purpose that could be served by this matter proceeding further. It may be that the hearing today and the judgment I have given will serve a useful purpose to this extent. There is now a public record of the course of events and of the criticisms which can be properly be made of the Home Office in its dealings with Mr and Mrs McGechan. I very much hope that in the light of that public record Mr and Mrs McGechan can put the matter behind them and focus upon the future.

I add this. I express my admiration for the care which has been taken by Mr and Mrs McGechan in the preparation of materials for the court. It was of considerable assistance to have had their statement of case outlining what could be said orally in advance of today's hearing and I am grateful for that.

Does any consequential matter arise?

MISS PATRY-HOSKINS: The Home Office has an application for costs of acknowledgement of service.

MR JUSTICE WALKER: It may help you if I mention an aspect which has been troubling me as regards costs because I am not at all sure that Mr Justice Calvert-Smith's observations on costs did entirely do fairness to Mr and Mrs McGechan. They had had to bring proceedings in order - - well they brought proceedings at a stage when there had been no certificate of approval. If it had come before me on the papers I would have thought that was a factor that needed to be weighed in the balance. I just mention that.

MISS PATRY-HOSKINS: I fully accept at the time when judicial review was lodged the claimants did not have the relief that they sought and did not have certificate of approval. They did not have the offer to reconsider the application for further leave to remain. Shortly after the claim was issued those instructing me wrote to them and said - - two things happened. First of all, the certificate of approval was granted shortly after. Secondly those instructing me wrote to Mr McGechan and said they were willing to reconsider the decision, and that on that basis it could be compromised and the department offered to pay the claimant's reasonable costs on that basis.

In my submission, what has happened today - I appreciate what you have said today - is something which the department was saying as far back as February 2009 when we first wrote to the claimant. The appropriate thing to have happened at that time would have been for the claimants to accept the offer. We would have paid their reasonable costs; the claim would have moved on and there would have been no further waste of the defendant's costs or the court's time. Instead Mr McGechan wrote back and said, no. That meant that we had to - in due course - incur costs of the acknowledgement of service. Those costs would not have been incurred had our reasonable offer been taken up.

The reason I say "reasonable offer" is because the court has accepted today that it was the best - Mr Justice Calvert-Smith said, and your Lordship accepted, that what we offered was the best that could be achieved for a successful judicial review in any event. The second matter, the offer was refused so we had essentially to incur the costs of preparing an acknowledgement of service. It came before Mr Justice Calvert-Smith no doubt on the basis that he took into account that at the time of lodging the judicial review - - - - - (The applicant Mrs McGechan left the court)

No doubt, being aware that the proceedings were lodged, Mr Justice Calvert-Smith refused to order costs. He did say be aware, if you incur further costs of forcing the department to come to an oral hearing, then the court hearing the new application may come to a different decision. The Secretary of State would say this: at the earliest possible stage in judicial review proceedings we offered to settle the case and to pay costs. That reasonable offer, and we know it is a reasonable offer, was turned down. Instead we have had to incur two further sets of costs, the acknowledgement of service and attendance today. Bearing in mind the principle which is that we should be entitled to the costs of acknowledgement of service where there is an unsuccessful oral renewal we think it is entirely proper to ask for costs.

I have great sympathy with the position - as your Lordship has indicated - in which Mrs McGechan has found herself but that does not excuse the position the claimants have taken which is to pursue a claim for judicial review in circumstances where, at a very early stage they had been offered what the court has accepted today was all they could have achieved in a successful judicial review.

In my submission the general principle that we should be given our costs for acknowledgement of service - and it should not be set aside - and in the particular circumstances here it is entirely appropriate. Your Lordship indicates that you have seen the figures - £640.

MR JUSTICE WALKER: The defendant makes an application for costs. It is very properly limited to the costs of the acknowledgement of service. Ordinarily where permission has been refused the rule is that because the claim was brought the defendant has had to incur costs of preparing an acknowledgement of service under the Civil Procedure Rules and those costs should therefore be borne by the claimant who has lost on the application for permission. That, in my view, would not be the right principle to apply in the present case. At the time that the claim form was issued there had been and remained a failure to deal with the certificate of approval. There had been what is now accepted to have been a flawed decision on the application for further leave to remain. It was only after the issue of these proceedings that those matters were rectified.

Miss Patry-Hoskins says, rightly, that an offer was made in February 2009 which included an offer to pay reasonable expenses. It was plainly right that such an offer should have been made. Mr and Mrs McGechan had incurred expenses. I do not have any quantification of those expenses. It seems to me that - taking a broad brush - the fair approach is this. On the one hand the court might well have been persuaded to make an order for costs. On the other hand there are the expenses incurred by Mr and Mrs McGechan prior to grant of the certificate. Having regard to those expenses the better course, the most convenient course, and the course which is most in the interests of justice, is to say that it would be quite wrong to apply the normal rule and grant the defendant the costs of acknowledgement of service.

In those circumstances, although Miss Patry-Hoskins has advanced her submissions carefully and skilfully - and, to the extent possible in the light of the background facts, attractively - I do not think it would be right to accept them. I shall accordingly not make any order for costs in this case.