Rathakrishnan, R (On the Application Of) v Secretary of State for the Home Department

MR JUSTICE OUSELEY: This is a slightly curious case with a chequered procedural history. The claimant is a Sri Lankan national who, having entered the United Kingdom in March 2008 and claimed asylum, proceeded through the appeal process. His rights were exhausted on 10 March 2009. As is common place, within a few days the claimant made fresh representations which the Secretary of State declined to treat as a fresh claim in her refusal letter of 9 September 2010. The claimant was detained for removal but the day before he was due to be removed he lodged an application for judicial review.

The Secretary of State considered representations that had previously been considered together with the points set out in the claim form to see if all of that amounted to a fresh claim and, in a letter of 11 October 2010, concluded that it did not. That decision was, in its turn, challenged by way of judicial review. The matter came on before Mr Justice Sales who refused permission on paper on 13 October 2010. An expedited renewal hearing was ordered which, on 10 December 2010, came on before Mr C M G Ockelton (sitting as a Deputy High Court Judge). He took the view that it was arguable that the terms of the letter of 11 October 2010 were unduly formulaic and had not grappled with all of the substance of the points raised. He made it clear that he was not suggesting that a properly reasoned letter could not lawfully reach precisely the same conclusion.

The claimant also sought to put before the court by way of challenge to the October 2010 letter an expert's report which had been produced after the Secretary of State's decision and indeed but a few days before the 10 December hearing itself. Mr Ockelton, quite rightly, declined to have regard to that report because it could not show that the decision of 11 October 2010 was unlawful.

Following the grant of permission, the Secretary of State decided that she would no longer rely on the decision of 11 October 2010 because the point made by Mr Ockelton might be well founded. She would also proceed to issue a further decision which would deal with the representations made for the purposes of the 11 October letter, the grant of claim and dealing with the expert's report dated 6 December 2010. This was all to be in accordance with paragraph 353 of the Immigration Rules which meant that until a decision had been reached on the representations the claimant could not be removed from the United Kingdom.

The Secretary of State invited the claimant to agree that the decision of 11 October 2010 be quashed and that she be ordered to reconsider the representations in the manner I have described. The claimant was unwilling to agree to so signal a victory and wished to have the proceedings stayed. The thinking behind that was that if the fresh decision was adverse to the claimant's interests and was arguably an unlawful decision, that further decision could be challenged within the same proceedings.

There was a hearing on 15 March 2010, which was envisaged as being a brief disposal, but at which Miss Jegarajah for the claimant turned up and contended that the claim should merely be stayed rather than successful so that any further challenge could be brought within its confines. She submitted that that was the approach enjoined upon the Administrative Court by the Court of Appeal in R v Secretary of State for the Home Department ex p Turgut [2001] All ER 719. She also submitted that there was a disadvantage to claimants if a decision were quashed putting an end to the proceedings, whereby a further challenge had to be the subject matter of a further application for judicial review in this way. The enforcement guidance issued in respect of removals was to the effect that if, within the three months following the conclusion of judicial review proceedings, further judicial review proceedings were launched there would be no policy of staying removal directions and an injunction to achieve that end would have to be sought from the court. She submitted that that guidance applied whether the claimant had been successful in the judicial review proceedings or had been unsuccessful.

The claimant is not represented; his solicitors wrote to the court two days ago to say that they were no longer instructed. Next day, they wrote indicating they would accept a consent order. After this judgment had been delivered a consent order signed by them was received. No reference was made to their continuing authority to act.

It is my judgment, for the reasons given in the helpful skeleton argument prepared by Mr Dennis Edwards for the Treasury Solicitor for the purpose of the hearing on 15 March 2010, that these proceedings should be ended by the quashing of the decision and an order made for the reconsideration of the decision together with the expert's report, all in accordance with paragraph 353.

It would be a wholly exceptional case in which a claimant could postpone the effective quashing of the decision which he sought to have quashed in order that he might at some later stage bring a different challenge in respect of a different decision based on different evidence without having to go through the necessary applications, including payment of fees, for the purposes of challenging that further decision and should thereby evade the filter mechanism and simply take his place on a seemingly adjourned renewal application. Such a process has occurred in cases where permission has been granted or a renewal hearing is awaited, with the upshot being a series of letters which may or may not constitute the decision letter, further representations often addressed to the court rather than the Secretary of State by way of unamended grounds of challenge, amended grounds of challenge which are expressed in skeleton arguments without formal amendment and real difficulty for the court in knowing what is the focus of the challenge, what are the grounds that are relied on and what material can lawfully be admitted in order to show that there was an error of law. And due fees are left unpaid.

It is too often that these cases have come before the court at a point where the hearing is no more than an interruption in the process of the exchange of correspondence between the Secretary of State and the claimant. This makes for a wholly unsatisfactory process of litigation.

This appears to be the consequence of a misunderstanding of what the Court of Appeal said in Turgut. In Turgut the court was concerned to avoid an unduly procedurally complex process where, at the time the court was dealing with a particular decision, there had been a further decision by the Secretary of State upon which the Secretary of State was relying instead and against which the claimant was seeking to raise the same or additional points of challenge. Where, at the particular point where the court is considering a case, there has been a further decision on which the Secretary of State relies and the claimant has already formulated his reasons as to why that is unlawful, it may be appropriate for the court to deal with the fresh decision requiring a formal amendment, with undertakings to pay appropriate fees if necessary, and to consider whether during the course of that amendment process the claimant's challenge to the new decision does, in fact, show an arguable error of law in it. That is merely sensible use of court time. That is what the Court of Appeal in Turgut was suggesting.

What the Court of Appeal obiter said about the relevance of evidence arising after the date of the decision to show that there was an error of law in it has been overtaken by its subsequent decisions. Turgut was not and did not purport to be authority for a general proposition that where proceedings challenging a decision of the Secretary of State on a purported fresh claim had begun, those proceedings are to remain on foot or stayed until such time as any further challenges to further decisions which may be issued at future dates have been finally concluded. That, for the reasons which I have given, would be a recipe for muddle and has already contributed to muddled litigation over fresh claims.

Mr Honey, appearing today for the Secretary of State, has drawn my attention to what the Court of Appeal said in an earlier decision - R v Secretary of State for the Home Department ex p Al Abi, 5 February 1997, 1997/WL/1105932; 1998 COD 103. The Court of Appeal was concerned with a procedural issue which would not arise nowadays in the way it then did. It was concerned with an appeal against the refusal of one High Court judge to strike out leave to apply for judicial review granted by another High Court judge. There was a procedural question as to what should happen where the Secretary of State, following the grant of leave, agreed to issue a fresh decision and not to rely upon the decision in respect of which permission had been granted.

That was the position in this case. Lord Justice Simon Brown, who also agreed with the procedural position in Turgut set out by Lord Justice Schiemann, said in Al Abi:

That is plainly not the case here. It is my judgment that a court considering how best to deal with this sort of case should be very reluctant to conclude that precisely the same point is going to apply to subsequent decisions in relation to the same claimant. There is also no need for proceedings to remain on foot on that basis because if the error is repeated it can be the subject matter of the fresh proceedings. To have two decisions that are the subject of challenge on partly the same and partly different grounds leads to muddle.

Insofar as Lord Justice Simon Brown took the view he did on the basis that there could be, as there was at that time, a prospect of striking out the grant of permission if the further challenge was unarguable, that is now not a remedy available.

The concern that there might be an issue of wide and general application is also no reason, save exceptionally, for the claim to remain on foot because if an issue is of wide and general application there will be other cases that will raise the point. There may of course be a case in which that wide and general issue is sufficiently far advanced for it to be better for the matter to proceed but it is generally unwise for a case to decide such an issue if a fresh decision might make the issue academic in that case. The point I emphasise from those cases is that where a fresh decision has yet to be made and is going to be made, the existing proceedings should normally end. It may be otherwise where the fresh decision is actually already before the court at the time it comes to deal with the matter or there are other exceptional circumstances which mean that the proceedings should remain on foot. Legal aid difficulties in detained cases could be an example.

If an exceptional course is adopted, the question arises whether the amended challenge should start at precisely the point where the earlier challenge had been stayed because of the filter process. The court has seen a number of instances in which parties have merely agreed that the claimant should amend his grounds of claim if appropriate. The order can only be that he should apply to amend his grounds if appropriate. The court needs to consider the arguability of the new grounds, whether through a filter process or through a process of permitting amendment. If proceedings are stayed with a view to a further challenge to a further decision being made, it has to be made perfectly clear in any order that an application for permission to amend must be made. The eventual application must be supported by appropriate fees and provision must be made - for which the court's endorsement of the order would be required - as to the procedure by which arguability or the granting of permission to amend should be resolved, whether on paper or at an oral permission hearing.

The form in which that application is to be made should be spelt out. If the parties intend that after a stay pending a further decision the application for permission to amend should be made orally and the arguability of the fresh grounds should be considered orally - obviously at the same time - then the parties should so provide. It will be for the court to decide whether to accept such a consent order.

In the circumstances however of this case the only possible answer to the defendant's application that her own decision be quashed is to quash it in the terms I have set out.

The problems raised by Miss Jegarajah on the earlier occasion in relation to enforcement are grossly overstated. There is no reason why the Secretary of State's guidance and approach should not reflect the fact that the judicial review application was successful and differentiate that from judicial review applications which were unsuccessful, or respond quickly enough to such an assertion so as to maintain the aim of its policy guidance if that is what it truly intends.

So I make the order as requested.

The order applied for said that there should be no order as to costs. The claimant's solicitors had indicated - though apparently without authority - a willingness to sign what it called the consent order. It seems to me that it is appropriate that there should be no order as to costs in the light of the way these proceedings have continued, unless Mr Honey has clear submissions to the contrary.

MR HONEY: No. I was going to suggest that given the claimant declining our offer of 13 January, the easiest way to deal with it is to say no order for costs.