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

MR JUSTICE WALKER:

A: Introduction

I have heard this morning the claimant's submissions on an amended part of a judicial review claim. Those submissions have been presented with commendable care and succinctness by Miss Alison Pickup on behalf of the claimant ("Mr Youssef"). I have not needed to call upon Miss McGahey, who appears today on behalf of the defendant ("the Secretary of State"). That is because her submissions were clearly set out in her skeleton argument and because I have been able to canvas with Miss Pickup during the course of this morning's submissions whether Mr Youssef has a good answer to the points made in that skeleton argument. For reasons which I shall explain, I have concluded, on the particular facts of the present case, that there is no good answer to those points and that this amended part of the claim must be dismissed.

B: The Claim

The claim itself has a regrettably long history. I stress that in making this comment I do not criticise the legal teams involved. There have been various complicating factors, some of which I shall discuss later in this judgment.

The claim form was issued on 22 February 2013. It complained of a decision by the Secretary of State dated 26 November 2012 to grant Mr Youssef six months' restricted leave to remain. The substantive relief that was sought was set out in paragraphs 1 to 5 of section 6 of the claim form:

"1. A declaration that the Defendant's restricted leave policy is unlawful;

2. An order quashing the Defendant's restricted leave policy;

3. A declaration that the grant of 6 months restricted leave to the Claimant, subject to the conditions as detailed in the grounds for Judicial Review, amounts to a disproportionate interference with his right to private life under Article 8 ECHR;

4. Just satisfaction for the breach of the Claimant's Article 8 rights;

5. An order that in the Claimant's case the Defendant should replace the grant of restricted leave with as a minimum a grant of 6 months Discretionary Leave without conditions;

..."

Accompanying the claim form was a witness statement made on 22 February 2013 by Mr Youssef's solicitor, Ms Sonia Routledge of Birnberg Peirce & Partners (Birnbergs).

The background to that witness statement was set out in Mr Youssef's statement of facts and grounds. He is an Egyptian national who arrived in the United Kingdom on 6 May 1994 and claimed asylum on the grounds that he had a well-founded fear of persecution in Egypt because of his political and religious opinions. He had been imprisoned and tortured by the Egyptian authorities. On 23 September 1998 he was detained under powers concerning those who are considered to be a danger to national security. On 23 December 1998 his application for asylum was refused. The refusal was on the basis that it was accepted that he "might ordinarily" have been granted asylum. However, it was said that he was excluded from refugee status under Article 1F of the Refugee Convention because there were "serious grounds for considering" him to be guilty of acts contrary to the purposes and principles of the United Nations, namely terrorism. The basis for the decision to exclude Mr Youssef was his alleged involvement in Egyptian Islamic Jihad. I do not need to set out the detailed allegations that were made; I comment only that those detailed allegations were and are denied by Mr Youssef.

At that time Mr Youssef had no right of appeal against the refusal of asylum. In 1999 the Secretary of State eventually accepted that Mr Youssef could not, in the absence of adequate assurances, be removed to Egypt as this would involve a breach of Article 3 of the European Convention on Human Rights. Accordingly, Mr Youssef was released from detention and was granted exceptional leave to remain ("ELR"). Mr Youssef then remained in this country pursuant to further grants of limited leave to remain.

Ms Routledge is very familiar with Mr Youssef's immigration matters, having had conduct of them since June 2005. Her witness statement was made in order to explain why the claim form had been issued nearly three months after the date of the decision under challenge, whereas the requirement is that judicial review claims should be brought promptly following the decision complained of. Those reasons were set out in paragraphs 4 to 9 of the statement:

"4. On receipt of the Defendant's decision of 26th November 2012, two issues arose for consideration. Firstly, and most urgently in terms of the relevant deadlines, I was of the opinion that the decision gave rise to an entitlement on the Claimant's part to appeal to the First Tier Tribunal (Immigration and Asylum Chamber) against the Defendant's decision refusing asylum. The Defendant had not included notification of an appeal right nor appeal forms with the documents she served on 26th November 2012, but I nevertheless took the view that pursuant to s.83 Nationality Immigration and Asylum Act 2002 the Claimant was entitled to appeal to the Tribunal. In line with the Tribunal's procedure rules, the deadline for so doing was within 10 working days of the date on which the Claimant was deemed to have received the 26th November 2012 decision.

5. Therefore in the period prior to the Christmas holiday break I needed to prioritise preparing documents relating to the appeal and grounds of appeal. On 4th December 2012 I wrote to the Defendant asserting that the Claimant had a right of appeal, requesting a notice of decision and querying whether the Claimant had been considered for indefinite leave to remain. The appeal was lodged on 18th December 2012. On 20th December 2012 the Tribunal requested further details of the reasons for which the Claimant considered he was entitled to appeal. I responded to this request on 30th December 2012.

6. The second issue which arose for consideration in respect of the Defendant's decision of 26th November 2012 was the grant of restricted leave, subject to draconian conditions, and the failure to give consideration to granting him indefinite leave to remain. Any remedy in respect of these issues would have to be sought by way of Judicial Review.

7. On 9th January 2013 the Defendant advised that for the reasons given in a previous refusal decision, the Claimant did not qualify for indefinite leave to remain. The Defendant also confirmed that the reasons for which the Claimant had been refused asylum were the same reasons as those set out in her original exclusion decision letter of 23rd December 1998. Therefore on 16th January 2013 I provided updated/amended grounds of appeal to the Tribunal.

8. On 23rd January 2013, having dealt with all necessary matters relating to the appeal to the Tribunal, I again wrote to the Defendant to repeat my request that proper consideration be given to granting the Claimant indefinite leave to remain and challenging the imposition of conditions on the restricted leave he had been granted. I requested a response by 1st February 2013.

9. In the absence of a response I sent a letter before claim to the Defendant on 11th February 2013, requesting a response within 7 days as opposed to the standard 14 days stipulated in the pre-action protocol. This was to ensure that in the absence of a satisfactory response, I would be in a position to issue a Judicial Review claim within the relevant limitation period."

Thus, the present claim has been complicated by the need to take account both of proceedings in the tribunal in relation to asylum and in this court in relation to restricted leave policy as well as indefinite leave to remain.

As regards indefinite leave to remain, an important aspect of what had happened prior to the decision of 26 November 2012 was a decision taken by the Secretary of State on 25 September 2008. This decision was concerned with an application made by Mr Youssef on 14 May 2004 for indefinite leave to remain. At that time an application for indefinite leave to remain could be made following the completion of four years' exceptional leave to remain after a refusal of asylum. The decision of 25 September 2008 dealt with consideration of the application for indefinite leave to remain in this way:

"3. This application has been considered in accordance with the Immigration Rules and the relevant Policy Guidance (Asylum Policy Notice 01/2007: Exceptional Leave to Remain; circumstances in which it will not be appropriate to grant settlement).

4. Article 1F(c) of the 1951 Convention relating to the Status of Refugees states that the provisions of the Convention shall not apply to any person with respect to whom there are serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations.

5. The policy guidance (APN 01/2007) makes it clear that when Article 1F(c) applies, indefinite leave to remain should not be granted.

6. It is noted on 23 December 1998 you were refused asylum and excluded from the protection of the 1951 Convention relating to the Status of Refugees under Article 1F(c) because of your involvement with the Egyptian Islamic Jihad.

7. Paragraph 322 of the Immigration Rules makes provision for the refusal or variation of leave to enter or remain or curtailment of leave. Paragraph 322 lists grounds on which an application to vary leave to enter or remain in the United Kingdom should normally be refused. Paragraph 322(5) states, with reference to these grounds, 'the undesirability of permitting the person concerned to remain in the United Kingdom in light of his character, conduct or associations or the fact that he represents a threat to national security'.

8. For this reason, it is considered that paragraph 322(5) applies to you and that your application for indefinite leave to remain therefore falls to be refused under paragraph 322 of the Immigration Rules."

On 24 March 2009 Mr Youssef's latest grant of limited leave to remain was about to expire. Birnbergs wrote to the Secretary of State that day. Their letter did not expressly seek indefinite leave to remain, it was an application for Mr Youssef to be granted "further leave to remain". The points that were made in that letter essentially repeated observations that had been made on behalf of Mr Youssef previously concerning the danger to him if he were returned to Egypt. Under section 3C of the Immigration Act 1971, the limited leave to remain which had been given to Mr Youssef was extended automatically by reason of that letter.

As I shall explain, a change of policy then occurred. Meanwhile, the automatic extension of limited leave continued until the decision originally challenged was taken on 26 November 2012. As noted in section A of this judgment, it was a decision to grant six months restricted leave.

After the claim form had been issued an important development occurred. On 16 April 2013 a letter was written by the Treasury Solicitor, on behalf of the Secretary of State, to Birnbergs. That letter dealt with a number of matters. One of those matters concerned clarification for Mr Youssef of what his immigration status was. In this regard the letter of 16 April 2013 said:

" ... it has been decided to treat your client's most recent application for further leave to remain as an application for indefinite leave (on the basis that he has accrued a total of ten years limited and continuing leave). A decision on this will follow shortly."

It is common ground that the reference in this letter to the "most recent application for further leave" was a reference to Birnbergs' letter of 24 March 2009. It is also common ground that when that letter was written Mr Youssef had not accrued a total of ten years' limited and continuing leave. As mentioned earlier, he had not needed to do so at the time that his previous application for indefinite leave to remain was made in 2004. It was after that application had been made that a change in policy introduced a requirement for limited and continuing leave to have accrued in a total amount of ten years.

What was being said in the letter of 16 April 2013 was that on the footing that Mr Youssef had now accrued a total of ten years, indeed more than ten years, in that regard, he would be treated as having applied for indefinite leave to remain and a decision on that would follow shortly.

Later in this judgment I will examine some of the correspondence that ensued. For present purposes, I can summarise it in this way. It was initially said on behalf of the Secretary of State that the decision could be expected to be made within three months and that it would be sensible for the judicial review proceedings to be stayed for a period of three months in that regard. However, in June 2013 the Secretary of State took a different stance. That stance was that before considering whether to grant Mr Youssef indefinite leave to remain, the Secretary of State would wait to know the outcome of Mr Youssef's asylum appeal in the tribunal. Birnbergs, on behalf of Mr Youssef, repeatedly protested at this course of action. A proposed amended statement of facts and grounds was prepared complaining of this way of approaching the matter.

Eventually, after various communications which I need not recite, the matter came before Knowles J at a hearing on 21 January 2015. The order that he made that day was sealed on 27 February 2015. It dealt expressly with two things. The first was what it described as "the First Ground". This was Mr Youssef's claim in respect of the lawfulness of the Secretary of State's restricted leave policy. Mr Youssef's claim in respect of that first ground was stayed to await the decision of the Upper Tribunal in two cases which were concerned with the lawfulness of that policy. Provision was made for further steps to be taken after those decisions of the Upper Tribunal were handed down and for the question of permission in respect of the first ground to be considered by the court on the papers. The remainder of Knowles J's order dealt with the matters that were raised in the amended statement of facts and grounds. The relevant part of Knowles J' order stated:

"The Claimant is granted permission to claim judicial review in respect of the Defendant's refusal to consider granting him indefinite leave to remain pending the determination of his asylum appeal ('the Second Ground'); ..."

It is that amended claim which has been the subject of today's hearing.

C: The nub of the Second Ground

The essential point stressed by Miss Pickup on behalf of Mr Youssef focuses on what she submits was a sensible decision on the part of the Secretary of State in April 2013 to proceed to consider indefinite leave to remain. She constrats this with what she submits is an unjustifiable decision in June 2013 to defer taking such a decision until the outcome of the asylum appeal in the tribunal was known.

The legal basis for complaint is put in two ways. First, it is said that there was a failure to fulfill a legitimate expectation that a decision would be taken "shortly" on indefinite leave to remain. That legitimate expectation either arose from the letters written by the Treasury Solicitor on behalf of the Secretary of State or from the Secretary of State's statements of policy. The second way of putting the challenge asserts that the Secretary of State's stance from June 2013 onwards was and has been unreasonable.

Miss Pickup acknowledged that a consideration of whether to grant indefinite leave to remain as at June 2013 would involve an assumption that the Secretary of State's view about the applicability of Article 1F was right and that Mr Youssef was excluded from refugee status for that reason. That, however, submitted Miss Pickup, was equally true of the position on 16 April. Both in June and in April, the position was that the First Tier Tribunal could be expected to reach a decision at some point in the future on that question. An ability on the part of the Secretary of State to proceed by reference to the Secretary of State's own view of Article 1F had indeed been the basis upon which the decision of 25 September 2008 had been taken. There was nothing inappropriate, submitted Miss Pickup, in taking a decision on indefinite leave to remain in advance of the tribunal's decision as to refugee status for the purposes of the asylum appeal.

I observe that whether the claim is put as one of failure to fulfill a legitimate expectation or as a failure to act reasonably, the present challenge is inevitably one which is highly fact sensitive.

D: Factual developments from 16 April 2013 onwards

Earlier in this judgment I set out the relevant passage in the letter of 16 April 2013. On 17 April Miss Routledge e-mailed Mr Alexander Smeath of the Treasury Solicitor, asking when the Secretary of State "anticipates notifying a decision on indefinite leave to remain?". Mr Smeath replied on 29 April 2013 that the Secretary of State anticipated notifying a decision on indefinite leave to remain within the next three months. Ms Routledge queried the response in relation to the period of three months. Mr Smeath replied to that query in a letter dated 7 May 2013:

"My client is currently engaged in considering Mr Youssef's exclusion/asylum appeal. With regard to the application for ILR, the Secretary of State seeks to deal with these applications in accordance with the date that they were made, albeit some cases require expediting for particular reasons. You state that Mr Youssef's case is 'not a particularly complex one', however all ILR applications entail a wide range of checks before leave is granted, which take time to conduct. Mr Youssef's case will be dealt with in accordance with the normal order and I can only restate that my client anticipates that a decision will be able to be given within the next three months."

Miss Routledge replied on 13 May 2013, reminding the Secretary of State that Mr Youssef had become eligible to be considered for indefinite leave to remain on the basis of having accumulated ten years of limited leave in June 2011. She submitted that Mr Youssef should be "at the front of the queue".

On 24 May 2013 Mr Smeath replied that his clients would do their best to consider the application for indefinite leave to remain within the three month time frame, but it was not possible to guarantee that this would happen. Both Mr Smeath and Miss Routledge agreed that it would be sensible for the judicial review proceedings to be stayed initially until 29 July 2013 pending the Secretary of State's decision on whether to grant the claimant indefinite leave to remain. A letter was written to the court dated 29 May 2013 to that effect.

However, shortly after the letter of 29 May 2013 to the court, correspondence took place between Miss Routledge and the Presenting Officers Unit which was dealing with the Secretary of State's response to the asylum appeal. On 3 June 2013 Miss Routledge proposed that the asylum appeal be stayed pending a decision on whether Mr Youssef should be granted indefinite leave to remain "on the pragmatic basis that if Mr Youssef were to be granted ILR, he would not pursue his asylum appeal because it would be unnecessary for him to do so, and that it would be wasteful of public funds for the asylum appeal to be prepared when the Secretary of State was due to notify a decision on ILR within the near future". On 6 June 2013, however, Mr Hopkin of the Presenting Officers Unit wrote to Miss Routledge rejecting that proposal.

There was then an e-mail sent by Mr Smeath to Miss Routledge attaching a draft consent order on 18 June 2013. The draft order was, as previously discussed, an order for a stay initially until 29 July 2013. However, the order incorporated not merely a reference to determination by the Secretary of State of Mr Youssef's application for indefinite leave to remain, but also a reference to the stay being a stay which was "pending (a) the determination by the First Tier Tribunal (Immigration and Asylum Chamber) of the issue relating to the application of Article 1F of the Refugee Convention, which arises in the Claimant's current immigration appeal ...".

By letter dated 24 June 2013, Miss Routledge protested at this. She referred to the correspondence that had occurred over the period since 16 April 2013 and said that she failed to understand why it was now apparently proposed that no decision should be taken on the application for indefinite leave to remain until the appeal against the refusal of asylum had been determined.

Mr Smeath replied on 4 July 2013. He explained that there had been a directions hearing in the tribunal the previous week. At that hearing the tribunal had decided to deal with the question of exclusion from refugee status under Article 1F as a preliminary issue. It was to be decided at a hearing on 3 October 2013. Mr Smeath said that the Secretary of State accepted that the tribunal appeal and the application for indefinite leave to remain were different issues. He said, however, that the Secretary of State remained highly reluctant at this stage to reach a decision on the indefinite leave to remain application without the benefit of knowing whether or not Mr Youssef's Article 1F exclusion would finally be upheld by the tribunal. Both considerations would rely on similar evidence and would pose similar questions. In a reference to the wording of Rule 322(5) of the Immigration Rules, Mr Smeath said that Mr Youssef's exclusion (or not) from refugee status was of central importance to the Secretary of State's consideration of whether his character, conduct and associations were "strong enough to warrant a grant of ILR". He added that the Secretary of State believed that it was appropriate for a court to independently assess the evidence before the Secretary of State made a decision on those latter elements.

Miss Routledge replied on 8 July, reiterating Mr Youssef's stance that the appropriate course was to proceed to a decision on indefinite leave to remain. She said that if agreement could not be reached in that regard she would write to the court to ask that the papers be passed to a judge for consideration of permission.

Mr Smeath replied on 17 July, maintaining the Secretary of State's previous stance and suggesting that the correspondence should be put before the court. That was duly done by Miss Routledge by letter dated 22 July 2013. It appears that at that stage the matter was being dealt with by the Administrative Court office in Cardiff.

For reasons which are unclear, there does not appear to have been a reply to Miss Routledge's letter of 22 July 2013. Nothing further happened in relation to the judicial review during the summer and early autumn of 2013. Instead, the tribunal proceedings went ahead, a hearing duly took place on the preliminary issue as to Article 1F and the First Tier Tribunal resolved that issue in Mr Youssef's favour.

It is convenient at this point to pause and to review the questions whether, at the time of the correspondence in June and July 2013, Mr Youssef had any lawful ground for complaint about the stance taken by the Secretary of State.

It seems to me that for a short period Mr Youssef had an expectation that he would be likely to receive by 29 July 2013 a decision on his application for indefinite leave. Then in early June 2013 the exchange of correspondence with the Home Office presenting officer put in doubt whether that would be so. In my view, the proposal made by Miss Routledge was eminently sensible: if indeed there were to be a decision on indefinite leave to remain by 29 JUly, it might well be a saving of public funds, and unnecessary from Mr Youssef's point of view, to carry on with the asylum appeal. However, equally, as it seems to me, the response on behalf of the Presenting Officers Unit was one which recognised the desirability of getting on with the determination of the question of Mr Youssef's Article 1F status. By 18 June, well before 29 July, Mr Youssef was aware that the Secretary of State considered that the better course was actually to await the outcome of that decision. At that stage that outcome could be expected to be known later in the autumn. It does not seem to me that it would be right to hold the Secretary of State to an expectation that indefinite leave to remain would be dealt with by the end of July when the tribunal decision could be expected to be known as the result of a hearing which had been fixed by the tribunal for October 2013. Indeed, from the point of view of ensuring that public funds were not wasted, it seems to me to have been a reasonable approach that the Secretary of State's resources should be concentrated on the asylum appeal. If that appeal were to be successful, then the application for indefinite leave to remain would involve very different considerations from the sort of considerations which would arise if that application were unsuccessful.

True it is that there had been a substantial period of delay in dealing with the matter from Mr Youssef's point of view. I accept Miss Pickup's submission that if indefinite leave to remain were granted, he would have the security associated with such a grant, but there could be no assumption that it would be granted. In the meantime Mr Youssef's position was not, as it seems to me, materially prejudiced. There was no question of him being removed. He remained lawfully in this country under the extension automatically provided by section 3C of the Immigration Act 1971.

Accordingly, it seems to me that if the matter were looked at as at June or July 2013, any challenge either for breach of legitimate expectation or on the basis of unreasonableness would not succeed.

What then happened was that Miss Routledge wrote to Mr Smeath on 30 October 2013. Following the tribunal's decision in Mr Youssef's favour on Article 1F, the tribunal had directed that the Secretary of State should have a short period in which to indicate whether she intended to grant Mr Youssef refugee status. Miss Routledge proposed that it would make sense for the Secretary of State to consider and notify her position on indefinite leave to remain within the same time frame.

Mr Smeath replied on 29 November 2013. He explained that the formal service of the tribunal's determination had not taken place until 15 November 2013. What was now proposed was that the Secretary of State would seek permission to appeal. A copy of the application for permission was attached to Mr Smeath's letter. He explained that as the question of exclusion from refugee status was, in the light of that proposed appeal, still live, the judicial review proceedings should "remain stayed" until the exclusion issue had been finally determined. I observe that in fact there had not been a formal stay of the judicial review proceedings at that stage. Mr Smeath's letter must be taken to have been referring simply to the fact that nothing had happened in the judicial review proceedings.

Pausing at that point, it seems to me again that in the period of October/November following the First Tier Tribunal's decision, the stance taken by the Secretary of State is not one which can properly be criticised for failure to fulfill a legitimate expectation or for unreasonableness. At this stage, unless the Secretary of State were to obtain permission to appeal and following the grant of permission to succeed in an appeal, the issues arising under Article 1F would have been resolved against the Secretary of State and in favour of Mr Youssef. As indicated earlier in this judgment, that would result in a much more advantageous position to Mr Youssef in relation to his application for indefinite leave to remain.

Whether legitimate expectation is said to arise from policy statements by the Secretary of State or from what was said in the correspondence in April and May 2013, it seems to me that a unique factual position arose as a result of the progress of the proceedings in the First Tier Tribunal. That particular factual position had the consequence that it was open to the Secretary of State to take the view that the preferable course was to defer dealing with indefinite leave to remain pending the outcome of the tribunal proceedings.

What then happened was that there was a refusal of permission to appeal to the Upper Tribunal on jurisdictional grounds. The reason was that the First Tier Tribunal's decision had been taken by way of preliminary issue. Miss Routledge shortly after that decision wrote to the Treasury Solicitors on 23 December 2013. Her letter urged that the Secretary of State should accordingly make clear immediately whether it was disputed that Mr Youssef would be at risk on return to Egypt. The reason for pressing the Secretary of State in that regard was that unless the Secretary of State were to make such a contention, then the outcome of the preliminary issue would have the outcome of deciding the appeal. Miss Routledge added:

"I suggest it would be appropriate, in the interests of the efficient and cost effective progression of this appeal and my client's claim for Judicial Review for your client at the same time to indicate whether she will grant my client indefinite leave to remain ..."

In response, the Secretary of State decided not to oppose Mr Youssef's appeal in the First Tier Tribunal. By letter dated 25 February 2014 the Treasury Solicitor, on behalf of the Secretary of State, asked that tribunal to proceed to promulgate its determination, at which point the Secretary of State proposed to pursue an appeal on the Article 1F aspect.

Again, as it seems to me, at this stage it could be expected that the First Tier Tribunal would proceed swiftly to make its final determination and that the question of permission to appeal to the Upper Tribunal could be expected to be resolved swiftly. It does not seem to me that there can be any legal ground for complaint at the Secretary of State's stance that in those circumstances it was preferable to await the outcome in that regard before devoting resources to consideration of the application for indefinite leave to remain.

On 9 April 2014 the First Tier Tribunal granted to the Secretary of State permission to appeal to the Upper Tribunal on the Article 1F question. Later in April 2014, by letter dated 22 April 2014, Miss Routledge wrote to the Treasury Solicitor noting that the letter over a year earlier on 16 April 2013 had said that the Secretary of State would consider Mr Youssef's application for indefinite leave to remain. Pointing to the Secretary of State's policy as requiring an "active review" of an application for settlement on the basis of ten years with limited leave to remain, Miss Routledge said that:

"... the sole criterion for that active review, under the policy, was whether the applicant continued to qualify for DLR. In an exclusion case, therefore, the issue was simply and solely whether it remained the case that the applicant would be at risk of treatment contrary to Article 3 ECHR on return to the country of origin".

A substantive response was sent on behalf of the Secretary of State on 21 May 2014. This stated that a hearing in the Upper Tribunal was due to take place shortly and that it remained the Secretary of State's view that the tribunal's findings in relation to the Article 1F issue were of clear potential relevance to the ILR application.

Again, as it seems to me, at this stage it was legitimate for the Secretary of State to take the view that the preferable course was for the status of Mr Youssef under Article 1F to be determined as it could be expected to be determined as a result of the then imminent hearing in the Upper Tribunal. I am willing to assume for present purposes that the policy did indeed, as Miss Routledge said in her letter of 22 April 2014, require "active review" of an application for settlement. That does not preclude, however, the possibility that, as in the present case, there might be good reason to await the final outcome of a tribunal decision on matters which were highly relevant to the application for indefinite leave to remain.

E: The position in the round

What has happened since the correspondence in April and May 2014 is that the hearing before the Upper Tribunal took place in September 2014. In October 2014 the Upper Tribunal promulgated its decision, allowing the Secretary of State's appeal on the ground that the First Tier Tribunal had erred in law in relation to the standard of proof. What the Upper Tribunal directed was that there should be a re-hearing before the Upper Tribunal itself. Again, as it seems to me, at that stage such a re-hearing could be expected shortly and it was within the Secretary of State's legal powers to continue the stance previously adopted of awaiting the outcome in the tribunal before devoting resources to consideration of the application for indefinite leave to remain.

I have been given an update by Miss Pickup this morning. There has been a notification from the Upper Tribunal that the re-hearing before the Upper Tribunal is to be listed for 7 May 2015. That has been the subject of an application for an adjournment on the part of Mr Youssef as his counsel in the tribunal (who is not Miss Pickup but is someone else) will not be available.

Miss Pickup presses me with a submission that even if the Upper Tribunal were to go ahead on 7 May, nonetheless there might then be a further appeal to the Court of Appeal or an application for permission in that regard. I am of course concerned with the position at the time when the amended statement of facts and grounds was lodged and thus not technically concerned with the present position. Even so, it seems to me to be right to observe that the reasoning which has led me to conclude that there is no legal basis for complaint about the Secretary of State's stance during the period up to the amendment of the statement of facts and grounds would suggest that there remains no legal basis for complaint in the position that has currently been reached.

In essence, as it seems to me, there was a question which arose as to how resources should best be allocated: should they be allocated to proceeding with the task of deciding the application for indefinite leave to remain, with the prospect that if indefinite leave to remain were granted, then there would be a saving of the costs associated with the asylum appeal? On the other hand, would it be better to secure a judicial decision on relevant matters as could be expected to be secured by the tribunal process?

Miss Pickup submitted that only if the Secretary of State had reached the view that indefinite leave to remain could not be granted could the Secretary of State's stance be described as reasonable. I disagree. First of all, there is nothing to suggest that the Secretary of State has taken a decision that indefinite leave to remain would not be granted. It is right to observe that there is a dispute as to which would be the appropriate policy in resolving whether or not to grant indefinite leave to remain. Under the earlier policy the approach to be taken to Mr Youssef's application would be a more generous one than it would be under the later policy, but on either view there is no basis for thinking that the Secretary of State has adopted any fettered approach. The Secretary of State's stance has been that the matter is one which requires consideration on the facts.

It is not for this court to decide which is "the right approach". As regards legitimate expectation, all that it is appropriate for this court to deal with is the question whether the Secretary of State, on the fact of the present case, was entitled to conclude that, despite what had been said in correspondence in April and May, it would nonetheless be appropriate to defer a decision on indefinite leave to remain until the outcome of the tribunal proceedings was known. Similarly as to unreasonableness, the question for this court, putting on one side the legitimate expectation question, is whether in all the circumstances it would be reasonable for the Secretary of State to take the view that indefinite leave to remain should be deferred until the outcome of the tribunal proceedings were known.

For the reasons that I have given, my conclusion is that a decision as to how to allocate resources in that regard is one which is highly fact sensitive and that the approach adopted by the Secretary of State is not one which can be criticised on either of the grounds advanced by Miss Pickup. In those circumstances, my conclusion is that the matters which have been the subject of today's hearing and were the subject of the grant of permission by Knowles J, are matters on which the application for judicial review must be dismissed.

MISS PICKUP: Thank you, my Lord.

My Lord, can I return to the question of anonymity which we put over this morning.

MR JUSTICE WALKER: Yes.

MISS PICKUP: We have sought to clarify the position in what has happened in respect of the tribunal. In fact, those instructing me did write to the tribunal withdrawing the application for anonymity at the same time as they wrote the application to this court, but it seems that the First Tier Tribunal and the Upper Tribunal nonetheless went ahead and made those directions for anonymity. We have consulted with counsel who did appear in the tribunal proceedings and he does not recollect there being any discussion on the subject. So essentially your Lordship's observation this morning that unless you make a direction for anonymity you would be cutting across the First Tier Tribunal's direction remains true. On the other hand, can I just hand up -- this is the Supreme Court case which I alluded to this morning.

MR JUSTICE WALKER: Yes.

MISS PICKUP: Which is essentially the reason we did not make an application in this case. This relates to earlier proceedings brought by Mr Youssef and others challenging the application of financial sanctions in which Mr Youssef was originally granted anonymity, but, on an application by The Guardian and other organisations, the Supreme Court held that he should not have been granted anonymity. The relevant paragraphs are paragraphs 18 to 20 on page 712 to 713, which deal specifically with Mr Youssef's case.

MR JUSTICE WALKER: Yes.

MISS PICKUP: So your Lordship will appreciate the slightly difficult position is that we have that ruling from the Supreme Court and we have the directions given by the First Tier Tribunal and the Upper Tribunal. The only other observation I would make is that both tribunals, the form of their direction is, unless and until a tribunal or court directs otherwise the appellant is granted anonymity. May I just check that that is the format used by the tribunal as well. That is the direction given by the First Tier Tribunal. The Upper Tribunal simply states that it makes an anonymity order pursuant to the rule 14 of the procedure rules. So, my Lord, I am somewhat in your hands as to how to deal with the matter.

MR JUSTICE WALKER: Miss McGahey, it seems to me that the Supreme Court must trump the Upper Tribunal and the First Tier Tribunal and, accordingly, I would not propose to make any direction for anonymity.

MR McGAHEY: My Lord, thank you.

MISS PICKUP: I am grateful.

MR McGAHEY: My Lord, there is an application for costs. I understand the claimant is legally aided, so that normal order would follow in any event. We have to apologise for the absence of a costs schedule, which would normally be presented in a one day hearing. My solicitors had no access to the papers in this case for the last two weeks.

MR JUSTICE WALKER: Yes, I understand the problems. The order I think will just be a straightforward order that our associate can draw up. I think the order is an order for costs but, it is not to be enforced. There is a standard provision about --

MISS PICKUP: We need detailed assessment for the purpose of public funded costs.

There is a submission that there should be no order for costs simply on the basis that when this claim was originally brought, we did challenge both the imposition of conditions on Mr Youssef's restricted leave to remain and the refusal at all to consider him for indefinite leave to remain, and both of those points were conceded by the Secretary of State, so those were two of the three original challenges. Then of course the Secretary of State took the position that she would defer the decision, and that is the subject of the hearing today.

MR JUSTICE WALKER: It seems to me that the costs that I am concerned with are only the costs from the date of the amendment to the statement of facts and grounds.

MISS PICKUP: And only those costs associated with this issue.

MR JUSTICE WALKER: And only costs relating to the issues raised by the amendment.

Could I ask that you both please prepare an agreed order which makes that clear and e-mail it to my clerk, who can then forward it to the associate.

MR McGAHEY: Certainly my Lord, yes.

MISS PICKUP: Finally, it is always a little difficult, but I am instructed to ask for permission to appeal simply on the ground that the legitimate expectation created by the discretionary leave policy that even if the claimant was properly excluded, he would normally be granted indefinite leave to remain after ten years, that there was not an adequate justification for not complying with that expectation that the Secretary of State wanted to await the outcome of the appeal in which the issue was exclusion, rather than whether he should be granted indefinite leave to remain.

MR JUSTICE WALKER: Yes. There is a form I need to fill in (Pause).

I have written on the form that permission to appeal is refused. The issues of legitimate expectation and reasonableness are fact sensitive and no question of principle arises. There is no reasonable prospect of success and no other good reason for the grant of permission.

Anything else arising?

MISS PICKUP: I do not think so, thank you very much, my Lord.