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

MR JUSTICE WALKER: On 7 March 2017 the claimant, Ms Sophia Marie Peart, lodged with the Administrative Court Office a claim form seeking permission to apply for judicial review. It was duly issued on that day. The claim form sought permission to challenge three decisions of the Secretary of State. The first was a decision dated 27 February 2017 to issue directions for the claimant's removal to Jamaica on a flight departing at 6.30 am on 8 March 2017. The second was described as an "ongoing" decision to detain the claimant. The third was a decision dated 23 January 2017 to refuse and to certify an asylum claim that had been made by the claimant.

The background is that Ms Peart is a Jamaican national whose leave to remain in the United Kingdom expired on 30 June 2001. She was detained under immigration powers on 5 December 2016. She made an application for asylum on grounds of sexual orientation on 12 December 2016. That application was refused in the third decision mentioned earlier, dated 23 January 2017.

So far as recent judicial consideration of the position is concerned, it is convenient to begin with proceedings which were brought by the claimant in the Upper Tribunal. When lodging the claim in the Upper Tribunal the claimant sought a stay of removal. The papers were considered by Upper Tribunal Judge Andrew Jordan on the afternoon of 3 March 2017. He refused to grant a stay. At paragraphs (3) to (8) of his decision he said:

One might have expected that the claimant's attempts to prevent removal would have ended there. However there were features of the claimant's mental health which were a matter for concern. It seems that those features were thought to warrant a judicial review application which would complain not only about matters that had been raised with the Upper Tribunal but also about the failure of the defendant to discharge the claimant from immigration detention and place her within a hospital where her mental condition could be treated. Thus it was that the present claim was brought challenging the three decisions mentioned earlier.

An application for urgent interim relief was made, both as regards the removal directions and as regards the failure to discharge the claimant from immigration detention. The matter came before Mrs Justice O'Farrell on the papers. In a decision dated 7 March 2017 she refused to prevent the Secretary of State from removing the claimant from the jurisdiction. Her reasons were:

Thus it was that Mrs Justice O' Farrell refused to grant interim relief on the papers. I should add that her reference to the medical report of Dr Gratton concerned the mental health matters that I mentioned earlier in this judgment. An earlier report of Dr Gratton had been considered by the Secretary of State, and the Secretary of State had given reasons for concluding that it did not warrant either deferment of removal directions or discharge from detention.

What also happened on 7 March 2017 was that the Home Office Operational Support and Certification Unit wrote a letter (“the OSCU 7 March letter”) on behalf of the Secretary of State responding to a pre-action protocol letter that had sent by the claimant's solicitor on 6 March 2017. The OSCU 7 March letter summarised the history and examined each matter of complaint advanced in the pre-action protocol letter. The representations that were set out in the pre-action protocol letter were rejected and the letter stated that the Secretary of State maintained the certification decision. The letter also considered whether there were exceptional circumstances which meant that removal from the United Kingdom was no longer appropriate. It gave reasons for reaching a conclusion that there was nothing about the claimant's personal history or any application pending with the Home Office that made it appropriate to allow the claimant to remain here and that there were no exceptional circumstances which meant that removal was no longer appropriate.

In the event Ms Peart was not removed on 8 March 2017. Nevertheless the matter comes before the court at an oral hearing today because on 17 March 2017 an application notice was issued. The notice itself stated that it sought to renew the application for interim relief in relation to removal directions. However the material which accompanied the application notice acknowledged that the application notice was out of time. I asked Ms Abigail Smith, who appears today on behalf of Ms Peart, for assistance as to where the relevant time limit is to be found. After discussion in court this morning the position appears to me to be this. The order made by Mrs Justice O'Farrell was an order made without a hearing. Plainly, Mrs Justice O'Farrell considered that it was a case where a hearing would not be appropriate. It thus falls within CPR 23.8 (c). Under Practice Direction 23A, paragraph 11.2, an order falling within CPR 23.8 (c) is to be treated as if the court had been proposing to make an order on the court's own initiative. That provision, accordingly, engages CPR 3.3. Under CPR 3.3 (4) the court may make an order of its own initiative without hearing the parties. Under CPR 3.3 (5), where the court has made an order under paragraph (4), a party affected by the order may apply to have it set aside, varied or stayed.

As it seems to me, the application notice issued on 17 March seeks to vary the order of Mrs Justice O'Farrell and to substitute an order under which there would be a stay, or perhaps more properly an injunction, preventing any further attempt to remove Ms Peart. Accordingly, the time limit in CPR 3.3 (6) is engaged. Under CPR 3.3 (6), if no time period has been specified by the court then the application must be made not more than seven days after the date on which the order was served on the party making the application. Ms Smith rightly accepts that more than seven days had elapsed between service of Mrs Justice O'Farrell's order and issue of the application notice on 17 March.

A witness statement of Ms Hannah Baynes made on 16 March 2017 accompanied the application notice. It gave an account of what happened between receipt of the order of 7 March and issue of the application notice. Ms Smith acknowledged that the application notice itself ought to have included an application for the necessary extension of time. Ms Smith asked that I grant the application for an extension of time. I indicated that I would put that on one side pending her examination of precisely what it is that is sought on behalf of the claimant today and whether it would be right to grant what is sought.

In that regard Ms Smith relied on documents which had been prepared by Mr Ronan Toal of counsel. Those documents were dated 17 March 2017 and accompanied the application notice. In essence, in those documents it was sought on behalf of the claimant to make a root-and-branch challenge to an important aspect of chapter 60 of the Secretary of State's Enforcement Instructions and Guidance.

The assertion on behalf of the claimant is that the overarching requirement that there should be an effective remedy has the consequence that the issuing of proceedings in a case such as the present must as a matter of law have automatic suspensive effect. There is no application in the application notice for permission to amend the statement of facts and grounds. There should have been such an application if the matters identified by Mr Toal were to be pursued. Moreover a challenge to chapter 60 of the Enforcement Instructions and Guidance is not a challenge which appears in the claim form. It would be necessary to apply for permission to amend the claim form in order to identify the relevant parts of chapter 60 as being matters which the claimant sought to challenge by way of judicial review.

The documents prepared by Mr Toal went through a number of high level decisions in order to justify the assertion in a case such as the present the mere issuing of proceedings must have an automatic suspensive effect. No bundle of authorities was supplied. I observed to Ms Smith that before accepting the submissions that had been advanced in reliance upon these cases I would need to consider the decisions in question. Ms Smith replied that because it was simply a renewal or application for interim relief it had not been thought necessary to provide copies of the relevant decisions to the court. That seems to me to misunderstand the position. If an applicant says that interim relief is warranted by legal principles established in particular decisions, then the decisions need to be supplied in good time to enable them to accompany the papers when they are put before the judge. The reason is that the judge may need to read the decisions in order to be satisfied that it is appropriate to grant the interim relief sought.

It seems to me that so far as the need for interim relief is concerned, this matter does not call for any intervention by the court. I explained to Ms Smith that my essential reason for this conclusion is this. In the past, when removal directions had been set, in particular the removal directions which were the subject of the application that came before Mr Justice O'Farrell and had previously been before Upper Tribunal Judge Andrew Jordan, there has been a clear and effective way in which the legality of those removal directions can be considered by the appropriate judicial authority before the removal directions take effect. That is in accordance with long established practice.

Ms Smith drew to my attention an email which had been sent on behalf of the Secretary of State referring to charter flights. What that email observes is that under certain circumstances the issue of a claim form would be treated by the Secretary of State as a reason for not proceeding with removal. However where a charter flight has been arranged, the Secretary of State insists that a court order must be obtained. There is nothing in that email to suggest that the Secretary of State will not follow the procedures which are essential to ensure that before the charter flight departs there is an opportunity for a challenge to removal to be made. It is the experience of every judge sitting in the Administrative Court that challenges in relation to charter flights come before the court and are dealt with by the court. No reason has been identified in the material that has been put before me for thinking that there will be any departure from the normal principles which enable the court to deal with the matter.

As it seems to me, although the submissions prepared by Mr Toal are of interest, if there were to be a challenge to chapter 60 of the Enforcement Instructions and Guidance that is a matter which calls for its own application for permission to apply for judicial review. It is not appropriate in the present case to tack it on.

So far as the present case is concerned, as it seemed to me, the complaints about the decision in relation to removal directions, and the complaint in relation to asylum refusal and certification, have all been overtaken by the letter of 7 March 2017. In that letter there was a detailed and comprehensive examination of all that had been said on behalf of Ms Peart. That examination dealt with all the points which eventually appeared in the statement of facts and grounds when it was later issued. As regards the challenge to detention, it seemed to me that the challenge to detention must stand or fall with the challenges to removal directions and to refusal and certification of asylum.

I raised these provisional conclusions with Ms Smith in the course of argument. It is no disrespect to Ms Smith to record that she identified no good reason to depart from them. In those circumstances my order today will be that permission to apply for judicial review in the present case is refused. That will bring an end to the present proceedings.

I refuse an extension of time for the application notice issued on 17 March. Ordinarily, I would have been sympathetic to the explanation given by Ms Baynes for the delay but in the present circumstances the grant of an extension of time would serve no practical purpose as there would be no prospect of the claimant being given any leave that is currently sought. There are now no removal directions in place. If and when removal directions are put in place, the matter can then be looked at in the light of the considerations prevailing at that time. And I have no reason to believe that it will not be possible to get an application before the appropriate judicial authority in good time to prevent removal if the interests of justice so require.

I would like to express my gratitude to the claimant's legal team for the material which has been prepared for today’s hearing and for the helpful submissions of Ms Smith this morning.

MS SMITH: Can I clarify - because this was not a permission hearing and it was not a rolled-up hearing - that we were not expecting my Lord to deal with the substantive application for permission for judicial review as well.

MR JUSTICE WALKER: That is why I raised it with you as indicated in my judgment. I reached the view that the complaints about removal directions and about refusal and certification of asylum have been overtaken by the letter of 7 March. In those circumstances the efficient way to deal with the matter is to refuse permission.

MS SMITH: Thank you for that indication. Given that the defendant has not taken any part, there will be no order for costs or subject to the claimant's detailed assessment of their publicly funded costs.

MR JUSTICE WALKER: As regards the claimant's order, I am sure our associate is familiar with the order that we would normally make. Yes. There is no application from the defendant that they seek anything in relation to costs.

MS SMITH: Thank you. That is right.