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

THE DEPUTY JUDGE: This is a renewed application for permission for judicial review brought by Liibaan Hassan Dufey against the Secretary of State for the Home Department. That renewed application falls to be made after Karon Monaghan QC, sitting as a deputy High Court judge, refused permission for judicial review on paper on 11 August 2016. The case was listed for oral hearing on a couple of previous occasions but was adjourned.

At one stage, the claimant indicated an intention to withdraw the application on the basis that there had been assurances given by the Secretary of State that a fresh application for British nationality would be considered without regard to prior arguments of residence requirements or breach of immigration requirements. It is clear to me from the Secretary of State's letter of 18 January 2017 in response to that of the claimant's of 17 January that no such assurances were given. In any event, the application to withdraw the claim has not been proceeded with by the claimant, and so it comes before me today on the renewed application for permission.

The first ground on which the deputy High Court judge refused the application on the papers was that it had not been brought in time. The Secretary of State's decision to refuse the claimant's nationality was taken on 17 September 2015 and, although that decision was confirmed on 7 December after there had been a request to review it, it is clear that the substantive decision which is challenged is that of 17 September. No explanation has been offered which is satisfactory for the delay in failing to comply with the three-month time limit which would run from 17 September, proceedings for judicial review only having been issued on, I think, 8 March. So I would refuse the application to renew on the grounds that it is out of time in any event.

However, it is appropriate to say something about the merits of the application. The relevant background is that the claimant had claimed asylum on 19 February 2001. There was exceptional leave to remain which was granted up until 29 May 2003, expiring then. An application for further leave to remain was made on 29 April 2004 but refused, and all rights of appeal against that refusal expired on 5 December 2005. There was no further decision in relation to leave to remain until indefinite leave to remain was granted on 20 September 2013.

On 30 April 2015, the claimant applied for British nationality. The five-year qualifying period, therefore, runs from 1 May 2010 to 30 April 2015. The decision which the claimant sought to challenge, but out of time, was that during that five-year period the claimant had been in the United Kingdom in breach of immigration law, because up until 20 September 2013 there was no leave to remain of any kind.

The crux of the claimant's contention is that a further application for asylum was made during that period, a fresh application, and it is therefore said that the guidance in the booklet “AN”, setting out the Secretary of State's policy so far as granting British nationality is concerned, falls to be read in the light of the fact that there was a fresh application for asylum on 30 November 2006.

The deputy judge refusing the application on paper said that there had been no fresh asylum application, and the principal difficulty that the claimant faces in this application is that there is no copy of that letter of 30 November 2006 in which it is said that the application was made, nor any material which provides any basis for saying that it did properly constitute a fresh asylum application. Simply sending further correspondence (for example, a request to the Home Office to review an earlier decision or matters of that kind) would not meet the test. As there is simply no material to support the contention that a fresh asylum application was made, in my view the Court does not get to the first stage of the claimant's argument.

Had one got there, issues might then have arisen as to how the booklet “AN” falls to be applied in circumstances in which there is an asylum application which is rejected and runs its course; no leave to remain is given, but a fresh application is made. On that issue, it is fair to say that the instructions given by the Secretary of State in annex B to chapter 18 of the Immigration Instructions would suggest that nonetheless the five-year residence requirement will not be satisfied, albeit had there been a fresh asylum application here it is possible that there might be room for argument as to how booklet “AN” and the Immigration Instructions fell to be read together. None of those issues have been explored because, as I have indicated, this is not a case in which any basis has been put forward for showing that a fresh asylum application was indeed made in the period after 5 December 2005 when all rights in relation to the existing application were finally exhausted.

In those circumstances, I am going to reject the application for permission to review.

I should mention, just by way of a footnote to this judgment, that the claimant did not herself appear today, nor did anyone with rights of audience on her behalf attend. Rather later than the hearing was scheduled to start a solicitor without rights of audience, Mr Hersi, appeared and requested permission from the court to make submissions on the claimant's behalf. Having heard from the Secretary of State, and given the very late nature of the application and the absence of any real explanation as to why it had not been possible to instruct someone with rights of audience, I took the view that it was not appropriate to allow Mr Hersi to make oral submissions. One of the reasons why I felt that was an appropriate course is that extensive further written submissions were provided by Mr Hersi this morning which set out a number of points and which I reviewed for the purposes of reaching my decision today.

That then leaves the issue of costs, both of the review and of the application that was brought by the defendant to dismiss the claim. The order which will inevitably follow from the dismissal of an application for judicial review is that the Secretary of State will get their costs. I do not know if there is a figure?

MS WILSDON: There is a figure in the previous order, which is £750.

THE DEPUTY JUDGE: On that one point of costs, I am going to allow Mr Hersi a chance to say anything in particular he wants, simply because that is not something that has been covered by the written submissions.

Do you have any observations on the costs application?

THE CLAIMANT'S SOLICITOR: I would merely say the fact that the claimant would accept to pay the costs that were stated in the original order of Monaghan QC, and normally the Secretary of State would not be required to attend permission hearings. In that case, she should not get her costs for today's hearing.

THE DEPUTY JUDGE: Is this £750 figure the figure that was in --

THE CLAIMANT'S SOLICITOR: I don't think she's even applying for today's costs.

MS WILSDON: I'm not applying for my costs of today because it clearly was being proceeded with. To some extent I was going to have to attend, but the £750 figure is from Judge Monaghan QC's order. There is then the costs of the respondent's application, which I would ask to be assessed if not agreed.

THE CLAIMANT'S SOLICITOR: In relation to that, I would observe that the application was completely unnecessary and premature. The Secretary of State was aware of the fact that there would be a permission hearing and the matter would be decided at the permission hearing. It was completely pointless to make an application to dismiss the claim when the Secretary of State already knew that the permission hearing (Inaudible) today one way or the other.

THE DEPUTY JUDGE: Thank you.

Any observations on that last submission?

MS WILSDON: You have had the opportunity to read the application. I have spoken about it already. I will not waste more of your time, but plainly it was made for good reason and not prematurely and the Secretary of State ought to have her costs of the application, to be assessed if not agreed.

THE DEPUTY JUDGE: Thank you.

There are two applications in relation to costs before me. The first simply involves me affirming the order of Deputy High Court Judge Monaghan QC, which awarded the Secretary of State the costs of the acknowledgement of service opposing the written permission application. No further costs are sought in relation to the renewal of that application today.

What are sought today are costs in relation to an application to dismiss, issued by the Secretary of State on 6 April. The application, I have to say, is very short and simply reflects the fact that there had been an email indicating a wish by the Applicant to withdraw the application, albeit the email indicated that the basis of withdrawal was an allegation which was denied by the Secretary of State that assurances had been offered.

Given the very limited nature of the application and the fact that as the Secretary of State did not accept any such assurances had been offered the indication of withdrawal was not going to be effective, I do not propose to make any separate costs order in relation to that application.

THE DEPUTY JUDGE: Unless there are any other points?

MS WILSDON: The only other remaining point is that an order was made by Mr Justice Supperstone on 21 October 2016 that the claimant do pay the defendant's costs of that hearing, summarily assessed in the sum of £420. I only mention that because it hasn't been paid, and I just wanted to put down a marker and say it needs to be paid in addition to the £750.

THE DEPUTY JUDGE: Right, but it requires no further order from the court; you have one from Mr Justice Supperstone.

MS WILSDON: There is no need for an unless order, no, because the application has been dismissed in any event.

THE DEPUTY JUDGE: Thank you very much.