HANS HUSSON v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2020)

HANS HUSSON v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2020)

[2020] EWCA Civ 329

CA (Civ Div) (McCombe LJNicola Davies LJSimler LJ) 10/03/2020

EUROPEAN UNION – NEGLIGENCE – DAMAGES – CIVIL PROCEDURE – IMMIGRATION – HUMAN RIGHTS

DAMAGES : DELAY : DISCRETION : DUTY OF CARE : HUMAN RIGHTS CLAIMS : JURISDICTION : RESIDENCE PERMITS : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

 

An individual who had been granted limited leave to remain in the UK was entitled to seek judicial review of the secretary of state’s two-year delay in sending him a biometric residence permit confirming his entitlement to work in the UK. He had established an arguable case that the secretary of state owed him a duty of care to issue the permit promptly, giving rise to a claim in damages for breach.

 

 

The appellant appealed against a refusal of the Upper Tribunal to permit him to apply for judicial review of the secretary of state’s delay in sending him a biometric residence permit confirming his entitlement to work in the UK.

The appellant was a Mauritian national who had been granted limited leave to remain and work in the UK. During court proceedings arising from the leave-to-remain application, the secretary of state had entered into a consent order whereby he agreed to reach an effective decision on the application within three months. That meant that the ultimate decision to grant indefinite leave to remain should have been followed by the prompt issue of a residence permit. However, there was a two-year delay before the permit was issued. The appellant claimed that he had suffered loss by reason of being been unable to work in the UK during the delay period, having no stamp on his passport evidencing his right to work. Within his claim for judicial review he raised the question of whether he was entitled to damages for breach of duty of care, breach of statutory duty and breach of ECHR art.8. The UT refused him permission to apply for judicial review.

The issues were whether (1) the UT lacked jurisdiction to award damages because no public law remedy was being sought; (2) the appellant had an arguable claim for damages for breach of art.8; (3) it was arguable that the secretary of state owed the appellant an actionable duty of care; (4) the UT had refused a discretionary remedy at the permission stage.

HELD: Jurisdiction to award damages – The UT had jurisdiction to award damages to the appellant. Its power to award damages was circumscribed by the Tribunals, Courts and Enforcement Act 2007 s.15(1)s.16(1) and s.16(6) and, for there to be an award of damages, the claimant had to be seeking a public law remedy (a mandatory order, a prohibiting order, a quashing order, a declaration or an injunction). The claimant was seeking declaratory relief in relation to the alleged unlawful delay in issuing the permit and, as the foundation for a damages claim, that relief was not academic (see paras 24-28 of judgment).

Article 8 – The appellant had an arguable case for judicial review on the basis of a breach of art.8. The consequences of the delay fell within the scope of art.8 and constituted an arguably sufficient interference with the rights it guaranteed. Without the permit or a stamp in his passport evidencing his right to work, the appellant had been unable to take up lawful employment in the UK. Although there was no direct authority establishing that a right to work was of itself protected by art.8, Strasbourg authority demonstrated that art.8 was arguably engaged where an individual was wholly or substantially deprived of the ability to work, R. (on the application of Atapattu) v Secretary of State for the Home Department [2011] EWHC 1388 (Admin) applied. Damages could be awarded under the Human Rights Act 1998 s.8 where necessary to afford just satisfaction, Anufrijeva v Southwark LBC [2003] EWCA Civ 1406 followed. Although the appellant had produced limited evidence of loss of employment and earnings, the secretary of state’s own policy documents made good that aspect of his case: given that no UK employer could lawfully have employed him, the inevitable inference was that he had been deprived of all available employment opportunities (paras 32, 35-41).

Actionable duty of care – When determining whether the law imposed a tortious duty of care in respect of a public authority’s exercise of its statutory powers or performance of its statutory duties, the court had to focus on the facts and the particular statutory background, Gorringe v Calderdale MBC [2004] UKHL 15 followed. The statutory scheme under consideration in the instant case did not create a statutory cause of action that sounded in damages, so the appellant had to establish that the delay also constituted a recognised tort or breach of contract. A critical question was whether there had been any voluntary assumption of responsibility by the secretary of state, Rowley v Secretary of State for Work and Pensions [2007] EWCA Civ 598 considered. Such an assumption of responsibility would arise where, but for the absence of consideration, there would be a contract; so, where there was a relationship equivalent to a contract, there would be a duty of care, Poole BC v GN [2019] UKSC 25 followed, W v Home Office [1997] 2 WLUK 338 and Home Office v Mohammed [2011] EWCA Civ 351 considered (paras 42-53). The appellant had an arguable case that the secretary of state owed him a duty of care. There was force in his argument that he was entitled to the prompt issue of a permit and it was foreseeable that a prolonged delay would prevent him obtaining employment in the UK. Although it was doubtful whether a duty of care could be derived from the secretary of state’s entry into the consent order and pledge to make an effective decision within three months, the threshold was merely arguability, and the law was complex and evolving (paras 54-64).

Refusal of discretionary remedy at permission stage – The UT had not refused to exercise a discretionary remedy at the permission stage. It had simply held that the appellant had not established a prima facie case to support a claim for damages (paras 65-66).

Appeal allowed

Counsel:
For the appellant: Russell Wilcox
For the respondent: Richard Evans

Solicitors:
For the appellant: Dylan Conrad Kreolle Solicitors
For the respondent: Government Legal Department

JOSEPH SMART HOPEWELL v SECRETARY OF STATE FOR HOME DEPARTMENT (HOME OFFICE)

PENDING ACTION

JOSEPH SMART HOPEWELL v SECRETARY OF STATE FOR HOME DEPARTMENT (HOME OFFICE)

HQ18P03047

Court: Queen’s Bench Division

Subjects: PERSONAL INJURY – TORTS

Keywords: FALSE IMPRISONMENT : DETENTION

Summary: The claimant claims damages for personal injury pursuant to his unlawful detention by the defendant.

 

Value of damages:

Claimant Solicitor(s): Dylan Conrad Kreolle

Claim issued: 24/08/2018

Acknowledgment of Service: 22/10/2018

 

Latest status: Particulars of claim filed

KUMAR ANTON ROHITHA BULATHWELA v (1) EDWARD THOMAS (2) ANN NILSSON (JOINT TRUSTEES IN THE BANKRUPTCY OF RANI MALATHI SAMARAKKAODI BULATHWELA) (2019)

KUMAR ANTON ROHITHA BULATHWELA v (1) EDWARD THOMAS (2) ANN NILSSON (JOINT TRUSTEES IN THE BANKRUPTCY OF RANI MALATHI SAMARAKKAODI BULATHWELA) (2019)

 

[2019] EWHC 1947 (Ch)

Ch D (Snowden J) 20/05/2019

INSOLVENCY – REAL PROPERTY

BANKRUPTCY : BENEFICIAL INTERESTS : LEGAL CHARGES : WITNESS STATEMENTS

 

The court granted permission to appeal against a district judge’s finding that the applicant did not have a beneficial interest in a property that was registered in his wife’s sole name. The judge had not properly dealt with the implications of a charge against the property in favour of the Legal Services Commission that had been executed by both the husband and wife.

 

The applicant husband applied for permission to appeal against a county court decision that a property was solely owned by his wife and that he had no beneficial interest in it.

The property was purchased in 2004 and was registered in the wife’s sole name. The wife was subsequently made bankrupt. The respondents were her trustees in bankruptcy. The husband claimed that he had a beneficial interest in the property, primarily because he had contributed towards the deposit and the mortgage. The district judge had no documentary evidence to support those assertions, only the wife’s similar assertions. The only documentary evidence considered more specifically was a charge executed over the property in favour of the Legal Services Commission (LSC), executed by both the husband and wife. The district judge found that the terms of the mortgage deed were insufficient to establish an inferred common intention on the part of the parties.

The husband argued that the district judge had erred in her analysis of the evidence, and applied to admit a witness statement from the parties’ daughter.

HELD: Analysis of evidence – There was a real prospect of establishing that the district judge ought to have dealt more fairly with the parties’ evidence and the implications to be derived from the LSC charge.

Witness statement – The form of the witness statement was inadequate. It consisted of unattributed assertions and statements of legal conclusion. It did not fulfil the second and third criteria of the Ladd v Marshall test as being evidence which probably had an important influence on the result of the case and which was apparently credible. There was no material before the court to explain why that material, which plainly could have been available at the hearing before the district judge, was not relied upon at the time. Permission for admission of the witness statement was refused. Any further application for similar or other evidence should be made within a limited timescale, for which the instant court gave directions.

Application granted

Counsel:
For the appellant: Arfan Khan
For the respondent: No appearance or representation

Solicitors:
For the appellant: DCK Solicitors

UDODIRI OKPARA v GENERAL MEDICAL COUNCIL (2019)

UDODIRI OKPARA v GENERAL MEDICAL COUNCIL (2019)

[2019] EWHC 2624 (Admin)

QBD (Admin) (Julian Knowles J) 09/10/2019

HEALTH – PROFESSIONS

BURDEN OF PROOF : DELAY : DOCTORS : FITNESS TO PRACTISE : MEDICAL PRACTITIONERS TRIBUNALS : REGISTER OF MEDICAL PRACTITIONERS : REMOVAL

 

The Medical Practitioners Tribunal had not erred in upholding allegations of sexually motivated misconduct by an accident and emergency doctor towards a nurse over a two-year period. It had also been entitled to find that the doctor’s erasure from the register of medical practitioners was the appropriate sanction.

 

 

A doctor appealed against decisions of the Medical Practitioners Tribunal by which it upheld allegations of his sexual misconduct towards a nurse, and held that his fitness to practise was impaired as a result. He also appealed against his erasure from the register of medical practitioners.

The appellant had been accused of misconduct between 2014 and 2016 when he was a locum registrar in an accident and emergency department. The complainant in each case was a staff nurse at the hospital. The allegations related to a number of occasions when the appellant was said to have made inappropriate sexual and other remarks to the complainant and/or to have made unwanted sexually motivated physical advances to her. The tribunal determined that the facts found proved amounted to misconduct and that erasing the appellant’s name from the Medical Register would be the only proportionate sanction in order to serve the public interest, maintain public confidence in the medical profession and to send a message to the medical profession that such behaviour was unacceptable.

The appellant submitted that the tribunal:

(i) erred in law on the burden and standard of proof in that it reversed the burden of proof;

(ii) did not scrutinise the evidence with sufficient rigour;

(iii) erred in law by failing to take into account and/or give sufficient weight to the prejudice arising out of delay in making the complaint;

(iv) was wrong to impose the sanction of erasure when the lesser sanction of suspension was reasonable and appropriate.

HELD: Burden of proof – The tribunal had had well in mind that the burden of proof lay upon the General Medical Council (GMC), and not the appellant. Although slightly clumsily expressed, it had not erred in saying that because it doubted the credibility of one part of the appellant’s case, that caused it to doubt the credibility of the other part of his case (see paras 78-84 of judgment).

Scrutiny of evidence – In respect of each allegation, the issue was whether the GMC had proved to the civil standard that the allegation happened in the way the complainant alleged. In each case, the tribunal had competing accounts from the complainant and the appellant together with, in some instances, evidence of complaints to other persons. The tribunal had been expressly directed by the Chair in accordance with the principles in B (Children) (Sexual Abuse: Standard of Proof), Re [2008] UKHL 35H (Minors) (Sexual Abuse: Standard of Proof), Re [1996] A.C. 563, and D, Re [2008] UKHL 33, and had had the right test in mind, Re B, Re H and Re D applied. Given the nature of the issues involved, it was not necessary for the tribunal to address every single forensic point made on behalf of both sides. That it did not do so did not mean that it did not scrutinise the evidence with sufficient care or rigour. In respect of each allegation, the tribunal set out what the allegation was; the competing evidence in relation to it; and gave reasons for concluding why it found the allegation proved or not proved. The reasons it gave were sufficient and did not indicate any lack of care or adequate scrutiny. Overall, reasons in straightforward cases would generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment was not required, the reasons would need to contain a few sentences dealing with the salient issues,Southall v General Medical Council [2010] EWCA Civ 407 considered (paras 86-93).

Delay – The allegations related to the period 2014-2016. There was nothing remarkable about that timescale, and R. v PS [2013] EWCA Crim 992, which concerned allegations of alleged sexual misconduct decades previously, was not relevant, PS considered. The tribunal was addressed on the absence of CCTV and other matters, and so would have had those forensic points in mind when it considered whether the GMC had proved its case (para.97).

Sanction – The assessment of the seriousness of the misconduct was essentially a matter for the tribunal in the light of its experience. The tribunal was best qualified to judge what measures were required to maintain the standards and reputation of the profession, Bawa-Garba v General Medical Council [2018] EWCA Civ 1879 applied (para.100). In the instant case, the tribunal had correctly characterised the appellant’s conduct as sexually predatory behaviour towards the complainant over a sustained period of two years. It had correctly stated that his conduct fell within paras 148, 149 and 150 of the sanctions guidance and therefore erasure had been an appropriate sanction. It had been entitled to find that the appellant’s conduct was fundamentally incompatible with continued registration, and for that reason suspension was not appropriate. As a specialist tribunal, it was entitled to conclude that sustained sexually predatory behaviour towards a colleague whilst on duty, once in the presence of a patient and once following deception that he wanted to discuss a patient, was fundamentally incompatible with his continued work as a doctor. Furthermore, the tribunal had taken into account the public interest and matters of personal mitigation, such as the fact that the appellant had some personal difficulties and was the sole breadwinner. It had also been entitled to attach little weight to unverified testimonials put forward by the appellant and, in any event, given the very serious nature of the misconduct, the testimonials were not capable of requiring the tribunal to order suspension rather than erasure (paras 108-115).

Appeal dismissed

Counsel:
For the appellant: Arfan Khan
For the respondent: Alexis Hearnden

Solicitors:
For the appellant: DCK
For the respondent: In-house solicitor

WANDY SANNEH v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Counsel:
For the claimant: Becket Bedford, Tiki Emezie 
For the defendant: Emily Wilsdon

Solicitors:
For the claimant: Dylan Conrad Kreolle 
For the defendant: Government Legal Department

R (on the application of WANDY SANNEH) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2018)
[2018] EWHC 800 (Admin)

QBD (Admin) (Michael Kent QC) 13/04/2018

IMMIGRATION

APPEALS : DEPORTATION ORDERS : DETENTION : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
A Gambian national’s challenge to the lawfulness of his detention failed except in respect of a period conceded by the secretary of state. The claim was transferred to the County Court for the assessment of damages in respect of the conceded period.
The claimant Gambian national applied for judicial review to challenge the lawfulness of his detention.

The claimant had been served with notice that he was liable to deportation while serving a sentence of imprisonment for breaching a restraining order that prevented him from having contact with his wife. He objected to deportation on the basis that it was contrary to his ECHR art.8 rights because of the presence of his wife and children in the UK. The defendant secretary of state rejected his objection and in December 2014 certified his human rights claim under the Nationality, Immigration and Asylum Act 2002 s.94B. The effect of the certificate was that the claimant was not allowed to proceed with an appeal against deportation unless he left the UK. He was detained on 19 August 2016 and served with removal directions. On 9 November 2016 his claim for asylum was refused and certified as clearly unfounded pursuant to s.94 of the Act. His fresh asylum and human rights claim was also refused. He began judicial review proceedings in the Upper Tribunal challenging the certification under s.94B. The UT concluded that the secretary of state had been entitled to certify under s.94 both the asylum and human rights claim based on art.8. The s.94B certification was withdrawn following the Supreme Court’s decision in R. (on the application of Byndloss) v Secretary of State for the Home Department [2017] UKSC 42. The claimant was then able to proceed with an in-country appeal, which had the effect of suspending his removal. He remained in detention. On 9 August 2017 he started the instant claim for judicial review and applied for bail. He was refused bail on several occasions. On the last occasion bail was refused on the basis that there wasn’t a suitable address to which he could be bailed. The claimant offered an alternative address of a family friend. The friend was spoken to on 23 January 2018. A release referral was drafted, but it was not acted upon until 20 February 2018. The secretary of state conceded that the delay in arranging for the claimant’s release from detention on bail between 24 January and 21 February was unjustified and rendered the detention during that period unlawful. She also conceded that in respect of that period of unlawful detention, the claimant would be entitled to substantial and not merely nominal damages. The secretary of state resisted the contention that the detention was unlawful at any time before 24 January 2018. The parties agreed that the assessment of damages due for the period of admitted unlawful detention and the assessment of any substantial damages in respect of any earlier period of detention that was found to be unlawful should be carried out by a judge in the County Court to which the claim could be transferred in the event that the parties could not agree a sum.

The claimant submitted that his detention from 19 August 2016 to 24 February 2018 was unlawful because of a wrongly issued s.94B certificate.

HELD: Effect of s.94B certificate – The court’s task was to decide whether, at any earlier time before 24 January, the detention became unlawful. The secretary of state could not argue in light of the clarification given in Byndloss, that the s.94B certificate in the claimant’s case was lawfully given in December 2014, Byndloss applied. It did not follow that that remained the position after 9 November 2016 when the case was certified under s.94. From then on the ingredient of an arguable appeal was lacking and in the circumstances the certificate under s.94B remaining in place was not unlawful. The proper analysis was that the s.94 certificate impliedly cancelled the December 2014 certificate under s.94B. Either way, the claimant was then liable to be removed from the UK before his statutory appeal was instituted and the rejection of the challenge to its lawfulness by the UT on the ground that the secretary of state was entitled to treat his art.8 claim as clearly unfounded meant that the restrictions on the exercise of the power to grant a certificate under s.94B identified in Byndloss were not in play. The most that the claimant was entitled to was a finding that between 19 August and 9 November 2016 there was in place a certificate purportedly given under s.94B that should not have been given (see para.58 of judgment).

Conclusion – The claim failed except in the respect conceded by the secretary of state. It would be transferred to the County Court for the assessment of damages for the period of detention between 24 January and 21 February 2018 (para.104).

Application refused

Counsel:
For the claimant: Becket Bedford, Tiki Emezie
For the defendant: Emily Wilsdon

Solicitors:
For the claimant: Dylan Conrad Kreolle
For the defendant: Government Legal Department

LTL 13/4/2018

AWUKU (2) N (3) MURUGESAPILLAI (4) HAMID) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Solicitors:
For the first claimant: Jesuis 
For the second claimant: Dylan Conrad Kreolle 
For the third claimant: S Satha & Co 
For the fourth claimant: MQ Hassan 
For the defendant: Treasury Solicitor

Counsel:
For the first claimant: Non-counsel representative 
For the second claimant: Non-counsel representative 
For the third claimant: Non-counsel representative 
For the fourth claimant: Non-counsel representative 
For the defendant: M McGahey

R (on the application of (1) AWUKU (2) N (3) MURUGESAPILLAI (4) HAMID) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2012)
[2012] EWHC 3298 (Admin)

DC (Sir John Thomas PQBD, Cranston J) 16/11/2012

IMMIGRATION – LEGAL PROFESSION – CIVIL PROCEDURE

DISCLOSURE : EX PARTE APPLICATIONS : IMMIGRATION DECISIONS : LAW FIRMS : OVERSTAYERS : RELIEF : REMOVAL DIRECTIONS : URGENT APPLICATIONS : NON-COMPLIANCE WITH DISCLOSURE RULES AND PROCEDURAL REQUIREMENTS OF URGENT APPLICATIONS FOR EX PARTE RELIEF : DUTIES OF LEGAL REPRESENTATIVES
The court emphasised the disclosure duties of legal representatives when making urgent applications for ex parte relief in respect of removal directions, and the consequences for solicitors’ firms and legal representatives of non-compliance with the procedural requirements of such applications to the Administrative Court.
When considering conjoined applications for judicial review of decisions by the defendant secretary of state to issue removal directions in respect of the claimants, the court reiterated the disclosure duties of legal representatives when making urgent applications for ex parte relief.

In R. (on the application of Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin), the court gave guidance regarding the very high duty of disclosure and the consequences for solicitors’ firms and legal representatives of non-compliance with the procedural requirements of urgent applications to the Administrative Court seeking deferral of removal directions. Further inquiries were to be made in respect of one of the instant applications; the remaining three applications involved serious breaches of disclosure rules and failures to comply with the rules of court.

HELD: The highest obligations of disclosure rested on an advocate or other officer of the court when making an application to the court for ex parte relief. The court relied on those in the legal profession for the performance of that obligation in entertaining such applications. It had to be appreciated that it was absolutely essential that all the points which told against the grant of relief were put on the face of the submission: that was the absolute duty of the solicitor or counsel. Had the true points against the grant of an injunction staying removal been included in the instant cases, no applications would have been made as it would have been obvious to the author of the document that the court would not entertain such an application. It was deeply regrettable that there had been such grave failures to disclose. It was a long-standing failure in the instant kind of work. Although there had not been a strict adherence to the requirements of the court and a long-standing principle of the law, no further action would be taken in respect of the instant applications. However, in the absence of strong mitigating circumstances, it would be the last time the court would not refer individuals to the Solicitors Regulation Authority for such a breach of those very high duties to the court.

Applications refused

Counsel:
For the first claimant: Non-counsel representative
For the second claimant: Non-counsel representative
For the third claimant: Non-counsel representative
For the fourth claimant: Non-counsel representative
For the defendant: M McGahey

Solicitors:
For the first claimant: Jesuis
For the second claimant: Dylan Conrad Kreolle
For the third claimant: S Satha & Co
For the fourth claimant: MQ Hassan
For the defendant: Treasury Solicitor

OBIH v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Solicitors:
For the claimant: Dylan Conrad Kreolle 
For the defendant: In-house solicitor

Counsel:
For the claimant: M Biggs 
For the defendant: A Byass

R (on the application of OBIH) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2016)

QBD (Admin) (Elisabeth Laing J) 15/04/2016

IMMIGRATION

DETENTION PENDING DEPORTATION : INTERIM RELIEF : LAWFULNESS OF DETENTION

It was not appropriate to release a claimant from immigration detention pending his removal to Nigeria where the evidence was that, despite the claimant’s lack of cooperation, travel documents could be obtained within one or two months, and there was a serious risk that if released he would abscond and/or reoffend.

The claimant applied for interim relief, namely his release from immigration detention.

The claimant Nigerian national had been serving a two-and-a-half year prison sentence. In January 2016, when he was due to be released, the defendant secretary of state detained him under a deportation order. The claimant challenged the deportation order in the Upper Tribunal, who dismissed his judicial review, certifying it as totally without merit. The claimant sought to appeal that decision to the Court of Appeal.

The claimant submitted that his detention breached Hardial Singh principles on the basis that his removal was not imminent because his application for permission to appeal was pending, and because he had not exhausted all of his appeal rights.

HELD: The question was whether, taking into account the fact that the secretary of state had not yet had time to put in her grounds of defence, there were compelling grounds for thinking that the claimant’s detention was unlawful. The secretary of state had made efforts to obtain travel documents, but a telephone interview had to be cancelled due to the claimant’s lack of cooperation. The secretary of state would not remove the claimant while he had an outstanding right of appeal, but given that the judicial review had been certified as entirely without merit, it was very unlikely to succeed. During his monthly detention reviews, the secretary of state considered that he could be removed within a reasonable time, and that travel documents could be obtained within one or two months. Further, the secretary of state had found that there was a serious risk that the claimant would abscond and/or reoffend. Considering his previous offending history and the fact that he had been sentenced to imprisonment for two-and-a half years, it could not be said that that finding was irrational, R. (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12 followed.

Application refused

LTL 15/4/2016 EXTEMPORE

YADLY MARKETING CO LTD v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Solicitors:
For the appellant: Dylan Conrad Kreolle 
For the respondent: Government Legal Department

Counsel:
For the appellant: Arfan Khan, Tiki Emezie (Solicitor Advocate) 
For the respondent: James Chegwidden

YADLY MARKETING CO LTD v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2016)

[2016] EWCA Civ 1143

CA (Civ Div) (Arden LJ, Beatson LJ, Henderson LJ) 23/11/2016

CIVIL PROCEDURE – IMMIGRATION

APPEAL NOTICES : APPEALS : DELIVERY : EXTENSIONS OF TIME : IMMIGRATION POLICY : LIMITATION PERIODS : MISTAKE : OBJECTIONS : PENALTIES : PUBLIC HOLIDAYS : REQUIREMENT FOR NOTICE OF APPEAL TO BE DELIVERED TO COURT OFFICE, NOT JUST POSTED THROUGH LETTERBOX OF COURT BUILDING : WHETHER APPROPRIATE TO EXTEND TIME WHERE OFFICE CLOSED ON LAST DAY OF LIMITATION PERIOD : IMMIGRATION, ASYLUM AND NATIONALITY ACT 2006 s.15, s.16, s.17(4), s.17(6), s.5, s.15(3), s.16(1), s.16(2), s.16(4), s.16(4)(b), s.16(5)(c), s.16(5)(d), s.17, s.17(4)(b), s.19

A statutory limitation period for bringing an appeal such as that in the Immigration, Asylum and Nationality Act 2006 s.17(4) required delivery of the notice of appeal to the relevant court office, not merely posting it through the letterbox of the court building. That was not possible where the office was closed for the entire last day of the stated limitation period, so the appeal could be filed on the next working day.

The appellant appealed against a decision to strike out as out of time its notice of appeal against a civil penalty.

In March 2014 the secretary of state had issued a civil penalty notice, alleging that the appellant had employed workers whose immigration status did not permit them to be employed, contrary to the Immigration, Asylum and Nationality Act 2006 s.15. The appellant objected pursuant to s.16 and in response the secretary of state issued an amended notice, reducing the penalty. The notice stated the 28-day limit for bringing an appeal provided for in s.17(4) would end on 26 May 2014. That was a bank holiday, when the court offices were closed. The appellant made further representations in a letter of 21 May. On 27 May, it attempted to issue an appeal at its local county court, as s.17(6) provided. The court refused to accept the appeal on the mistaken basis that it should have been issued at an immigration tribunal. It again refused to accept the appeal the next day. The appellant posted the papers to another county court, where the appeal was lodged on 30 May. A judge struck out the appeal on the basis that the last day for filing it had been 26 May and there were no exceptional circumstances justifying an extension of time.

The appellant argued that the judge had erred in holding that the last day was 26 May: cases such as Kaur v S Russell & Sons Ltd [1973] Q.B. 336 and Mucelli v Albania [2009] UKHL 2 showed that where there was a statutory limit and the appeal could not be filed on what appeared to be the last day because the court was closed, Parliament must have intended that the appeal could be filed on the next working day. It also argued that time should have been extended, and that its 21 May letter was a second objection under s.16, which had the effect of extending time to appeal.

The secretary of state argued that it had been open to the appellant to file the notice on 26 May by posting it through the letterbox or sliding it under the door.

HELD: (1) Last day for filing: The effect of the secretary of state’s submission would either cut down the statutory limitation period or require appellants to take unusual steps on days when the court office was closed to secure the full benefit of the period. It did not follow from Van Aken v Camden LBC [2002] EWCA Civ 1724 that, where court offices were closed on the last day of the period, a person should be required to find a court building where it was possible to put the document through the letterbox or under the door, Van Aken considered. Encouraging or requiring such methods would produce uncertainty, there would be numerous practical difficulties, and it would risk the documents being mislaid, with all the difficulties of proof that would then confront the litigant. Parliament would not have intended an approach to depend on whether there was a means of getting a document into a particular court building when it was closed. There was a distinction between the court office and the court building: there was a difference between leaving documents in a drop box in the office, within the curtilage of the office and under the supervision of the appropriate staff, and methods such as putting the document through the letterbox. The Kaur approach only applied where the office was closed during the whole of the last day, Mucelli, Kaur and Aadan v Brent LBC [2000] C.P. Rep. 17 applied. What was required was delivery of the document to the court office itself, which was not possible where the office was closed for the entire last day of the limitation period. There was nothing in the particular context of s.17 to suggest that that general approach should not apply. The judge had erred in concluding that the period ended on the bank holiday (see paras 31-36 of judgment).

(2) Extension of time: The appellant had been entitled to file the notice the day after the bank holiday. It had thus attempted to file it at the county court within the time limit. It had done all it could within the time limit. The reason for its failure to do so was the error of the court official, not any failing on its part. The person affected could not be regarded as at fault because he had not filed the notice before the expiry of the number of days specified in the statute in such circumstances, Kaur applied. In the particular circumstances, the decision to use the post on the following day, rather than filing the notice personally, did not take the case outside the extremely narrow scope for departure from the statutory limit. The appellant had done all it could to issue the appeal in time, and the court’s error constituted exceptional circumstances justifying an extension of time (paras 39-41).

(3) Second objection (Obiter) The court was inclined to the view that it was not possible to raise a second objection under s.16. Objectors would be sufficiently protected by having the right to appeal against a second penalty notice (paras 42-43).

Appeal allowed

Counsel:
For the appellant: Arfan Khan, Tiki Emezie (Solicitor Advocate)
For the respondent: James Chegwidden

Solicitors:
For the appellant: Dylan Conrad Kreolle
For the respondent: Government Legal Department

LTL 23/11/2016 : [2017] CP Rep 12 : [2017] 1 WLR 1041 : [2017] Imm AR 701

ADEMILUYI v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Solicitors:
For the claimant: Dylan Conrad Kreolle 
For the defendant: Government Legal Department

Counsel:
For the claimant: Tiki Emezie (Solicitor Advocate) 
For the defendant: Jacqueline Lean

R (on the application of ADEMILUYI) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2017)

[2017] EWHC 935 (Admin)

QBD (Admin) (Michael Fordham QC) 20/01/2017

IMMIGRATION – CIVIL PROCEDURE – CPR

CPR : DETENTION PENDING DEPORTATION : FOREIGN CRIMINALS : PERMISSION TO DEFEND : REASONABLE TIME : REMOVAL : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE : EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 art.8 : UK BORDERS ACT 2007 s.36, s.32(5), s.33, s.36(1) : CIVIL PROCEDURE RULES 1998 r.54.8, r.54.14, r.54.9(1)(b), r.54.9(2)

The third principle derived from R. v Governor of Durham Prison Ex p. Singh [1984] 1 W.L.R. 704 and encapsulated in R. (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12, that immigration detention pending deportation would be unlawful where removal could not be effected within a reasonable period, had to be considered prospectively by the Secretary of State for the Home Department from the outset of an individual’s detention.

The claimant foreign criminal applied for judicial review of the defendant secretary of state’s decision to hold him in immigration detention from 26 October 2015 to 18 March 2016.

The claimant had been imprisoned for three offences: possession and use of a forged UK passport, entering into a sham marriage to avoid immigration control for his purported spouse, and bigamy. Prior to his imprisonment, he had lived with his wife and their five children, aged between 2 and 10, at least some of whom had British citizenship. In June 2015, the secretary of state informed him that he was liable to be deported as a foreign criminal, and the claimant notified the secretary of state that he would be appealing against a deportation order as contrary to ECHR art.8. When the claimant’s custodial sentence ended in October 2015, the secretary of state declined to release him on bail because of the risk of him absconding or committing further offences, and maintained his detention pending deportation under the UK Borders Act 2007 s.36. A notice of deportation was issued in November 2015, and his detention was reviewed and continued. He was released on bail in March 2016 after permission to bring the instant claim was granted.

The claimant contended that the secretary of state, having breached CPR r.54.8 and r.54.14 by failing to acknowledge service of the claim and serve detailed grounds of defence in the specified time, should not be allowed to defend the claim, thereby raising the prospect of summary judgment in his favour. He submitted that his detention had been unlawful from the outset according to the third of the four principles established by R. v Governor of Durham Prison Ex p. Singh [1984] 1 W.L.R. 704 and encapsulated in R. (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12, namely that it had always been clear that the secretary of state would not be able to effect his deportation within a reasonable period. The secretary of state argued that there had been no breach of the third Hardial Singh principle because the claimant’s immigration detention had only just begun, the risk of his absconding and re-offending effectively lengthened the reasonable period in which his deportation should be effected, and that deportation could be achieved quickly as the claimant already had a passport.

HELD: (1) Summary judgment was not a tenable proposition. The judicial review court was the guardian of the public interest in public law cases, and it would not be appropriate for the legality of detention to be decided by default without reference to the legal and factual merits. Whilst the cumulative effect of CPR r.54.8, r.54.9(1)(b) and r.54.14 was that the secretary of state was not entitled to take part in the judicial review claim and might be precluded from defending it, it did not follow that she had to be precluded: the court could grant her permission. In the instant case, it was in the interests of justice and in the public interest for the court to grant permission, so as to have the secretary of state’s assistance in dealing with the evidence and addressing the lawfulness of detention. The court’s disapproval of her record of defaults could be reflected in the consequent costs order pursuant to CPR r.54.9(2).

(2) The third Hardial Singh principle required consideration to be given prospectively as to whether deportation could be realized within the appropriate reasonable period, Hardial Singh applied, Lumba followed. It was intended to introduce a yardstick for application by the court but also a disciplined framework for the secretary of state as decision maker. She had to ask herself that question from the outset of detention, and the fact that an individual’s detention had only just begun did not answer it. The factors relevant to the question of what the reasonable time in which to effect removal would be included the length of the period of detention, the nature of the obstacles to deportation, the secretary of state’s diligence, speed and effectiveness in surmounting those obstacles, the conditions of detention and its effect on the detainee and his family, the risk of absconding, and the risk of further offending, Lumba followed. The claimant’s detention was not compatible with the third Hardial Singh principle. It should have been apparent to the secretary of state that he could not be removed within a reasonable period of time given his role in a family unit containing children who were British citizens. Deportation could clearly be resisted on the basis of art.8, and an appeal on that ground could not properly be characterized as unmeritorious. Ultimately, the secretary of state had justified her decision to detain the claimant because of his risk of absconding or re-offending, and while such risks would affect the length of the reasonable period for detention, they could not be regarded as a trump card, Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931 followed, R. (on the application of Babbage) v Secretary of State for the Home Department [2016] EWHC 148 (Admin) applied. The claimant’s detention had been unlawful from 26 October 2015, and he was entitled to damages.

Application granted

Counsel:
For the claimant: Tiki Emezie (Solicitor Advocate)
For the defendant: Jacqueline Lean

Solicitors:
For the claimant: Dylan Conrad Kreolle
For the defendant: Government Legal Department

LTL 23/1/2017 EXTEMPORE

NDUBUISI CALLISTUS NWANKWO v SECRETARY OF STATE FOR THE HOME DEPARTMENT : CHARLES ANYAMENE v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Solicitors:
For the first applicant : Dylan Conrad Kreolle 
For the second applicant: Dylan Conrad Kreolle 
For the respondent: Government Legal Department

Counsel:
For the first applicant : Arfan Khan 
For the second applicant: Tiki Emezie (Solicitor Advocate) 
For the respondent: Sian Reeves

NDUBUISI CALLISTUS NWANKWO v SECRETARY OF STATE FOR THE HOME DEPARTMENT : CHARLES ANYAMENE v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2018)

[2018] EWCA Civ 5

CA (Civ Div) (Peter Jackson LJ, Singh LJ) 12/01/2018

ADMINISTRATION OF JUSTICE – CIVIL PROCEDURE – COSTS

COSTS ORDERS : PERMISSION TO APPEAL : UPPER TRIBUNAL

In judicial review claims heard by the Upper Tribunal exercising its original jurisdiction rather than on appeal from the First-tier Tribunal, the test for an appeal to the Court of Appeal was the first appeal test, not the second appeal test.

HELD: Applications refused

Counsel:
For the first applicant : Arfan Khan
For the second applicant: Tiki Emezie (Solicitor Advocate)
For the respondent: Sian Reeves

Solicitors:
For the first applicant : Dylan Conrad Kreolle
For the second applicant: Dylan Conrad Kreolle
For the respondent: Government Legal Department

LTL 12/1/2018 : Times, February 6, 2018