THE QUEEN ON THE APPLICATION OF NGAMGUEM v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2002] EWHC 1550 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
[2002] EWHC 1550 (Admin)Case No CO/3511/2001Venue Royal Courts of Justice, The Strand, London WC2
Between
THE QUEEN ON THE APPLICATION OF NGAMGUEMTHE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Before
Mr Justice OuseleyMR ERIC FRIPP (instructed by ANTHONY LOUCA SOLICITORS, LONDON NW16TT) appeared on behalf of the Claimant.MR TOM WEISSELBERG (instructed by THE TREASURY SOLICITOR, LONDON) appeared on behalf of the Defendant.Date 8 July 2002
[1]MR JUSTICE OUSELEY: The claimant left Cameroon in February 2001 and within a day of his arrival in the United Kingdom he claimed asylum on 12th March 2001. This claim was refused and the claimant appealed to an Adjudicator against that decision. The Adjudicator rejected the claimant's appeal in a decision dated 22nd May 2001. The claimant produced his own form of application for leave to appeal to the IAT, but nothing came of that application.[2]On 31st August 2001 the claimant's solicitor wrote to the Secretary of State ("the defendant") enclosing a letter dated 30th August 2001 from the Secretary of the Archdiocese of Douala, Cameroon. The author of the letter is sometimes referred to as the Chancellor of the diocese. The solicitor's letter of 31st August 2001 explained how the letter of 30th August 2001 from the Chancellor of the Archdiocese had come about. It was sent to the Secretary of State along with a number of criticisms that were made of the conclusions of the Special Adjudicator. The solicitor pointed out that the letter from the Archdiocese was new and independent documentary evidence that ought to enable the Secretary of State to cancel, at least temporarily, the removal directions whilst the claimant's case was reconsidered in the light of what had been said.[3]By a letter dated 1st September 2001 the Secretary of State rejected that contention. The Secretary of State said that he had received a letter "purporting to be from the personal secretary of Cardinal Tumi". It continued:
"The Secretary of State considered that this inconsistency [which he had identified earlier in the letter] cast doubt on the authenticity of this document... The Secretary of State considered that the timing and circumstances cast further doubt on the authenticity of this document."
[4]The Secretary of State then said that he was "...not prepared to exercise his discretion and instruct the Immigration Service to cancel removal directions set for the 3 September 2001."[5]He certified the application under section 73(8) of the 1999 Immigration and Asylum Act as being made for purposes which at least included the delaying of the claimant's removal from the United Kingdom, and saying that the claimant had no other legitimate purpose for making the application.[6]The claimant thereafter sought permission to challenge the decisions contained in that letter by way of judicial review. Proceedings were instituted on 3rd September 2001 and the claimant's departure from the United Kingdom was accordingly put on hold. Although permission was initially refused on paper, on the renewed application permission to apply for judicial review was granted by Stanley Burnton J.[7]The grant of challenge related to the way in which the Secretary of State had dealt with the authenticity of the letter of 30th August 2001 in the light of the material presented to him by the claimant's solicitors as to how that letter had come about and from whom it had come.[8]The Secretary of State decided not to contest the judicial review proceedings and by a letter dated 14th January 2002 sent to the claimant's solicitors a form of consent and statement of reasons agreeing that the decision of the Secretary of State in his letter of 1st September 2001 should be quashed. The statement of reasons conceded that the way in which the authenticity of the letter had been approached gave rise to an arguable ground and although he contended that the provenance of the letter was in fact immaterial to the decision, he was concerned to avoid any further delay in processing the claimant's case and accordingly had taken the action of consenting to the quashing of his decision.[9]The claimant's solicitors asked in a letter of 28th January 2002 whether the Secretary of State would consider the representations of 31st August 2001 substantively and whether he would acknowledge, if he rejected the principal contention, that the claimant, nonetheless, should have a right of appeal against a rejection of his application upon that reconsideration.[10]By a letter dated 31st January 2002 the Treasury Solicitor confirmed that the representations would indeed be reconsidered, but pointed out that there could be no guarantee that the decision of the Secretary of State would generate any rights of appeal. The Treasury Solicitor continued to press the claimant's solicitors to accept the consent order and dispose of matters. However it had become clear by 8th February 2002 that the claimant's solicitors declined to sign the consent order to withdraw the judicial review proceedings, notwithstanding the Secretary of State's concession. The reason for the claimant's solicitors' stance was that they were reluctant to agree to signing the consent form in the absence of a guarantee that the new decision would generate rights of appeal. It also pointed out that the claimant's solicitors took the view that the most cost-effective way of proceeding would be to keep the then current proceedings on foot, so that if a fresh decision were reached against the claimant the outstanding judicial review proceedings could be examined to see if they were "an appropriate vehicle" by which to ventilate the fresh challenge.[11]On 17th March 2002 the Secretary of State issued a further decision. That decision considered the representations which had been made afresh and having given various reasons concluded that no new information of substance had been added and finished by saying that the Secretary of State was not satisfied that the claimant had established a well-founded fear of persecution in Cameroon for a 1951 Convention reason. There was no reference in that letter to the imposition of a certificate under section 73(8).[12]However, notwithstanding the absence of such a certificate explicitly from the letter, the claimant took no steps to exercise any rights of appeal which it might be thought could arise in the absence of such a certificate. Indeed, the claimant's solicitor in a letter of 24th June 2002 appeared to have assumed that the certificate ought to have been imposed and its omission was merely a matter of form. They said in that letter:
"In light of the fact that the above evidence from the Chancellor [sic] we ask the Secretary of State to reconsider his decision refusing asylum and, more importantly, his decision to certify our client's application under section 73(8) of the 1999 Act."
[13]In that same letter of 24th June 2002 the claimant's solicitors provided what it regarded as further information which it wished the Secretary of State to consider in relation to the claimant's application for asylum and on his human rights claim. That further evidence consisted of the contents of a telephone conversation between the solicitors and the Chancellor of the Archdiocese of Douala.[14]On 28th June 2002 the Secretary of State again rejected the claimant's application and this time explicitly imposed a certificate under section 73(8) of the 1999 Act.[15]The judicial review proceedings, in which the Secretary of State had consented to the quashing of his decision of 1st September 2001, had in fact been kept on foot because of the claimant's solicitors' unwillingness to sign the consent form. As a second best, it had been agreed that they should be adjourned pending the consideration of the claimant's application. The matters had been relisted between 17th March 2002 and 28th June 2002 for hearing today, 8th July 2002.[16]In form, therefore, there is before me an application pursuant to the permission granted for judicial review to quash the decision of 20th September 2001. The Secretary of State contends that that application is now wholly academic.[17]It was contended by Mr Fripp, on behalf of the claimant, that the grounds which underlay the challenge to the decision of 1st September 2001 were matters which were still relevant today. He said that decision had not been quashed. I made it clear at the outset of Mr Fripp's submissions that to pursue arguments in respect of the 1st September 2001 decision was completely pointless. If Mr Fripp had persisted in arguing that the 1st September 2001 letter was flawed, I told him that I would deal with that matter simply by quashing that decision at the outset of the hearing for the reasons which had moved the Secretary of State to consent to its being quashed. Therefore, on that basis, I invited Mr Fripp to consider what grounds, if any, he might wish to pursue in respect of the 17th March or 28th June 2002 letters. Of course, it was perfectly clear that if the error which underlay the 1st September 2001 letter continued to taint the decisions of 17th March and 28th June 2002 they were perfectly capable of being raised by way of a challenge to those decisions. If the grounds upon which the 1st September 2001 decision would have been quashed were no longer present in the later decisions, it was pointless to consider the earlier and now remedied errors.[18]So far as the 17th March 2002 decision was concerned, Mr Fripp faced two hurdles, or rather one of two alternative hurdles. If that decision, which had not been certified, had been wrong, then it would have been open to the claimant to appeal against it, or at least that was a course which it would have been open to them to consider and pursue with vigour, but they had not done so. If, on the other hand, the reason for not doing so was because the decision had in effect been certified, then as of 8th July they were some way outside the three-month period for issuing fresh judicial review proceedings in respect of it, and the 17th March 2002 letter had ceased to be what the claimant's solicitors had described as 'an appropriate vehicle' for pursuing a challenge to the decision of 1st September 2001.[19]Accordingly, I invited Mr Fripp to address me on what grounds of challenge might be available to him in respect of the 28th June 2002 decision which had been made but a short while ago and which contained a certificate under section 73(8). I did so notwithstanding the fact that there is no form N461 in respect of it, no grounds have been formulated other than those which can be deduced from Mr Fripp's lengthy skeleton argument. I should make clear at this stage, lest it be thought that there is criticism of Mr Fripp in those remarks, that there is not. Mr Fripp has only come into this case at the last minute. It has not been an easy case for him to deal with and he has presented the arguments realistically and succinctly.[20]The points which Mr Fripp wished to make in relation to the 28th June 2002 letter require there to be now set out the material in a little more detail. The Special Adjudicator stated that, in general, he found the appellant to be a credible witness and accepted on the lower standard of proof the claimant's evidence regarding the various events which he described as taking place before he left Cameroon in February 2001. The description of those events as recorded by the Adjudicator were that on 4th September 2000 the claimant's home was amongst those raided by members of the Douala Operational Command which was a special military unit created to combat crime in Douala. I interject that it was also a unit that was known to operate with very little political control and very little respect for the human rights of the citizens of Douala.[21]During the course of his arrest the claimant fell and broke his arm. He was taken to a military camp where he received no medical treatment for his broken arm and was subjected to further beatings. He was held for three weeks and then, as recorded by the Adjudicator:
"He was then released on the orders of a senior officer who gave instructions for the appellant to be taken to the hospital in Douala. The first time that he received any medical treatment for his broken arm was when he was taken to the hospital by the soldier. He remained at the hospital for two months receiving treatment. He had to leave hospital at the end of November 2000 when he could not afford to pay for any further treatment."
[22]The claimant stated that after leaving hospital he went to see Cardinal Tumi, the Bishop of Douala, who offered support and some money but the claimant then returned to his parents' village at Bafang, where he remained for a further two months. The claimant confirmed to the Adjudicator that he had no further problems with the members of Operational Command following his release from custody at the end of September 2000. The claimant made a radio broadcast in which a false name was used by him in a statement which he broadcast. He left Cameroon in February 2001 from his parents' village.[23]The Adjudicator, having said that he accepted to the lower standard the description of events by the appellant, must also be taken to have accepted the evidence of the claimant that he had seen extra-judicial killings by members of the security forces while he was in the military camp. The claimant was contending that he was in fear of his life as a potential witness to the killings and, as such, was somebody who the Operational Command would wish to kill to avoid any evidence being given to any investigation.[24]The Adjudicator continued in paragraph 21:
"However, I am unable to accept, even on the lower standard, the claim made by the appellant during his oral evidence that members of the security forces are "probably" looking for him. He made no mention of that claim during his asylum interview, or indeed at any time prior to the hearing before me. In addition, he confirmed that he has no actual information that this is, or has ever been, the case."
[25]The Adjudicator then gave further and careful reasons for his conclusion that the security forces had no interest in the appellant; these included the fact that no attempt had been made to find him whilst he was in hospital in Douala or at his parents' village, or that there was any other evidence that they were looking for him. The Adjudicator rejected the argument that the fact that he had given a statement to be broadcast over the radio could cause him to be in any fear because, as the appellant said, he had used a false name. The Adjudicator also concluded that the reason for the claimant's arrest in early September 2000 had not been because of any particular interest which the Operational Command might have in him as a student or as someone who attended a handful of political meetings, it was in reality:
"...purely a random and arbitrary occurrence which took place during a general raid by members of the anti-crime Operational Command Unit in Douala, in which a large number of residents, most of whom were no doubt entirely innocent, were killed or detained in an excessive and heavy-handed display of force by an undisciplined and largely unaccountable unit engaged in an anti-crime operation."
[26]The Adjudicator then turned to his assessment, in the light of his conclusions as to the nature of what had happened to the claimant in Cameroon, of the risk to which the claimant would be subject upon return. He referred to the State Department Report which set out the background to the killings and arrests carried out by the Douala Operational Command and the plans which the government had to investigate those killings. The State Department also referred to the estimate of Cardinal Tumi, the Archbishop of Douala, of the number of extra-judicial killings committed by the Operational Command which was as high as 500.[27]The Adjudicator concluded:
"32. Despite the fact that the human rights position generally in Cameroon is clearly an unenviable one, and that the Douala Operational Command in particular is clearly an ill-disciplined and largely unaccountable unit which has committed inexcusable breaches of human rights in the past, nevertheless, it is clear from the evidence before me that when the appellant was released from detention at about the end of September 2000 on the orders of a senior officer in Operational Command, he was of no further interest to the security forces at that time. He would not have been released if that was the case. If the security forces had wished to kill the appellant or to detain him for a further period, they had ample opportunity to do so at that time. However, they made no attempt to do so, either then or during the further four months or so which the appellant spent at liberty in Cameroon, both in hospital and at his parents' village before he left the country in February 2001. 33. It is therefore clear that the appellant was of no continuing interest to the Cameroonian Authorities at that time. For the reasons set out above, I am satisfied that nothing has happened since the appellant's release to change the position. I therefore have no hesitation in arriving at the conclusion that the appellant would not be of the slightest adverse interest to the Cameroonian Authorities or indeed to anyone else, if he were now to return to the country. 34. The appellant has therefore entirely failed to discharge the burden of showing to the lower standard that he would have a well-founded fear of persecution for a Refugee convention reason if he were to return to Cameroon. His asylum appeal must therefore inevitably be dismissed."
[28]The Adjudicator then turned to the human rights case and considered both Articles 2 and 3 ECHR. He proceeded on the basis that both were to be given extra-territorial application. He concluded:
"39. For the same reasons as are set out above in relation to the asylum appeal, I have no hesitation in arriving at the conclusion that the appellant would not be of the slightest risk of being killed (Article 2) or subjected to further detention and/or ill-treatment (Article 3) if he were now to return to Cameroon. He has therefore entirely failed to show that there are substantial grounds for believing that there would be a real risk that there would be an infringement of any of his human rights under the European Convention on Human Rights if he were to be removed from the United Kingdom. His human rights appeal must therefore also be dismissed."
[29]The letter of 31st August 2001 to the Secretary of State made a number of criticisms, as I have said, about the Special Adjudicator's decision and enclosed a letter from the Chancellor to the Archdiocese. In that letter the Chancellor says that in November 2000 the claimant came to see the Archbishop or the Chancellor, stating himself to be a victim of the abuses of the Operational Command, and explained what had happened to him. The letter recited facts which had been told to the Chancellor by the claimant.[30]The Chancellor said that the claimant had also affirmed his need of medical treatment and implored the church to protect him. He was given money for his medical treatment but because he could not be accommodated he was advised to return to his parents. The Chancellor refers in general terms to the wrongdoings of the Operational Command. The translation of the letter, of which there are at least two in various parts of the bundle, which differ in certain respects but none of them critical, from which I now read, continues:
"I was grateful if you use to the fullest extent of the law to protect this young gentleman, who is still scared and accept without any doubt the traumas that came from the torture that he had. Being returned to Cameroon at this particular time where the CO are trying by all methods to hide evidence for their crimes could be fatal to him. Furthermore, because all the revelations has not been done yet of the killing of the CO, the issue is still alive and anyone person who was a witness to the CO methods would be in danger."
[31]It is not necessary to refer further to the letter of 1st September or to the letter of 17th March. In the letter of 24th June 2002 from the claimant's solicitors, the solicitor refers to a telephone conversation between them and the Chancellor of the Archdiocese in Cameroon. The Chancellor confirmed that neither the Cardinal nor he had taken any notes of what had been said to them by the claimant. The Chancellor confirmed that investigations were being undertaken into the activities of the Operational Command. The letter stated that the Chancellor had also confirmed that the claimant had told him and the Cardinal that he had witnessed the general at the prison at which he was detained, order the summary execution of prisoners.[32]The letter said that the Chancellor had confirmed that he feared for the safety of anyone in the position of the claimant, that is to say someone who the Operational Command thought had died but was still alive and was a witness to their atrocities. He confirmed that both the Chancellor and the Cardinal advised the claimant to go into hiding because of the danger that he would be in, if he were discovered to be still alive by the Operational Command. The Chancellor is recorded also as explicitly confirming that the claimant had witnessed extra-judicial killings and human rights abuses and secondly that he had not been released from detention officially, but had been dumped outside the hospital and left for dead by the Operational Command as they believed the claimant to be on the verge of death. The letter continues to make criticisms of the Special Adjudicator's decision, as it had done in the letter of 31st August 2001. The suggestion at the end of the letter that the judicial review hearing be adjourned was one which Mr Fripp did not pursue.[33]The Secretary of State's reply dated 28th June says, having summarised the contents of the letter in relation to the telephone conversation:
"It is your assertion that the comments which you have attributed to the Chancellor corroborate your client's claim that he is of adverse interest to the authorities in Cameroon as [a] result of witnessing alleged extra-judicial killings and human rights abuses. However, the Secretary of State takes the view that a report of a telephone conversation cannot be considered as reliable evidence and he is therefore unable to attach any real weight to it. In any event, your account of the Chancellor's comments confirms that they were based on an account given to him by your client and cannot therefore be considered as objective and independent evidence."
[34]The Secretary of State continued, pointing out that the claimant had experienced no difficulties from the Cameroon authorities after he had been left outside the hospital and had stayed there for two months and then travelled to his parents' house where he had remained for a further two months before travelling to the United Kingdom via other European countries.[35]The Secretary of State says that in the absence of any new information or evidence and in the light of the Adjudicator's finding, the Secretary of State maintains his original decision to refuse the application for asylum.[36]He then turned to the human rights case and dealt with a point which it was said the Adjudicator had failed to appreciate, that the claimant's life was in danger because he had witnessed extra-judicial killings. But that is readily shown to be a misapprehension on the part of the claimant because the Adjudicator in paragraph 17 of his decision refers explicitly to that allegation being made by the claimant.[37]The Secretary of State then dealt with certification, saying that it had been assumed that, since the application had been certified in the letter of 1st September 2001, it would be understood that the certificate was still in place notwithstanding the omission of any reference to it in the letter of 17th March 2002. Of course, I add, if the decision of 1st September 2001 had indeed been quashed and the letter of 17th March issued in the form it was, the Secretary of State might have had some difficulty in resisting any attempt by the claimant to lodge an appeal in relation to it. However the Secretary of State continued by repeating what had been set out in the 17th March 2002 letter dealing with certification. It makes comments in relation to the letter of 30th August 2001 from the Chancellor and says that it did not add anything of substance to the claim.[38]Having referred to the conclusions of the Adjudicator, the Secretary of State then considered a second statement made by the claimant and also an undated statement from an asylum charity worker who gave evidence in relation to the origin of the letter of 30th October 2001. Thereafter, the Secretary of State concluded that his original decision would be maintained and certified the 28th June 2002 decision so that no appeal could be brought.[39]Mr Fripp makes a number of complaints in relation to the 28th June 2002 letter. In particular, he takes issue with the statement by the Secretary of State that little weight could be given to the report of the telephone conversation as reliable evidence because it was no more than the report of a telephone conversation. Mr Fripp points out that whilst that might be a legitimate comment had it been the claimant who was putting forward the report of the telephone conversation, this was a report prepared by a solicitor.[40]I do not consider that the Secretary of State can be criticised in relation to this comment. It is not in my judgment to be seen as a comment which doubts the truthfulness of the solicitor, but it is one which instead recognises that there is always scope for misunderstanding over what is said over the telephone in relation to such an issue and there is no reason why the material which the claimant wished to rely upon from the Chancellor should not have been provided in writing by the Chancellor. Indeed that had been done in relation to the 30th August 2001 letter, and although it was not before the Secretary of State, there were other letters which had been obtained by the claimant from the Archbishopric dated 9th November and 6th December 2001. In my judgment, the Secretary of State was entitled to attach little weight to the reports of the telephone conversation, without in any way suggesting that there had been some lack of truthfulness on the part of the solicitor.[41]In any event, Mr Fripp says that the Secretary of State has failed to understand the significance of the telephone conversations when he says that the comments were based on an account given by the claimant and so cannot be considered as objective and independent evidence. Of course it is perfectly clear that the Chancellor is relying upon what he has been told by the claimant as to what happened to him and is not, save in one respect, able to offer any independent verification as to the circumstances in which he was arrested, released, left at the hospital or then went to his parents' village. The only point which the Chancellor is independently able to support in relation to the particular facts concerning this claimant, is that he was told to go into hiding. However, the terms of the telephone conversation, as with the terms of the letter of 30th August 2001, demonstrate why it is legitimate for the Secretary of State to attach little weight to what the Chancellor says in relation to the particular circumstances of this claimant. It is quite clear that the Adjudicator did not regard the claimant as simply having been left for dead outside the hospital. It is quite clear that the Adjudicator regarded the claimant as having been released in some way or other, because on the claimant's own evidence an officer took pity on him and instructed two guards to take him to the hospital. It was unclear from the claimant's evidence whether he was left outside because the claimant did not have the money for treatment, or whether he was just dumped. It was entirely a matter of the claimant's own assumption that he had been left for dead, an assumption which seems to be undermined by the fact that nobody at any stage came looking for him in the hospital in Douala. It is also relevant to note that the Archbishop and the claimant appear to be at some odds as to whether the claimant sought his assistance before going into hospital, which is what the Archbishop appears to think, or whether he sought his assistance after he had left hospital. Either way, one might have expected, if there were independent confirmation of the facts upon which the claimant relied, that the Archbishop or his Chancellor might have dealt with the significance of his having been in hospital in Douala for two months without any adverse interest being taken in him.[42]At all events, those are all circumstances which justify the Secretary of State treating the comments of the Chancellor as being dependent on what has been told to him by the claimant, rather than adding independent corroboration. In a sense it does not matter a very great deal because the Adjudicator and, accordingly, the Secretary of State, had accepted the essential truth of what the claimant was saying in relation to his treatment. Where the Special Adjudicator and the Secretary of State had reservations about the credibility of the claimant related to his appraisal of his risk and the way in which he had been left at the hospital as an indicator of the risk to which he might be subject.[43]This led to the main point which Mr Fripp raised in relation to that paragraph in the Secretary of State's letter. The real burden of his complaint was that the Secretary of State had failed to appreciate that both in that telephone call and in the letter of 30th August 2001, which should have been treated as one risk assessment, he had been provided with an independent assessment of risk which was at odds with the assessment of risk to which the Adjudicator had come in the light of the State Department Report. Here, said Mr Fripp, was independent evidence which it was perverse, or at least arguably perverse, of the Secretary of State to treat as of little weight.[44]It is my judgment that that is simply a misreading of the combined effect of the Special Adjudicator's letter and the material provided by the Archbishopric. It is quite clear that the Special Adjudicator had in mind the assertion by the claimant, which he does not appear to dispute, that the claimant could give evidence in relation to extra-judicial killings. It does not appear to be in dispute that the Operational Command was a dangerous organisation, the activities of which were being investigated, and that they might well use unscrupulous methods to prevent their crimes being discovered and punished. But the point made by the Adjudicator was that this particular claimant, in the light of the particular circumstances that were known to him, was not at risk either in relation to asylum or in relation to human rights claims. That involved an assessment of the claimant's particular circumstances, as the Special Adjudicator found them to be, against the generally undisputed background described by both the Special Adjudicator and by the Archbishopric. The only point that was different was that the Chancellor expressed a view as to the risk which the claimant would be under upon his return. But it has to be said that the Archbishopric does not have the advantage of the analysis of the evidence given by the claimant which the Adjudicator had provided to the Secretary of State. It was no more than an appraisal of the risk based upon a limited version of what the claimant had said, and one which failed to deal with a number of matters which the Adjudicator had relied on as showing that this was a man who was not of adverse interest to the Cameroonian authorities or anyone else.[45]It is clear therefore that if the Archbishopric do not deal with those points which weigh with the Adjudicator, their assessment is dependent solely on a favourable view of the claimant's situation as detailed by the claimant and not upon the rigorous analysis which the Adjudicator had provided both to the claimant and the Secretary of State. In those circumstances, the conclusion of the Secretary of State was entirely justified and is not, in my judgment, arguably erroneous.[46]The last point raised by Mr Fripp was that the Secretary of State erred in certifying the decision. He submitted that where, as here, the claimant had a genuine fear as to his future upon his return, the raising of the fresh applications showed that he had a legitimate purpose in so doing and it could not be said that these had been done for the purpose of delay with no other legitimate purpose. I do not for one moment accept that the Secretary of State should regard as a legitimate purpose the raising of an application simply on the grounds that the claimant, albeit genuinely, fears for himself upon his return to his home country. In order for there to be a legitimate purpose there has to be some new material of substance placed before the Secretary of State which goes beyond what has been presented to the Special Adjudicator and it is for the Secretary of State to consider whether it does or does not have any weight. If he considers that it does not, the conclusion follows that he is entitled to certify the claim as one made for the purposes of delay with no other legitimate purpose. Here, for the reasons which I have given and which the Secretary of State has given, it was entirely proper for him to conclude that there was no new evidence provided by the letter of 30th August or the telephone conversation reported in the letter of 24th June 2001. They plainly add nothing, and because they take the claimant's evidence uncritically are of obviously less value to the Secretary of State than the Adjudicator's decision. Nor can it be said, by reference to the phrase "at this particular time" in the letter of 30th August 2001, that the material from the Archbishopric represents an updating of circumstances. If it were intended to argue that matters had changed and there were particular circumstances afoot in Cameroon which meant that the conclusion of the Adjudicator had to be looked at again because of heightened activity by the Operational Command, that is a point I would have expected to have been made explicitly.[47]Accordingly, the application for judicial review is dismissed. The application for permission to apply for judicial review, which I shall treat myself as having in front of me, is also dismissed. If the matter is to be pursued further then the claimant should lodge a proper form N461 dealing with the 28th June 2002 decision and setting out the grounds as set out in the skeleton argument. MR FRIPP: My Lord, I am grateful. The claimant has the advantage of public funding. MR JUSTICE OUSELEY: Sorry, I did not catch that, Mr Fripp. MR FRIPP: I am sorry, my Lord. The claimant has had the advantage of public funding. A certificate is, I believe, on the file. My Lord, due to the way you have treated it as a substantive application and permission application some technical issues may arise, but I am content that the normal order, as to the costs, do follow the cause, taking into account the legal aid certificate. MR JUSTICE OUSELEY: Yes, I am quite content, I do not think it is for me to order, but I state that the certificate can properly be made to cover the argument in relation to the 28th June 2002 decision. MR FRIPP: Yes. MR JUSTICE OUSELEY: There will be an order for costs in favour of the Secretary of State, not to be proceeded with without leave of the court, or whatever the precise form should be, which I do not think that is. Now, is there another matter, is there? MR WEISSELBERG: There is, my Lord. It is the application of the Secretary of State that the claimant's instructing solicitors should show cause as to why a wasted cost order should not be made, in particular in relation to the period from 17th March when the Treasury Solicitor repeatedly wrote asking for an update as to what was going to happen in relation to this substantive judicial review and today's date. MR JUSTICE OUSELEY: I would understand, I mean I do understand that and I take the view that whilst in certain circumstances it may be understandable that judicial review proceedings stay on foot in the way described in the letter of 8th January, I think it was, nonetheless, clear that the matter ought to have been considered and resolved after the 17th March letter. But, in reality, before one embarks on the problem of satellite litigation, I would have to know that there was a significant amount of costs involved. Now I have seen your costs estimate, but in reality today's hearing has been hacked down to 28th June. Now are there significant costs that you have thrown away in relation to 1st September 2001 judicial review after the-- MR WEISSELBERG: 17th March. MR JUSTICE OUSELEY: --17th March? Or indeed after, let us say, the middle of February? MR WEISSELBERG: I do not think that I could say that they were substantial, particularly given the sum claimed in relation to the whole of the proceedings since 17th March at any rate, £1,700 odd. What I do say, however, is that there will be sums that are directly connected to the failure of the claim's solicitors to deal properly with correspondence received and that it is simply not sufficient where chasing letters have been written for the answer to come back 'we thought we had written a letter, but now we actually find out that we had not'. MR JUSTICE OUSELEY: Yes, but are we talking about anything significant in relation to those costs? MR WEISSELBERG: My Lord, there is no breakdown of the particular costs. MR JUSTICE OUSELEY: I tell you the other reason way I press that, it is not merely that I do not think it is appropriate to spend a long time on satellite litigation, unless there is a decent amount of money, if I can put it that way, at the end of it. The other is this: as I understand it, and you will correct me if I am wrong, you have paid no costs in relation to the 1st September challenge. MR WEISSELBERG: No, my Lord, because what had been suggested was that there would be no order as to costs in relation to allowing the permission hearing to become, so to speak, a quashing order. So all we are seeking to recover are the costs that literally have been thrown away by the failure properly to deal with the matters and one sees the failure to deal with matters, and Mr Fripp has done a valiant job today, but the totally unexplained absence of counsel who, as my clerk understood, was still instructed to appear on Friday before your Lordship today, and that my clerks attempted to exchange skeleton arguments with the counsel who was originally instructed and was told, 'Oh, he is in court today. He will not be back until later'; it is exactly that type of attitude towards this litigation which shows, in my submission, that the claimant's solicitors have not properly considered what they need to do. MR JUSTICE OUSELEY: Yes. Many of the points you make, before I hear, indeed possibly without even hearing Mr Fripp, have some force in them and the case is potentially being set up as I understand it, and I can see the force of the points you make in relation to wasted costs, but it is not simply a punitive order for what might be regarded as sloppy or worse behaviour by a solicitor. It is, particularly in a legal aid case, designed to deal with the problem of a claimant or a party who has been put to wholly unwarranted expenses as a result of unreasonable behaviour, so it has to be related to the expense. Unless you are able to tell me that you are looking at a sum that goes beyond a few hundred pounds, it simply is not worth the time and costs spent in order to administer a rebuke, if it were to come to that in the end. That it is what concerns me. MR WEISSELBERG: And I would say arguably the costs of today as a whole, so the £1,700 are attributable to the claimant's solicitors. MR JUSTICE OUSELEY: I do not think so. I think Mr Fripp would say, and there would be a very good prospect of arguing, that had they got their tackle in order properly what would have happened is there would have been a concession in relation to 1st September and you would not have been troubled to the extent you were troubled by the arguments that it was academic. So there are some costs in relation to that and there are some costs of phone calls, I accept, but you would have been troubled anyway in relation to the points which had in fact occupied the bulk of the time today. I am sure that is what Mr Fripp is going to say, or would say if I was prepared to hear him, which I am not at the moment. MR WEISSELBERG: I absolutely see the force of that. However, what I would say is that what one would have had instead is that today would not have been an effective hearing; instead, a properly argued form N461 would have been put in, permission would have been considered on the papers as usual and I would expect permission to be refused on the papers. In those circumstances, had legal aid been granted for the seeking of permission in the first place, a further application would have had to be made to the Legal Services Commission for the renewal of the oral application and I what I would say to those circumstances, is it would be entirely appropriate for the court to say that permission would not have been given by the Legal Services Commission for the matter to be renewed before your Lordship, given firstly the rejection of the asylum application on the basis of the 17th March letter and whether it raised the issues of delay or raised substantive issues. What I would say is that there would be good grounds for saying that no hearing would have been necessary before the court and for that reason the costs of today are connected to the poor conduct on the part of the claimant's solicitors. MR JUSTICE OUSELEY: I can see the way you put that. Mr Fripp, do you want to say anything briefly? I am merely deciding whether I am going to embark at some stage on the hearing, so it is just a show cause situation at present. MR FRIPP: My Lord, we go into extremely distant removes of remoteness in my learned friend's argument. The fact is that today's hearing, in my respectful submission, has satisfied that a need which would have arisen for there to be the sort of detailed and substantive consideration given -- I am sorry, I should have said detailed and substantial consideration given to the points in relation to the 28th June letter. It is purely synonymous, on my learned friend's behalf, to suggest that legal aid for that purpose would not have been granted in the face of an advice from counsel. My Lord, I take responsibility for an assessment of the merits of Friday evening to continue to today and so perhaps I should be included in the application on that basis. My Lord, of course, the difficulties my learned friend's clerks have had with the clerks at Doughty Street cannot really be delivered at the hands of those instructing me. MR JUSTICE OUSELEY: Yes. MR FRIPP: My Lord, in relation to the issues of failing to respond to letters and so on, one is redeemed in this court with the Secretary of State having failed to respond to a sluice of letters and the reason given not gone into issues of costs in relation to that. MR JUSTICE OUSELEY: Well, the reason why it is not gone into is that normally, if the Secretary of State behaves like that, it is normally because he has got a bad case and something has gone wrong and he loses and he pays the costs and it does not really matter a great deal. The reason why it matters in this sort of case is because the Secretary of State is not going to get his costs in reality. MR FRIPP: There may well have been conduct - professional conduct - on the part of those instructing me which has irritated or aggravated my learned friend or those instructing him, but in my respectful submission that adds insufficient mass to support satellite litigation. Unless I can assist you further, my Lord? MR JUSTICE OUSELEY: Is there anything you want to say finally, Mr Weisselberg? MR WEISSELBERG: No.[48]MR JUSTICE OUSELEY: I am not going to require cause to be shown in relation to those costs. Inevitably I have formed an impression and it may be that without going into detail the impression is unfair so I hope that the claimant's solicitors will forgive me. It does appear to me that there has been a failure on their part, or the counsel with them, properly to examine where this case was going, certainly after the 17th March letter. It also appears to me that there have been failures to respond to correspondence, but as I have not heard detail on them I can do no more than say that is the starting point, that is to say there is a basis upon which the Secretary of State can properly seek a wasted costs order. But I have decided not to permit it to pursue because it seems to me, having regard to the way in which matters were argued today, focusing on the 28th June letter, that the amount of costs which are clearly directly attributable to the sort of failings which may have occurred as I have described is unlikely to be more than a few hundred pounds. It is unlikely that the costs of today would be successfully argued to be attributable to such failures that may have occurred earlier on the part of the claimant's solicitors. I do not consider that it is an appropriate use of public or private money to have what would actually be quite an extensive hearing in order to decide where responsibility, for what are probably no more than a few hundred pounds, should lie. Although a wasted costs order can act as a salutary reminder to the subject matter of it as to the way he should conduct litigation, that is not its primary purpose. And, accordingly, whatever the rebuke might be, it is not sufficient to warrant the time and costs involved in dealing with the wasted costs application. Accordingly, I decline to require the claimant's solicitors to show cause. MR FRIPP: My Lord, one brief point. I may in fact have missed it if you already ordered it, has your Lordship been content to order a detailed legal aid assessment? MR JUSTICE OUSELEY: You did not ask for it. It crossed my mind, but I will order it. MR FRIPP: I am grateful. MR JUSTICE OUSELEY: Thank you.

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