Nigatu, R (on the application of) v Secretary of State for the Home Department [2004] EWHC 1806 (Admin)

Case No CO/1434/2004[2004] EWHC 1806 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 9th July 2004
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF NIGATUClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR R KHUBBER (instructed by Fisher Meredith) appeared for CLAIMANTMISS J ANDERSON (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE COLLINS: This claim for judicial review is concerned with the removal of support from the claimant, in circumstances when he asserted that he was, in accordance with the relevant statutory provisions, still entitled to such support. He had claimed asylum, that claim had been rejected, and his appeals and attempted statutory review of the refusal of leave to appeal to the Immigration Appeal Tribunal had all been rejected. He submitted, with some encouragement from Richards J who had refused his statutory review, what he asserted was a fresh claim for asylum. The question is, essentially, whether that triggered the right to continue to receive support under Part 6 of the 1999 Act.[2]Let me flesh out that short summary. I should add that recently the Secretary of State has accepted that the claim should be regarded as a fresh claim, although he has not reached any decision on whether it should be allowed or not. In those circumstances, as I understand it, support is to be continued. In fact, he received an interim order and so his support has not, as a matter of fact, been removed.[3]This, of course, renders this particular claim academic, because he has achieved all that he could possibly have achieved from the judicial review which he sought. Nevertheless, I have decided that it is right that the claim should be argued, because the point at issue is one which can affect other cases. Indeed, there are a number of such claims which have been lodged with the Administrative Court in which it is asserted that the making of what is said to be a fresh claim does trigger the right to continue support under Part 6 of the Act. It is in those circumstances, in my view, desirable that that point should be decided.[4]Miss Anderson has made it clear, on behalf of the Secretary of State, that she is in no way conceding that it is appropriate for the court to decide the matter, since it has become academic and the point is likely to arise in other cases where it is an active point. But she has not sought to argue that matter and has merely, as I say, indicated her reservations. There is ample authority that in public law cases it may be appropriate for a court to continue to hear and decide a case even though the immediate issue has become academic, because the point at issue needs to be decided having regard to its potential affect on other cases.[5]I come back to the circumstances of this case. The claimant is a national of Ethiopia. He originally arrived in this country in June 2003 when he claimed asylum. That claim was rejected, very quickly, by 17th July. The claimant appealed. His appeal to an Adjudicator was dismissed in November 2003. He sought permission to appeal to the Tribunal. That was refused on 2nd January of this year. He made an application for statutory review. That was rejected by Richards J on 16th February.[6]The learned judge, in the course of his reasons, stated:
"Any medical evidence post-dating the decision of the Adjudicator and the Tribunal can be the subject of further representations to the Secretary of State."
The point was that there was, it was said, further medical evidence which would have supported the assertions being made by the claimant as to the treatment he had suffered and the effect upon him of that treatment, and that would have supported the case which was, to a considerable extent, rejected by the Adjudicator. Furthermore, he obtained further evidence which purported to indicate that he was indeed a member of the political organisation which he had asserted he had been involved with, and which had led, he said, to the persecution which he suffered and the need to escape from Ethiopia.[7]On 19th February his solicitors wrote to the Home Office referring to Richards J's observations, enclosing some medical evidence, and indicating that the report was being prepared by the Medical Foundation. It was submitted that the claimant must be given the opportunity to present that report for consideration. It was asked that, in the circumstances, he should not be removed because to do so would be a breach of his Human Rights. Although in terms that is not said to be a fresh claim, in reality it clearly was intended to amount to that, so far as the claimant and his solicitors were concerned.[8]On 8th March they enclosed the copy of the report from the Medical Foundation and submitted that this meant that paragraph 346 of the Immigration Rules applied, and that there was a fresh claim. They submitted that the claim fell within the principles set out in the case of the R v Secretary of State ex parte Onibiyo [1996] QB 768. To that I will return in due course. There was no direct response to that letter, but the following day, the Home Office sent a letter to the claimant informing him that his asylum support would be removed with effect from 19th March. That followed the normal position which is that when an appeal has been disposed of finally, as had happened in this case, any support for a claimant will cease 28 days after that final determination. 19th March was 28 days after 19th February.[9]The solicitors wrote to the Home Office, both to the Integrated Casework Directorate and to the NASS, National Asylum Support Service, both of which are within the Home Office, asking that they provide written confirmation of the receipt of the 8th March letter and that they had recorded a fresh asylum claim for the claimant. NASS was advised that that was what had been done, and therefore it was said the right to support would persist. There was no answer to that, and no answer to a follow-up letter. As a result, the application was made to this court and an interim order was granted by Hooper J on 19th March of this year. Permission was in due course granted, and the matter comes before me today.[10]The relevant statutory provisions are contained in Part 6 of the Immigration and Asylum Act 1999. That is the part which deals with support for asylum seekers. Section 94(1) defines "asylum seeker" to mean:
"A person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined. A claim for asylum is defined as a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention, or under Article 3 of the Human Rights Convention, for the claimant to be removed from or required to leave the United Kingdom."
Section 95(1) states:
"The Secretary of State may provide or arrange for the provision of support for -- (a) asylum seekers; or (b) dependants of asylum seekers, who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed. By subsection (3), "destitution" is defined in this way: "
For the purposes of this section, a person is destitute if -- (a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or (b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs." It will be obvious from that that the test of destitution falls far short of the test which would be appropriate in deciding whether to fail to provide support would contravene Article 3 of the European Convention on Human Rights, or indeed Article 8 of the same Convention.[11]I shall finally refer to Section 4 of the Act, as amended, which, under the heading "Accommodation" states:
"(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if -- (a) he was (but is no longer) an asylum seeker, and (b). his claim for asylum was rejected."
That is known generally as the "hard case" provision, enabling the Secretary of State to ensure that at least accommodation is provided for those who otherwise would have none, and who otherwise would be effectively required to sleep rough or on the streets. It was primarily designed, no doubt, to cover cases where, for whatever reason, it proved impossible to remove from the country someone whose asylum application had failed and who therefore had to remain until means of removal were available. An obvious example is to be found in the number of cases involving ethnic Kurds from North Iraq. At the time when Saddam Hussein was still in charge, it was impossible to remove them to North Iraq because there was no way of getting them there except via Baghdad and, for obvious reasons that was not possible. There are other examples which continue today because there are some countries to which return is not made, albeit it is not accepted that individuals are necessarily to be regarded as either refugees or bound to be allowed to remain because to remove them would be a breach of their Human Rights.[12]The question that therefore has to be answered is whether, in the circumstances of this case, and, more broadly, in circumstances where an asylum claim has been rejected and all appeal processes have been exhausted, the making of an application to the Secretary of State which is said to be a fresh claim is sufficient to require that support be continued because, as a matter of the true construction of section 94, the individual is an asylum seeker.[13]Mr Khubber's basic submission is that when a person arrives in this country and seeks asylum, or indeed, at any stage makes a first claim for asylum to seek to avoid his removal, that claim is regarded as being made at the moment that it is received by the Home Office. The requirement that it be recorded by the Secretary of State is necessarily met, because no sensible system of administration would do other than record a claim when it was made. Indeed, that is accepted to be the position so far as primary claims are concerned. So, submits Mr Khubber, where there is, as here, a claim which is made, albeit there has been a previous claim which has been disposed of, the same principle ought to apply. Once the claim was made it must have been recorded, as a matter of common sense, and so the claimant must be treated as an asylum seeker from that moment. Therefore, provided he can persuade the Secretary of State that he would otherwise be destitute within the meaning of the Act, he should receive the necessary support.[14]Miss Anderson submits that what occurred here, and indeed in all cases where an original claim has been made and disposed of, is but a representation that the same claim should be reconsidered because there is said to be new material. It is not until the Secretary of State accepts that there is, if I can put it this way, a prima facie case, or that this is a matter which is, in his view, to be regarded as a fresh claim, whether or not in the end he accepts it, that the individual becomes an asylum seeker.[15]Ever since the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Onibiyo, it has been accepted that it is open to an individual to make more than one claim for asylum during a single uninterrupted stay in the United Kingdom. The court recognised that there might, for example, be a coup in the country to which the individual is otherwise to be returned, which changed the situation adversely to him. Alternatively, there might be fresh material which was not, and could not have been, available at the time of his original application or at the time that he was going through the process of appeal. There must, therefore, be a means of dealing with that sort of a situation in order to avoid the possibility of returning a person in contravention of either of the relevant Conventions. One finds Sir Thomas Bingham, Master of the Rolls, saying this at 781, letter F:
"The obligation of the United Kingdom under the Convention is not to return a refugee (as defined) to a country where his life or freedom would be threatened for any reason specified in the Convention. That obligation remains binding until the moment of return. A refugee (as defined) has a right not to be returned to such a country, and a further right not to be returned pending a decision whether he is a refugee (as defined) or not. It would in my judgment undermine the beneficial object of the Convention and the measures giving effect to it in this country if the making of an unsuccessful application for asylum were to be treated as modifying the obligation of the United Kingdom or depriving a person of the right to make a fresh 'claim for asylum'. It cannot in my view make any difference whether the person making the fresh 'claim for asylum' has left the country and returned or remained here throughout. Any other construction would in my view be offensive to common sense. However rarely they may arise in practice, it is not hard to imagine cases in which an initial 'claim for asylum' might be made on insubstantial, or even bogus grounds, and be rightly rejected, but in which circumstances would arise or come to light showing a clear and serious threat of a kind recognised by the Convention to the life or freedom of the formerly unsuccessful applicant. A scheme of legal protection which could not accommodate that possibility would in my view be serious defective."
[16]The court then went on to consider what amounted to a fresh claim for asylum. At page 783, letter B, the Master of the Rolls said this:
"It was accepted for the applicant that a fresh 'claim for asylum' could not be made by advancing an obviously untenable claim or by repeating, even with some elaboration or addition, a claim already made, or by relying on evidence available to the applicant but not advanced at the time of an earlier claim. There had, counsel acknowledged, to be a significant change from the claim as previously presented, such as might reasonably lead a special adjudicator to take a different view. If the fresh claim depended on new evidence then it had to satisfy tests, analogous to Ladd v Marshall [1954] 1 WLR 1489, of previous unavailability, significance and credibility."
The court went on to recognise that it was for the Secretary of State to decide whether to recognise a fresh claim as a claim for asylum. At 784, letter C, this was said:
"If the Secretary of State recognises a fresh claim as a 'claim for asylum', but nonetheless decides that asylum should not be granted, I see no reason why the same consequences should not follow as on refusal of an initial claim. The disappointed claimant can pursue his right of appeal under section 8. The problematical situation is that in which, as here, the Secretary of State does not recognise a claim as a fresh 'claim for asylum' and so declines to make any decision or to take or omit to take any action which would trigger a right of appeal under section 8."
The Master of the Rolls then went on to indicate that the remedy there was the right of judicial review to this court to compel the Secretary of State, if he had erred, to accept that it was indeed a fresh claim.[17]What Sir Thomas Bingham says, particularly at the outset of that last passage which I have cited, makes it clear that there is in his view a distinction to be drawn between the making of the claim, or the representations, and whether it is indeed a claim for asylum. In the case of a fresh claim, where there has already been a claim made, it is necessary for the Secretary of State to decide whether it should be regarded as a claim or merely as further representations made in the same claim. That is, in my view, a real distinction that can be drawn between the situation where an initial claim has been made and one where it is said that there is enough material to justify a fresh claim being made, and being regarded as a claim in its own right.[18]Mr Khubber submits that Onibiyo does not apply to the situation here because it was not concerned with support but merely with whether there should be a right of appeal against the refusal of what should be regarded as a fresh claim. Accordingly, the issues that arise here were not considered. It is worth noting Rule 346 of the Immigration Rules which came into existence as a result of Onibiyo. That reads:
"Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim, that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied [that is the basic asylum conditions]. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which -- (1) is not significant; (2) is not credible; or (3) was available to the applicant at the time when the previous application was refused or when any appeal was determined."
That, of course, cannot be used as a means of construing the relevant statutory provision, but it is wholly consistent with the approach in Onibiyo and is, in my judgment, properly to be taken into account in construing this particular provision which, one must note, was enacted by Parliament after the decision Onibiyo, with knowledge of that decision.[19]Miss Anderson has submitted that to construe the provision in the way that Mr Khubber submits is correct, is to open the door to abuse. If it is known that the mere making of what is said to be a fresh application for asylum will trigger continuing right to support, then there will be an obvious incentive to those who merely seek to delay their removal from this country to do just that. It will always, and inevitably, take some time for the Secretary of State to deal with these so-called fresh applications. Although, of course, it is necessary and desirable that they are dealt with as speedily as possible, the reality is that one cannot expect such matters to be dealt with overnight. Of course there should be no unnecessary delay, and it is unfortunately the case that it does sometimes appear to take far too long for the Home Office to deal with these applications. If the individual is to be deprived of support in the mean time, that may put an altogether illegitimate pressure upon that individual, who may have a genuine fresh claim, to give up if the alternative is effectively destitution. Accordingly, it is important that this is not abused by the Secretary of State if the decision is that there is no fresh claim until he decides that it should be regarded as such by putting such a pressure upon individuals.[20]The safeguard lies in section 4 of the Act. This means that so long as the individual is remaining in this country, there is power in the Secretary of State to provide at least for his accommodation. This will act as a safety net and it means also that the Secretary of State would not be permitted to refuse any support if to do so would result in a breach of the individual's Human Rights. The situation becomes somewhat similar to that which applies under section 55 of the 2002 Act, and the law now stands as laid down in Limbuela v Secretary of State [2004] EWCA Civ 540, a recent decision of the Court of Appeal. So to that extent, protection is accorded to the individual who is not automatically entitled to the continuation of asylum support.[21]It seems to me, in all the circumstances, that Miss Anderson's submissions are correct and that that is the true construction of this provision. There is a real difference between the situation when an initial claim for asylum is made and that when attempts are made to prevent removal following rejection and the exhaustion of all the appeal processes of that claim. The Secretary of State is indeed entitled to consider whether the representations made can properly be said to amount to a fresh claim so as to make the individual an asylum seeker. He will record that, and the evidence before me is that he does record that, when that preliminary decision is made and that the individual in question is notified when that happens. A record is made of that decision at that time.[22]I am bound to say that Parliament must have meant something by requiring that the claim be recorded. One would have thought that if all that was meant was that it was received, that would have been said. Normally speaking, that will perhaps make no great difference because no system of sensible administration could work unless every application and every claim were recorded by someone when it was made. The question really turns on whether what was put before the Secretary of State can be said to have amounted to a claim for asylum. For the reasons that I have given, in my judgment, it does require the Secretary of State to decide the initial question as to whether it should be regarded as a claim for asylum before any right to support within section 95 can arise.[23]I should add that it would obviously be thoroughly undesirable for the Secretary of State automatically to cease providing any support and disregarding the submission of a what is said to be a fresh claim. Much will depend upon the circumstances. Here it has been accepted that the fresh claim must properly be so regarded. It was presented before the period of 28 days elapsed. It was presented as a result of encouragement from Richards J who indicated that there might well be the possibility of a fresh claim.[24]In those circumstances, it seems to me that it was wrong for the Home Office simply to follow through the normal refusal of continuation of support. This was a situation which, on the face of it, appeared overwhelmingly likely to involve what could properly be regarded as a fresh claim. The Home Office must devise some system which means that NASS and its other branches do not operate in isolation in cases such as this, because otherwise injustice is likely to result. Apart from anything else, it is obviously likely to increase costs because it involves unnecessary litigation. If in what on any view would appear likely to be regarded as a fresh claim, whether or not it succeeds at the end of the day, support is removed and then has to be reinstated as a result of a court order, that is a complete waste of resources.[25]Of course, one might have the other side of the coin. Miss Anderson told me that she had been involved in a case where there had been no less than seven alleged fresh applications. Each time one was rejected, before removal could take place, another was put forward. One can see that in that sort of situation and where, for example, the alleged fresh claim contained nothing that was essentially new, and only arose some time after support had been removed and when removal was due to take place, it may well be that the Secretary of State could properly refuse any further support. In addition, again this is obvious, if someone had remained in the country after his support had been removed, the Secretary of State might well properly reach the conclusion that he did not need any further support. He should not be regarded as destitute, or more probably that section 4 would not come to his aid.[26]Those are all matters that would have to be taken into account when considering the circumstances of any individual case. But I am satisfied that the making of what is asserted to be a fresh claim does not automatically trigger the right to continuing support as an asylum seeker. That only arises when the Secretary of State decides, obviously as soon as possible, that it can be properly regarded as a fresh claim, whether or not, as I said, in the end it succeeds.[27]Presumably, the only relief, if you want any, is some form of declaration, but I do not think it is necessary because the judgment speaks for itself.[28]MISS ANDERSON: My Lord, on the issue of costs, I believe the claimant is Legally Aided so I would just ask for the normal order.[29]MR JUSTICE COLLINS: I do not see why you should have any order. Essentially, if the Home Office had decided earlier that this was to be regarded as a proper claim, you would not have been here at all. It is only because you left it to the last minute.[30]MISS ANDERSON: My Lord, there is a problem of prioritisation. One has to be fair between claimants. In the --[31]MR JUSTICE COLLINS: There is nothing to stop the Home Office making a much earlier decision. You should have done.[32]MR KHUBBER: My Lord, I am instructed --[33]MR JUSTICE COLLINS: Well, yes, and the other side of that coin is that I suppose today's hearing was partly for the court, and partly for the benefit of many others.[34]MR KHUBBER: My Lord, can I just indicate why I put forward my point. I put it forward up until 1st July, because up until that point we had received nothing from the Secretary of State in this case. We were obliged to prepare for a hearing which has been fixed and we were concerned, as regards our obligation --[35]MR JUSTICE COLLINS: So you say at least it would be fair for you to have all your costs up to and including 1st July?[36]MR KHUBBER: Yes.[37]MR JUSTICE COLLINS: The DCA is responsible for the Court Service and Legal Aid, so in one sense it all comes out of the same purse.[38]MR KHUBBER: But, I mean, looking at it from our perspective --

MR JUSTICE COLLINS: No, I think there is some force in that.

[40]MISS ANDERSON: My Lord, I am not quite sure what is being asked for here.

MR JUSTICE COLLINS: They are asking for their costs up to and including the 1st July.

[42]MISS ANDERSON: The usual order is that costs follow the event. In my submission, there does need to be a proper evidential basis for not following the usual order. In these circumstances, the Secretary of State has been indicated to have followed a proper interpretation of the Act. No application was made under section 4 or even raised in my learned friend's skeleton argument.[43]MR JUSTICE COLLINS: Yes, but if the Secretary of State had reached a proper decision that this was to be regarded as a fresh claim, then these proceedings would have been wholly unnecessary.[44]MISS ANDERSON: Well, my Lord, if one could wave a magic wand and decisions could be taken overnight, one would be in a perfect world.[45]MR JUSTICE COLLINS: We are getting pretty fed up with decisions from the Home Office coming at the very last minute.[46]MISS ANDERSON: My Lord, I can certainly see that and in certain circumstances the court can punish the Home Office for it. However, when it comes to fresh claim decisions if one looks at the --

MR JUSTICE COLLINS: Well, the DCA has limited resources.

[48]MISS ANDERSON: My Lord, one can see that. I would say there are no easy answers to any of this, but simply punishing the Secretary of State --[49]MR JUSTICE COLLINS: It is not a question of punishing, it is a question of trying to be fair between parties in sorting out costs. I mean, this happens to be publicly funded but the same principle would apply if it were private.[50]MISS ANDERSON: My Lord, there would be different criteria which would apply and it may be that costs could be agreed or something of that nature. Those are not considerations that are relevant here today. What we are talking about today is a situation where costs have been incurred in litigation and those costs will be met by the Legal Aid board. It is not a situation where an individual is being asked to meet them. In my submission, where the arguments that have been put forward have been found to be not well-founded, as it were, one needs strong grounds to then say: actually, in any event the succeeding party should still pay the costs because of something where it is imagined that it could have been done quicker. As I say, it is a complex question. It is not as easy as saying that in a perfect world, everything should be done quickly. I am not saying that there are cases where it is not appropriate, my Lord. I am saying that in the context of this case where, in my submission, it is not that it is reprehensible --[51]MR JUSTICE COLLINS: I do not say that for a moment. All I am saying is that if the Home Office had responded to the letters, and had indicated and given a speedy consideration rather than allow judicial review to be pursued, then it should have, on the facts, appreciated that this was clearly one which should be treated as a fresh claim. You have a judge to say that in terms in the statutory --[52]MISS ANDERSON: I understand that, my Lord. Had this claim been discontinued when the Secretary of State made the decision, perhaps there would be fairer grounds for saying that that --[53]MR JUSTICE COLLINS: It was discontinued, subject only to the court being asked whether this was a good vehicle, or proper vehicle, to decide the important point which I have now decided in your favour.[54]MISS ANDERSON: My Lord, one hopes it would stop but it will be a vehicle for people to make claims again on the back of the appeal. In any event, that is just a consequence of the system. What we are suggesting here is that the key factor was the Secretary of State making a decision on the fresh claim. In my eyes, he is being punished. It has not made any difference to whether or not this case was brought. Had it been the case where the decision was made last night, it would be of no effect so the case had to happen anyway. One can see that in those circumstances it would be appropriate to make an order against the Secretary of State --

MR JUSTICE COLLINS: Well, I hope Mr Khubber had been briefed before you did make a decision.

[56]MISS ANDERSON: My Lord, where the defendant has actually been successful, there have to be, in my submission, exceptional, at least well-founded reasons, for making him pay costs. If the reason is him not making a decision at a certain time then, at the very least, that has to be shown to have been something which would have determined the matter. It did not.[57]MR JUSTICE COLLINS: If it had been made earlier, it would have determined it because the costs would not have been incurred by the claimants. They would not have briefed counsel and the point they make, perfectly fairly, is that this is something which is arising regularly. We have already incurred all our costs because counsel has been briefed, so is this not a sensible case to use to decide the point. I agree. I know you did not but I did, and unfortunately it is my view that matters. In those circumstances, I recognise that if the Secretary of State had done what he should have done earlier, these costs would not have been incurred.[58]Now, I would have thought that there was a very strong case here for saying that the Secretary of State ought, right from the beginning, to have appreciated that this was obviously going to be a case which would be regarded properly as a fresh claim, having regard to the observations made by Richards J.[59]MISS ANDERSON: My Lord, now that you have said that NASS should be in line with the other parts --

MR JUSTICE COLLINS: That is obvious, is it not?

[61]MISS ANDERSON: Well, NASS has not been without things to consider recently --

MR JUSTICE COLLINS: I know that.

[63]MISS ANDERSON: My Lord, the basis of this determination must be that the Secretary of State ought to make a fresh claim decision within a certain time to say that this has been done at the wrong time. If the Immigration Appeal Tribunal does not have to make a decision within a certain time in order for it not to be considered to be acting unlawfully, then why should it be that the Secretary of State is given a certain amount of time --[64]MR JUSTICE COLLINS: I think very little of that argument. You look to see what the Secretary of State has said about this, and this is all behind the new deal. The court is given time limits, is it not? We are told, and indeed we are effectively given assurance, that the Secretary of State that it will decide matters within a particular time. Statutory review has to be brought within ten days. This court turns it round within a further ten days, that is to say 97 per cent I think are dealt with very speedily because we recognise the need for speed. I am not very impressed with the assertion that the Secretary of State should not be required to do things quickly.[65]MISS ANDERSON: My Lord, I do apologise if you misunderstood my submission, maybe it was not very clear. The submission I am making is a simple one. In order to say that the Secretary of State delayed you have to actually indicate what a reasonable time would be for making his decision with the resources available, given the circumstances.[66]MR JUSTICE COLLINS: It depends on the circumstances. All I am saying is that this one, on its circumstances, having regard to Richards J's decision, was one which ought to have been easy to deal with quickly. Most of the obviously unfounded ones, I should have though, would fall into the same category the other way.[67]MISS ANDERSON: The problem is, my Lord, you actually have to consider it. It has to come to the top of the queue to consider it. It is not insubstantial, the number of people making fresh claims --

MR JUSTICE COLLINS: So are we going to have the sort of 12 months --

[69]MISS ANDERSON: My Lord, if it is an unacceptable amount of time, the court can rule on that and say -- when there is actual evidence as to what the restrictions are, then the court can say: this is too late. In my submission, on the material before the court now, it seems to me wrong to -- particularly at the stage, as it were, if the Secretary of State continues to offend after my Lord's comments have gone to the Secretary of State, I think that may be a reason then to --[70]MR JUSTICE COLLINS: That is a remedy for the Secretary of State. If he needs to take further time, then all he needs to do is to provide support to avoid any problem so far as the litigant is concerned. All I am saying is that it is clearly unfair and wrong that someone should be deprived of support and left in a position of destitution simply because the Secretary of State is not able, because he does not have the resources, to deal with the matter as quickly as desirable. Of course, sometimes it is perfectly reasonable, and what will be reasonable will depend upon the circumstances of an individual case, because if something is so obvious then one could say that it could not take anyone sensibly very long. Some it may not be easy to decide. It may be that the pressure of work and the case load may mean that there are what otherwise might be regarded as unacceptable delays. All this can be dealt with, providing support of some sort is maintained. That is the remedy. The Secretary of State can deal with it that way.[71]MISS ANDERSON: I certainly understand that. That is what we will be putting to the Secretary of State now, that automatically one should consider section 4 support. As I say, section 4 was not a matter being canvassed until recently.

MR JUSTICE COLLINS: No, well, it was raised in the course of the hearing today.

[73]MISS ANDERSON: My Lord, my submission would be, if one is looking at the fair allocation of costs at the moment, as my Lord has indicated, this is as much for the benefit of the --

MR JUSTICE COLLINS: That is why I am saying no costs in the hearing today.

[75]MISS ANDERSON: My Lord, I think the point that I would particularly indicate is that we start from a position where costs follow the event. There therefore has to be a reason to depart from the normal order. That reason seems to me an indication that there have been unacceptable delays. In my submission that is a whole matter in itself and I think it needs something in terms of evidence as to whether, in all the circumstances, it is. Maybe in future cases there will be situations where the Secretary of State could not even stand up to say there is any reason why there should not be a different order from the normal order. My Lord, I do not accept that this is one of them.[76]MR JUSTICE COLLINS: Mr Khubber, help me, I am out of date on these things. Does counsel get his fee if the case disappears once he has been briefed?[77]MR KHUBBER: I am getting a general nod in that direction.[78]MISS ANDERSON: I do not, my Lord, but that may be the Government.[79]MR KHUBBER: Just a few comments, my Lord. The point we make is that the order you should make is a proper --[80]MR JUSTICE COLLINS: Do not worry Mr Khubber, I am with you on the principle. I was just wondering about your briefing. I do not know whether -- I am not suggesting you should not be paid.[81]MR KHUBBER: Well, my Lord, you see that is the principle is, in the sense that we were briefed at a time when we needed to be briefed --[82]MR JUSTICE COLLINS: That is why I was asking whether you would be paid. Assuming that you had been briefed but the case, for whatever reason, had disappeared, would you have still been paid?[83]MR KHUBBER: For the work done.

MR JUSTICE COLLINS: But you would not have had to do any work in court.

[85]MR KHUBBER: No, my Lord, if it had settled.

MR JUSTICE COLLINS: By the older rules, when I was at the Bar, one did get paid.

[87]MISS ANDERSON: My learned friend had an earlier case which did go away.[88]MR KHUBBER: My Lord, that was actually a case where I was involved and I was instructed.[89]MR JUSTICE COLLINS: I think the fairer way, on reflection, is that I will direct that the Secretary of State pay the costs of the claimant up to and including 1st July, but that will not include the payment to you for appearing today. That will have to come from the LSC. I think that clearly reflects that the Secretary of State ought, in my view, to have conceded this at a much earlier date than he did.[90]MR KHUBBER: My Lord, I am grateful for that.[91]MR JUSTICE COLLINS: That, I hope, is clear. You had better have the usual --[92]MR KHUBBER: Detailed assessment, yes.

MR JUSTICE COLLINS: And obviously costs subject to a detailed assessment.

[94]MR KHUBBER: My Lord, can I just make one final point and it is a final short point. I appreciate that this is obviously a case where it is settled. It is an important point of law in the sense of statutory instruction.[95]MR JUSTICE COLLINS: You have no further interest in it. I think you have exhausted your interest. Someone, if they want to, had to try to say I am wrong in the case where the point actually is an active one.[96]MR KHUBBER: Sure.[97]MR JUSTICE COLLINS: I do not think one can conceivably justify further costs. Thank you both very much.

Cited in 13 later judgments

and 4 more of the most senior