Thapa, R (on the application of) v Secretary of State for the Home Department [2004] EWHC 3083 (Admin)

Case No CO/585/2004[2004] EWHC 3083 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 2nd December 2004
Strand
London WC2
B E F O R E:
MR JUSTICE BENNETT
Between
THE QUEEN ON THE APPLICATION OF KEDAR THAPAClaimant-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 B TATTERSALL (instructed by Messrs Simman & Co) appeared for CLAIMANTMISS J ANDERSON (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE BENNETT: On 5th February 2004 the claimant filed his judicial review claim form against the defendant, claiming judicial review in respect of the defendant's decisions, the first dated 3rd February 2004, to remove him to Nepal, and, in an undated letter received by a firm of solicitors, Malik & Malik, on or about 4th February 2004, refusing the claimant leave to remain. On 3rd March the defendant filed an acknowledgment of service. On 26th March Gage J, as he then was, refused permission. On 5th April a notice of renewal of claim for permission was drafted.[2]On 7th May the matter came before Collins J when he, according to the order, granted permission but ordered that the defendant could come back to court within 14 days:
"to argue otherwise unless they realise there is anything for permission to be granted."
[3]It seems to me, though it does not matter, that paragraph 1 of that order must be inaccurate. If unrestricted permission had been granted, as the order suggests, then by virtue of Part 52.14, paragraph 2 of the order could not have been made. However, I do not think there is any argument about this. It seems that Collins J did grant permission, but only on the limited ground of what I would call "legitimate expectation". The defendant's subsequent application to rescind that limited permission was refused by Collins J on 21st June.[4]The claim is thus now limited to whether the claimant had a legitimate exception, arising from a letter of 6th March 2003, that he would be permitted to remain in the United Kingdom. That letter is from Work Permits UK, which is a part of the Home Office. It is written to a Mr Nazeer of Malik & Malik. It reads as follows:
"Immigration Act 1971 -- The Work Permit Arrangements. "
Application by: Sand Rock UK Ltd T/A Sea Rock. "As requested, we have reviewed your client's application for KEDAR THAPA and I am pleased to tell you that we are now prepared to approve this employment for 36 months. "We will now consider whether Mr Thapa's leave to remain can be extended and notify you by letter. "Should you wish to discuss any other aspect of the case please telephone the number at the top of this letter. "A copy of this letter should be given to Mr Thapa."[5]The claimant's case is that he was then given certain advice by Malik & Malik. He says that relying upon the contents of that letter, he withdrew his appeal to the Immigration Appeal authority for asylum. As a direct consequence he says he now faces being removed to Nepal. By an undated letter from the defendant, which arrived with Malik & Malik on or about 4th February 2004, the defendant refused the claimant leave to remain in the United Kingdom.[6]The background to this matter is as follows. The claimant is now aged 38. He entered the United Kingdom illegally on 24th June 1999. On 25th July 1999 he applied for asylum. The claimant says that, in January 2001, his wife came to the United Kingdom from Nepal. On 6th November of the same year the claimant's asylum application was refused. On 13th December 2001 he lodged an appeal through his solicitors, Messrs Simman. On 6th February 2003, an application for a work permit for the claimant was made by Sand Rock UK Limited, trading as Sea Rock. The application form is signed by Mr Varsani, the managing director, which is to be found at pages 156 and following. Mr Nazeer signed the forms, having been appointed by Sand Rock as its external representative.[7]At page 93 of the bundle is a document signed by the claimant, witnessed by Mr Nazeer and dated 8th April 2003, whereby the claimant confirms that he wishes to withdraw his asylum application, "as I now have a UK work permit."[8]It is important, before I come to the legal matters in this case, just to look to see how this claim was progressed and whether there really is any evidence that the claimant relied upon the letter of March 2003 and for that reason withdrew his asylum appeal. In the grounds of his claim to move for judicial review, settled by Mr Woolridge of counsel, reference is made to a letter of 4th February 2004, written by Messrs Simman to the defendant. I believe this letter to have been part of the judicial review claim form. Part of that letter reads as follows:
"During this time, our client sought employment and an application was submitted to Work Permits UK, an application that was subsequently approved for 36 months. "
Once the Work Permit application had been approved, our client's then representatives, Malik and Malik, advised our client to withdraw his application for asylum as he had been approved for a work permit and as such would remain in the UK on this basis. "Despite our client fearing persecution and his life in Nepal, he took the advice of his legal representative and withdrew his asylum application on 8th April 2003."[9]In the particulars of claim, the relevant part of which can be found at page G of the bundle, it says this:
"7. The Claimant in the circumstances ought to be permitted to re-institute his claim on the basis that the legal advice of his former representatives have led to the injustice that his removal to Nepal would cause. The Claimant was under the impression that there was no need to pursue the asylum appeal if his work permit was approved. If the SSHD had permitted the Claimant leave to remain for his specialist position then there would have been no need to remove him."
[10]The claimant made a statement on 29th April 2004 for the purposes, as I understand it, of trying to persuade the Secretary of State to allow him to remain and not be removed to Nepal. At paragraph 30 he said:
"M/s Sea Rock applied for my work permit in March 2003, which was approved by Work Permits UK for 36 months."
[11]In paragraph 32 he said:
"I was advised by Malik & Malik Solicitors to withdraw my application for asylum. This was done on 8th April 2003."
[12]It is apparent at once that he does not give any reasons why he withdrew his application for asylum, nor does he go into any detail as to the advice given to him by Messrs Malik & Malik.[13]There is no dispute in this case as to the law that I have to apply. Mr Tattersall, counsel for the claimant, has expressly, and rightly in my view, accepted that the relevant law is summarised in paragraph 11 of the skeleton argument of Miss Anderson, counsel for the defendant. I summarise that paragraph, I hope accurately, as follows. First, a relevant expectation must be evidenced. The representation must be unequivocal and lack any qualification. Second, the citizen must place all his cards on the table, making full disclosure, and his expectation must be objectively reasonable. Thirdly, once the claimant has established the legitimate expectation, he must show that it would be unfair of the public body to resile from giving effect to the legitimate expectation. Reference is then made to the decision of R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, and in particular to paragraphs 57 and 58 of the judgment of Lord Woolf Master of the Rolls, as he then was. There he identified three kinds of unfairness. The first two I am not concerned with in the instant case, but the third I am. It is unfairness consisting of a failure by a public body to give effect to a substantive benefit which is the subject matter of a legitimate expectation in circumstances where there is no overriding interest which would justify the public body resiling from its representation that such a benefit would be forthcoming. Where the court is satisfied that the public body made the representation by mistake, the court should be slow to fix the public body permanently with the consequences of that mistake. In such a situation the court must be alive to the possibility of such unfairness to the individual as to amount to an abuse of power. The court must also consider whether, and how far going beyond the immediate parties, the wider interests of the public may be affected by giving effect to the expectation. Wider interest may require that the public body resiles in order to properly protect those wider interests.[14]Miss Anderson has set out in her skeleton argument, again to which no challenge is made, the legal framework, in particular paragraphs 131 and 133 of the Immigration Rules. Paragraph 131 provides:
"131.

(v) "

[15]Paragraph 133 provides as follows:
"133. An extension of stay for employment is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraphs 131, 131A, 131B, 131C or 131D is met (unless the applicant is otherwise eligible for an extension of stay for employment under these Rules)."
[16]It will be immediately apparent that the claimant does not meet the requirements of paragraph 131(i), as he illegally entered the United Kingdom on 24th June 1999. Thus the claimant did not enter the United Kingdom with a valid work permit. However, it is open to the claimant to ask the defendant to exercise his discretion outside the Immigration Rules to allow an extension of stay on the basis of employment. Alternatively, the claimant could leave the United Kingdom, then apply to enter under the Rules on the basis of work permit employment.[17]Mr Trevor Jones is a civil servant who works in the operation group of Work Permits UK as a senior operations manager. He has made a witness statement of 17th June 2004 in which he helpfully explains how these matters are dealt with. Since the work permit application was posted prior to 1st April 2004, the procedure as set out by Mr Jones, applied:
"...the WP1 application form acts as both work permit and leave to remain application. The two aspects of the application are two separate stages, one logically and effectively consequent upon the other. Approval of the work permit element is the threshold over which there is substantive consideration of the leave to remain aspect. It does not predetermine the outcome of the immigration decision. The two aspects are accordingly considered in turn by two separate, specialist teams. First, a business team will consider the work permit application and inform the applicant (UK employer) of the outcome. A referral slip is then forwarded to the Work Permits (UK) In-Country Team who will then consider the leave to remain aspect of the application. The decision of the leave to remain aspect of the application would be sent to the worker, via the employer or representative."
[18]Miss Anderson submitted that the letter of March 2003, to which I have referred, should be seen in the context of the Immigration Rules and the established arrangements, to which I have also referred.[19]Miss Anderson submitted that the crucial passage in that letter of March 2003 is the paragraph:
"We will now consider whether Mr Thapa's leave to remain can be extended and notify you by letter."
[20]It seems to me, bearing in mind the Immigration Rules and arrangements, that there could be only two answers which would be forthcoming from the defendant, having considered Mr Thapa's leave to remain. They are "Yes, we grant him leave to remain", or "No, we refuse him". It would certainly be plain, in my judgment, to solicitors and counsel who act in this field that there was a two-stage process, as I have outlined. It is difficult to follow entirely what happened between Malik & Malik and the claimant, and what precise advice they gave. The particulars of claim at page G would suggest that Messrs Malik & Malik gave the claimant incorrect advice and led him to believe that there would be no need to pursue the asylum appeal, his work permit having been granted.[21]I would be prepared to hold on the evidence that, in line with Miss Anderson's submission, there is no sufficient evidence to establish how the expectation was formed, namely that he would be allowed to remain in this country by the mere grant of a work permit. However, I also think it is important, even if there was that evidence, to consider whether it is possible to construe the letter of 6th March 2003 as giving any expectation, and particularly any legitimate expectation. In my judgment, the answer to that question is plainly no. The letter is perfectly clear. Firstly, the employer's application for a work permit has been granted for a period of 36 months. But, secondly, there was then going to be a further stage when the defendant was going to consider whether the claimant's leave to remain could be extended. Any sensible reading of that letter could not, in my judgment, possibly raise any expectation that by the grant of a work permit he effectively had leave to remain. If that was the advice that was given to him by Messrs Malik & Malik, then, putting it as kindly as I can, it was plainly incorrect.[22]Accordingly, at this stage, the claim by the claimant would fall to be dismissed. However, it is right that I should go on just briefly to express my views about the other matters which have been put before me.[23]It is, of course, correct that the claimant did indeed suffer a detriment in that he withdrew his asylum appeal. However, as Miss Anderson has said, if he is still, and genuinely, in fear of persecution were he to be returned to Nepal, it is open to him to make a fresh application for asylum. What chance that would have of success I have no means of knowing, but that opportunity is open to him.[24]Finally, I have to balance, as Mr Tattersall and Miss Anderson have said, how far the wider interests of the public may be affected by giving effect to the expectation, and whether the wider interests may require the public body, that is the defendant, to resile in order to properly protect those interests. On the claimant's side, he fears that if he is returned to Nepal, he may suffer persecution. If that were so, or indeed may be so, it would of course produce a situation to him that I can well see could be said to be intolerable. On the other hand, he entered this country illegally, and, as Miss Anderson submitted, the Secretary of State is entitled to have regard to all of the factors relating to the claimant and to balance them against the wider public interest, that is to uphold the immigration law and rules in cases such as this.[25]The claimant is, in my judgment, unable to establish that there are such exceptional circumstances in this case capable of persuading the defendant that he should be granted leave to remain outside the Rules. The Secretary of State's aim is to maintain an effective immigration control, and there are not such circumstances pertaining to the claimant that should override that.[26]Accordingly, for those short reasons, the claim in this case is dismissed. I should say that I had placed in front of me by Mr Tattersall a document that has been released from the Home Office, dated 4th November 2004, and headed "Changing Immigration Status While in the UK". However, it is apparent that that only applies to nationals from non-EEA countries, provided that they have existing leave to remain, which the claimant does not.[27]MISS ANDERSON: My Lord, I do ask that the usual order for costs be made, that costs follow the event in this case.[28]MR TATTERSALL: My Lord, as I have indicated already, this is a privately funded case, so there is really very little I can say about that matter.[29]MR JUSTICE BENNETT: Very well. The claimant to pay the defendant's costs on a standard basis to be assessed in default of agreement. Thank you both very much for your help.