Domi v Secretary of State for the Home Department [2006] EWHC 1314 (Admin)

Case No CO/2569/2005[2006] EWHC 1314 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 7 June 2006
Before
MR JUSTICE KEITH
Between
SHEPTIM DOMIClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Philip Nathan (instructed by Sutovic and Hartigan) for ClaimantMs Kate Gallafent (instructed by the Treasury Solicitor) for Defendant
Judgment

The facts

[1]The claimant comes from Kosovo. He arrived in the United Kingdom on 19 November 1998 and claimed asylum immediately. He was then 17 years old. In due course, he was required to complete a Statement of Evidence Form, and duly did so with the help of solicitors on 19 February 2002. He was interviewed by an officer in the Immigration and Nationality Directorate (“the Directorate”) in connection with his claim on 19 March 2002.[2]The claimant and his solicitors then heard nothing about the progress of his claim. His solicitors wrote to the Directorate enquiring about the progress of his claim on 14 August 2002 and 2 December 2002, but apart from receiving a letter of acknowledgement dated 20 August 2002 which referred to the backlog of cases due to the large number of people applying for asylum in the United Kingdom, they heard nothing further. However, the claimant was sent a notice dated 19 November 2002 requiring him(a) to reside at the address which he had given on the Statement of Evidence Form, and(b) to report to an immigration officer at Dover on 19 May 2003. Unfortunately, the letter never got to the claimant because the envelope was incorrectly addressed by the Directorate. That was not spotted by the Directorate, and when the letter was returned undelivered by the Post Office, it was assumed by the Directorate that the claimant was an absconder – a belief which was no doubt conformed when he did not report at Dover as required.[3]Eventually the claimant’s claim for asylum was refused. The letter of refusal was dated 10 October 2003. The Home Office claims that it was sent to the claimant’s solicitors by recorded delivery on 14 October 2003. It was not returned by the Post Office to the Directorate as undelivered. But the claimant’s then solicitors claim they never received it, and it is therefore asserted that the claimant was never notified of the refusal of his claim. Had he been notified of it, he would have lodged an appeal.[4]Normally the letter notifying an asylum-seeker of the refusal of his claim is sent to the claimant himself, as well as to his solicitors or other representative. Indeed, the Home Office initially thought that that had been done in this case. It subsequently conceded that it had not. The reason it had not was because it had erroneously thought that the letter sent to the claimant at the address he had given would not reach him – an error which arose from its previous error in incorrectly addressing the envelope containing the notice of 19 November 2002. As it was, because the claimant and his solicitors thought that the Home Office had not yet considered the claimant’s claim for asylum, the claimant’s solicitors wrote to the Directorate again for an update on 9 December 2003. A copy of that letter was retained on the solicitors’ file copy, but the Home Office claims that it was never received.[5]On 10 February 2004, a car in which the claimant was travelling as a passenger was stopped by the police. He was asked about his immigration status. He explained that he was awaiting a decision on his claim for asylum. The Directorate was contacted, and since its records showed that the claimant was an absconder who had failed to comply with the conditions of residence and reporting and had been refused asylum, the claimant was detained, notwithstanding his protestations that he had never been informed of the refusal of his claim for asylum. He was seen the following day by an immigration officer. The claimant repeated his claim that he had never been informed of the refusal of his claim for asylum. But directions for his removal to Kosovo were set for the following day, and he was removed there on 12 February 2004.[6]Within a few weeks, the claimant was back in the United Kingdom. He claims he entered the United Kingdom clandestinely in the back of a lorry on 15 March 2004. He did not report his presence in the United Kingdom to the Directorate, because he was afraid that if he did so he would be detained and removed again. But he did not contact his solicitors either. He claims to have lost confidence in them. However, he also claims that he realised that he could not go on living here with his immigration status unresolved, and he decided to find a new solicitor to advise him what to do. He claims that two of the firms he approached were unwilling to assist him, and that he had almost given up when he was referred to his current solicitors. He instructed them on 26 November 2004.[7]Unfortunately, it took far too long for them to issue the current claim for judicial review. They received the file from the claimant’s previous solicitors on 8 December 2004. No work was done on the case while the solicitor with the conduct of the case was on annual leave from 6 December 2004 to 4 January 2005. She claims that “due to a backlog of work and the pressure of emergencies” she was not able to see the claimant and take a full statement from him until 17 February 2005. Emergency public funding was obtained the following day – 18 February 2005 – to pursue a claim for judicial review, but that claim was not filed until 21 April 2005. Two reasons are given for that: the decision not to issue the claim until the Home Office had had an opportunity of considering the letter before action dated 23 February 2005, and counsel’s failure to draft the grounds because he believed that the claimant’s time for filing his claim for judicial review began to run from the Home Office’s response to this letter dated 25 February 2005.

The claim for judicial review

[8]The claim for judicial review challenges the legality of the claimant’s detention on 10 February 2004 and his removal from the United Kingdom on 12 February 2004. Since the claimant was detained pending his removal, the legality of his detention is dependent on the legality of his removal. Since section 77 of the Nationality, Immigration and Asylum Act 2002 provides that a person cannot be removed from the United Kingdom while his claim for asylum is pending, the legality of his removal is dependent on whether his claim for asylum was pending. Since section 77(2)(b) provides that a person’s claim is pending until he is given notice of the Secretary of State’s decision on it, the legality of his removal – and his claim for a declaration that his claim for asylum remains outstanding – depends on whether he was given notice of the refusal of his claim.[9]Notice of immigration decisions is governed by the Immigration (Notices) Regulations 2003 (SI 658/2003). Para. 4 of the Regulations entitles the Secretary of State to serve such notices either on individuals or their representatives. Such service may be effected by postal service in which delivery or receipt is recorded: see para. 7(1)(c). Para. 7(4) provides:
“Where a notice is sent by post in accordance with paragraph (1)(c), it shall be deemed to have been served, unless the contrary is proved.”
The Secretary of State does not dispute that if the claimant proves that his former solicitors did not receive the documents allegedly sent to them on 14 October 2003, he will have proved that notice of the decision was not received, and that the claimant’s claim for asylum will have to be regarded as still pending.[10]Permission to proceed with the claim was refused by Ouseley J on 2 September 2005 without a hearing. He thought that there were “discrepancies and vagueness” in the claimant’s evidence and that of his former solicitors, but that was before the Directorate’s error in incorrectly addressing the envelope had been noticed, and therefore when it was thought that the letters addressed to the claimant at his correct postal address would not reach him. But Ouseley J also refused to extend the claimant’s time for filing his claim, and in reaching that conclusion he took into account the merits of the claimant’s claim for asylum. He said:
“There is nothing in the merits to persuade me to extend time.”

The hearing before Forbes J

[11]The claimant asked for the decision whether he should be permitted to proceed with his claim to be reconsidered at a hearing. That hearing took place before Forbes J on 26 April 2006. The issues relating to whether the claimant’s former solicitors had received the documents allegedly sent to them on 14 October 2003 and whether the time for lodging the claim form should be extended were canvassed at length – as well as other issues to which it has not been necessary to refer in this judgment, such as the Secretary of State’s practice of setting directions for the removal of failed asylum-seekers shortly before their removal was due to be effected.[12]But in one respect counsel for the claimant was taken by surprise. He was not expecting counsel for the Secretary of State to argue that the time for lodging the claim form should not be extended because there was no chance that any appeal from the Secretary of State’s refusal of the claimant’s claim for asylum would succeed. Forbes J was apparently surprised that counsel for the claimant did not anticipate that argument – perhaps because of the reference to the argument in Ouseley J’s reasons for refusing permission for the claim to proceed. But after 1½ hours’ argument, Forbes J gave the claimant’s counsel until after lunch to develop an argument that any appeal to an immigration judge against the refusal of asylum would have some merit. However, after lunch the claimant’s counsel said that he would not be able to do justice to the claimant’s case with so little time to prepare an argument, and Forbes J reluctantly adjourned the hearing to the first convenient date after 7 days, reserving the case to himself. Forbes J was not available on the first convenient date, and although he would have been available in the not too distant future, the case was re-listed before me on 11 May 2006. The arguments had to be rehearsed again.

The receipt of the documents

[13]It is very regrettable that the Directorate’s error in addressing the November 2002 letter to the claimant made it think that the claimant could not be reached at the address he had given, and that there was therefore no point in sending to that address the letter notifying him of the refusal of his claim. But that error should not divert attention from the real issue which is whether the claimant has an arguable chance of proving that the letter was not received by his former solicitors. All the indications are that the letter was sent, correctly addressed, to the claimant’s former solicitors by recorded delivery. If it had been delivered, it would have been signed for. If it had not been delivered, it would have been returned to the Directorate. The Directorate claimed that it was never returned to it.[14]One way of testing whether it had been received by the claimant’s former solicitors would have been to look at the Post Office’s records. If the letter had been signed for, the Post Office would have been able to confirm that. If it had been returned to the Directorate, the Post Office would have been able to confirm that as well. But the Post Office destroys its records after 12 months, and since the issue whether the claimant’s former solicitors had received the letter became a live one only in February 2005, it was by then too late for the Post Office’s records to be checked.[15]There are a number of arguments which cut both ways. For example, if the letter had been received by the claimant’s former solicitors in October 2003, it is surprising that they would be writing to the Directorate in December 2003 enquiring about the progress of the claimant’s claim. On the other hand, the Home Office say that the Directorate never received that letter, and it is possible, I suppose, that if the letter refusing the claimant’s claim for asylum had been received, the person who wrote the December letter may not have known about the previous one, or the previous one had been destroyed because the solicitors realised that they would be severely criticised for not having notified the claimant of its receipt and not advising him about his right of appeal.[16]Again, it is common ground that while the claimant was being detained on 11 February 2004, his former solicitors were informed by telephone by a police officer of the claimant’s detention. It looks as if they were told that his removal was imminent because their own file note referred to the fact that he was “subject to deportation”. If they really believed that the claimant’s claim for asylum had not been determined, it is likely that they would have tried to find out from the Directorate whether directions for the claimant’s removal were being set, and to take steps, by way of an application for interim relief or otherwise, for those directions to be stayed. The fact that they did nothing suggests that they knew that his claim for asylum had been refused. On the other hand, their inaction might have been due simply to incompetence.[17]Yet again, the claimant’s custody record while being detained at the police station contains the following under the heading “Reasons for arrest”:
“Failed asylum appl. Subject stopped under sec 44 Anti-Terrorism act. He stated that he was a failed asylum speaker [sic] but was not sure of his current status.”
That rather suggests that the claimant was admitting to the custody officer that he knew that his claim for asylum had been refused, and he could only have known that if his solicitors had told him that. On the other hand, he may simply have been recounting what he had just been told by the police officer who had heard from the Directorate that the claimant was a failed asylum-seeker. In any event, the custody officer may have been recording what the police officer had been telling him rather than the claimant.[18]A number of other points were made about the custody record, but I have said enough, I think, to show that there are arguments both ways. In the circumstances, I cannot say that the claimant does not have an arguable chance of proving that the letter was not received by his former solicitors, and I therefore turn to whether his time for filing the claim form should be extended.

The extension of time

[19]Leaving aside the merits of any appeal from the refusal of the claimant’s claim for asylum, I would have had little hesitation in refusing an extension of time. The decisions challenged – the detention and removal of the claimant – were taken in February 2004, which was when the claimant discovered that his claim for asylum had been refused even though he had not been told about it. Yet it was 14 months later that his claim form was filed. The claimant should have tried to regularise his immigration status as soon as he returned to the United Kingdom, and no details are given of the approximate dates when he approached the solicitors who were unable to assist him, or when and how he heard of his current solicitors. The delay once he had instructed his current solicitors was inexcusable. Someone else in the firm should have handled the claimant’s case while the solicitor with the conduct of it was on annual leave. The fact that the solicitor could not do anything on the claimant’s case for 6 weeks following her return from annual leave because of other work commitments is not satisfactory: if you cannot give a client a professional service because of the demands of other clients, you should not take his case on in the first place. And the reasons advanced for not filing the claim form soon after 18 February 2005 are disingenuous. The claimant’s counsel accepts that his view that time would only run from the Home Office’s response to the letter before action was mistaken. And if you are up against a time limit, you do not delay the filing of the claim to comply with a pre-action protocol. I acknowledge that Brooke J (as he then was) in R v Borough of Milton Keynes ex p. Macklen, 30 April 1996, unreported, emphasised the importance of a letter before claim, and commented:
“If adopting such a course turns out to be unsuccessful then there would surely be little danger of the application for judicial review being turned down on the grounds of delay, because the [claimant] had followed the very desirable procedure of seeking to have the dispute resolved by other means.”
But that was said before the promulgation in December 2001 of the pre-action protocol for judicial review, which expressly said in its introduction that it was not to affect the time limit for bringing a claim for judicial review.[20]Nor can it be said that the Home Office has not been prejudiced by the delay. The delay resulted in the Home Office not being able to check the Post Office’s records relating to the delivery of the letter refusing the claimant’s claim for asylum before they were destroyed.[21]But I am conscious of those cases which suggest that a claimant who has been let down by his solicitors should not be penalised unduly. I am also aware of the importance of asylum cases. It would be tragic if the claimant was returned to Kosovo when it might have been found on appeal that he had a well-founded fear of persecution if he was returned there. I have therefore considered whether he would have an arguable chance of any appeal from the Secretary of State’s refusal of his claim succeeding before an immigration judge.[22]The claimant’s claim for asylum was refused because although the claimant might have had a well-founded fear of persecution in Kosovo when he left there in 1998, the political landscape had changed to such an extent by the time his claim for asylum was refused that he would no longer have a well-founded fear of persecution if he was returned there. The strength of that argument is now recognised by those advising the claimant, and his case as presently formulated – now that he has grown roots in the United Kingdom as a result of the delay of about 5 years in dealing with his claim and the time which has elapsed since then – is that his removal to Kosovo would infringe his right to respect for his private life under Art. 8 of the European Convention on Human Rights. That claim has never been considered by the Home Office – no doubt because no representations have been advanced to it on that basis – but the question is whether it is possible that such an argument would succeed before an immigration judge hearing an appeal against the decision to set directions for the removal of the claimant.[23]The impact of delay on Art. 8 claims has been considered in a number of cases, but recently by the Asylum and Immigration Tribunal in MM [2005] UKAIT 00163. At [21] the Tribunal set out the relevant principles, which I quote ignoring the citation of authority and references to other cases or the facts of that case:• “The first thing to be said is that… delay without more cannot be determinative on its own: in other words, status should not be granted merely to compensate the appellant or to punish the Home Office.• Delay which deprives the appellant of a legitimate expectation (such as being able to make an in-country application for leave to remain) which he had at the time a decision which should have been made may… be enough on its own to make removal disproportionate to the legitimate purpose of immigration control even at a later date, when the situation giving rise to that expectation is no longer in being.• Delay itself, if sufficiently gross, may take a case which would not otherwise be ‘truly exceptional’… into that category…; but it would only lead to a conclusion that removal is disproportionate if there is some free-standing claim to be allowed to stay on the basis of current family or private life, which together with the circumstances of delay could lead to a ‘truly exceptional’ finding.• Delay will rarely, if ever, appear gross enough to bring a case within the last principle unless… there is evidence to show it was not acquiesced in by the appellant. A claimant is not entitled to sit back and enjoy whatever this country has to offer, relying on no more than the administrative incompetence of its authorities… Evidence of some formal pressure on the Home Office (either by way of solicitors’ (or other representatives’) letters…, intervention by an MP…, or personal appearance at the Home Office, resulting in an attendance note recorded on the file by an official) is likely to be required to show that an appellant has not acquiesced in delay.”[24]In the present case, it is said that the appellant had a legitimate expectation that had his claim been commenced when it should have been, he would have been granted asylum or exceptional leave to remain. The argument relied on the policy in force at the time for returning asylum-seekers from Kosovo. That policy was explained in MM at [5]:
“Till 15 June 1999, most were given either asylum or exceptional leave to remain, in some cases indefinite. From then till 13 September, all those who had arrived before March were to be given 12 months’ exceptional leave to remain: afterwards each was to be dealt with on his individual merits.”
It is said that if the claimant’s claim had been considered timeously, he would have been granted asylum or at least exceptional leave to remain. However, that presupposes that his claim would have been considered by 15 June 1999, i.e. within 7 months of his arrival in the UK when he applied for asylum. But he had no legitimate expectation that that might happen. As was said in MM at [8], the most that an asylum-seeker at the time could have expected was that a decision would be made in his case at the latest by 12 months after his arrival. However, the claimant was only 17 at the time of his arrival, and his solicitors have said that the policy at the time stated that “it will rarely be acceptable to hold an application for an unaccompanied child without action being taken on it for longer than six months”. The claimant’s solicitors have not identified what policy this is a quotation from. But in any event there is a significant difference between action being taken and a decision being made. Action is taken, for example, when an asylum-seeker is required to attend for an interview by an immigration officer. In short, the claimant had no legitimate expectation that his claim would be considered in time for him to benefit from this policy.[25]Was the delay on the part of the Home Office acquiesced in by the claimant? Certainly not the delay after he was first required in February 2002 to complete the Statement of Evidence Form. As we have seen, his solicitors were thereafter asking the Home Office at various intervals about the progress of his claim. The evidence before me is silent as to whether he acquiesced in the delay before February 2002, and it would not be right for me to make any assumptions either way. But even if the claimant had not acquiesced in the delay before February 2002, I have not discerned any feature of the claimant’s private life which, when coupled with the delay, could arguably lead to the conclusion that his circumstances were so exceptional as to make his removal from the United Kingdom disproportionate to the legitimate aim of maintaining an effective system of immigration control.[26]There remains one final point. On 24 October 2003, the Secretary of State announced that families with dependent children under the age of 18 either then or on 2 October 2003 who had arrived in the United Kingdom prior to 2 October 2000 would be granted leave to remain. The cut-off date for the application of the policy – 2 October 2000 – is significant. That was when the Human Rights Act 1998 came into force. That is unlikely to have been a coincidence. It is therefore possible that the intention was to grant the concession only to those families who had arrived before 2 October 2000 on the basis that the rights of those who arrived after that date would be sufficiently protected by their Convention rights. It is said that if the rationale for that concession was that it was inappropriate to remove children from the United Kingdom who had spent their more recent formative years here and had grown roots here, that rationale should apply just as much to children who had arrived in the United Kingdom unaccompanied. Thus, it is said to be irrational to remove the claimant from the United Kingdom, because like the children to whom the concession expressly applied, he too had spent part of his formative years here. The fact that only a minimal part of his formative years needed to be spent here is apparent from the fact that the concession was to apply, not just to dependent children who were under the age of 18 on 2 October 2000, but also to those who were under the age of 18 on the day the policy was announced.[27]This is an important argument and one which needs to be considered with care. I cannot say that it is not arguable, and for that reason I think it arguable that an appeal to the immigration judge against the directions for the claimant’s removal from the United Kingdom might be successful.

Conclusion

[28]It is for that reason alone that I grant an extension of time for the filing of the claim form, and that I give the claimant permission to proceed with his claim. I know that permission to proceed with claims for judicial review on this ground have been given in other cases, and consideration should be given to having all these cases heard at the same time. If, in the light of this judgment, the Secretary of State decides to permit the claimant to appeal to an immigration judge, thereby making further consideration of this claim for judicial review unnecessary, the Administrative Court Office should be informed of that.[29]As I said at the conclusion of the hearing, I do not want to put anyone to the expense of having to attend court when this judgment is handed down, and I leave it to the parties to see if they can agree costs. But if the parties cannot agree an appropriate order for costs within 14 days of the handing down of this judgment, they should refer the issue to me, and I will decide the appropriate order to make without a hearing on the basis of any representations which are made. I am not here referring to any application for wasted costs in respect of the hearing before Forbes J to be paid by counsel for the claimant. If such application is to be made, it will have to be pursued in the usual way.

Cited in 4 later judgments

  • JS (Family ILR Exercise, near-miss argument) Albania [2007] UKAIT 00080 (22 August 2007) 2005
  • Rudi & Anor v Secretary of State for the Home Department 2007
  • JS (Family ILR Exercise, near-miss argument) Albania [2007] UKAIT 00080 (22 August 2007) 2007
  • JS (Family ILR Exercise, near-miss argument) Albania [2007] UKAIT 00080 (22 August 2007) 2007