Aslan, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 1855 (Admin)

Case No CO/0260/2006[2006] EWHC 1855 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday 10 July 2006
Between
THE QUEENClaimanton the application ofClaimantAYSEL ASLANClaimant
The Strand
London
WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
_______________
- v -
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant_______________Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone No: 020 7421 4040(Official Shorthand Writers to the Court)_______________ for THE CLAIMANT was not present and was not representedMISS C PATRY (instructed by the Treasury Solicitor)appeared for DEFENDANT_______________J U D G M E N T
[1]This is a renewed application by the claimant seeking judicial review of a decision by the Secretary of State who refused her application to remain in this country, having bought into a business, in accordance with the rules applicable to the Ankara Agreement. The claimant is Turkish. She came to this country seeking asylum in July 2002. Her claim was rejected. She appealed to an adjudicator and by a decision reached on 24 February 2004 her appeal was dismissed. The adjudicator did not accept her account in two material particulars. He said:
"Although Miss Aslan's account has not differed significantly with time and there is no obvious attempt to exaggerate her involvement in HADEP or the extent of the maltreatment which she suffered, there are two matters which cause me particular concern."
He then set out those matters and concluded that he had not been told the whole truth about them.[2]This was a claim which was not entirely truthful. There was, therefore, an entry by fraud within the approach of The Queen (on the application of Dari and Tum) v Secretary of State for the Home Department [2004] EWCA Civ 788. The sooner those responsible for these cases appreciate that, where an immigration judge disbelieves the story told and that finding is not overturned on appeal, a claimant is in this country as a result of fraud perpetrated on the authorities, the better. Such claims have no merit whatever, regardless of whether they might qualify under the 1973 Rules. This claim also fails on that. There was a detailed rejection of the application for various reasons, but the Secretary of State was, in my view, entitled on the material before him to decide that this was not the buying into a business by the claimant, but was a disguised employment or an attempt by family members to enable her to remain here.[3]As is almost always the case, the claim was only raised when enforcement was finally sought. The claimant persuaded the duty judge in January to stay removal. The duty judge is always in a difficult position in these cases because he or she often does not have sufficient information to know whether there is any merit in the claim. The only reasonable position to adopt is to order a temporary stay pending consideration at the very earliest possible moment by this court.[4]I hope that a new arrangement entered into with the Home Office will avoid the need for most of these last minute applications because a reasonable time will be given to enable applications to this court to be made if those responsible think there is any merit in them. The impression I have with many of these cases is that there is an assumption that, because there is a claim and because the Ankara Agreement is prayed in aid, therefore the matter can properly be put before the court. That is not the case.[5]Solicitors acting for claimants must obtain copies of any adjudicator's decision. So often the court is not given that information. That was the position here. The relevant decision was not produced before the court until the acknowledgement of service. That is a breach of the obligation of good faith in putting all relevant material before the court. The sooner those involved in these claims realise that, the better. The court will begin to consider whether or not routinely wasted costs orders should be made where the existence of, and indeed the details of, any decision is not produced if that decision shows that the account given by the claimant has not been believed because that will mean that the claim based on the Ankara Agreement is utterly hopeless. That is what Dari and Tun decides in terms and that has not been the subject of appeal to the House of Lords. There is no merit in this claim.[6]The claimant was represented by counsel who apparently saw fit to approve this renewed application. Quite how, in accordance with his duty, he could have done that I do not know because the application was totally without merit. In addition, the solicitors in question, Baker and Company, did not see fit to notify the court, or indeed the Treasury Solicitor, until last Friday that they were no longer instructed. The claimant herself has not seen fit to attend. Davis J regarded this claim as baseless and indicated that an unsuccessful renewed application might result in a costs order. It will.[7]I shall order that this application is refused with costs both of providing the acknowledgement of service and relating to the renewed application to be paid by the claimant. Further, I order that, within fourteen days, Baker and Company show cause in writing why a wasted costs order should not be made against them in relation to the renewed application proceedings on the basis that they totally failed to notify the court of their lack of further involvement and were party to the presentation to the court of a totally baseless, unmeritorious claim.[8]Although there is a representative of Baker and Company present in court, they may have fourteen days to respond after service of the approved judgment.

Cited in 2 later judgments