Arslan v Secretary of State for the Home Department [2006] EWHC 1877 (Admin)

Case No CO/9120/2005[2006] EWHC 1877 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 th July 2006
Before
ANDREW NICOL QC, SITTING AS A DEPUTY HIGH COURT JUDGE
Between
Ali ArslanClaimantSecretary of State for the Home DepartmentDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
John Walsh (instructed by Vincent Buffoni, solicitors) for ClaimantNicola Greaney (instructed by Treasury Solicitor) for 1 st Defendant
Judgment

Andrew Nicol QC :

[1]This is an application for judicial review of a decision of the Secretary of State for the Home Department on 3rd November 2005 to refuse the Claimant, Mr Arslan, leave to enter the UK as a self-employed business-man. Since then the Claimant has presented the Secretary of State with further evidence in support of his application, but the Secretary of State has maintained his refusal. By common agreement the application for judicial review has been treated as extending to these later decisions as well.[2]Mr Arslan is Turkish. He arrived in the UK in 1997 and claimed asylum. This application was rejected by the Secretary of State on 28th March 2001. He appealed, but his appeal was dismissed by an Adjudicator on 26th April 2004 and an application for permission to appeal to the Immigration Appeal Tribunal was also dismissed on 19th July 2004.[3]On 14th October 2004, solicitors on behalf of Mr Arslan applied for him to have leave to remain on the basis that he had established himself in a business called ‘Chase Side Food and Wine’ which was an off licence and grocery store. He claimed that he was entitled to remain in the UK under the Association Agreement between the European Economic Community and Turkey (‘the Ankara Agreement’). At the request of the Home Office, an application form was returned by the solicitors in May 2005. It was accompanied by a business plan and other supporting documents.[4]Nothing further was heard by the Claimant until 3rd November 2005. On that day he made his usual monthly report to the Home Office. He was detained. At about 1.45pm, his solicitors were served with the Secretary of State’s refusal of Mr Arslan’s application. Removal directions had been set for 7.45am the following morning.[5]Mr Arslan’s solicitors told the Home Office the same afternoon that they had instructions to apply for judicial review of the refusal. At about 4.45pm they were informed that the removal directions would not be suspended. An application for an injunction was made and later that evening Grigson J. ordered that the Claimant should not be removed until permission for the intended application for judicial review had been determined. On 2nd March 2006 Walker J. granted permission to apply for judicial review and extended the injunction until the substantive application had been determined.

The standstill provision of the Ankara Agreement

[6]The Ankara Agreement was made in 1963. In 1972 Turkey and the EEC agreed an Additional Protocol which was to be treated as an integral part of the Association Agreement (see Article 62 of the Additional Protocol). Article 41 of the Additional Protocol provides:
‘(1) The contracting parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.’
[7]In R v Secretary of State for the Home Department ex parte Savas Case C-37/98 [2000] 1 WLR 1828 the European Court of Justice held that the Association Agreement and Additional Protocol did not as such confer a right of establishment on Turkish nationals in Member States. However, the effect of Article 41(1) of the Additional Protocol was to prohibit the introduction of new national restrictions on the freedom of establishment and right of residence of Turkish nationals as from the date on which the Additional Protocol entered into force in the host member state (see paragraph 71 of the Court’s Judgment). In the case of the UK, this would have been when it joined the EEC on 1st January 1973. In Savas the European Court also held that Article 41(1) had direct effect so that an individual could rely on it as against the host state even in the absence of any implementing domestic measures.[8]In Tum v Secretary of State for the Home Department; Dari v Secretary of State for the Home Department [2004] EWCA Civ 788 [2004] INLR 442 the Court of Appeal rejected an argument by the Secretary of State that Article 41(1) could be relied upon only by Turkish nationals who had already obtained leave to enter the UK. On the contrary, the Court of Appeal said that it applied to a Turkish national whatever his immigration status (see [22]). The Court of Appeal said that there was an exception for those who had achieved entry to the UK by the use of fraud. It will be necessary to examine this ‘fraud exception’ in more detail later in this judgment.[9]I understand that the Secretary of State has appealed against the decision of the Court of Appeal and that the House of Lords has referred one or more questions to the ECJ, but for the purpose of the present proceedings, he accepts that the Court of Appeal’s judgment is binding.

The applicable rules: HC 509

[10]Setting aside the fraud exception for the moment, the Secretary of State accepts, therefore, that he had to assess the Claimant’s application for leave to remain in the light of the Immigration Rules which were in force in 1973. This is because in many respects the present Immigration Rules impose significantly higher hurdles and it would infringe Article 41(1) for the Claimant’s application to be judged by those tougher criteria.[11]The Immigration Rules that are relevant are HC 509 ‘Statement of Immigration Rules for Control on Entry’. There was a companion set of rules, HC 510, for people who had already entered the UK, but ‘entry’ is a term of art and although the Claimant had physically been in the UK for almost 7 years at the time of his application, he had never been granted leave to enter and he had not ‘entered’ the UK in this formal sense.[12]Rules 30 – 32 of HC 509 say ’30. Passengers who have obtained entry clearances for the purpose of establishing themselves in the UK in business, whether a new or existing business, should be admitted for a period not exceeding 12 months with a condition restricting their freedom to take employment. Passengers who are unable to present such a clearance but nevertheless seem likely to be able to satisfy the requirements of one of the next 2 paragraphs should be admitted for a period of not more than 2 months, with a prohibition on employment and advised to present their case to the Home Office.31. For an applicant to obtain an entry clearance for this purpose he will need to show, if joining an established business, that he will be bringing money of his own to put into the business; that he will be able to bear his share of the liabilities; that his share of the profits will be sufficient to support him and his dependents; that he will be actively concerned in the running of the business; and that there is a genuine need for his services and investment. The audited accounts of the business for the previous years will require to be produced, in order to establish the precise financial position. An entry clearance will not be issued where it appears that the proposed partnership or directorship amounts to disguised employment or where it seems likely that, to obtain a livelihood, the applicant will have to supplement his business activities by employment for which a work permit is required.32. If the applicant wishes to establish a business in the United Kingdom on his own account, he will need to show that he will be bringing into the country sufficient funds to establish a business that can realistically be expected to support him and any dependants without recourse to employment for which a work permit is required.’

The issues between the parties on this application

[13]The parties identify four issues:(i) Whether the Secretary of State’s substantive decision that the Claimant’s application did not satisfy the requirements of HC 509 was perverse and therefore unlawful.(ii) Whether the Secretary of State was entitled to find that the Claimant came within the fraud exception and so was unable to rely on the standstill provision at all.(iii) Whether the Court should in its discretion refuse the Claimant any relief on the grounds that he will, following removal to Turkey, have an alternative remedy, namely an appeal to the Asylum and Immigration Tribunal.(iv) Whether the Secretary of State erred in law by refusing to set aside the removal directions on 3rd November 2005 after the Claimant’s solicitors had intimated that they proposed to apply for judicial review and, if so, what, if any, relief should the Court grant in that respect.

The substantive decision that the Claimant’s application did not satisfy HC 509

[14]The decision of 3rd November 2005 set out a large number of reasons as to why the Secretary of State was not satisfied that the conditions of HC 509 had been fulfilled. In subsequent correspondence, the Claimant to some extent was able to respond positively and fill the gaps which the Secretary of State had identified in the application. Nonetheless and notwithstanding this supplementary evidence, the Secretary of State remained unpersuaded that the requirements of HC 509 had been satisfied.[15]In summary, the Secretary of State’s reasons were:(i) He was not persuaded that the Claimant’s profits from the business would be sufficient to support the Claimant. The Secretary of State noted: (a) The Claimant was dependent on his brother to provide rent free accommodation. (b) The Claimant’s personal bank statements showed a very small income. (c) The accounts for the second year of the business’ operation (the only full accounts produced) showed a profit of only £10,559.(ii) The information as to the basis on which the Claimant had been occupying the premises pending completion of the purchase of the business remained very unclear. There was no business tenancy. The identification of the landlord remained uncertain. A sum for rent appeared in the accounts, but no receipts from the landlord had been produced. Conflicting evidence had been produced as to when the transaction for the sale of the business had taken place.(iii) No accounts of the business prior to its sale to the Claimant had been produced and so its viability at that stage could not be assessed.(iv) The source of the funds with which the Claimant had or was able to access in order to purchase the business remained obscure. The Claimant had accepted that he had not had sufficient money of his own to purchase the business but had been reliant on loans from four individuals. However, it was not easy to identify these loans with entries in the Claimant’s bank accounts. No explanation or evidence had been given to show the terms of the loans so as to show that these monies were, as HC 509 required, under the control of the Claimant.(v) The timing of the application was suspect, coming as it did after the Claimant had exhausted the asylum appeal process in which the Adjudicator had found that part of the evidence put forward by the Claimant had been fabricated.[16]The Claimant alleges that the Secretary of State’s decision in this respect is perverse. Mr Walsh, on his behalf, makes the following points in particular:(a) HC 509 adopts a different style to the current Immigration Rules. Rather than setting precise conditions which have to be fulfilled, HC 509 is couched more in terms of guidance calling for the exercise of judgment. The central issues for the Secretary of State was whether the business in question was genuine, whether it was able to generate sufficient funds for the applicant to support himself without recourse to public funds, whether sufficient funds were invested in the business and whether the applicant bore the appropriate risk.(b) The Claimant had produced evidence of his purchase of the business including letters from his solicitors and the cover sheet of a contract concluded in May 2006.The Claimant had been registered for VAT purposes in the name of the business since September 2003. A liquor licence had been granted to the Claimant in February 2004. Some utility bills had been produced going back to 2003 and business bank accounts back to June 2004. Non-domestic rates demands had been issued to him for the business in 2004 and 2005.(c) These bills also showed that the Claimant was carrying the risks of the business. The documents I have mentioned and others showed that the Claimant was actually engaged in the business and his second year accounts showed a substantial turnover and a profit that was modest but sufficient to support the Claimant without recourse to public funds. It could not be said that this was disguised employment.[17]In my judgment this perversity challenge is unsuccessful. Although it is true that HC509 tends to confer more discretion on immigration officials and is less dogmatic in its style, Rules 30-31 nonetheless contained requirements which had to be fulfilled. Mr Walsh is right that to some extent the Rules require the Secretary of State to make judgments, but the person required to make those judgments is the Secretary of State. It is axiomatic that on judicial review the Court does not stand in the shoes of the Secretary of State and take those decisions or make those judgments afresh.[18]There was, as Mr Walsh says, ample evidence to show that this was a genuine business, but that was not the end of the matter. The Secretary of State had to be satisfied that it was a business which generated sufficient profits for the Claimant to enable him to support himself. In this case the absence of evidence as to the profits which had been earned by the seller of the business, the absence of first year accounts, the very modest level of profits in the second year of trading and the fact that the Claimant still needed to rely on rent-free accommodation from his brother all entitled the Secretary of State to reach the conclusion that he could not be satisfied on this score.[19]The Rules are also clear that the applicant must be bringing money of his own to put into the business. I do not think that this precludes businessmen relying on borrowed funds, but the Secretary of State was entitled to say in this case that the Claimant had provided insufficient information and supporting evidence as to the loans which he says had been used to buy the business so as to demonstrate that these were funds under the Claimant’s control. In a witness statement of 20th June 2006 the Claimant named the lenders. At that stage he said nothing about any of the loans having been repaid. In a further witness statement of 30th June 2006 he said that he had repaid some £6,000 of the total loans of £12,000. No receipts have been produced. Nothing is said in any of the evidence as to the terms of any of these loans. No witness statement or document of any kind from any of the lenders has been produced.[20]It was also permissible for the Secretary of State to view any unsupported statements of the Claimant with a degree of scepticism in view of the Adjudicator’s credibility findings. There is, however, independent support for the Claimant having become involved in the business in some way since the autumn of 2003 (that, for instance, is when he was registered for VAT). His application under the Ankara Agreement was not made until October 2004, but the Court of Appeal’s decision in Tum and Dari was only given on 24th May 2004. This qualification is not enough to render the continuing refusal of the Claimant’s application perverse or otherwise unlawful. Whether the Claimant would anyway have been disentitled to rely on the Ankara Agreement because of the ‘fraud exception’[21]As I have said above, in Tum and Dari the Court of Appeal considered (albeit obiter) the effect of fraud on the ability of a Turkish national to rely on the standstill provision in the Ankara Agreement. Lord Woolf said at p. 449 ‘[23] The one exception that I would make to that clear position is with regard to a person who achieves entry to this country by the use of fraud. It has long been the situation that those who enter by fraud cannot benefit from the point of view of immigration status by so doing. The case of R v Secretary of State for the Home Department ex parte Kondova and Others (Case C-235/99) [2001] ECR I-6427, which was not referred to in the court below, confirms that that is the position. The provisions which were being considered by the court in that case are not the same as here, but for present purposes para 80 can be applied. It says:
‘…a Bulgarian national who intends to take up activity in a Member State as an employed or self-employed person but who gets round the relevant national controls by falsely declaring that he is entering that Member State for the purpose of seasonal work places himself outside the sphere of protection afforded to him under the Association Agreement.’
The sentiments expressed in that paragraph would be equally applicable to a situation where a person otherwise in the position of the respondents sought to gain access to this country as an asylum seeker by fraudulent means. [24] In the course of his judgment Davis J. illustrated his reasoning in relation to the argument advanced by Mr. Saini at para [43], where he said:
‘It means, for example, that a Turkish national gaining temporary leave to enter as a visitor – perhaps in the process, being somewhat economical as to the truth, with the immigration authorities – and who then unlawfully overstays is in a position to invoke Article 41(1), and so to be potentially in a better position to obtain leave to remain to establish a business than a Turkish national who has dutifully made his application while in Turkey (or at a port). Hardly a satisfactory result.’
That dicta of Davis J. should not be understood as in any way conflicting with the clear principle that a would-be immigrant cannot improve his position by resorting to fraud. No doubt Davis J. would have qualified what he said in that paragraph and the following paragraph if his attention had been drawn to R v Secretary of State for the Home Department ex parte Kondova and others (Case .235/99) [2001] ECR I-6427.’[22]The other members of the Court agreed with Lord Woolf and, in the case of Sedley LJ, he specifically noted at para [29] that they were not dealing with a fraud case and that what had had been said by Davis J. about fraud had been unnecessary for the decision.[23]In Tum and Dari Lord Woolf had also noted at p.446 para [16] that ‘Claims for asylum may be bona fide claims, albeit that they are unsuccessful’. In the present case the Secretary of State argues that on the findings of the Adjudicator this was very far from being a bona fide claim. The adjudicator had said, for instance (at para 29 of the determination):
‘I find that the appellant’s evidence contains claims that I find to be implausible and enhancements and I find the appellant lacking in credibility. I find that the claimant has fabricated elements of his claim, which I find to be extremely damaging to his credibility.’
In particular, the Adjudicator found that the Appellant had fabricated a claim that his family had allowed the PKK to use their summer house and that this had brought his family to the attention of the authorities.[24]In very similar circumstances, Wilkie J. in the case of R (on the application of Taskale) v Secretary of State for the Home Department [2006] EWHC 712 (Admin) had also rejected a perversity challenge to the Secretary of State’s refusal to grant an application for leave to enter as a self-employed business-man under the Ankara Agreement. There again the applicant had made an unsuccessful asylum application and the adjudicator found on appeal that he had put forward a fraudulent and false account in order to support his claim for asylum. Wilkie J. said at para [34] ‘In my judgment and consistent with the approach taken by the Court of Appeal in Dari and Tum and having regard to the judgment of Beatson J. in Yilmaz the Secretary of State would be entitled to have regard to the findings of the adjudicator (apparently unappealed) of fraud on the part of the claimant, not so much in the way in which he gained entry by being hidden in the back of a lorry, but subsequently by giving a false and fraudulent account to immigration officers and thereafter to the adjudicator. In those circumstances it would be open to the Secretary of State to have rejected this application at the outset by saying that this claimant was not entitled to the benefit of the agreement scheme on account of his having attempted, albeit unsuccessfully, to gain entry by the use of fraud.’[25]Mr Walsh submits that Wilkie J. was wrong in this part of his judgment. He points out that the issue before an adjudicator is whether the applicant has shown to the appropriate low standard of proof either a well-founded fear of persecution or a real risk of treatment which would be contrary to Article 3 of the ECHR. That is a different question to whether fraud has been demonstrated particularly if, as in other fields of law, a demanding quality of evidence is required before a tribunal is satisfied (even on the civil standard) that fraud has been committed. An adjudicator (now the AIT) may find that a claim is ‘fraudulent’ but such findings are fallible. Mr Walsh referred to a passage in R (ZL and VL) v Secretary of State for the Home Department [2003] EWCA Civ 25 [2003] INLR 224 at para [60] where Lord Phillips MR had said ‘In many immigration cases, findings on credibility have been reversed on appeal’. Yet, said Mr Walsh, the finding of fraud as such is not appealable. Only the ultimate conclusion of the adjudicator / AIT that the asylum or human rights claims failed can be appealed and, since the Nationality Immigration and Asylum Act 2002, then only if the first instance appellate body erred in law.[26]In the end, I do not find these arguments persuade me that Wilkie J. was wrong. As the Court of Appeal said in Tum and Dari the fact that an asylum claim has been unsuccessful does not automatically mean that it has been advanced by fraud. The Secretary of State would be well advised not to rely on the ‘fraud exception’ where the findings of the adjudicator as to the bona fides of the claim are at all equivocal. But in the present case the adjudicator was forthright and unambiguous in his characterisation of it and the same would seem to be the case in Taskale. Neither seems to have been a case where the quantum of proof required would have been determinative. I do not think that the judgment in ZL and VL helps Mr Walsh. In context, Lord Phillips appears to have been speaking of findings of credibility by immigration officials which have often been reversed on appeal, rather than the findings of adjudicators. This is clear from the preceding sentences which said, ‘As we shall explain an issue of credibility arose in this case in relation to ZL. The Secretary of State gave her the benefit of the doubt and his decision did not turn on credibility. Where an applicant’s case does turn on an issue of credibility, the fact that an interviewer does not believe the applicant will not, of itself, justify a finding that the claim is clearly unfounded.’ Besides, it is not likely to be the case that many findings as to credibility by adjudicators (or, now, the AIT at first instance) are overturned on appeal (or, now, on reconsideration). Even before the IAT’s power on appeal was limited to questions of law, it was (and it remains) very difficult to overturn the findings of an adjudicator who has reached his views on the truthfulness of a witness after hearing that person give live evidence. Of course, it is in the nature of things that some findings by adjudicators are likely to be wrong, but I am not aware of any principle of European law which would require that type of finding to be subject to a de novo hearing by an appellate body. The position may be different if the adjudicator’s findings of fraud or dishonesty came out of the blue, but that is unlikely to be the case and, where it is, may, for that reason provide grounds for an appeal (or now reconsideration) on the basis that the appellant was treated unfairly.[27]In Taskale and R (on the application of Yilmaz) v Secretary of State for the Home Department [2005] EWHC 1068 (Admin) the Court has said that the Secretary of State can rely on the fraud exception even though the fraud did not successfully lead to the grant of leave to enter or remain. I, with respect, wonder if fraud should so obviously disentitle a person from relying on an EU or Association Agreement right if the fraud has had nothing whatsoever to do with the entitlement to the European right. I am not sure that the principles of abuse of rights in a case such as Emsland-Starke GmbH v Haupzollamt Hamburg-Jonas Case C-110/99 at paragraphs [51]-[54], to which Mr Walsh referred can be directly carried over to the present context. Ms. Greaney, for the Secretary of State, argued that there was a connection because the Claimant could rely on the ‘standstill provision’ of the Ankara Agreement only because he was in the UK. She submitted that he would not have been able to do so had he applied from Turkey. I do not think that this is correct. I agree with Mr Walsh that there is no foundation for saying that Article 41 of the Additional Protocol (and the more generous provisions of HC 509) could not be invoked by a Turkish national who was applying for entry clearance to come to the UK as a self-employed businessman. Paragraph 31 of HC 509 is in terms directed to applicants for entry clearance and I can see no reason why the reasoning of the ECJ in Savas should not allow such applicants also to rely on Article 41. But in the present case and many other cases there is an obvious practical connection between the false representations made for the purpose of the asylum application and the later application under the Ankara Agreement. It was while the Claimant was pursuing his asylum application and appeal, which the adjudicator found to be fraudulent, that the Claimant began his involvement with ‘Chase Side Food and Wine’. His personal involvement is, it seems from his application, a critical feature of the business.[28]Accordingly, I would, if it had been necessary, find that the Secretary of State was entitled to rely on the fraud exception, but like Wilkie J. I would decide the application essentially on the lack of success of the perversity challenge.

Alternative remedy: appeal from abroad

[29]I would not have been inclined to dismiss the application in the exercise of discretion because of the possibility of an appeal after removal.[30]The Secretary of State concedes that the Claimant would have a right of appeal against the refusal of leave to enter under Nationality, Immigration and Asylum Act 2002 s.82(1) & (2)(a), although because of s.92 of that Act the Claimant could not exercise the right while he was within the UK. Mr Walsh argues that such an appeal is useless because it is doomed to fail.

(b) which says:

‘A person may not appeal under s.82(1) against an immigration decision which is taken on the grounds that he or a person of whom he is a dependent ….(b) does not have an immigration document of a particular kind (or any immigration document)’
. Mr Walsh notes, correctly, that the decision of 3rd November 2005 was taken in part on the basis that the Claimant did not have entry clearance. However, in my view, the subsection to which I have referred would only shut out an appeal if the immigration authorities had been entitled to take their decision because of the lack of the document in question. As long as the Court of Appeal’s decision in Dari and Tum remains the law, possession of an entry clearance was not an essential requisite for a Turkish national wishing to establish himself as a self-employed businessman.[31]Ms. Greaney accepts, however, that the existence of an alternative remedy does not deprive the Court of jurisdiction but is a reason why in its discretion it can refuse relief.[32]Where an alternative remedy exists there must be ‘exceptional circumstances’ for the Court to grant relief by way of judicial review (see R v Secretary of State for the Home Department ex parte Swati [1986] 1 WLR 477, 485 CA). ‘By definition, exceptional circumstances defy definition, but where Parliament has provided an appeal procedure, judicial review will have no place, unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided.’ (ibid).[33]In R (on the application of Aksu) v Secretary of State for the Home Department [2006] EWHC 1382 (Admin) Sullivan J. would have refused relief on this ground (the claim failed for other reasons as well). It was also a case of an application by a Turkish national under the Ankara Agreement and it was said that ‘the business was an ongoing business. It was not a prospective business and since the business is an ongoing business then, clearly, if the person engaged in the business had to leave the country in order to pursue an appeal, that would cause disruption to the business. It seems to me that this cannot be described as an ‘exceptional circumstance’. Some disruption would necessarily occur in any case where there was an existing business. In truth there is nothing exceptional about either this business or the refusal letter in the present case which would justify this applicant in side stepping the statutory scheme (assuming that he was entitled to take the benefit of that scheme) and pursuing an in-country rather than an out-of-country right of appeal.’ (para [25])[34]The circumstances in Aksu were thus very similar to the present case. Mr Walsh says that the present Claimant had been in business for nearly 3 years and that is a distinguishing feature. It is not possible to tell from the judgment in Aksu how long that business had been continuing. More importantly, in my view, there is no reference in that case to when the ‘alternative remedy’ issue was raised. In the present case it was raised by the Secretary of State only a few days before the hearing. I gave leave to the Secretary of State to amend his grounds of opposition to the Claim so that he could argue the ‘alternative remedy’ point. I did so, essentially because Mr Walsh very fairly accepted that he was able to respond to the argument despite the late notice. I did also allude to the possibility of compensating the Claimant in costs if this were the only ground on which the Secretary of State’s defence succeeded. On reflection I do not think that costs would have been sufficient. An alternative remedy argument can be raised at the substantive hearing of a judicial review application: it is not a matter which can only be taken at the permission stage. But the fact that the argument has not even been raised until a very late stage in the proceedings is material. During the currency of the proceedings the Claimant had continued to run his business. Down to the eve of the hearing, he could have expected the Court to resolve whether the Secretary of State had acted lawfully in deciding that he did not qualify under the Ankara Agreement. These are matters which would have had to be considered in conjunction with the disruption to his business by having to pursue the appeal from abroad. Taken together, I think that the ‘exceptional’ threshold would have been crossed and accordingly I would not have dismissed the application on the ‘alternative remedy’ argument had this stood alone.

Refusing to suspend removal directions

[35]Ms Greaney commented that the interval between notice of refusal and the departure of the plane on which the Claimant was to be removed was longer than had been the case in R (on the application of Karas and Miladinovic) v Secretary of State for the Home Department [2006] EWHC 747 (Admin) and which had led to stern criticism of the Home Office by Munby J., but the difference can be measured in hours of working time and almost as realistically in minutes. It is true that there was no challenge to the legality of the detention as there had been in Karas, but as Ms Greaney accepted, this kind of mad scramble is wholly undesirable. In the event the claim has failed, but it was considered sufficiently arguable for Walker J. to grant permission. It is wholly unreasonable for the Secretary of State to put the Claimant’s lawyers (and the court) under such pressure. There has been no attempt to explain the need for such speedy removal after months of silence in response to the Claimant’s application. The Claimant has asked for a separate declaration as to the legality of this aspect of the decision making process. I do not consider that necessary, but I do think that the Secretary of State should bear the costs (as Ms Greaney effectively conceded) of issuing the proceedings and applying for an injunction to Grigson J.[36]I will, of course, hear the parties on what other orders (including orders as to costs) should be made, if these cannot be agreed.

Cited in 2 later judgments