Gungor, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2098 (Admin)

Case No CO/5295/2007[2008] EWHC 2098 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 15th August 2008
Strand
London WC2
B E F O R E:
HIS HONOUR JUDGE LANGAN QC
(sitting as a deputy High Court judge)
Between
THE QUEEN ON THE APPLICATION OF YUKSEL GUNGORClaimant-v-
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(Computer-Aided Transcript of the Palantype Notes ofWordwave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Mick Chatwin (instructed by Messrs Kidd Rapinet, London WC2N 5AD) appeared for ClaimantMr R Kellar (instructed by Treasury Solicitor, London WC2B 4TS) appeared for Defendant
J U D G M E N T

JUDGE LANGAN:

[1]This is an application for judicial review of a decision of the Secretary of State for the Home Department made in June 2007. By that decision she refused to grant Mr Gungor, who is a Turkish national, leave to remain in the United Kingdom. Permission to apply for judicial review was given by Saunders J on 1st May 2008. The key issue for the court is whether the Secretary of State's view that there was no appeal against her decision is correct.[2]Mr Gungor arrived in the United Kingdom on 8th May 1990. He was given leave to enter for six months as a visitor. Subsequently he made an unsuccessful application for leave to remain as a student, and that part of the history came to an end when on 28th January 1992 he was served with a deportation notice as an overstayer. The history which follows is lengthy and involved. It included an asylum claim made by Mr Gungor and no fewer than three marriages or partnerships with EEC nationals or persons claiming to be such. None of these avenues has succeeded to the extent of establishing a right on the part of Mr Gungor to remain in this country and removal directions were given by the Secretary of State on 6th February 2001.[3]The more recent history, and that which is relevant to this application, starts on 13th April 2005. By a decision of that date the Secretary of State refused to issue a residence document. The purpose of the application was to enable Mr Gungor to have confirmed a right to reside in the United Kingdom as the spouse or partner of a lady who claimed to be a Portuguese national. Mr Gungor had, of course, a right of appeal against that decision. He prosecuted an appeal and the decision of the immigration judge was promulgated on 19th September 2005. The decision is not altogether easy to understand. It seems from paragraph 4 of the judgment that Mr Gungor was raising these points: that to remove him from the United Kingdom would be a breach of his Article 8 rights following his residence here for a period of more than 14 years; second, he was maintaining that he should benefit from the Ankara Agreement, which is the agreement under which Turkish nationals can lawfully be in this country for the purpose of carrying on a business; third, he was maintaining that the lady to whom I referred a few moments ago was a Portuguese national. It seems from paragraph 13 of the decision that the immigration judge undoubtedly took the view that Mr Gungor was entitled to remain here as the spouse of a Portuguese citizen. His view of the other points raised is not entirely clear, but it is not necessary to analyse that view because, as will appear in a moment, matters become very much plainer when one goes to the next relevant decision.[4]The Secretary of State appealed against the decision of the immigration judge and that appeal was decided by Senior Immigration Judge Jarvis on 5th July 2006. In contrast, if one may respectfully say so, to the decision at first instance, Senior Immigration Judge Jarvis' decision is a model of clarity. She explained at paragraph 3 that before the immigration judge the focus had been upon the Portuguese lady's residence document and the application under the Ankara Agreement. She recorded that the immigration judge had found that removal of Mr Gungor would place the United Kingdom in breach of its obligations to him under Article 8 to respect the right to enjoyment of private and family life, and then she went on to consider at great length the submissions which had been made on behalf of the Secretary of State and Mr Gungor. At paragraph 26 of her decision she confirmed that the immigration judge's dismissal of Mr Gungor's appeal under the Immigration Rules was correct, but to a limited extent she took the view that he had a human rights point. She substituted for the material paragraph of the immigration judge's decision these words:
"I allow the appeal under Article 8 of the 1950 Convention to the extent that the Appellant's application for leave to remain under the terms of the Ankara Agreement remains outstanding before the Respondent Secretary of State."
The meaning and effect of that does not cause me any difficulty. Mr Gungor was in my judgment in the end successful, but only on this limited point, that his Article 8 rights would be infringed and his removal from the United Kingdom would in consequence be unlawful if that removal were to be effected before the Secretary of State had considered his application for leave to remain under the Ankara Agreement.[5]Thereafter, Mr Gungor's application for leave to remain was considered by the Secretary of State. Her decision was contained in a letter written in June 2007. It is undated, but from other correspondence it looks as though it were written some time in the first half of the month. She refused to grant leave to remain and she set out reasons for that refusal. In short, she was not satisfied that Mr Gungor was genuinely involved with any business, beyond having what she called "a relationship of convenience to aid you in your latest attempt to gain leave as a self-employed business person." She then said this:
"You made an application on 27 June 2005. However, you did not have leave to remain at the time of your application. There is no right of appeal against this decision."
[6]It is on that assertion, that there is no right of appeal against the Secretary of State's decision, that the challenge to that decision is focused. It would in short, it is said, be unlawful for Mr Gungor to be removed from the United Kingdom until he has exhausted a right of appeal which he is said to have against the decision.[7]The relevant statutory provisions are contained in section 82 of the Nationality, Immigration and Asylum Act 2002. It is necessary to refer only to a few paragraphs. By subsection (1) of section 8:
"Where an immigration decision is made in respect of a person he may appeal to the Tribunal."
Subsection (2) goes on to define "immigration decision". That expression includes: "(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, ... (g) a decision that a person is to be removed from the United Kingdom by way of directions under ..." specified statutory provisions having to do with the removal of persons unlawfully in the United Kingdom. It is conceded on behalf of Mr Gungor that the decision of the Secretary of State does not fall within section 82(2)(d) because Mr Gungor had no current leave to be in the United Kingdom at the time of the refusal. It is, however, said that he falls within paragraph (g), in that the Secretary of State's decision is one that he should be removed from the United Kingdom. In my judgment that submission has been successfully answered on behalf of the Secretary of State. The point is a short one. A decision that a person is to be removed is a decision of a distinct kind from refusal of leave to remain. The latter cannot forced into the former category. In this case, as was pointed out, removal directions were given as long ago as 2001 and are still extant. It is wrong and artificial to characterise the decision of the Secretary of State under review as a direction for removal.[8]I come to now to other arguments which were advanced on behalf of Mr Gungor. They are not altogether easy to follow. They were, in my judgment, rightly described as ingenious and I shall do my best to set them out as I understand them.[9]I take these arguments from the helpful written submissions drafted by Mr Chatwin on behalf of Mr Gungor. His starting point is that the reference by the senior immigration judge back to the Secretary of State meant that no final determination had been made of the matter before the Tribunal to the extent and within the terms of the referral. That, in my judgment, is not a correct interpretation of what the senior immigration judge did. The analysis put forward on behalf of Mr Gungor treats what has gone before as though it were some kind of incomplete appeal, which had ended without being finally determined on the merits. In other words, it is to be characterised an appeal which was in truth neither allowed nor dismissed. That is not my reading of the decision of Senior Immigration Judge Jarvis. At the risk of repeating myself, what she did was to decide that it would be an infringement of Mr Gungor's Article 8 rights for him to be removed from the United Kingdom without having an opportunity to put his points on the Ankara Agreement before the Secretary of State.[10]The skeleton argument goes on to put forward the proposition that the decision of the Secretary of State makes good and must have been intended to make good what the Asylum and Immigration Tribunal found to be outstanding, from which it follows that it must be an immigration decision within section 82. I cannot quite follow that argument. I come back to the nature of the application to the Secretary of State and the terms of her decision, and once again at the risk of repeating myself, she was in my judgment dealing with an application for leave to remain by a person who had no current leave. A substantive challenge to her decision could have been mounted by way of judicial review, but from the muted terms of another paragraph in the written argument and from the absence of anything said here about the merits of the case which she was considering, it seems that such a substantive challenge is not considered meritorious.[11]The next point taken is that:
"... the claimant's appeal was allowed in June 2006, and the effect of allowing the appeal is to say that the decision appealed against was unlawful. In response the Secretary of State is obliged to take steps to comply. She may grant the appellant leave, or she may substitute the flawed decision with another, but in the event of the latter this new decision must replace that earlier, unlawful decision."
True it is that the Secretary of State was obliged to take steps to comply. In my judgment, she did so by reaching a decision on an application for leave to remain and that decision, repeating myself yet again I fear, is one which would in theory be susceptible of judicial review, but not of the appeal process.[12]I hope that I have done justice to the arguments advanced on behalf of Mr Gungor. For the reasons shortly given in this judgment, I have come to the conclusion that the application for judicial review should be dismissed.[13]MR KELLAR: My Lord, there is to be an application for costs. I have had some, as it were, pre-emptive discussion with my learned friend outside. It may be that my learned friend and I are able to reach terms on that; it may not be the case. What I should seek of your Lordship is that you rise for perhaps ten or 15 minutes and give my learned friend and I just a chance to discuss the issue of costs. If we are not able to reach an agreement we can come back before you and ask for a summary assessment.

JUDGE LANGAN:

[14]Let us just think because it is 1 o'clock. Is the best thing for you to come along here at two and if you have got an agreed order hand it in, and if not the associate will ask the usher to fetch me. Is that the best way to do it?[15]MR KELLAR: By all means, my Lord.

JUDGE LANGAN: Fine. (Luncheon adjournment)

[17]MR KELLAR: My Lord, there is an application for costs. I am grateful for the time that your Lordship has afforded us, but my learned friend and I have not been able to come to terms. Can I hand up the costs schedule.

JUDGE LANGAN: Yes.

[19]MR KELLAR: It is not, I am afraid, in the usual format, but it is in a form which I think is understandable. You will see from that summary at the front on the first document that the base costs are approximately £4,400, base solicitors' costs. Base --

JUDGE LANGAN: Just a moment.

[21]MR KELLAR: That is before VAT, £4,413.90 there should be a figure of?

JUDGE LANGAN: Oh yes, £4,329.10, £4,413.90.

[23]MR KELLAR: Yes, they are the base, as it were, solicitors' costs. On top that there is VAT, making a total of £5,171.52 in respect of solicitors' costs. There were also disbursements. The disbursements were only my fee for drafting the detailed grounds of resistance, and you will see that amounts to £900 plus VAT, giving a total of £1,057.50, if my own note is correct. The total therefore, you will see, for work until today's hearing was £6,229.90.

JUDGE LANGAN: Yes.

[25]MR KELLAR: On top of that but not on the schedule, I am afraid, are my costs for prep and attending today, which I have estimated at £950 plus VAT of £166.25. Again, this not on the schedule but that would make a total of £1,116.25. Then on top of that there are my modest attendance costs for the solicitor that sits behind me, and they would be £300 plus VAT of £52.50, making a total of £352.50. That would give a total cost all inclusive, as it were, of VAT of £7,697.27.

JUDGE LANGAN: £7,6...

[27]MR KELLAR: £7,697.27. That would be a total, as it were, headline figure. My Lord, it is slightly higher than it might have been. Part of the reason for that is really because the original grounds of challenge, which your Lordship may have seen, were opaque, if I can put it that way, in the extreme and brief in the extreme. If I can just take your Lordship to those, just to explain so that point can be made good.

JUDGE LANGAN: Yes.

[29]MR KELLAR: If one goes to page 7 of the claimant's bundle.

JUDGE LANGAN: Yes.

[31]MR KELLAR: You will see that the first two pages, at pages 7 and 8, are really just commentary on what has happened, as it were the history of the matter at page 7 and 8, and the legal submissions are at page 9. So there are simply three paragraphs setting out what the claimant's position was in the grounds.

JUDGE LANGAN: Yes.

[33]MR KELLAR: The first point, the defendant was wrong to refuse the ECAA application for the reasons given, has effectively been abandoned today.

JUDGE LANGAN: Yes.

[35]MR KELLAR: The second point has also been abandoned. The only point which has been in any way pursued at today's hearing is point 3, in respect of which at that time there was only paragraph explaining why it was said that there was a right of appeal. In fact there is no real explanation, it is just broadly stated. That left the Secretary of State in the position of having to try and second-guess, as it were, what the nature of the claim was going to be and do their best to assist the court by considering all the points that might be made and putting in the detailed grounds.

JUDGE LANGAN: And through some mishap on the other side, you did not get --

[37]MR KELLAR: Any skeleton argument.

JUDGE LANGAN: -- a skeleton.

[39]MR KELLAR: We did press for that.

JUDGE LANGAN: So you had to, yes.

[41]MR KELLAR: The correspondence in respect of that is at the back of the bundle of documents I have handed up to you. Behind the schedule there are three letters, one of 30th July, one of 6th August and one of 12th August chasing that.

JUDGE LANGAN: I have read those.

[43]MR KELLAR: The long and short of it is that I can say when I was involved in drafting the detailed grounds there was quite considerable toing and froing between me and the Treasury Solicitor, and in fact the Home Office Legal Advisers Branch, who get involved with more complicated cases, to try and get some advice on what our position ought to be. I do not mind saying there were a number of drafts of the detailed grounds and I received quite considerable advice on what we should be saying. We had to consider our position quite carefully, given how opaque the claimant's position was.[44]So for those reasons that at the very least gave rise to additional time and energy spent on the case that otherwise would not have been spent.

JUDGE LANGAN: Yes.

[46]MR KELLAR: My Lord, apart from that you will see all the other costs detailed in the schedule and all the various attendances there have been on this matter, and for those reasons I would invite you to make an order in the headlines that I indicated earlier.

JUDGE LANGAN: £7,697.27.

[48]MR KELLAR: Yes.

JUDGE LANGAN: Yes.

[50]Yes?[51]MR CHATWIN: Thank you. My concern I think is that it does seem high. It seems somewhat punitive. In the circumstances, our starting point, I quite agree, would be page 9 in those grounds. It is clear in any event that while they are very brief, neither paragraphs 1 or 2 have ever troubled anybody. They have never, it seems, been a part of anybody's concern and it was clear they really were not issues that the Secretary of State was ever going to have to take any particular advice on. If there was to be any advice at all, it was all in relation to the third point and there is no indication that it was anything else. It is certainly not surprising, I think, that the judge who looked at this on the papers found it very clear, I think, quite what it was that was at stake here and what was at issue here. Saunders J, 1st May, saw clearly that it was all about whether or not he had an extant Article 8 appeal. That always been our case and it has been only our only real effective case. However it appears to have been expressed on page 9, I think, it has always boiled down to that and it has been fairly clear that it has.[52]I am told, although I do not have it, that amongst those costs that you have, what is wrapped up in a very large sum of base costs, £4,400, was the costs of an acknowledgement of service which was entirely off the point and failed utterly to engage with the issue that had been put forward and drew some correspondence. Now I have that only on instruction by telephone over the lunch breach, I am afraid. But failed to deal with the issues at all, looked at a string of cases on the Ankara Agreement, but did not say anything at all about the issue of the appeal rights and the jurisdiction and what is flagged up in point 3.[53]So it seems to us that a great deal of what is being asked for essentially covers points that the Secretary of State either should never have been taking in the first place, because they had never been put and there was no indication that they were live, or indeed were things that were genuine issues that we were fully entitled to take. I quite accept that I failed to persuade the court today of the substance of those points, but the indication I think from Saunders J at least was to the effect that there was an issue there.

JUDGE LANGAN:

[54]Oh yes, he would not have granted permission unless he thought there was a seriously arguable point.[55]MR CHATWIN: Indeed, my Lord, yes. And that that point, as far as he was concerned, was clearly flagged up in the papers and I think that that has always been our position throughout.[56]Now of course I accept that the reasonable costs of the other side we are liable for, no doubt about that, but I think that much of what has been claimed, in terms of what is said detailed discussion with Home Office Legal Advisers Branch and so on, does not really go to the matters that have needed to come before the court.

JUDGE LANGAN: What do you say the appropriate sum is?

[58]MR CHATWIN: My Lord, it is hard for me to put a figure on it, but I would have thought very decidedly less than the amount that is before the court, and I would have thought, probably, certainly no more than about £3,500 would have been more appropriate. Even that would seem, in terms of the length of time that the court has been engaged with this matter, the fact that there was no need for an oral permission hearing. It clearly had some merit in it. It should have been able to be much more focused than in fact it seems to have been in the result. So I think that would be our concern with this.[59]It is a matter — I should say, of course, we are not legally aided in this matter. The claimant is funding this himself and of course he is a small businessman. He runs a little cafe. That is not a significant matter, but of course when it comes to the Secretary of State considering enforcement of a large sum, that might be a matter that would wish to be taken into account. It is certainly the reality of my client's position.

JUDGE LANGAN: Yes.

[61]Do you want to say anything more?[62]MR KELLAR: No.

JUDGE LANGAN:

[63]It seems to me that this is on the high side, but not by a huge margin. I propose to assess the costs in the round sum, inclusive of VAT and disbursements, of £6,000. Thank you very much.