Mohammed, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2291 (Admin)

Case No CO/4853/2007[2008] EWHC 2291 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 23rd September 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BLAKE
Between
THE QUEEN ON THE APPLICATION OF ABDULRAHMAN MOHAMMEDClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
for The Applicant did not appear and was not representedMr Paul Greatorex (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE BLAKE: This is a renewed application for permission to challenge decisions of the Secretary of State instituting deportation proceedings against the claimant.[2]The matter was refused on 7th January 2008 by Sullivan J in the following terms:
"There is a statutory procedure for challenging Notices of Intention to Deport ... It is an abuse of process to use Judicial Review to side-step that statutory process. In its Determination dated 13th June 2007 the Asylum and Immigration Tribunal concluded that the Claimant was properly served with the Notice of Intention to Deport and simply failed to appeal. The Tribunal also made it clear that it would have refused to extend time to appeal even if a Deportation Order had not been served. In these circumstances this claim is an abuse of process."
There was an order that the claimant pay the defendant's costs of filing the summary grounds of defence.[3]It is certainly the case that the claim form identifies no ground that could conceivably succeed in this case. The high point is that there was unfairness in not being served with a document which would have enabled him to appeal in breach of Article 6 but there is clear case law that that particular article of the European Convention on Human Rights does not apply to public law decisions such as immigration.[4]The problem facing the court this morning is that the claimant sought to renew and may have challenged removal directions which were due to have been effected some few days ago but the claimant is in detention in Harmondsworth and he has not been produced. It is understood that the detention centre were unwilling to bring the claimant to court but the reasons for that are not known. It may be that there has been no proper notice served and given to enable the governor to make arrangements to do that but we are simply in the dark.[5]The court would be extremely reluctant ever to dispose of an application for judicial review without giving a fair opportunity to the claimant to make representations on his behalf and the court is not assisted where a claimant in person cannot be before the court if he has properly sought to be brought before the court. However, in the particular circumstances of this case, given the extremely protracted nature of the proceedings, which challenge inappropriately decisions taken before the appeals were disposed of by an inappropriate route, where permission was refused as long ago as January and appears not to have been renewed until recently, when served with removal directions, I conclude that this is indeed a complete abuse of the process. There is nothing that could conceivably be said and, exceptionally, this is a case, notwithstanding the absence of the claimant, which can and should be dismissed. Quite what the effect of that will be remains to be seen but this brings an end, as far as this court is concerned, to this application and any of the grounds on which it is sought to be made.[6]MR GREATOREX: My Lord, I am grateful. There is an order that has already been made for the costs of acknowledgment of service. My Lord, I was going to ask for the costs of today, simply for this reason, that it may come back and I think it is important that this claimant realises that continuing to abuse the process, as he has done thus far, simply cannot be allowed to continue.[7]MR JUSTICE BLAKE: No, I think that is an application too far, thank you, particularly if he is not here to respond to it.