Myckoo, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2778 (Admin)

Case No CO/10438/2006[2008] EWHC 2778 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 30th October 2008
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE MACKIE QC
Between
THE QUEEN ON THE APPLICATION OF CARL MYCKOOClaimantv
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)
Gordon Lee (instructed by Sutovic & Hartigan) appeared for ClaimantJeremy Johnson (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N TRuling

JUDGE MACKIE: First the claimant applies for an adjournment which the defendant opposes.

[2]A difficulty has arisen because the Secretary of State made a new decision on 23rd October to take into account developments since the decisions at issue in this case, which were taken as long ago as 2006. The new decision was not taken in response to a request from the claimant's solicitors, but they did have that idea in mind in their letter of 22nd October.[3]The instruction given to counsel for the claimant is that there may well be some material deterioration in the condition of the claimant's daughter, Taliah, but in the short time available he has not been able to take full instructions.[4]He says that I should either quash the new decision on the spot, because it does not take into account the factual circumstances which have arisen since the last representations were made to the Secretary of State, or alternatively, I should adjourn the hearing to allow the claimant to adduce evidence as to the circumstances, particularly those of his daughter.[5]Counsel for the defendant says that there should not be an adjournment. The claimant has in the past made representations that there have been material changes or developments; if in truth the condition of Taliah has deteriorated in a way which might be relevant to a determination by the Secretary of State, the claimant can again make a fresh claim; and concern is expressed about further delays caused if we adjourn today.[6]This is an unfortunate balancing exercise to have to do, but in my judgment the best option is to proceed today. If there is an adjournment where I do not have evidence that there is any material change in circumstances, it will necessarily be speculative.[7]Furthermore, I am concerned that this case, which was brought in December 2006, is very old. It needs to be determined without any unnecessary further delay. Given the pressures on the Administrative Court, it would be difficult for me, given the age of the case and the thin material upon which an adjournment would be based, to certify that it should be expedited so that it jumps the queue ahead of other cases.[8]I recognise the force of the submission by counsel for the claimant that if the matter is determined today, it may make it particularly difficult for him to get a fresh claim off the ground. I accept that there is some forensic disadvantage in that, but inevitably what really counts is how material or relevant the information said to constitute a fresh claim turns out to be. On balance, it seems to me better today to determine the matter as it stands with the prospect, which the defendants accept, that there might be further litigation, than simply to adjourn in circumstances where the case has been prepared by both sides and there is court time available.[9]For those reasons, you will proceed with the application now. (Further discussion) Judgment

JUDGE MACKIE:

[10]This is an application for judicial review brought by Mr Carl Myckoo against the Secretary of State. The application, dated 13th December 2006, is to quash decisions of the Secretary of State to refuse the claimant's submissions in November and December 2006 and to treat them as fresh claims. There were further representations in the course of 2007. Permission was granted by King J in June 2007, after Mitting J had refused permission on the papers.[11]Things have moved on in the sense that on 23rd October 2008, just last week, the Secretary of State considered submissions in a fresh letter, which she seeks to rely on, on the basis that the previous letters have become out of date following developments in case law.[12]The supplementary decision that the claimant's additional submissions do not amount to a fresh claim under Paragraph 353 follows three decisions of the House of Lords: Huang v Secretary of State for the Home Department [2007] UKHL 11, Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, and Chikwamba v Secretary of State for the Home Department [2008] UKHL 40. In the course of submissions today we have been concerned just with Beoku-Betts.[13]The facts are not seriously in dispute. The claimant, Mr Myckoo, is a Jamaican national who arrived here on 10th July 1997 and was given 6 months' leave to enter as a visitor.[14]In January 1998 he made an out of time application for leave to remain as a working holiday maker, which was not determined until 25th April 2000. By the time he made his application, he already had no lawful basis for remaining in this country.[15]In September 1999 the claimant's daughter Taliah was born and, on 18th March 2000, he married Taliah's mother, Edwina Williams, a British citizen. The following year, in December 2001, the claimant's son Rishaan was born.[16]In the middle of 2002 the claimant applied for leave to remain as a spouse, which was rejected on the basis of information being incomplete. Events overtook that application, because in May 2003, at Kingston Crown Court, the claimant was convicted of supplying Class A drugs and given a sentence of imprisonment for four and a half years. The judge recommended that the claimant be deported at the end of his sentence.[17]In 2003 and 2004 the claimant made representations as to why he should not be deported. That resulted in a decision by the defendant in October 2004, which was to make a deportation order.[18]At the time of the representations made on the claimant's behalf in October 2003, Taliah had developed difficulties and the representations made on Mr Myckoo's behalf at that time drew attention to this at some length. At paragraphs 5 and 6 of those submissions the position is set out in some detail. The submissions say that Mr Myckoo has been a fantastic father to his children and describe his activities with them -- shopping, going to a nursery, teaching them to swim and watching television -- and refer to the fact that Taliah has epilepsy, and that Mr Myckoo, the claimant, has been a strong pillar of support in helping to control her condition. Reference is made to other aspects of his family life, and attached to these submissions are a number of documents from a class teacher, from a consultant paediatrician and from a psychiatrist, Dr Partovi-Tabar. Dr Partovi-Tabar says this:
"As a result of Mrs Williams' depressive illness [that is a reference to the claimant's mother [wife]], Talian's (sic) epilepsy and behaviour disorder and the absence of the support of the father of the family, the whole family are functioning at a very low level and are almost bordering on practical and emotional collapse. Talian needs to go to school in a year's time and with the way the family is running at present her attendance at school would be highly unlikely. I thinkthis family needs a continuous and comprehensive package of support, both medical and social, for the foreseeable future. I believe a good part of this package should be provided by the father of the family. Thus I believe the support of the family's father is a very importantitem in the future well-being and stability of this family."
The other correspondence from the professionals draws attention to the extent of the epilepsy and the effect that this was having upon the life of Taliah and her family.[19]That, and the other aspects of the matter, were considered by the Secretary of State in a letter which is dated 15th October 2004. This has to be considered as a whole, but the Home Office draws attention to the fact that there are certain types of offences that the Secretary of State regards as particular serious, those involving violence, sex, arson and drugs. The letter records that the Secretary of State also takes into account the seriousness of the offence as viewed by the sentencing court and the recommendation for deportation.[20]The letter also says:
"The Secretary of State has given careful consideration as to whether your deportation would result in a breach of Article 8 of the ECHR and therefore jeopardise your right to family life."
Reference is then made to the condition of Taliah and her epilepsy, and to information that is available to the Home Office at that point about facilities for providing care in Jamaica. Consideration is also given to other aspects of Taliah and the family life.[21]The claimant took the matter to appeal and the matter came before the adjudicator, Mr Graeme Peart, and he gave a decision dated 3rd March 2005.[22]In his submissions in support of his claim, the claimant relied on his right to respect for private and family life under Article 8 of the European Convention, and specific reliance was placed on Taliah's condition and the associated symptoms following from her epilepsy.[23]The Immigration Judge dismissed the claimant's appeal and made a series of findings in a determination, which again needs to be considered as a whole. He found that the claimant's wife began the relationship knowing of the claimant's immigration status and that he might have to return to Jamaica; that the role of the maternal grandmother was not that which it was being claimed to be; that the claimant had a poor immigration and criminal history, matters which by this stage were self-evident; that Taliah would need to access healthcare in Jamaica; that there was no evidence that medical treatment for epilepsy was not available in Jamaica. On the contrary, the defendant had considered the Paediatric care available in Kingston. The adjudicator found, alternatively, that if the claimant could make an out-of-country application to join his wife and children in the UK while his family remained in the UK, if he returned to Jamaica. This led to the conclusion that his human rights would not be infringed.[24]The adjudicator, as one sees from paragraph 2, had available to him the substantial amount of medical and other professional material to which I have referred.[25]At paragraph 13, having referred to the appellant's immigration history and his serious criminal conviction, he says this:
"I don't accept, on the evidence before me, that there is any reason why the Appellant cannot return to Jamaica with his wife and family. I bear in mind that Mrs Williams was aware of theAppellant's tenuous status when she entered into a relationship with him and made plans for a family. Whilst it may be that at the moment the couple have nowhere to live in Jamaica nor any job there, I find those are not compassionate circumstances againstdeportation, nor do I find significant that Mrs Stephenson would be potentially left behind in the UK."
I should add that Mrs Stevenson is the grandmother to whom I referred earlier.[26]He refers in terms to Taliah's health problems, he accepts that she has these problems:
"18... but I do not accept either are compelling arguments against the right of the state to control the entry of non-nationals given that Article 8 does not impose on any state a general obligation to respect the choice of a couples residence. Any interference would be in accordance with the law and would have legitimate aims. I must take into account the fact the Appellant and his wife were conscious at the beginning of their relationship that he had no status to remain here, which militates against the findings that an order excluding the Appellant violates Article 8."
[27]He then makes a finding in the alternative as follows:
"20... Alternatively, I find it is open to Mrs Williams not to accompany the Appellant with the children as she chooses. Alternatively, the Appellant can make an out of country application to join his wife and children in the UK."
It is submitted that that last sentence is out of date for reasons I will come to shortly.[28]At paragraph 21, the adjudicator refers to the consideration given by the Secretary of State to the healthcare available in Kingston and other regional hospitals and addresses that before reaching his conclusion that, amongst other things, the decision appealed against in terms of Article 8 would not cause the United Kingdom to be in breach of law or its obligations under the 1950 Convention.[29]The claimant applied for reconsideration and this was refused by the Senior Immigration Judge in April 2005. In the course of his observations, the Senior Immigration Judge refers to the fact that:
"2... The Adjudicator took into account that the appellant would return to Jamaica without a job or home and accepted there would be ameasure of hardship for Mrs Williams (the appellant's wife) and his daughter Taliah who suffers from epilepsy. He recognised that the medical facilities in Jamaica might be less good than in the United Kingdom."
And addresses the circumstances before making no order for reconsideration.[30]As I mentioned at the outset, the further representations were made by the claimant, and on his behalf, and those representations are those which are the subject of this application. Those representations were accompanied by supporting material. For example, there is a letter of 18th October 2006, from Mrs Gadsby, a senior practitioner in the education social work department at Taliah's school. She writes in support of Mr Myckoo's application to remain in this country. She refers to Taliah's epilepsy and associated learning difficulties. She says that since Mr Myckoo rejoined them in December 2004, when he was released from prison:
"... he has played a major part in caring for the family and this has enabled Ms Williams to get a job and financially support them all. Mr Myckoo has taken their little boy to school, collected him, cared for both children during school holidays and has attended meetings in school about Taliah. Taliah is on daily medication and is way behind her chronological age in her learning."
And she develops that.[31]There is a letter from a consultant paediatrician referring to Taliah's difficulties of communication and to other problems. There is another letter from Dr Cummins referring to Taliah having severe epilepsy and proving very difficult to control. There is a further letter from Charleen Bruce, the class teacher, in March 2006, expressing concern with regard to Taliah's lack of academic progress and the behaviour she is manifesting at school and at home, and there is a reference also to compulsive behaviour.[32]The further representations were rejected by the Secretary of State and that led to the application before me today. When the matter was considered by Mitting J on paper, he said this:
"This is a hard case; but there is nothing of substance in the evidence now relied upon which was not considered by the adjudicator when he rejected the claimant's appeal. The reports considered by him, in particular of Dr Partovi - Tabar of 29th September 2003, make it plain that the consequences of his decision for the claimant's family, and in particular Talian (sic), would be severe; but nevertheless, he dismissed the appeal, as he was entitled to do. Likewise, the defendant refused entitled to refuse to treat the new representations as a 'fresh claim' under paragraph 353."
There is then reference to this claim, unlike many others, not being an abuse of process.[33]Reliance is placed by both sides on those observations, counsel for the claimant suggesting that a High Court Judge took a rather more serious view of Taliah's predicament than did the adjudicator.[34]There are also before the court other pieces of material about Taliah's development. For example, there is a letter from Hounslow Children's Services dated 13th February 2008, detailing the position at that point with regard to epilepsy, learning difficulties and behavioural problems, which I have read, albeit it is not strictly part of this application.[35]Furthermore, I should refer briefly to a matter that arose when I was determining how to deal with this application earlier today, which is that in the short time in which he has been able to get instructions, counsel for the claimant, Mr Gordon Lee, has ascertained that the claimant has been advised by his wife that their daughter's condition has deteriorated and there has been a very recent hospitalisation following Taliah having 18 seizures in one day, and apparently there is a concern that Taliah's current treatment regime may have caused damage to her liver.[36]It is against that factual background that this case is to be decided.[37]I next consider the relevant legal considerations. These are not in dispute, it being common ground that the framework is as set out by Mr Jeremy Johnson, counsel for the defendant, in his skeleton argument.[38]Paragraph 353 of the Immigration Rules provides in relevant part that:
"The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."
[39]I bear in mind the considerations that apply to what is known as Stage 2, and I have regard also to the guidance given by the Court of Appeal in WM. As the Court of Appeal pointed out, the defendant's task is to consider the new material together with the old and to make two judgments, first whether the new material is significantly different from that already submitted and, secondly, if the material is significantly different, the defendant has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further claim.[40]The Court of Appeal, I remind myself, made it clear that the rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Secondly, the adjudicator does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return, words that apply by analogy to this somewhat different case.[41]I also bear in mind that while it is for the claimant to show that the Secretary of State's decision was irrational, that decision will be irrational if the defendant asked the wrong question or did not apply anxious scrutiny.[42]The backbone of the submissions of both parties, so far as matters of law are concerned, was the decision of the House of Lords in Beoku-Betts. In that case the question was:
"5... should the immigration appellate authorities take account of the impact of [an applicant's] proposed removal upon all those sharing family life with him or only its impact upon him personally (taking account of the impact on other family members only indirectly ie. only insofar as this would in turn have an effect upon him)?"
[43]The matter was put in this way by Baroness Hale:
"4... To insist that an appeal to the Asylum and Immigration Tribunal consider only the effect upon other family members as it affects the appellant, and that a judicial review brought by other family members considers only the effect upon the appellant as it affects them, is not only artificial and impracticable. It also risks missing the central point about family life, which is that the whole is greater than the sum of its individual parts. The right to respect for the family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children, with whom that family life is enjoyed."
[44]Attention was also drawn by Mr Lee to Lord Brown's summary of the rival arguments at paragraphs 20, 21 and 22, which he explicitly resolved in favour of the appellant in that case.[45]He also draws attention to paragraph 24 of the decision, where reference is made to a decision of the Immigration Appeal Tribunal in Kehinde [2001] UKIAT 00010. He does that to illustrate that before the decision of the House of Lords in Beoku-Betts, an Immigration Judge might well have taken a narrower view of the approach to this question.[46]The submissions made on behalf of the claimant are set out in the original skeleton argument. The case put forward today is in the new skeleton argument, produced, for reasons which I accept are genuinely justified, only in time for it to be handed to me at the start of submissions. The case put forward is broadly as follows. The starting point of the claimant's submissions is that there has clearly been a significant change in the facts since the adjudicator took his decision. Attention is drawn to the fact that the claimant's daughter, Taliah, is now at the special school, she is in a class of six, she has problems with compulsive behaviour, there has been a lack of progress in her work and she has difficulties with concentration.[47]There have also been other changes, so far as the facts are concerned, as a result of the passage of time. The claimant has now had a longer period in which to build up and establish his family life. The claimant has had a period of time within which he has not re-offended and, as a result of the defendant's change of policy, the claimant now faces the possibility of permanent exclusion, rather than what might have been a period of exclusion of between 3 and 10 years.[48]That final submission is drawn from a passage in the judgment of Moore-Bick LJ in AS (Pakistan) v Secretary of State for the Home Department [2008] EWCA Civ 1118, where there is a reference to the previous policy.

The Lord Justice says this:

"27... It seems likely that under the policy previously in force (which the tribunal obviously had in mind) the appellant could have hoped to make a successful application for the revocation of the deportation order after at the most ten years' absence from the United Kingdom, whereas under the current policy he could expect to be excluded from this country permanently."
That is a consideration that is new today, and seems to me is without merit, because, as counsel for the defendant pointed out, the difference between possibly 10 years and permanent exclusion, in the context of a girl who is already 9 years old, is not one which could be expected to carry much, if any, weight with a fresh decision.[49]Reliance is also placed on the further evidence of the supportive role being carried out by the claimant in relation to Taliah.[50]The second limb of the claimant's submission is that in the light of Beoku-Betts, the next Immigration Judge would face a different landscape. The new judge would be obliged to focus not just on the claimant, but on the individual rights of the claimant's wife and the claimant's daughter. In the context of that landscape, I was taken to other authorities, placing emphasis on the rights of the family as a whole.[51]Mr Lee took me to the decision of the European Court of Human Rights in Boultif v Switzerland [2001] 33 EHRR 50, and in particular to paragraphs 16, 17 and 53, which I will not read out, but which bear out his submission, at least in the context of that case. He submits that when one looks at material such as that from Europe, one can also look at recent decisions of the English courts, and he draws attention in particular to the case of AS, to which I referred for a different reason earlier. In the course of that case, at paragraph 25, Moore-Bick LJ says this:
"25... I think Miss Knights was also right in saying that the tribunal failed to give adequate consideration to the position of L and the interference that the appellant's deportation would have on her private and family rights, a point which I touched on earlier. That is not something for which the tribunal can really be criticised, however. Although its attention was drawn to the decision of this court in AB (Jamaica)...in which Sedley L.J. pointed out that the rights of the spouse of a person facing removal were as fully engaged as those of the appellant, it did not have the benefit of the recent decision of the House of Lords in Beoku-Betts... in which their Lordships confirmed that in cases of this kind account must be taken of the effect of removal on the family unit as a whole."
There are further observations to similar effect.[52]The claimant also submits that consideration of whether there are insurmountable obstacles to the family living together needs to be seen in the context of what is said in R (Mahmoud) v Secretary of State for the Home Department [2001] 1 WLR 840 as follows:
"(3) Removal or exclusion of one family member from a state where other members of the family are lawfully resident will not necessarilyinfringe Art 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family."
[53]He submits that unsurprisingly, given the state of the jurisprudence, the rights of Taliah were not properly taken into account and that, following that change in the law, they need to be. He therefore submits that the Secretary of State has failed to discharge her obligation to take a decision that is Wednesbury reasonable.[54]The submissions on behalf of the defendant are also directed to the two limbs identified by the claimant. So far as the question of further developments in Taliah's condition and difficulties are concerned, Mr Johnson submits that the adjudicator was aware of the condition and of the difficulties and of the facilities that would be available to Taliah in Jamaica. The adjudicator appreciated what the consequences would be, but decided, on the basis of the material that was made available by the parties, that there were no insurmountable obstacles to the family relocating to Jamaica, and did so as a freestanding finding of fact. He submits that the further material relied upon is not qualitatively different from that which was deployed before the adjudicator and he points out that all the particular conditions which one finds in the further documentation submitted in 2006, 2007 and 2008 is updating evidence and is not qualitatively different from what the adjudicator had before him.[55]Turning to Beoku-Betts, Mr Johnson submits that while the effect of that case may, as a matter of law, be as contended for by the claimant, in practice, in this case the broader, not the narrower, approach was applied anyway, because the representations by the claimant to the Secretary of State, the decision of the Secretary of State, the submissions of the claimant to the adjudicator, and the decision of the adjudicator focused heavily on the impact on Taliah, and did not do so artificially by viewing the matter indirectly through the eyes of the claimant alone.[56]I was taken to passages in the papers that point out the extent to which Taliah's specific needs had been identified and the extent to which submissions and conclusions are entirely focussed upon them. The starting point is of course the adjudicator's decision. In the submission of the Mr Johnson, all the matters which are now relied upon, were in substance considered at that point. He says that Beoku-Betts would have had force if the Secretary of State or the adjudicator had taken a narrow view and disregarded the effects upon Taliah.[57]Against those competing submissions, has the claimant shown that the Secretary of State acted irrationally in the sense which I have identified earlier in this judgment? There are, as I say, two limbs to this, but I need to look at them cumulatively, not separately.[58]First, so far as the new material is concerned, that is to say the material about Taliah's condition and her development, it is clear that the unhappy symptoms which have developed so unfortunately were anticipated, and seem to me to be the natural consequence of the elapse of time as this child grows up.[59]It is also, it seems to me, unsatisfactory to refer in general terms to the effect of time moving on. It is true that the claimant, for example, has stayed out of trouble, albeit that he still remains here without lawful justification, and there are other inevitable consequences from time going by, particularly when there has been a delay as extensive as there has in this case. But there is nothing in the evolving facts which might cause an Immigration Judge to take a different view of this case. That is particularly so if one reaches the point of doing a balancing exercise when the weights on the other side of the scale are so significant, being the immigration history of the claimant, his offending and the recommendation for deportation.[60]The second limb of these submissions is one of more substance. I accept, of course that, following Beoku-Betts, what are described as "third-party human rights" must be taken directly into account. I also accept that there would have been a danger before Beoku-Betts that an adjudicator or an immigration judge would have applied a narrow test.[61]It also seems to me that since Beoku-Betts there is a more explicit basis for submissions to be made than would have been possible in 2004, to the effect that Taliah's human rights must themselves be given consideration in addition to those of the claimant.[62]I further accept that even if the practical effect of Beoku-Betts will be to fall upon a fairly limited class of cases, this application, one with what Mitting J described as "hard facts", may well fall within that limited class.[63]All these submissions would, it seems to me, have considerable force if there had been any sign of the narrow view having been adopted in this case. All the evidence suggests that Taliah's condition was at the forefront of the Secretary of State's and the adjudicator's consideration and reasoning. Indeed, reading the new letter, and there has been no suggestion as yet that the new letter does not apply a proper approach to the consequences of Beoku-Betts, one sees the same consistent approach being taken to the human rights of Taliah.[64]When considering Beoku-Betts, one also has to remember, when moving to Article 8.2, that the future Immigration Judge would at that point be having to do the balancing exercise, having regard to what I have already pointed out to be the weighty considerations pointing the other way. So in my judgment the claimant has not shown, and is not able to show, that the defendant acted unlawfully in her decisions that these submissions did not amount to a fresh claim. For those reasons, this application fails.[65]MR JOHNSON: My Lord, just give me a moment, please. (Pause). I am grateful for the time, my Lord. There is no further application on our part.[66]MR LEE: My Lord, I will chance my luck, if I may, and invite your Lordship to grant permission to appeal on one point to the Court of Appeal. It is simply, given the timing of your Lordship's judgment -- it is relatively shortly after the case of Beoku-Betts has been handed down. It is also before, in my submission, the Asylum & Immigration Tribunal have really turned their mind to the impact of the decision on the scope of how it affects the approach of cases.[67]Obviously I hear what your Lordship has ruled on concerning the adjudicator in this case's wider approach than perhaps I was inviting your Lordship to construe; he was being constrained by the previous law, as it is understood to be. I simply invite your Lordship to consider granting permission to appeal on the question of whether or not, in fact, the adjudicator's apparent wide approach to the question of the family's Article 8 rights in fact negates the impact of Beoku-Betts, given the Kehinde restraint he was under at the time. That is the narrow point.[68]My Lord, the only other application I would have is for a detailed assessment of our publicly funded costs.

JUDGE MACKIE:

[69]Yes, of course. I think the judges have made clear all along this is aperfectly --[70]MR LEE: Yes, a hard case.

JUDGE MACKIE: Any views about appeal?

[72]MR JOHNSON: My Lord, only that this was a case entirely on its facts and, as a matter of fact, it is tolerably clear that the adjudicator was not restricted by Kehinde, was not taking a narrow approach and was appreciably applying the approach which was subsequently authoritatively set out as the correct approach in the Beoku-Betts. There is not any room, in my submission, for it to be likely that the Court of Appeal would come to a different view on that aspect.

JUDGE MACKIE:

[73]In this jurisdiction, it is often the case that I am told that there are lots of cases waiting to decide this or lots of cases waiting to decide that, because you are always up in the Court of Appeal and down again. In the absence of any indication of it being that the sort of case, and where the basis upon which I have found, essentially, is that your admirable legal submissions are well made but have no application to the particular facts of this case, I am not going to give you permission to appeal. Of course, you are welcome to try your luck with a Lord or Lady Justice, who will be in a better position to have some overview of where things are in these cases generally.[74]MR LEE: My Lord, I am grateful for that. With that in mind, I wonder if your Lordship would consider ordering an expedited copy of your judgment, for practical purposes only, if there is to be an appeal, it does assist the appellant greatly, because otherwise one has to wait an enormous time between drafting grounds on the basis of a note and then, obviously, having the correct judgment.

JUDGE MACKIE:

[75]Well, I think, consistently with my concern that this matter should be resolved completely, once and for all, as quickly as possible, I will make that order.[76]MR LEE: I am very grateful. The only other matter is if that judgment could be made available to the appellant at public expense, because he is publicly funded. There is very little point in the first order unless the second order is made.

JUDGE MACKIE: My answer is yes, unless there is some objection.

[78]MR LEE: I am grateful.

JUDGE MACKIE: Thank you all very much for your help.