Hulkory, R (On the Application Of) v The Secretary of State for the Home Department [2008] EWHC 3185 (Admin)

[2008] EWHC 3185 (Admin)Case No CO/3555/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 29th October 2008
Strand
London WC2
B E F O R E:
MR C M G OCKELTON
(sitting as a deputy High Court judge)
Between
THE QUEEN ON THE APPLICATION OF HEMANT HULKORYClaimant-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 Tomor Bahja (instructed by Messrs Sam Solicitors, Sutton SM1 1PQ) appeared for ClaimantMr Jonathan Moffett (instructed by the Treasury Solicitor, London WC2B 4TS) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: This is an application by the claimant, Hemant Hulkory, for judicial review of the decision of the defendant, the Secretary of State for the Home Department, on 2nd February 2006 refusing the claimant further leave to remain in the United Kingdom as a student.[2]The claimant, who is a citizen of Mauritius, came to the United Kingdom on 6th September 2004. He had no entry clearance and was entitled, as a non-visa national, to seek leave to enter as a student, which he did, and leave was granted for six months, expiring on 6th March 2005. Before the expiry of that leave he sought an extension of leave as a student and was granted leave to remain until 30th November 2005. It is the claimant's application for further leave at the expiry of that period of leave that is the subject of these proceedings.[3]I do not need to set out the history of the Immigration Rules as they relate to students who are not visa nationals. There have been a number of changes in the student rules in the last four years or so. It is accepted that the position at the date this application was made was that under the Rules the claimant needed to make any application for further leave during the currency of his existing leave. If the application was made after the expiry of existing leave, then under the Rules it was to be refused. It is also accepted that the application was in fact made on 1st December 2005, that is to say on the day after the leave expired. It is thus accepted on the claimant's behalf that the application was not made in time and it is, as I understand it, also accepted as a result that that application could not succeed under the Rules.[4]The claim made on the claimant's behalf is that the Secretary of State, receiving the application in the circumstances in which she did, should have considered it and considered whether to grant it in the exercise of the discretion that she has, to depart from the Rules in an individual case.[5]The circumstances of the submission of the application for leave to remain are as follows. The claimant had been studying at a college at which he sought to continue his studies. Knowing that in order to support an application for further leave to remain he would need evidence of progress in those studies, he sought a progress report from the college. There is some evidence that he sought that report in mid-November 2005. According to the chronology produced by Mr Bahja, who represents him today, in mid-November 2005 the claimant made his first enquiries of the college.[6]The college produced a progress report, which is dated 29th November 2005. The claimant decided, as he was entitled to do, to make his application through the college; that is to say, he asked the college to send it to the Secretary of State on his behalf. The form of application and all other requisite documents and fees were thus passed to the college. That I am told was done on 30th November 2005 and it is accepted that if they had been sent off on that day that would have been an application that was in time. They were not sent on that day, despite assurances that the college had given to the claimant. The form was sent the following day and as a result it was out of time.[7]The claimant, of course, knew that time was getting very short. He knew on 30th November when he gave the form to the college that if the college did not submit it on that day it would be too late. That was why he sought the assurance that he did, no doubt. But despite the fact that he was necessarily, by asking the college to forward the form, leaving his future in the hands of the college, he evidently decided to allow the college to submit the form as he had arranged.[8]The claimant made no enquiry of the Secretary of State whether the form had been submitted in time. Although, as I have indicated, he must have known that there was a difficulty, that time had been getting short, that everything depended on the college doing what he had asked at the time he had asked, he made no enquiry. Mr Bahja has relied to an extent in his submissions on the fact that, as a result, it was not until 2nd February 2006, when the decision was made, that the claimant discovered that the application had not been made in time. If he did not know previously - and I accept that through failure to enquire he did not know - the fact was made abundantly clear to him by the terms of the decision. The decision is as follows:
"Your application has been refused for the reasons set out in the enclosed notice."
The enclosed notice reads as follows:
"Although you were last admitted to the United Kingdom as a student your leave expired on 30th November 2005. As your application was made on 1st December 2005 you are not a person specified in Appendix 1 to the Immigration Rules who was within the currency of their leave. Therefore the Secretary of State is not satisfied that you were in possession of a valid student entry clearance, or valid prospective student entry clearance in accordance with paragraphs 82 to 87 of the Immigration Rules, as you have been accepted for a course of study below degree level."
[9]As the claimant remarked in some of the correspondence which preceded Mr Bahja's clear submissions today, there are a number of aspects of that paragraph that raise some questions. But there is no doubt about the next paragraph, which is as follows:
"You made an application on 01 December 2005. However, your leave to remain expired on 30th November 2005. You therefore did not have leave to remain at the time of your application. There is no right of appeal against this decision."
[10]The position is put with absolute clarity in the remainder of the accompanying letter:
"As your application was made on the 1st December 2005 and your student leave expired on 30th November 2005, you did not have valid leave at the time of their application and as such it has been refused."
[11]Mr Bahja points out that there is in those documents no reference to any other consideration than that specifically referred to in them; that is to say, the fact that the application was late and therefore could not succeed under the Rules. There is no reference to any consideration by the Secretary of State of her discretion to depart from the rules. There is no reference to any consideration of any other facts. Mr Bahja argues that that absence invalidates the decision. He says that if the Secretary of State has a discretion, which it is clear that she does have, first of all, she needs to recognise that she has it and the notice of decision needs to recognise that she knows that she has it and, secondly, that she is under a duty to decide whether to exercise it in an individual case such as the present, and by implication in all individual cases.[12]Mr Bahja refers in particular, in order to establish those propositions, to R v Secretary of State for the Home Department, ex parte Tarrant [1985] QB 251, a decision of the Divisional Court relating to the provision of legal assistance to prisoners in challenging disciplinary decisions.[13]In that case, as the report makes clear, applications were made by serving prisoners for legal assistance in their appeals. The Boards who made the decisions refusing them representation in each case took the view that there was no right to legal representation and took the view also that they, the Boards, had no discretion to award legal representation. It appears that the Boards were correct in the first of those conclusions and incorrect in the second. Their refusals, therefore, failed to take into account the possible exercise of a discretion because they thought they had no discretion. Tarrant, in my judgment, is authority for the proposition that a decision-maker who makes a decision which might have been a discretionary decision in an applicant's favour without appreciating that he has a discretion to exercise makes a decision which is properly challengeable in law.[14]However, it is very difficult to see in Tarrant any proposition which would help the claimant in this case. There is no reason to suppose from the documents to which I have referred that the Secretary of State did not appreciate that she had a discretion.[15]Mr Bahja also refers me to Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, a decision of the House of Lords relating to the Secretary of State's exercise of a discretion to intervene in the workings of local government. That was a case where, as Mr Moffett has explained, the Secretary of State intervened of his own motion, using statutory powers. There is no doubt from Tameside that the Secretary of State in exercising a statutory discretion (or no doubt any other discretion) is obliged to take account of all the facts known to him. In a case where the Secretary of State exercises a discretion of his own motion, it might well be said that there is a higher or more detailed duty to ensure that he is confident that he is apprised of relevant facts.[16]But that is not the case here. Mr Bahja seeks to establish that where the Secretary of State is asked, whether implicitly or explicitly, to exercise a discretionary power, under those circumstances the Secretary of State is obliged to make her own enquiries, rather than entitled to rely on the facts put before her.[17]Mr Bahja's submission is that the facts before the Secretary of State, as they were in the application that was made, were themselves sufficient to cause the Secretary of State to make further enquiry. What were the facts? The facts in question were these. The progress report was dated one day before the expiry of the leave. The application form was dated on the date of the expiry of the leave. The application form was posted the day after the expiry of the leave. None of those dates was the subject of any explanation, either accompanying the application or made soon after it. I add that last phrase because it is of course clear that if the claimant had been prepared to accept responsibility for his own affairs, he could have made whatever enquiry he chose of the Secretary of State about when the form had been received; and he could have made submissions to her which might have caused her to consider whether this was a case in which discretion should be exercised. But there was simply nothing: and the evidence upon which Mr Bahja relies will not, in my judgment, bear the weight that he seeks to put on it.[18]Mr Moffett has referred me to British Oxygen Co Ltd v Minister of Technology [1971] AC 610, another decision of the House of Lords. It is quite unnecessary to set out the facts of that case in any detail or even to refer specifically to the judgment of Lord Reid. What that case establishes, and what Mr Bahja accepts, is that the Secretary of State in exercising a discretion has a duty to listen, a duty to consider the impact of any submissions or considerations that are put before him or her. There is nothing which suggests a general power to look, a general duty to ensure or a general duty to see whether there are circumstances which might have assisted an applicant, but which have not been brought to the attention of the decision-maker. It would indeed be in practical terms entirely unrealistic to suggest that every person exercising a discretionary power has a duty to see whether there are circumstances which might cause the exercise of that power. The Secretary of State is entitled, in my judgment, to respond to the application made to her. The application made to her raised no suggestion that this was a case for the exercise of discretion outside the Immigration Rules.[19]In administrative law it is always dangerous to say "never" and I do not say that there could never be a case in which the Secretary of State was obliged to look further at an application to see whether, although it failed under the Rules, there might be some reason why it should be granted. What is clear, in my judgment, is that this was not such a case. It was not such a case because, despite Mr Bahja's attempts to persuade me to the contrary, there was nothing in the material before the Secretary of State, either in the original application or at any other time before she made her decision, which might have caused her to think that rather than this being an application which was simply out of time, it was an application which was out of time for a particular exceptional reason.[20]In those circumstances, it does not seem to me that the Secretary of State was obliged to add to her reasons for refusing the application some such sentiment as "and there are in this case no circumstances of which I am aware which would cause me to exercise discretion outside the Immigration Rules." In my judgment, the Secretary of State is entitled to be silent about the exercise of a discretion which everybody knows she has, in circumstances in which there is no cause raised in her mind for her to exercise it.[21]It follows that the Secretary of State's decision, made under the Rules in the present case, is essentially unassailable. The claimant made an out-of-time application and under the Rules it could not and did not succeed. He made no application for the exercise of the Secretary of State's discretion outside the Rules and drew nothing to her attention which could properly have been regarded as causing her to consider whether to exercise her discretion outside the Rules. It follows that this claim must be refused.[22]MR MOFFETT: My Lord, I am very grateful for that. This being a substantive application I would ask for the Secretary of State's costs of the claim. I do not know if your Lordship wants to deal with the principle and then summary assessment. There is a schedule.[23]THE DEPUTY JUDGE: There is a schedule somewhere, is there not?[24]MR MOFFETT: There is. Just in relation to the schedule, there is one point I would make in that respect. As your Lordship may have picked up from reading these papers, this is the third time this matter has been listed for hearing. On two previous occasions this year it has come on. On both occasions it was adjourned effectively at the claimant's request or because of non-attendance. On one occasion, I hope in right in saying, it was the day before the hearing and on another occasion actually at the hearing itself. So in looking at the overall costs, I would ask your Lordship to bear in mind the fact that effectively there have had to have been three lots of preparation for a substantive trial in this matter.[25]THE DEPUTY JUDGE: Is that because there were three different counsel?[26]MR MOFFETT: No it is not, my Lord.[27]THE DEPUTY JUDGE: Because counsel has a very short memory, is it?[28]MR MOFFETT: I may be accused of that, my Lord, but certainly the matter had to be picked up again and it is not always easy to retain in one's memory details of every case that one does.[29]THE DEPUTY JUDGE: Mr Bahja?[30]MR BAHJA: My Lord, costs is always under the discretion of the court. Now I accept that I have failed, so I would ask my Lord to exercise a discretion not to award costs in this case, given the exceptional circumstances of my client's case. He is a student. He does not have sufficient funds to support his studies and in any event, following my Lord's judgment, he may be removed from this country. So in those circumstances I would ask my Lord to make no order for costs.[31]Alternatively, if my Lord is not with me on this point, I would submit that £6,500 is in any way manifestly excessive and I would ask for a detailed assessment of our costs by the court. (Long pause)[32]THE DEPUTY JUDGE: Yes, thank you.[33]You cannot resist assessment, can you, Mr Moffett?[34]MR MOFFETT: Sorry, detailed assessment?[35]THE DEPUTY JUDGE: Yes.[36]MR MOFFETT: My instructions are that the Secretary of State would prefer summary assessment, if your Lordship is willing to do that. (Pause)[37]THE DEPUTY JUDGE: Is there any point on the schedule in particular that you object to Mr Bahja? (Pause)[38]MR BAHJA: My Lord, yes. I submit that assessment made of the entire schedule is, in my opinion, excessive. Counsel's fees £7,500. I understand the point that there may have been previous occasions, but in any event £3,000 (inaudible) £900 a day, I submit, is, anyway, excessive, preparation and - given the fact that they were (inaudible) no hearing (inaudible) take place. It would be excessive, and in any event the cost - the (inaudible) costs, correspondence with client, work done on core documents, I submit it is excessive. (Pause)[39]THE DEPUTY JUDGE: I make an order for costs against the claimant, the amount to be subject to detailed assessment if not agreed within 14 days.[40]MR MOFFETT: I am obliged, my Lord.[41]THE DEPUTY JUDGE: Thank you both very much. ______________________________

Cited in 1 later judgment