Jabbar & Ors, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 3210 (Admin)

[2008] EWHC 3210 (Admin)Case No CO/1738/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 11th November 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CHARLES
Between
THE QUEEN ON THE APPLICATION OF (1) JABBARClaimantUR and (3) ARSHADClaimantv
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)
Ms U Sood (instructed by Azmi Rana Solicitors) appeared for ClaimantMr S Kovats (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE CHARLES: I have before me three claims for judicial review in respect of which permission has been granted. There are also before me four cases in which permission was granted where the Secretary of State has decided to withdraw the relevant notice, and a dispute has arisen between the parties as to the consent order. In short, the claimants wish to add to those claims a claim in damages. I then have two cases where the issue as to permission was adjourned in which the Secretary of State has decided to withdraw the decision. There are also four cases in which permission is sought in which the defendant invited further evidence but has not received such evidence, and one case where permission is sought in which the Secretary of State maintains her decision and submits that I should refuse permission.[2]What I propose to do is to look at the cases in which permission has been granted and then I will deal with the other matters with the assistance of counsel, in the light of my judgment, as to what orders should be made in those cases.[3]All the cases concern claimants who were employed by a group of companies shown as the Shere Khan Group who, as I understand it, run restaurants. They were arrested on the night of 2nd and 3rd February 2007 on the basis that they were working in breach of their work permits and thus conditions of leave. The defendant served notices on the claimants very shortly thereafter, dated 3rd February, under section 10 of the Immigration and Asylum Act 1999. Two notices were in fact served, one under section 10 of the 1999 Act which, on its face, informs the relevant person that he is a person who is liable to be detained pending the completion of arrangements for dealing with him under the Immigration Act 1971. Then on the same day there is a notice of a decision to remove an illegal entrant or other immigration offender, or a family member of such a person, indicating that the person has been served with the form I have referred to, informing that person that his immigration status means he is liable to detention and removal, stating:
"As a consequence, a decision has been taken to remove you from the United Kingdom."
Then it sets out an entitlement to appeal.[4]In broad terms, the statutory regime is as follows. Section 10 of the 1999 Act provides that:
"(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if -- (a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; (b) he has obtained leave to remain by deception; or (c) directions ('the first directions') have been given for the removal, under this section, of a person ('the other person') to whose family he belongs."
Then I should refer to subsection (7) which provides:
"In relation to any such directions, paragraphs 10, 11, 16 to 18, 21 and 22 to 24 of Schedule 2 to the 1971 Act (administrative provisions as to control of entry), apply as they apply in relation to directions given under paragraph 8 of that Schedule."
[5]That takes one to the Schedule to that Act, and of particular importance there is paragraph 16 which provides for the detention of persons liable to examination or removal. The most relevant paragraph of that is subparagraph (2) which says:
"If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending -- (a) a decision whether or not to give such directions; (b) his removal in pursuance of such directions."
It will be remembered that the provisions of section 10(7) have the effect that those paragraphs apply in this type of case. Paragraph 17 provides:
"A person liable to be detained under paragraph 16 above may be arrested without warrant by a constable or by an immigration officer."
Paragraph 21(2) provides:
"So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, as to his employment or occupation, and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer."
[6]Pausing there, and turning to the notices that were given in all of these cases, what one sees is the giving of the section 10 notice which, in the circumstances of this case, are based on non-compliance with the terms of the relevant work permits, being that the relevant claimants were not working at the restaurant referred to in the work permit, followed by a decision to remove.[7]The decision to remove is an immigration decision and an immigration decision can be appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 which gives the right of appeal. Section 82(g) relates to a decision that a person is removed from the United Kingdom by way of direction under section 10 of the Immigration Asylum Act 1999, being "Removal of certain persons unlawfully in the United Kingdom".[8]The grounds of appeal appear in section 84 and include section 84(1)(a) that the decision is not in accordance with the Immigration Rules; at (1)(c) that the decision is unlawful under section 6 of the Human Rights Act; at subsection (1)(e) that the decision is otherwise not in accordance with the law; and (1)(f) that the person taking the decision should have exercised differently the discretion conferred by Immigration Rules. Section 85(4) makes provision as to what can be taken into account by way of evidence on the appeal.[9]Section 92 deals with whether the appeal would be an in-country or an out of country appeal. In short, it is common ground that, absent the introduction of human rights claims, this would be an out of country appeal but if human rights claims are included it would be an in-country appeal. Time limits are set by the relevant rules. So far as an in-country appeal is concerned, they are short time limits of five days if the person is in detention, and ten days in any other case. So far as an out of country appeal is concerned, the relevant time limit is 28 days following the departure of the appellant from the country. A notice of appeal can be extended by the Tribunal; that is rule 10(5). The grounds for extension of time are that the Tribunal may extend the time for appealing if satisfied that, by reason of special circumstances, it would be unjust not to do so.[10]That is the background framework to the matters which fall for my consideration.[11]The further background is that there were a series of raids led by the Merseyside Police, assisted by members of the UK Immigration Service, on the relevant evening which targeted restaurants and take-away restaurants owned and managed by the Shere Khan group of companies across Liverpool, Cheshire, South Yorkshire and Kent. In the course of those raids, a total of 69 arrests were made. In addition to the 24 claimants in the review proceedings that were started, a further 45 persons were arrested for various immigration offences, including overstaying. As I have said, in this case the claimants became subject to the relevant notices because of the fact that they were no longer working in compliance with the express terms of their work permits.[12]The challenge is brought by way of judicial review. At the date the proceedings were issued, the decision of the Court of Appeal in R (on the application of Lim and Another) v Secretary of State for the Home Department [2007] EWCA Civ 773 had not been made. In that case, the judge had decided, in the exercise of his discretion, to proceed with the application for judicial review, albeit that he recognised the alternative remedy in that case of an out of country appeal, but concluded it did not provide adequate protection.[13]The Secretary of State relies in particular on the principle set out in paragraph 13 of the judgment relating to the availability of an alternative remedy, the principle being that when an alternative remedy exists judicial review will not normally be run. There is then discussion of the principle, particularly in paragraphs 20 through 24. What I take from that is that the Court of Appeal determined that in cases of this type the court does have jurisdiction in judicial review and jurisdiction to determine by way of appeal. Then, importantly, one goes to paragraphs 27 to 29 in which the Court of Appeal determined that the way in which the judge exercised his discretion in that case was outside the limits of the results available to him. As is said at the end of paragraph 27, this was precisely the kind of issue for which the legislation, for better or for worse, prescribed an out of country appeal.[14]The legislation provides, for better or worse, an appeal which in this case could be an in-country or an out of country appeal.[15]It is argued on behalf of the claimants that this case has exceptional features which mean that that conclusion of the Court of Appeal should not be followed. In the skeleton argument, three heads for that are set out. Firstly, it is said that the claimants do not accept culpability for the breach, given the onus on the employer to apply for the work permit and to notify changes. Second, there is reliance placed on negotiations between the employer and the Immigration Service, and reference was made to a witness statement of a solicitor who has been involved in the history of these proceedings. Thirdly, it is said that the circumstances of this case are exceptional.[16]Dealing with the negotiations relied on, to my mind this was correctly not pressed before me in oral submissions. An analysis of that statement, when read with the statement put in on behalf of the Department (in particular, the inclusion in that statement of a letter excluded from the solicitor's statement), to my mind makes it clear that the arguments premised on there being negotiations that would make a difference simply fall away. To my mind, the written evidence makes it quite clear, as do the terms of the letter exhibited by the Department, that the Department's stance was precisely in accordance with its published material: that when a change of place of work was being put in place, the Department had to be contacted and the relevant extension or alteration of the work permit obtained. The evidence simply does not found, in my judgment, any general assertion that there was discussion between this group of companies and the Department which would lead that group to consider that they did not have to comply with that general public direction. Indeed, highlighting the letter to which I have referred makes that point expressly.[17]What of the other two grounds? To my mind, they do not distinguish these cases from the approach in Lim. It was said, and I accept, that in some of the cases individuals have come here hoping to spend their working lives here and set up a home here, no doubt with their family and they have children. That, to my mind, does not make the cases exceptional. Nor indeed does it lead to this court dealing with the matter rather than the Appeal Tribunal dealing with the matter. This is because the very grounds given in section 84 cover precisely those kinds of issues. The same can be said as to the relevant claimants not accepting culpability for the breach. To my mind, therefore, if these proceedings for judicial review had been started after the decision in Lim, the correct answer on any application for permission would have been to refuse permission because of the existence of an alternative remedy.[18]The court, however, as I understand it, does have a discretion, and I need to consider its exercise in the context that these proceedings were started after the first instance decision in Lim had been decided but before the Court of Appeal had reached its conclusion. I therefore, it seems to me, should look at whether or not, in that context, notwithstanding the general conclusion I have reached, it would be appropriate for me to deal with the cases in the context of a public law challenge.[19]In that respect, it was, to my mind, correctly accepted by counsel for the Secretary of State that the tests applied in the appeal and on judicial review diverge in some respects. In particular, they diverge in the context of section 84(1)(f) in that his submission, which I accept, was that on an appeal the appeal court is essentially a decision-maker and looks at the issues, whereas in this jurisdiction it is a challenge based on public law grounds.[20]The papers in this case -- in part because of the speed with which the application was brought and then the history of it, including the fact that a number of documents were not available to the claimants -- are not easy to follow. Having given that acknowledgment to the difficulties, I have to say that, in my judgment, the manner in which the claims for judicial review and the proposed amendments have been set out in the relevant claim documents and skeleton argument are muddled and, sadly, muddling. Further, and importantly, those documents do not highlight a central element of the relevant attack.[21]However, with the assistance of oral submissions the way in which the case is put is as follows: that in respect of the initial section 10 notices, there is potential for a freestanding application for judicial review because that notice was not an immigration decision giving rise to a right to appeal. Here, however, the two notices were effectively given at the same time, and, to my mind, it was correctly submitted that the section 10 notices were overtaken by and incorporated in the second decision, which is an immigration decision and subject to a right of appeal.[22]Thus, in my judgment, notwithstanding the potential in some cases for a freestanding challenge by way of judicial review to a section 10 notice, and detention pursuant to that notice and the Schedule to the 1971 Act, that is not an available freestanding challenge in this case.[23]Rather, what is said is that before making the relevant immigration decision, the decision-maker failed to have proper regard to evidential matters relating to whether or not there was a breach of the work permit, and, importantly, matters under rule 395 of the Immigration Rules. It is accepted, as inevitably it must be, that the decision-maker, in reaching that decision, has to be satisfied of the factual basis for the section 10 notice and has to have regard to rule 395. I was, in that context, referred to guidance given by the Secretary of State as to the type of evidence that investigating officers should have. It was submitted to me that that was particular guidance given in Home Office Operations Manual, Chapter 10, 10.6.4, concerning working in breach of terms of the relevant permit.[24]Rule 395, and in particular 395C, provides:
"Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State including . . . [my emphasis]."
Then a number are set out. At 395D: "No one shall be removed under section 10 if his removal would be contrary to the United Kingdom's obligations under the Convention and Protocol relating to the Status of Refugees or under the Human Rights Convention." 395E and F deal with procedure.[25]The argument has essentially two limbs: first, that in this case there was insufficient evidence at the time the decisions were made to establish that the relevant claimants were in breach of their work permits; second, and in any event, at the time the decisions were made, insufficient enquiry had been made to enable the decision-maker to make a properly informed decision, having regard to the matters listed in Rule 395C.[26]Following the events in early February 2007, the position has been clarified in the context of these proceedings, and it is accepted in the context of these proceedings that each of the claimants were in breach of the conditions of the relevant work permits. Those are described in the literature as "technical" breaches, relating to the point that they are no longer working at Restaurant A, to which their work permit expressly refers, but are working in Restaurant B.[27]The position on the evidence as to the extent of the investigation and inquiry made in the interviews which followed arrest is not very clear. The second limb relates to, as I have indicated, what is known to the decision-maker when a decision is made and the point, for example, that here that person had no knowledge of, and had made no inquiry as to, each claimant's domestic circumstances and/or relevant compassionate circumstances.[28]For present purposes, at this stage of this judgment, I shall assume that those challenges are good, and thus, for example, it is the case that the manner of investigation was not a fair and proper one and therefore the notices were not lawfully issued. I make that assumption at this stage because I am looking at this in the context of judicial review proceedings.[29]In that context, the argument has to be faced and dealt with that the validity and effects of the defects that are relied on, namely insufficient evidence and insufficient investigation, have been considered and assessed in the context of the proceedings. As I have indicated, the first point relating to insufficient evidence has resulted in an admission that in each of the cases the relevant breach exists.[30]Further, there has been an exchange, in part through the directions of the court, permitting each claimant to put to the Secretary of State such matters as they are advised should be put in relation to 395C, and the position of the Secretary of State as to those matters has been included in a progression of documents: firstly the acknowledgment of service and summary grounds, followed by a reply document which in this context repeats the acknowledgment of service and adds to it. Importantly, it deals with the matters raised by each of the claimants under the heading "395C" and records the Secretary of State's on the notices. That is then followed up by a letter in the cases in which the notices are maintained confirming that decision. In some of the cases the notices were withdrawn.[31]It seems to me that if I am satisfied that that exercise in the context of these proceedings has effectively cured the original flaws as to lack of evidence, procedural fairness and inquiry, the issue would arise as to whether or not I would grant any relief in the judicial review.[32]If I am satisfied that it has cured the arguments based on unfairness and a failure to take into account proper matters, or a failure to obtain proper evidence, the remaining public law ground, as was common ground between the parties, is essentially rationality, coupled with the point made on behalf of the claimants that the decision is not only not rational but it had insufficient reasoning; in particular, by reference to that and the rationality argument, it is said that there is no explanation why in some cases the notices have been withdrawn and in others they have not.[33]To my mind, an argument that it was irrational not to take a course that resulted in a withdrawal of all the notices has its difficulties because the mirror argument is equally in existence without particularisation of the individual cases; namely that the irrationality argument supports the opposite result that all the notices should have been maintained. Alleged inconsistency, as such, does not, to my mind, win the argument.[34]I accept that, looking at the documents, the reasoning of the Secretary of State is not drawn together in each case by saying:
"In this case I have decided that the following factors move me towards the following decision"
. However, what is done is that the relevant factors are set out clearly, the balance is identified and the decision reached, applying that balance, is recorded.[35]It seems to me in the circumstances of these cases, in which the situation has been reached where there is an admitted breach of work permit conditions in respect of a number of workers of this group, and accepting (as it seems to me apparently is accepted by the course taken by the Secretary of State in not withdrawing some notices and withdrawing others) that it is not every breach of this type which would lead to a decision to remove, that the Secretary of State has now satisfied the public law requirements upon her to consider the evidential base for removal under section 10 and the matters referred to in Rule 395, and has adequately informed the respective claimants of the decision and the reasons for it, because the relevant considerations have been set out.[36]The question, therefore, that does arise in those circumstances on the approach I have taken is whether it would be appropriate for me, exercising a discretionary remedy, to set aside the original notices. Looking at it purely in the context of judicial review proceedings, my answer to that is: no, it would not. It is not uncommon in decisions of this type (and it was particularly drawn to my attention that the Secretary of State has a continuing obligation, and certainly a continuing practice of considering matters raised under Rule 395C) for there to be reconsideration during the course of the proceedings. So looking at the matter in purely judicial review terms, it seems to me that the claimants fail in their claim for relief to have the original notices set aside, even on the assumption and basis that they have satisfied me that originally the process by which they were made was flawed.[37]This has potential knock-on effects so far as the parallel appeal process is concerned. If I were not to set aside those notices, then the claimants would have the opportunity to appeal in-country if they could obtain an extension of time, and an opportunity to appeal out of country within 28 days of leaving the jurisdiction. If I were to set aside the original notices and decisions then there would be nothing, at that stage, to appeal against and they could potentially appeal a later decision.[38]An important feature of my process of reasoning at this stage is the distinction between the approach taken by this court and the approach that would be open on an appeal concerning a challenge to the discretion, namely that the Appeal Tribunal could say that the person taking the decision should have exercised the discretion differently.[39]A further point troubles me and that is this: that the way in which this review has been brought on leaves me in some difficulty in establishing precisely what happened on the relevant evening so far as interviews were concerned. That has very fact sensitive issues which, it seems to me, are far more appropriately dealt with by the appeal process than by judicial review.[40]I see force in the arguments that the initial decisions were made without proper consideration of Rule 395C, and I do not find attractive the argument put on behalf of the Secretary of State that, as the decision-maker did not know a number of the factors (because they had not investigated) the decisions made by the Secretary of State were lawful because they had referred to all known facts.[41]But I do not feel able to make a decision on that point in the context of these proceedings because, it seems to me, it would necessitate looking with care and better evidence at each of the cases, albeit that the general position seems to be much the same in them. Rather, I proceed on the assumption that the claimants would succeed in those arguments.[42]Nonetheless, in my judgment, it would be inappropriate, in all the present circumstances and the guidance in the Lim case, for me to exercise my public law jurisdiction to set aside the original notices. That leaves the position that the claimants can seek an extension of time from the relevant tribunal on the basis that(1) the Lim case was not decided at the time these proceedings were issued;(2) the point that the approach to the challenge of discretion is different on appeal to judicial review; and such other points as may be wished to be put before the Appeal Tribunal.[43]That leaves a further issue that was raised before me, namely whether the claimants should have permission to amend their notices to include a claim for damages. In this aspect of the case, the difficulties encountered, through lack of information and the need for speed, do not arise in the context of the pleading of the proposed amendments. That pleading is put in the most general terms. In argument, it was accepted that there is no claim put in the context of misfeasance in public office. The argument is said to be that there is a claim through section 6 of the Human Rights Act and a breach of Article 8. The foundation for that is that the right to respect for private life includes within it a right to work.[44]There are two strands of reasoning why it seems to me quite inappropriate to grant leave to amend at this very late stage. The first is the lack of sensibly particularised pleadings coming in at this very late stage of this process, coupled with the ability of the claimants, if so advised, to bring their claims by a different procedure. To my mind, this attempt simply to tack on, in a generalised way, a claim for damages to existing judicial review proceedings was inappropriate, and on that ground alone I would refuse leave to amend at this stage. The amendment would simply lead to, as I would see it, a referral of such issues to a new hearing and forum. Equally, I am unconvinced that the claim has any merit.[45]The main authority relied on by the claimants is a decision in Liu v Russia reported in 47 EHRR 751 (I have seen a typed up copy). In support of the argument, counsel for the claimants cited passages of the relevant Russian law in support of her contention. It seems to me that that citation is irrelevant for present purposes. I was taken to paragraph 50 of the judgment which says this:
"As the court has reaffirmed on several occasions, Article 8 cannot be construed as guaranteeing such a right to a particular type of residence permit."
And so as it seems to me, a particular type of work permit. Equally, as was asserted in the defendant's reply, there is no general right to work.[46]Standing back and looking at this case, as was, in my judgment, correctly accepted by counsel for the claimants, the position on the evening of 3rd February was that none of the claimants had a lawful ability or right to work in the restaurant in which they were working. Why, therefore, has what has happened caused any loss? What was said was that the Secretary of State should have reconsidered the matter more quickly and therefore, as I understand it, more quickly have conferred some right to work on the claimants. I do not follow how that can be a breach of Article 8. In the context of a challenge based on a failure to properly reach decisions in February 2007, it seems to me that the claim for damages comes up against insuperable difficulties: namely, looked at generally, there is no guaranteed right of work and, look at specifically in each case, at the moment that the section 10 decisions were made, none of these claimants were in employment that was lawful.[47]On those two grounds, first, that it seems to me that the proposed amendment has come far too late in an extremely unparticularised form, and secondly, and in any event, because I am not satisfied that an arguable claim has been demonstrated, I refuse leave to amend.[48]For the reasons I have given, I refuse the applications for review in respect of which permission has been given, because although I have not reached a conclusion as to whether or not the original decisions were flawed, on my process of reasoning, assuming that they are, I would not be prepared to grant relief in respect of them in these proceedings. I will therefore dismiss those claims.[49]Subject to what I am told by counsel, it seems to me to follow from what I have said that in respect of the other cases I should refuse permission in respect of all the cases where permission is outstanding, and in respect of the cases where there has been a dispute as to the terms of the consent order, a withdrawal or dismissal order should be made because the only ground of objection to them is a wish to add a claim for damages to those claims. I would therefore invite counsel to draw up an order to encapsulate all of those decisions.[50]Do I need at this stage to formally deal with the cases that were listed for disposal?[51]MISS SOOD: In a formal sense, yes, my Lord.[52]MR JUSTICE CHARLES: So in cases 3646, 1742, 1744 and 1759, I will dismiss the applications. Is there anything else I need to do?[53]MR KOVATS: My Lord, the same reasoning that applies in relation to those cases applies in relation to what my skeleton at paragraph 2 called the "Group 3" cases. I would equally invite your Lordship now formally to refuse permission on those.

MR JUSTICE CHARLES: Are those ones I need to refuse permission on?

[55]MR KOVATS: Those were the adjourned permission cases where the Secretary of State had decided to withdraw the section 10 notice.

MR JUSTICE CHARLES: I will refuse permission on those because that is exactly the same.

[57]MR KOVATS: Yes. Similarly, it must follow in relation to the four cases in Group 4 that those must also have permission refused. They cannot possibly be in any better position than the substantive claims your Lordship has dealt with.

MR JUSTICE CHARLES: I agree with that.

[59]MR KOVATS: Similarly, the one case in Group 5, it is a permission application but, although my learned friend took you to the facts, there is nothing on the facts of that case putting it in any superior position to any of the others.[60]MR JUSTICE CHARLES: I should record that I agree with the point made in respect of the case in Group 5, there is nothing on the facts that distinguishes it from the other cases and the reasoning I have applied. I should also record that I have looked at the facts of the three cases that were before me and that neither party has drawn my attention to a relevant difference of facts in any of the other cases. I am proceeding on the basis that there is no such relevant difference. Indeed, as I have indicated, one of the points made by the claimants was the very similarity of the points that they were relying on in their argument. Was there any provision as to the costs of the withdrawal application?[61]MR KOVATS: My Lord, there was, but, given that the claimants were not prepared to accept anything, my submission is that they have effectively been pursued and I was just coming on to deal with costs. In my submission, the appropriate order in the present case is to say that the claimants should pay the defendant's costs of these applications, subject to a detailed assessment. How those costs are to be apportioned between the individual claimants should be left for the assessment.

MR JUSTICE CHARLES: Miss Sood, what do you say?

[63]MISS SOOD: My Lord, I strenuously object to any order for costs in this matter. The area of judicial review, your Lordship, is under CPR guidance and it is discretionary in these cases. There has been a significant amount of success, if I can call it that, on the claimants' pursuance of this judicial review, in that without lodging the judicial review, which, as your Lordship has said, came before the Lim case, they were in a situation of having a choice of jurisdiction. They have succeeded in obtaining the withdrawal of some decisions, and they were given permission for others on two limbs of scrutiny by Collins J.[64]In regard to a further point, my Lord, it is quite clear that there was a genuine public interest in knowing whether the Secretary of State has to comply with any procedural safeguards in actions like this. I think to that extent, even on the assumption that your Lordship has made in his judgment, the claimant has succeeded. I say, my Lord, that in relation to a matter which was a significant dispute between the parties, and that is a matter that you have resolved, it is clear that the notices were defective, and --

MR JUSTICE CHARLES: No, I just said I had not decided the notices were defective.

[66]MISS SOOD: Without deciding the lawfulness, what you say, and it is implicit in your judgment, it was flawed when the Secretary of State invited the claimants to put forward further arguments. I say, my Lord, that there has been a significant period of time and a significant amount of success in the pursuance of this judicial review. I would ask that your Lordship makes no order for costs.[67]MR KOVATS: My Lord, none of these claimants needed to bring a claim for judicial review. Even without the Court of Appeal decision in Lim, there was nothing to stop them pursuing the appeal route to the Tribunal. So they brought the judicial review costs on their own head, in my submission. They have fought them, they have not succeeded and they should have the usual costs order made against them.[68]MR JUSTICE CHARLES: I have to deal with issues of costs. Initially, on withdrawal, as I understand it, the Secretary of State had offered to pay the claimant's costs or some of them. That was not accepted because of the wish to amend the claim to add the claim for damages. To my mind, there is considerable force in the submission made on behalf of the Secretary of State that, in the circumstances of this case, it has been open always to these claimants to make their case by way of appeal, and there was never any need for immediate interlocutory relief in the context of these cases. Equally, after the Lim decision it was always open to these claimants to agree to discontinue and take their proceedings by way of appeal.[69]I also reject the argument that there was some strong public interest in bringing these cases. The arguments that were advanced in attacking the original notices are standard ones relating to decisions made by public authorities. Notwithstanding that, I have concluded, in the way that I have dealt with these cases, that there was an arguable claim in the context of the original notices. The process was issued prior to the Lim judgment in the Court of Appeal, and my conclusion has been based on the assumption I have made. Thus, to my mind, in all the circumstances in this case, the appropriate order is no order as to costs.[70]Could I get you, please, Mr Kovats, to ensure that a draft order is provided to the associate which brings together all of these cases?[71]MR KOVATS: My Lord, yes.

MR JUSTICE CHARLES: There probably needs to be one in each case, does there not?

[73]MR KOVATS: I was proposing to do a composite order. If I need to do one for each case then I will.[74]MR JUSTICE CHARLES: I will leave it in your hands. I think it is a question of working out if it is just as easy. I would suggest that you have a composite order and one in each case and one in each file so somebody who picks it up in the future does not have to go searching through. That would assist in the future. Each file has its own order. There was not any group action, so to speak, they were just all listed together.[75]MR KOVATS: I will do it that way, my Lord.[76]MR JUSTICE CHARLES: I think it would help. I think the terms are going to be the same, but just changing the headings.[77]MR KOVATS: I will need to do two different types: one for the substantive and one for the permission.[78]MR JUSTICE CHARLES: If you could do that. Your opponent can comment on them as appropriate.[79]MR KOVATS: Yes.

MR JUSTICE CHARLES: Thank you very much.