Domi, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 571 (Admin)

[2008] EWHC 571 (Admin)Case No CO/2569/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 23rd January 2008
Strand
London WC2A 2LL
B e f o r e:
SIR GEORGE NEWMAN
Between
THE QUEEN ON THE APPLICATION OF DOMIClaimantv
Between
THE 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)
Mr P Nathan (instructed by Messrs Sutovic & Hartigan) appeared for ClaimantMiss C Weir (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T

SIR GEORGE NEWMAN

[1]: This is an application for judicial review, permission having been granted at an oral hearing before Keith J on 7th June 2006. Although he granted permission on more than one ground, it is agreed between Mr Nathan for the claimant and Miss Weir for the Secretary of State that only one issue is now before this court. In essence that is whether the claimant can prove that the Secretary of State failed to serve him with the notice of the decision to remove him from the United Kingdom after it had been determined that his asylum claim had failed.[2]The submission for the claimant is that the court should hold that there was a failure of service, and so declare, thereby providing him with an in-country right of appeal against the refusal of asylum. In fact, the documents before the court disclose that the asylum claim was refused on 10th October 2003 and the issue which is specifically under examination in accordance with the 2003 Regulations, namely the Immigration (Notices) Regulations 2003, is whether the notice of removal and refusal of the claim was served.[3]The argument has narrowed down before the court today to the point as to whether or not the claimant can prove that the Secretary of State failed to serve his solicitors at the material time, being the firm Iyama Solicitors Limited of 30-32 Tabard Street, London SE1.[4]There is a long history to this case. Much of it is set out in the judgment of Keith J upon granting permission to apply for judicial review. In my judgment, it is not necessary to go into the detailed chronology of events until one reaches 2003, save to acknowledge a point which has been urged by Mr Nathan on behalf of the claimant, that there is evidence that this particular claimant was somebody who was interested in following up his claim for asylum, in respect of which he had been interviewed on 19th March 2002. Until the events to which I have already referred, namely October 2003, it would appear that that indeed is the case; there had been no decision.[5]That said, the first most material consideration is to have regard to the relevant law and the statutory provisions on giving notice of documents, which were applicable at the material time, namely 14th October 2003. They are, as I have indicated, the 2003 Regulations. Where material, they provide as follows: By regulation 4(1), subject to an exception not relevant for present purposes, the decision-maker must give written notice to a person of, inter alia, any immigration decision taken in respect of him which is appealable. In this case there was an immigration decision, and it was a decision pursuant to Schedule 2 of the Immigration Act 1971, that the claimant was to be removed from the United Kingdom as an illegal entrant, his asylum claim having been refused. By virtue of section 82(1), read with section 92(4)(1), of the 2002 Act, this is an appealable decision which attracts an in-country right of appeal. Regulation 4(3) provides that where notice of an immigration decision is given to a person's representative, it is taken to have been given to that person. It is Regulation 7 which contains the requirement as to service of notices:
"7. (1) A notice required to be given under Regulation 4 may be - "(a) given by hand; "(b) sent by fax; "(c) sent by postal service in which delivery or receipt is recorded to:- "(i) an address provided for correspondence by the person of his representative."
[6]In this instance the relevant method of service which is relied upon is the latter, (c). Regulation 7(4) provides:
"Where a notice is sent by post in accordance with paragraph (1)(c) it shall be deemed to have been served, unless the contrary is proved, - "(a) on the second day after it was posted if it is sent to a place within the United Kingdom. "(b) on the twenty-eighth day after it was posted if it is sent to a place outside the United Kingdom."
[7]In this instance the notice was sent to an address within the United Kingdom. Therefore, unless the contrary is proved, it is deemed to have been served on the second day after it was posted. It follows from the deeming provisions that the claimant in a case such as this is required to prove that service was not in fact effected on the second day after posting. In this case Mr Nathan submits that service was never effected.[8]The submission which he advances in respect of this contention is twofold. He submits, first, that the court should approach the issue -- namely, whether or not the claimant has established that there was a lack of service -- applying, as he says, the lower standard of proof established in the case of Karanakaran [2000] 3 All ER 449. He submits that, when due regard is paid to all the circumstances, this court should conclude that there is a reasonable degree of likelihood that the notice was not served upon the solicitors. He draws the court's attention to the whole history of the claimant's conduct, that to which I have already referred, namely that, unlike so many in his situation, he was alert and keen to know the result of his application for asylum. He would also draw attention to the fact that there was, as indeed was well known at the time, considerable delay in the decision being forthcoming on his application. In that regard he has urged the diligence of the claimant in seeking to get a result as material to the court's consideration today.[9]Next he points to the circumstances which occurred in February 2004 when, in accordance with removal instructions, he was arrested and detained and spoke to the police whilst in detention. Mr Nathan draws the court's attention to paragraph 6 of the claimant's witness statement, dated 23rd February 2005. He says in that statement, in paragraph 6:
"No decision regarding my claim for asylum has been communicated to me or my representatives. I can confirm that my changes of address were notified to the Home Office at all times and that I did receive my IS96 documents regularly."
[10]More particularly, in paragraph 10, in relation to 10th February 2004, he was arrested and he was asked questions about where he was from and what his immigration status was. He explained that he was waiting for a decision and the officer asked him if he objected to him contacting the Immigration Office. He confirmed that he had no objection.[11]The circumstances of his detention and what he said are also evidenced in a custody record where, in paragraph 1, on the custody sheet, under the rubric "Reasons for arrest", the following appears:
"Failed asylum applicant. Subject stopped under section 44 Anti-terrorism Act. He stated that he was a failed asylum [seeker] but was not sure of his current status. HMIS confirmed failed applicant."
[12]So it becomes tolerably clear on the evidence that insofar as the claimant recollected that the officer asked him if he objected to him contacting the immigration officer, his recollection was accurate, and indeed the officer, it would appear, did make contact and learn that which the court now knows from other documents which are before the court.[13]The argument in this regard was developed by Mr Nathan in a way which appeared to invite the court to conclude generally in connection with the claimant's credibility as though it was material to the issue before the court. In the light of the decision to which I have come, namely that the claimant has not discharged the burden upon him -- I shall come back to the standard of proof -- and because the court recognises that this conclusion will be likely to lead to an application to the Asylum and Immigration Tribunal for permission to appeal out of time in connection with the original decision, I consider that the court should not make any observations. It does not seem to me to be material. It is perfectly consistent with the case which the court has to decide, namely whether or not the solicitors were served and thus service was effected, that the claimant was never made aware of the result. The ultimate judgment as to how strong that contention happens to be is neither here nor there to this court and I do not express a view about it. As I say, it may be something others will have to form a view about.[14]Reverting to the broad thrust of the argument which Mr Nathan has advanced, he next takes in under his catalogue of relevant features and circumstances in connection with this case the unquestionable error which was made, so far as the claimant was concerned, not as evidenced by any notice relating to the decision under question but in relation to an earlier matter, where it is clear that an error was made in connection with the address which was on the record as being his relevant address. It is now accepted by a letter of 18th July 2005 that service had only been made by recorded delivery to the solicitors in respect of this decision because it was believed not to be possible to do so on the claimant because it had been recorded that he was an absconder. This conclusion was reached by the Home Office because an error was made in the transcription of his address, namely an error as to whether he was at 180a as opposed to 108a in Enfield, and indeed other inaccuracies which are recorded in the documents in connection with his address. So Mr Nathan submits that where the court can see that there has been plain error in connection with the service of documents, the court ought to treat that as probative of the case now advanced, namely that the notice which it is said was served on the solicitors, was not in fact served.[15]The factual position, as I see it, on the documents, is all one way. The gentleman who, it is accepted, had been dealing with the claimant's case until he left, Messrs Iyama, in March 2003 was one Bruce Ighalo. The claim decision was made on 10th October 2003 and sent by recorded delivery to the then solicitors at the address in correspondence, under cover of a letter dated 14th October 2003. In the bundle before the court, which it is not necessary for me to go to, page by page, there is documentary evidence that such a letter was sent and, most particularly, there is a Post Office reference number for the recorded delivery, shown at the bottom of a page in the bundle, namely page 30. The documents include the normal documents which, in accordance with standard practice within the Home Office, are completed. Reference is made to those in the statement of Maggie Wilson, which is before the court, she being a person employed by the Border and Immigration Agency and an executive officer in the Judicial Review Unit at Croydon. She refers, and the documents are there for the benefit of the court, to the checklists. The checklists support the conclusion that standard practice was indeed carried through on this occasion.[16]The practice of the Royal Mail is to notify a sender of recorded delivery mail if delivery has not been possible. There is nothing in the documents available which supports a conclusion that the letter was not delivered; there is nothing on the Home Office file.[17]So far as Bruce Ighalo is concerned, there is no witness statement from him and, having seen what he has to say, it is plain that such evidence as he has given simply does not advance the claimant's case. Despite efforts by the claimant's present solicitors -- which may be criticised, or at least be subject to some comment at a later stage -- they have not been able to obtain the sort of information which can assist the court in its present inquiry. It is simply unknown who took over Mr Ighalo's files when he left in March 2003 and thus it is impossible to follow the sequence of events which did occur with the sort of consideration one would wish to have. For that reason, Mr Nathan has relied upon a letter of 9th December 2003 from the firm, from someone who was endeavouring to follow up what had happened in the case, but who was not aware of the receipt of the decision. This letter, in the absence of elaboration, does not in any way provide probative evidence that the notice had not been received as the regulations deem it to have been received.[18]Again, in 2004, on the evidence, contact was made, as I have already recited, not simply with the Immigration Service but also the claimant himself was able to contact his solicitors. Whilst one does not know the detail of what was said and what he was advised about, what is clear is that it was not suggested by anyone then at Iyama that he should not be removed because there had been no decision. Again, in the context of this case, I regard this sort of material, without elaboration, as virtually neutral in the impact that it can have. Thus, whilst I am invited to conclude that the solicitors' behaviour was rather odd, nevertheless, in the light of the indications that the overall handling of the case, after Mr Ighalo's departure, was likely to have been more haphazard than it should have been, it is said these matters are all consistent with that which occurred being the responsibility of the way in which the handover of the case was dealt with within the firm. It has to be said that the letter of 9th December 2003 to which I have referred, which is relied upon by Mr Nathan, is not one which is on the Home Office file, whilst the earlier chasing letters, to which I have made general reference, are.[19]The state of affairs within Iyama is not such as gives the court confidence in drawing any inferences from these events. It is not, as was one time suggested by Mr Nathan, a question of imputing bad faith to anybody, nor really is it a question which touches on the significance of Iyama being a firm of solicitors who are subject to professional control. It seems to me, in the knowledge that this court has of so many of these cases, that unfortunately things such as this and events such as this can occur. Reference is also made by the defendant to an error in a much later letter to the effect that "the last contact we had with the Home Office was the invitation to a detailed interview with the client correspondence dated 5th March 2002". This was not right; there had been contact on 14th August 2002. It is a consistent pattern, it seems to me, of a lack of order and incompetence on the part of the solicitors in the handling of this case after March 2003.[20]So I turn to the issue, those being the facts: How should the court approach the question? What should be the standard of proof which should be applied? As it happens, I have concluded that a decision as to which standard of proof to apply is unnecessary, for, having reviewed the facts in the way I have, even if I was to apply the lower standard of proof, namely a reasonable degree of likelihood that the solicitors had not been served, in my judgment the material which is being relied upon is so far removed from the core circumstances which have to be examined as to simply give rise to mere speculation. It falls far short of giving rise to any likelihood that the system which is in evidence before the court was not followed, so far as the solicitors were concerned. It would be to speculate because I can see no basis for a reasonable likelihood that the system did not apply, was not implemented and did not have the effect which recorded delivery was and is designed to have.[21]Having said that it is not necessary, and I merely observe, out of respect to the submissions which have been advanced, that it does seem to me to be important to bear in mind that the case of FP (Iran) [2007] EWCA Civ 13, to which Mr Nathan has drawn my attention, when taken with the Karanakaran principle of scrutiny in respect of asylum and human rights claims, could, according to the facts of any particular case, lead the court to conclude that justice could only be achieved if the lower standard of proof was applied. I make that observation without deciding the issue because there is force in the submission that, as a matter of construction, it would give rise to a position where the cases which could fall within the regulations for service would themselves be very different. That said, the issue as to whether he should have an in-country right of appeal is one which can be looked at in its entirety in the exercise of the broad discretion which the Tribunal have. All these arguments, it seems to me, are material and can be advanced in that forum. I say no more about the question as it has been argued in this case. For all those reasons this application for judicial review is refused.[22]MISS WEIR: My Lord, the Secretary of State applies for her costs. It is the position that the claimant had Legal Service funding at the permission stage. I have not seen a recent certificate and he may well still be legally funded. In the circumstances, I am instructed to pursue the application because on the particular facts of this case it appears from the disclosure appended to the claimant's witness statement that, at least a few years ago, sums of £10,000 were entering his bank account and so it may actually be that this is one of those rare cases were the Secretary of State does decide to pursue the matter with the Legal Services Commission and so I would ask for an order notwithstanding the public funding certificate.[23]MR NATHAN: My Lord, in the absence of instructions, obviously I cannot oppose the order which, because of public funding certificates, quite often the Secretary of State does not even bother seeking, but I would ask for the order to be imposed in the usual way. In fact, I do not have the regulations to be hand. Not to be enforced without permission of the court.

SIR GEORGE NEWMAN: Yes. Can you ask for more than that, Miss Weir?

[25]MISS WEIR: No, my Lord.

SIR GEORGE NEWMAN: I do not think you can. You can have that order.

[27]MR NATHAN: I am grateful. I fully understand the point made about the bank statements.[28]Can I also initially say, my Lord, you will note my instructing solicitor, having arrived late, has now departed early. Can I apologise on her behalf. There are some family difficulties that she has encountered over the past 4 or 5 days.

SIR GEORGE NEWMAN: Certainly.

[30]MR NATHAN: I am grateful. As a consequence of the discussion at the outset of this hearing, and indeed at the conclusion of your lordship's judgment, it is clear that an application will be made to the Asylum and Immigration Tribunal for permission to appeal out of the time. The current consequences of your Lordship's judgment are, of course, that the Secretary of State could -- before I make the application to your Lordship, I wonder if I might discuss it.

SIR GEORGE NEWMAN: You mean, are they going to remove him?

[32]MR NATHAN: I wonder if I might just quickly ask my learned friend.

SIR GEORGE NEWMAN: I can ask her. Are you going to seek to remove him before an application duly made?

[34]MISS WEIR: My Lord, my instructions are that if we find out where Mr Domi was, and that if he would give us his address, as he is obliged by law to do, we would indeed be removing him straightaway, but we cannot actually find out where he is at the moment, no doubt for very good reasons. He has not kept us updated as to his address and given us the requisite information.[35]MR NATHAN: All I can say is, since my instructing solicitor is not sitting with me, I am not aware of the treasury solicitor informing my instructing solicitor of that basis and asking for an address. I am afraid I am without instructions.

SIR GEORGE NEWMAN: Is the reality of the position not if they do not know where he is there is not much, apparently, that can be done. If you were to inform the Secretary of State as to where he was and they were to do that which Miss Weir suggests they might do, then it would be open to you to make an application in connection with the removal instruction.

[37]MR NATHAN: Yes.

SIR GEORGE NEWMAN: Is that not where it lies?

[39]MISS WEIR: It may well be my Lord. I am certainly not instructed to --

SIR GEORGE NEWMAN: I see. You are not giving an undertaking. If you were hoping for an undertaking, it is obviously not going to be forthcoming.

[41]MR NATHAN: It is not going to happen. My Lord, in the circumstances I have identified I suppose the best course of action is to just ensure that it is made within the next few days.

SIR GEORGE NEWMAN: I really do think that your best protection is that that application be made.

[43]MR NATHAN: Yes.

SIR GEORGE NEWMAN: And this case, which has a history of delay, be transformed in its character.

[45]MR NATHAN: My only concern is that, as a consequence of some of what has been discussed today, there is, I suppose, the argument that further evidence could be obtained from Iyama and Co and also from the police force.

SIR GEORGE NEWMAN: That is as may be. You can make your application and support it with as much detail as you can. It is up to you, but I would have thought it was a bit of a will-o'-the-wisp to think that you are suddenly going to get some support from Iyama, after all the efforts you have made, but if you, can so be it. Thank you both.

Cited in 1 later judgment