Madugba, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 1984 (Admin)

[2009] EWHC 1984 (Admin)

Case No CO/10106/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 23rd July 2009

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE BURTON

Between

THE QUEEN ON THE APPLICATION OF MICHAEL MARACHI MADUGBAClaimant

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

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Miss X Manassi (instructed by Chartwell & Sadlers) appeared for Claimant

Ms C Patry-Hoskins (instructed by the Treasury Solicitor) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE BURTON: This has been the hearing of an application for judicial review by Mr Michael Madubga.

[2]Today Miss Manassi of counsel has done the court the courtesy, as indeed have her unfunded solicitors, Messrs Chartwell & Sadlers, of coming to court to ask for an adjournment. I have refused the adjournment on two grounds. The first is that this case has been going on far too long. This is now the third firm of solicitors who have represented the claimant and the case was ordered to be expedited by Blake J when he gave permission on 13th January, more than six month ago, and it did duly come on to court for hearing, or was listed to do so, on 19th June. On 10th June Treasury Solicitors were notified that the claimant had changed solicitors and were asking for an adjournment: part of the explanation for the delay in the solicitors being instructed was that the claimant had been eligible for legal aid but that his first solicitors had not advised him to seek it, he now was to seek legal aid and, with the benefit of that legal aid, the new solicitors, the second in line, were to be instructed on his behalf.

[3]Notwithstanding that this change of solicitors had taken place only a week or so before the hearing date of 19th June, itself fixed because the case was fit for expedition - indeed despite that fact, given that it was by then five months after permission was given - the respondent agreed to the adjournment so that those solicitors should be in a position to take instructions and resist the claim.

[4]Notwithstanding that agreement on the part of the respondent, it seems, in unexplained circumstances, that those second solicitors themselves did not continue in place. A recent letter from the Treasury Solicitor to the court dated 22nd July, to which I shall return, indicates that at the end of June the parties were in the process of negotiating settlement, but that on 10th July the claimant's second solicitors ceased acting, as a result of which the Treasury Solicitor sent a letter to the claimant direct noting the fact that the second lot of solicitors was no longer acting, but that they understood he intended to proceed with his claim, and asking that any new solicitors got in touch with them as a matter of urgency.

[5]It is against that background that the new solicitors, the third in line, now instructed, have now come on board, but, as I indicate, no explanation has been given by the claimant, who albeit on bail has not attended today, as to why he changed his previous solicitors and why he has so belatedly instructed new solicitors who are in the process, I am told by Miss Manassi, of applying for transfer of legal aid from the second solicitors to themselves as the third solicitors.

[6]It is quite plain that there is a pattern here of abandoning solicitors just prior to the date of a hearing, and the instruction of fresh solicitors who are then said to be without instructions and not in a position to proceed. That alone would mean that this is a wholly unmeritorious application for an adjournment. However, underlying that history, in my judgment, is what is patently obvious, namely, as I shall indicate when I give a brief judgment on the merits, that that there is in fact no basis at all in law for this application. It may well be, although I only speculate, that the reason for the disappearance of two solicitors from the picture is because they have not been able to see a way to give favourable advice to their client, and Miss Manassi has fairly said that she and her solicitors have not begun to look at the case, as the third set of solicitors in place, to see whether there is any such merit. I am satisfied, as will be seen, that there is not. That therefore alone would be a ground for refusing an adjournment because, plainly, unless I am told, or it is apparent to me, that there is some merit to the claim, there is no conceivable point so far as the court is concerned in further adjournment of a case ordered for expedition and previously listed. In those circumstances, I refuse the adjournment.

[7]Miss Manassi was not able to add anything on the merits, but, as I have indicated, this is a case in which the position is clear. When Blake J gave permission, he gave permission for only one point to be argued, reciting that it was arguable that the claimant has an in-country right of appeal against cancellation of his leave to remain as a student.

[8]The facts briefly are that he has been permitted to remain here as a student for some years. He left the country to return to Nigeria and then on 21st October 2008 returned to the United Kingdom, re-presented at Gatwick Airport seeking leave to return to this country to continue as a student and, after due investigation by the immigration officers pursuant to Schedule 2 of the Immigration Act 1971 as amended, and in particular paragraph 2A of that schedule, the immigration officer concluded that he in fact had been in breach of his obligations by taking work of a substantial nature (as I shall describe, way in excess of any kind of work which would supplement his time as a student or be limited to student vacations) and that he was satisfied that there ought to be cancellation of leave to enter.

[9]When the matter came before Blake J there was, for whatever reason, no reference made to the statute, which in the clearest possible terms describes and prescribes that an appeal in respect of such a refusal of leave to enter is one which can only be pursued abroad. It may be that the reason why it was not drawn to his attention in those days, January 2009, before I gave judgment on 14th May 2009 in the case of The Queen on the application of Aiyegbeni, Awosanmi and Rashid v Secretary of State for the Home Department

[2009] EWHC 1242

Admin, was that the Secretary of State was still hanging on to an argument that there was not a right of appeal at all in such circumstances, save in limited areas, a contention which he argued before me in that case. I found that that submission was wrong and that there was, on the face of it, an unlimited right of appeal in respect of cancellation of leave under Schedule 2, but that it was quite plain from s92(3)(b) of the Nationality Immigration and Asylum Act 2002 that that right of appeal was out of the country only. That is what I decided in the Aiyegbeni case, and I have refreshed my memory by reference to my judgment that I then gave, and I am still of the view that I was right in that judgment, which has not been appealed by either the claimant or the defendant in that case.

[10]S92 of the 2002 Act provides by subsection (1):

"A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies ..."

But by subsection (3A) of s92, that section expressly does not apply if subsection (3B) applies to the refusal of leave to enter. Subsection (3B) reads as follows:

"This subsection applies to a refusal of leave to enter which is a deemed refusal under paragraph 2A(9) of Schedule 2 to the Immigration Act 1971 resulting from cancellation of leave to enter by an immigration officer -- (a) under paragraph of that schedule 2A(8) of that Schedule, and (b) on the grounds specified in paragraph 2A(2A) of that schedule."

This is just such a case, as indeed it was in Aiyegbeni.

[11]I am satisfied consequently that Blake J would not have granted permission had he had s92(3B) drawn to his attention. There is no arguable case that the claimant has an in-country right of appeal against cancellation of his leave to remain as a student under paragraph 2A(9) of Schedule 2 to the 1971 Act.

[12]In any event, without knowledge of that s92(3B), he mentions in his grounds for giving permission the fact that there might be an argument by reference to other sections of the Act, by reference to the possibility that the student was only taking employment consistent with his status as a student during periods when he was not required to study. This is no longer relevant given the unconditional nature of the positioning of any appeal as out of the country rather than in-country, but it should be noted that in any event there is powerful evidence, unanswered by the claimant, in the documents attached to the acknowledgement of service, that the basis upon which the immigration officer acted in this case, and appears to have acted wholly Wednesbury reasonably, was on information, which is specified in particular at page D12 of the documentation attached to the acknowledgement of service, that for some two to three years the claimant had been working up to 75 hours a week at employment, at the time when he was on the face of it studying, working for a home called Jordan Lodge 30 hours a week at night, and for a company called Spud-U-Like for up to 45 hours a week, treated as a full-time worker and doing so for some two to three years.

[13]In those circumstances, both in respect of the facts and in any event in respect of the absence of any arguable point of law, this claim must be and is dismissed.

[14]MS PATRY-HOSKINS: My Lord, the Secretary of State has an application for costs. The legal aid position is deeply uncertain, in my submission. We have not seen a certificate or anything that indicates the legal aid position with any clarity. On that basis we simply ask for an order that the claimant pay the Secretary of State's costs to be assessed if not agreed.

[15]MR JUSTICE BURTON: What I would suggest may be the case, because he plainly was legally aided for some period of time, is that there was a time when he was not legally aided and there was a time when he has not been, or may not have been legally aided, so I would have thought the right order would be, subject to what Miss Manassi has to say, that the claimant pays the defendant's costs save that, in respect of such period as he was legally aided, such costs would not be enforced without leave of the court.

[16]MS PATRY-HOSKINS: Yes, indeed.

MR JUSTICE BURTON: Miss Manassi?

[18]MISS MANASSI: My Lord, that seems satisfactory.

[19]MR JUSTICE BURTON: The order is that the claimant pays the defendant's costs of the proceedings, save that in respect of such period as he was legally aided such costs would not be enforced without leave of the court. Thank you very much.