Ali, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 2126 (Admin)

[2009] EWHC 2126 (Admin)Case No CO/3474/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 29 July 2009
Strand
London WC2A 2LL
B e f o r e:
MR JOHN HOWELL QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF JAWAD ALIClaimantv
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
for The Claimant did not appear and was not representedMr Sarabjit Singh (instructed by Treasury Solicitors) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: This is a claim for judicial review made by Mr Jawad Ali. Permission to make the claim was granted by King J on one ground only, namely that he had an in-country right of appeal relying on CD (s.10 curtailment: right of appeal) India [2008] UKAIT 00055.[2]The claimant is a national of Pakistan. On January 29 2008 the Secretary of State decided to remove him to that country under section 10(1)(b) of the Immigration and Asylum Act 1999 as he had obtained leave to remain in this country by means of deception, stating that he intended to study at what was a bogus college.[3]After removal directions had been set, the claimant applied on 11 April 2008 for judicial review of the decision which had been taken in January 2008. Having been refused permission by Wyn Williams J, the claimant renewed his application, and on 13 October 2008 King J granted permission on the ground I have mentioned.[4]An immigration decision that a person is to be removed under section 10(1)(b) of the 1999 Act brings with it a right of appeal to the Asylum and Immigration Tribunal under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002, but such an appeal may not be brought whilst the individual is in the United Kingdom by virtue of section 92 of that Act.[5]In CD the Asylum and Immigration Tribunal considered that a decision under section 10(1)(b) also involved a variation of an individual's right to remain in the United Kingdom which brought with it an in-country right of appeal by virtue of section 82(2)(e) and section 92(2) of the 2002 Act.[6]In giving the judgment of the Court of Appeal in R(on the application of RK (Nepal)) v the Secretary of State for the Home Department [2009] EWCA Civ 359, Aikens LJ stated:
"35. ... a decision made under section 10(1) of the 1999 Act cannot fall within section 82(2)(e), when Parliament has stipulated that it falls within section 82(2)(g). It is, in my view, irrelevant that the SSHD might have made a decision to curtail the applicants' leave under the Immigration Rules, thus bringing the case within section 82(2)(e). She did not do so and there is no challenge in these proceedings to the fact that the decision to remove was made under section 10. 36. Parliament has decided that the SSHD can make a decision to remove a non - UK citizen under section 10(1) of the 1999 Act, or by using the curtailment provisions of the Immigration Rules. The two routes are distinct and must not be blurred ... 37. Accordingly, I would conclude that CD was wrongly decided ..."
[7]In those circumstances it is quite plain that this claim for judicial review on the sole ground on which permission was granted by King J must fail, and accordingly the claim for judicial review will be dismissed.[8]MR SINGH: My Lord, you may have gathered from the defendant's skeleton argument that there is a potential application for costs against the claimant's solicitors. My Lord, in my submission it follows, because the claim has been dismissed, that the defendant should be entitled to his costs against the claimant personally, but the reason we make an application for costs against the solicitors, my Lord, is that, after all these latest authorities were being promulgated, first in the High Court and then in the Court of Appeal, the Treasury Solicitor was writing to the claimant's solicitors and asking them to confirm that the claim be withdrawn, and there was simply no response from them at all. So the defendant had no option but to prepare for this hearing and incur these costs when it was, in my submission, bound to fail.[9]The only correspondence we have had from the claimant's solicitors, my Lord, is in the last few days: a letter from Nag and Co Solicitors dated 24 July 2009 which seems to have been prompted by our skeleton argument. They indicate in that letter:
"We have written several letters to our client, but he has failed to contact our offices."
They do not produce any of that correspondence, and this indication is belated given that we heard nothing from them before five days before today. So as far as the order for costs against the solicitors are concerned, you can make it under CPR 44.14 if you are satisfied that there is unreasonable or improper conduct on the part of the solicitors. We say that there has been unreasonable conduct because they simply did not respond to any of the Treasury Solicitor's correspondence until very late in the day.[10]THE DEPUTY JUDGE: Mr Singh, one of the matters which I am concerned about is that, when you look at your skeleton argument, the conclusion in paragraph 21 is merely that the defendant reserves the right to make an application that the claimant's solicitors should themselves pay the defendant's costs. Have you given clear notice to the claimant's solicitors that this application was in fact to be made today?[11]MR SINGH: My Lord, before the skeleton argument was submitted, the Treasury Solicitors sent a letter to the claimant's solicitors saying that they would make an application for wasted costs. So they have been on notice.[12]THE DEPUTY JUDGE: That is not quite what your skeleton argument says.[13]MR SINGH: Since the skeleton argument, there has been no subsequent letter which states that the application will definitely be made.[14]THE DEPUTY JUDGE: I am concerned that the claimant's solicitors, on seeing the skeleton argument, may not have realised that there would in fact be an application made today.[15]MR SINGH: My Lord, the way around that would perhaps be to give them an opportunity to make representations to the court.[16]THE DEPUTY JUDGE: Is there any reason why you could not make a formal application separately?[17]MR SINGH: We could do, my Lord. It may be disproportionate to incur the costs of a separate application given the costs involved in the claim itself, but we could do. We were hoping to have everything concluded today.[18]THE DEPUTY JUDGE: I do not feel able to make an order against the claimant's solicitors. They may have grounds for not realising that an application was to be made today. One of the disadvantages of effectively adjourning the matter is that I am not due to sit in this court again until November, so in practice it would have to come up in front of another judge.[19]MR SINGH: My Lord, in that case would I ask for an order that the claimant pays the defendant's costs.[20]THE DEPUTY JUDGE: Certainly you can have an order that the claimant pays the defendant's costs.[21]MR SINGH: Thank you, my Lord.[22]THE DEPUTY JUDGE: Thank you.