Jenner, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 132 (Admin)

[2010] EWHC 132 (Admin)Case No CO/12085/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 14 January 2010
Strand
London WC2A 2LL
B e f o r e:
ROBIN PURCHAS QC
(Sitting as a Deputy Judge of the High Court)
Between
THE QUEEN ON THE APPLICATION OF JENNERClaimantv
Between
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: 020 7831 8838(Official Shorthand Writers to the Court)
Miss R Chapman (instructed by Refugee Legal Centre) appeared for ClaimantMr P Patel (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]DEPUTY JUDGE: The single issue in this application for judicial review is whether the defendant's decision not to grant the claimant leave to remain under her Human Protection policy was unlawful as being inconsistent with the decision of the Asylum and Immigration Tribunal (AIT). Background[2]The claimant is a citizen of Zimbabwe. She is 33 years of age. She entered this country on a false passport in 2002. In 2005 she was sentenced to 12 months' imprisonment for obtaining a pecuniary advantage by deception involving the use of false papers to obtain employment. Having served that sentence, the claimant applied for asylum, which was rejected by the defendant and subsequently, on appeal, by the immigration judge in a decision dated 6 February 2007.[3]The defendant made a deportation order on 30 May 2008. The claimant appealed. Following a hearing at which the claimant and the defendant were represented, the tribunal issued its decision on 30 July 2008 allowing her appeal. The Tribunal Decision[4]In the skeleton argument of the claimant for the purposes of the appeal hearing paragraph 2 set out as part of her grounds of appeal the breach of paragraph 339 (c) of the Immigration Rules, which relates to humanitarian protection. The tribunal in its written determination referred to the previous tribunal decision in 2007 including, at paragraph 9, the finding that:
" ..... The removal of the appellant would not breach the United Kingdom's obligations under the Qualification Regulations (paragraph 339 C of the Immigration Rules)."
I interpolate that the Qualifications Directive (referred to as Regulations in that paragraph) is relevant to and transposed into the Humanitarian Protection and asylum provisions under the Immigration Rules.[5]Returning to the determination, at paragraph 11 the tribunal recorded that it invited the advocates to identify the issues with which the court was concerned:
" ..... The respondent listed Articles 3 and 8 of the Human Rights Convention and deportation issues. The appellant sought to rely on the oppressive nature of deportation which was not in accordance with the law, Articles 3 and 8 and fear of persecution for political opinion under the Refugee Convention ..... "
At paragraph 12 the tribunal continued:
"We ruled that under Deevaseelan the case for asylum could not be re-opened and the findings made by Immigration Judge Graham were preserved and would be our starting point on factual findings. The issues on which the appellant wished to rely in the country circumstances could found an argument in Article 3, subject to findings on the credibility and history of the appellant, which were binding on us."
[6]At paragraphs 15 to 27 the tribunal set out the history. At paragraph 28 the tribunal summarised the submissions of the appellant under the heading Grounds of Appeal, including - "(iv) The deportation of the appellant would breach Articles 2, 3 and 8 of Human Rights Convention; (v) The Secretary of State's assessment of the appellant's family and private life was disproportionate and unreasonable; (vi) The decision was not in accordance with the Immigration Rules, the Secretary of State had failed to consider the Council Directive 2005/83 [of the] entry clearance of 29:4:04 on minimum standards for qualification of third party nationals or stateless persons in need of international protection." The reference in (vi) to the Directive is to the Qualifications Directive.[7]At paragraphs 29 to 41 the tribunal summarised the evidence, including paragraph 30, [as part of the then appellant's case:] " ..... The economic, political and security situation was intolerable and many risked their lives to leave. It was unrealistic and unreasonable to expect her husband to go to Zimbabwe. She said she would not be able to communicate with her husband as postal and telephone services were poor or non-existent. She believed that she would not be permitted to return to the United Kingdom because of her conviction. The United Kingdom Government were not removing Zimbabwe citizens because the situation was so bad, this position could remain indefinitely and living in limbo was unreasonable and violated her family life." At paragraph 32, also as part of the appellant's case, it was stated:
"The appellant asserted that she would be persecuted if returned because of her MDC membership and for returning from a country viewed by the regime as hostile to Zimbabwe."
At paragraph 41 the Tribunal continued:
"The appellant submitted an expert report from Professor Ranger dated 15 May 2008 concerning the risk to failed asylum seekers returned to Zimbabwe, the unfairness of the recent elections and the persecution of voters. She asserted that NGOs operating in Zimbabwe were under attack, as were churches, professionals and media organisations, in human rights abuses of the worst sort and gratuitous acts of violence."
[8]The tribunal set out its findings of fact and law from paragraph 42. At paragraph 46 it stated:
" ..... The objective evidence shows that the situation in Zimbabwe is so precarious to foreigners, that the husband would be in danger and the appellant would also face danger by virtue of her relationship to him. In these particular circumstances we are satisfied that the interference with the appellant's and the husband's Article 8 rights would not be proportionate and cannot be justified in order to maintain order, prevent criminal behaviour or apply immigration control."
At paragraph 48 it continued:
"The appellant's circumstances if returned would be unduly harsh. Though she is an able-bodied woman of 32, who was raised and educated in Zimbabwe and lived in the United Kingdom for less than eight years, her absence in the United Kingdom may lead to suspicion and persecution in the current economic, political and social climate, though [the] appellant has family in Zimbabwe to whom she could return. We are not satisfied of any risk to the appellant as a returning failed asylum seeker, as the law stands but are conscious of the degeneration of society there, the breakdown of law and order and the gratuitous violence used against persons not identifiable as active ZANU PF supporters."
At paragraph 49 it stated:
" ..... We did not entertain the asylum claim again or permit the issues to be re-visited. Concerning Article 3 we find that the country information shows that there would be hardship to the appellant if she were to return, to apply again as a woman married to a British citizen, on the facts established in this particular case, but make no general findings concerning the circumstances for any other person or other circumstances."
[9]Under the heading "Decision on the Human Rights Appeal" the Tribunal concluded:
"50 There are particular and individual facts in the appellant's discrete and personal circumstances to render the decision to deport unlawful according to the Immigration Rules and protocols to be applied by the Secretary of State applying the Refugee or Human Rights Convention. There are circumstances in the appellant's case which engage humanitarian protection issues and Article 3. 51 The removal of the appellant in these circumstances would be unlawful and cause the United Kingdom to be in breach of the law and its obligations under the 1950 Convention because the decision to deport breaches her rights to family and private life, and would breach the rights of Mr Jenner."
[10]Finally, the Tribunal set out its decision:
"52 We direct that the deportation notice is unlawful. 53 We allow the appeal under humanitarian protection protocols and human rights convention."
[11]Neither party sought reconsideration of that decision on an error of law.[12]On 16 September 2008 the defendant granted discretionary leave for six months because of the exclusionary effect of the offence for which the claimant had been sentenced to 12 months' imprisonment. On 15 December 2008 the application for judicial review was issued. Permission was granted on a renewed application on 3 July 2009. On 10 September 2009 the Treasury Solicitor for the defendant wrote to those acting for the claimant, saying:
"I am instructed that the Secretary of State will grant your client a three-year period of discretionary leave. This is on the basis that - (1) the Secretary of State considers that the AIT determination of 22 July 2009 allowed your client's appeal on Article 8 grounds only; and (2) the Secretary of State accepts that your client has not committed an offence which would result in her exclusion from either refugee status or humanitarian protection. The section of the asylum instruction on discretionary leave ..... entitled Applicants Excluded from Refugee Status, Humanitarian Protection or Discretionary Leave therefore does not apply to her. The asylum instruction states that individuals need to complete at least six years of discretionary leave before being eligible to apply for ILR. It is this six-year period that at present now applies to your client."
[13]The court was told that the Secretary of State has since granted leave on that basis. Law and Policy[14]The Qualifications Directive was transposed into English law for the purposes of humanitarian protection through the provisions of paragraph 339 C of the Immigration Rules 2002 which provide so far as relevant:
"A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that - (i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; (ii) he does not qualify as a refugee as defined in Regulation 2 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006; (iii) substantial grounds have been shown for believing the person concerned, if he was returned to the country of return, would face a real risk of suffering serious harm, is unable or owing to such risk unwilling to avail himself of the protection of that country; and (iv) he is not excluded from a grant of humanitarian protection." "
Serious harm" is defined as (i) the death penalty or execution; (ii) unlawful killing; (iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; and "(iv) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."[15]Exclusionary provision is made under paragraph 339 D which includes that the Secretary of State is satisfied that there are serious reasons for considering that the person has committed any other serious crime.[16]By Section 82 of the Nationality Immigration and Asylum Act 2002, there is a right of appeal from an immigration decision which includes, under Section 82 (2) (j), a decision to deport. Appeal can be made under the grounds in Section 84 which include, under Section 84 (1) (a) that the decision is not in accordance with the Immigration Rules; (c) that the decision is unlawful under Section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights [and] (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under Section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.[17]By Section 86 (2) (a), the tribunal must determine any matter raised as a ground of appeal. By Rule 22 of the Asylum Immigration Tribunals (Procedure) Rules 2005, where the tribunal determines an appeal it must serve on every party a written determination containing its decision and reasons for it.[18]By Section 103A (1) of the 2002 Act, a party to an appeal under Section 82 may apply to the appropriate court on the grounds that the tribunal made an error of law for an order requiring the tribunal to reconsider its decision on the appeal.[19]The defendant has published policy for the grant of humanitarian protection and discretionary leave. For humanitarian protection, it included - "Those granted humanitarian protection will normally be granted leave to enter or remain for a period of five years in the first instance. The Qualifications Directive specifies that one year's leave is the minimum period to be given to those who qualify for subsidiary protection. A grant of five years' leave to remain will be a sufficient grant of leave for those granted humanitarian protection save in the most exceptional circumstances."[20]The guidance continues to provide that where the sponsor is granted humanitarian protection after 30 August 2005 family members who are abroad may seek entry clearance for immediate family reunion. It goes on to provide in respect of the refusal of humanitarian protection that an asylum claim will always be deemed to be a claim for humanitarian protection. Therefore where it is decided that an applicant does not qualify for humanitarian protection, as well as setting out why the asylum claim has been refused, it should provide reasons why humanitarian protection is being refused.[21]Specifically dealing with tribunal determinations and court judgments, it provides:
"Where the Asylum and Immigration Tribunal or a court hears an appeal and finds that the appellant qualifies for humanitarian protection leave should be granted on humanitarian protection grounds (subject to any appeal against that determination being lodged), provided the exclusion criteria detailed above do not apply, the appellant whose proposed removal is found to be unlawful will not be granted leave, that person can reasonably be expected to return voluntarily. In such cases, which it is believed will be relatively rare, the UK Border Agency will give effect to the court decision by not forcing removal."
[22]In respect of the grant of indefinite leave to remain of settlement, the guidance provides that people who have completed five years' humanitarian protection leave will be eligible to apply for indefinite leave to remain or settlement. For discretionary leave the policy includes:
"Where a person's return would be contrary to Article 3 of the ECHR, based on a protection need arising from a real risk that the person would suffer serious harm on return, they will normally qualify for humanitarian protection unless they fall to be excluded from those provisions. (See Asylum Instruction on Humanitarian Protection). There are some cases where an Article 3 breach does not arise from a need for protection as such, eg, where a person's medical condition or severe humanitarian conditions in the country of return would make return contrary to Article 3. Persons falling into this category should be granted discretionary leave rather than humanitarian protection."
[23]The policy deals with those excluded from refugee status, humanitarian protection or discretionary leave:
"Exclusion from humanitarian protection Individuals excluded from humanitarian protection will usually be granted discretionary leave for six months. (See the Humanitarian Protection Asylum Instructions for grounds of exclusion from humanitarian protection) ..... Exclusion from Discretionary Leave Grounds for exclusion from humanitarian protection will apply to discretionary leave ..... A person who is excluded from discretionary leave will be expected to leave the UK. Where neither enforced nor voluntary return is possible without material prejudice to the rights protected under this instruction, discretionary leave will usually be granted for six months."
[24]The policy provides for other applications for discretionary leave that the usual period will be three years in Article 3 and Article 8 cases; and that normally to be eligible for consideration for settlement a continuous period of 6 years' discretionary leave will have to be completed. There is no right under the policy for immediate family reunion.[25]The courts have considered on a number of occasions the relationship between the decision of the AIT and the subsequent administrative decision of the defendant to grant leave. In R v Secretary of State for the Home Department ex p Deniz Mersin [2000] EWHC Admin 348, Mr

Justice Elias (as he then was) said:

"In my opinion there is a clear duty on the Secretary of State to give effect to the special adjudicator's decision. Even if he can refuse to do so in the event of changed circumstances because there is another country to which the applicant can be sent, there is still a duty unless and until that situation arises. It would wholly undermine the rule of law if he could simply ignore the ruling of the special adjudicator without appealing it, and indeed Mr Catchpole does not suggest that he can. Nor, in my opinion, could he deliberately delay giving effect to the ruling in the hope that something might turn up just by not implementing it. In my judgment once the adjudicator had determined the application in the applicant's favour, the applicant had a right to be granted refugee status, at least unless and until there is a change in the position."
In R (Boafo) v Secretary of State for the Home Department [2002] 1 WLR 119,

Lord Justice Auld, with whom the other members of the court agreed, said:

"25 Nevertheless it is a salutary example of the importance, as Rose J emphasised in Ex p Yousuf [1989] Im AR 554, 558, of the executive making use of the machinery of appeal in seeking to challenge the decision of an adjudicator rather than attempting to circumvent it by reconsidering the matter whether on evidence going to the original or new facts. This is especially so where, as in a case like this, any fresh executive decision is unappealable save by way of judicial review. 26 ..... And, second, an unappealed decision of an adjudicator is binding on the parties."
[26]The Court of Appeal again considered the question in Secretary of State for the Home Department v TB (Jamaica) [2008] EWCA Civ 977 where Stanley Burnton LJ, giving the leading judgment with which the other members of the court agreed, said:
"32 As a matter of principle, it cannot be right for the Home Secretary to be able to circumvent the decision of the IAT by administrative decision. If she could do so, the statutory appeal system would be undermined. Indeed, in a case such as the present, the decision of the immigration judge on the application of the Refugee Convention would be made irrelevant. That would be inconsistent with the statutory scheme. 33 The principle that the decision of the tribunal is binding on the parties, and in particular on the Home Secretary, has been consistently upheld by the courts."
The judge went on to refer to the decision in Mersin and Boafo and also to the decision of Mr Justice Moses (as he then was) in Saribal and continued:
"35 Of course, different considerations may apply where there is relevant fresh evidence that was not available at the date of the hearing or a change in the law. And the principle has no application where there is a change in circumstances or there are new events after the date of the decision. (See Auld LJ in Boafo at paragraph 28). This is not such a case. 36 The judge described the attempt by the Secretary of State to raise the Section 72 issue after the immigration judge's decision and to refuse leave to enter and to remain as an abuse of process. That is an expression normally reserved for abuses of the process in the court. The Secretary of State's action might be castigated as an abuse of power, but I would prefer to avoid pejorative expressions of uncertain denotation and application and to hold simply that the Secretary of State was bound by the decision of the Immigration Judge and that her subsequent action was unlawful on the ground that it was inconsistent with that decision. It follows that the judge's conclusion was correct. The Home Secretary is bound to grant TB leave to remain to which the Immigration Judge's decision entitled him."
I should add that no relevant change in circumstances has been alleged in the present case. Submissions[27]Mr Parishal Patel, who appears for the defendant, submits:(1) while he accepts that the decision of the AIT is binding on the defendant, it is only binding to the extent that the decision of the defendant is inconsistent with the findings in fact made by the tribunal.(2) in the present case it is for the claimant to demonstrate that the findings included a finding that the claimant was entitled to humanitarian protection. It is clear, as was accepted by the case worker at the outset, that the decision was one based on Article 8. The findings made in the determination are clearly set out and support a decision on that basis. The decision expressly referred to the breach of Convention rights.(3) In contrast, the decision at no point makes any finding that the claimant would qualify for humanitarian protection as one facing a real risk of suffering serious harm. On the contrary, the tribunal made clear that it was not making relevant findings in that respect, particularly having regard to the previous decision of the tribunal which had dealt with and rejected claims for asylum and humanitarian protection.(4) It was not, accordingly, for the defendant to seek reconsideration of the decision. If the claimant considered that it ought to have dealt with paragraph 339 (c) and humanitarian protection and to make relevant findings in that respect, it was for the claimant to have sought reconsideration.[28]Mr Patel accepted however that if the conclusion of this court was that the tribunal had decided a ground relying on a breach of paragraph 339 C for humanitarian protection, then he did not contend that the claimant should nevertheless have sought reconsideration on the ground of the inadequacy of reasons.[29]Miss Rebecca Chapman, who appears for the claimant, submits:(1) it is not open to the defendant to pick and choose which part of the tribunal decision she applies. She is bound by her decision as a whole.(2) The grounds of appeal expressly included humanitarian protection under paragraph 339 C, as can be seem from the skeleton [argument] before the tribunal hearing and the terms of the decision itself.(3) The appeal was allowed expressly on humanitarian protection grounds. While the decision could have been - in her words - "linguistically improved", it was clear that the basis of humanitarian protection was (i) the hostility and danger in the country conditions and (ii) the particular risk to the claimant because of her associations with the United Kingdom and her marriage to a white Caucasian. If the defendant was not happy with the reasons given or their adequacy, the defendant should have sought reconsideration.(4) The decision to grant three years' discretionary leave was prejudicial to the claimant, including (a) the requirement for six years' leave before a settlement application could be made, (b) there was no immediate right of family reunion so she would remain separated from her child for the whole of that period and (c) the decision itself was inconsistent with the interests of the child. Consideration[30]I start from the principle enunciated by Lord Justice Stanley Burnton in TB that the defendant is "bound" by the decision of the Immigration Tribunal. Thus in her decision to grant leave the defendant cannot circumvent the decision of the tribunal, at least in the absence of a material change in circumstances or other special feature. Still less can she use that administrative stage to give effect to her views of the soundness in law or fact of the tribunal's decision or the adequacy of its reasoning. If she wishes to question the decision, she has the specific means to do so by seeking reconsideration under the statute. In this case it is not contended that there has been any subsequent relevant change in circumstances or other special feature to justify an exception to that general principle. However the extent to which the defendant is bound depends upon what the tribunal in fact decided.[31]Before I come to the determination itself it is important to have in mind that the tribunal is under a duty to determine the grounds before it. Moreover as a matter of general approach, a claim for asylum will include a claim for humanitarian protection under Rule 339 C and also under Article 3 of the ECHR. So much is reflected in the defendant's own policy.[32]It is also right to recognise the specific role of the tribunal,(1) under the statute to decide the grounds of appeal before it and(2) procedurally under the Rules to provide a written determination containing its decision and the reasons for it.[33]The purpose of the requirement to give a written determination with reasons includes enabling a party to understand not only what was decided but also the basis for the decision and its lawfulness. It is also so that a party is able to be guided as to any consequential action to be taken. Thus the failure to determine a ground or to give adequate reasons could potentially be an error of law.[34]As a matter of approach, the written determination should be construed on a commonsense and straightforward basis and read as a whole in context to see what was decided and, so far as relevant, the reasons for it. The starting point in my judgment is what did the tribunal see itself as having to decide and what not.[35]First, it is clear that the skeleton argument for the claimant - or appellant at that time - included specific reference to the ground relying on a breach of Rule 339 C for humanitarian protection.[36]Second, it is apparent from paragraph 12 that the tribunal did not see itself as re-opening the issues on asylum and humanitarian protection that had been dealt with in the earlier tribunal decision, but did not exclude arguments on Article 3 on in-country issues.[37]Third, at paragraph 28 the tribunal identified specifically as one of the grounds not according with the Immigration Rules and Qualifications Directive. It would seem to me surprising in the light of the skeleton argument if that reference did not in fact refer to humanitarian protection and paragraph 339 C, whether or not it also included an asylum ground. The other reference to the Qualifications Directive in paragraph 9 of the determination was directly linked with paragraph 339 C of the Rules.[38]Fourth, it does not seem to me that that is negated by paragraph 11 of the determination which records "the issues" identified by both parties; in any event, those included matters relevant to humanitarian protection - including "the oppressive nature of deportation", Article 3 and other aspects relevant in that respect.[39]Thus I conclude that the tribunal not only had a ground of appeal in respect of paragraph 339 C humanitarian protection but moreover recognised that was part of the grounds before it and which it had to determine.[40]Did it in fact decide that ground? At paragraph 53 the tribunal undoubtedly saw itself as allowing the appeal, not only under the Human Rights Convention which in context would include Articles 3 and 8 but also "humanitarian protection protocols". Mr Patel submits that that is meaningless and should be ignored. However in my judgment it was clearly intended to have a meaning and a meaning of significance in that it identified a separate heading under which the appeal was being allowed. Paragraphs 52 and 53 provide what is in effect the decision flowing from the conclusions which are set out in paragraphs 50 and 51. In paragraph 50 the Tribunal concluded:
"50 There are particular and individual facts in the appellant's discrete and personal circumstances to render the decision to deport unlawful according to the immigration rules and protocols to be applied by the Secretary of State applying the Refugee or Human Rights Conventions. There are circumstances in which the appellant's case engage humanitarian protection issues and Article 3."
[41]It is apparent in my judgment that as that part of its decision, the tribunal was setting out its decision that the decision to deport was unlawful being in breach of the Immigration Rules. It is also clear in my judgment that that conclusion included "circumstances in which the humanitarian protection issues were engaged", which is a plain reference to paragraph 339 C in the context of this decision. That is then followed by paragraph 51 which commences that the removal of the appellant "in these circumstances" would be unlawful, before going on to deal with obligations under the 1950 Convention and Article 8 and other breach of the claimant's husband's rights.[42]Taken together, in my judgment, it is clear that the reference to allowing the appeal under humanitarian protection protocols was a summary of the decision allowing the appeal under paragraph 339 C for humanitarian protection in the claimant's favour. In my judgment that is the proper conclusion as to what was in fact decided by the AIT. I do not consider that the absence of clear findings of fact negates the fact of that decision.[43]However there is, in my judgment, plainly support for that decision or conclusion of the tribunal to be found in other references in the determination: at paragraph 30, which I have set out earlier and refers to the conditions in Zimbabwe; paragraph 32 recording the appellant's evidence that she will be persecuted if she was to return from a country viewed by the regime as hostile to Zimbabwe; at paragraph 41, the expert report from Professor Ranger; at paragraph 46 where, as part of the findings of the tribunal, it found that the appellant would face danger by virtue of her relationship to her husband albeit in that paragraph referring to Article 8; paragraph 48, specifically describing the situation if the claimant was returned, as being unduly harsh and that her absence in the United Kingdom may lead to suspicion and persecution together with reference to the in-country conditions; at paragraph 49, under Article 3, that there would be hardship to the appellant if she were to return to apply again as a woman married to a British citizen on the facts established in this particular case albeit making no general findings with other cases.[44]I accept that the reasons may well be regarded as less than adequate in setting out the detailed findings. While that would be in breach of the procedural requirement to set out the reasons in the decision, it would not mean that the ground in respect of paragraph 339 C was not decided and decided in the claimant's favour. It would constitute an error of law but, as I have said, no application for reconsideration was made in this case. It would, in my judgment, be fundamentally unfair to the claimant - when the ground had plainly been raised and, on my findings, determined in her favour - for the defendant to seek to put aside that part of the decision because of a failure to give adequate reasons. The claimant would in those circumstances be deprived of the full benefit of her appeal without now the opportunity for reconsideration other than seeking leave to apply out of time.[45]If the defendant had wished to challenge the decision or its reasons she has had the opportunity to do so. She did not do so. In those circumstances the defendant is, in my judgment, bound by the decision. Accordingly her refusal to give leave in accordance with her humanitarian policy was unlawful and the decision will be quashed.[46]On any further relief I will hear further submissions from Miss Chapman and Mr Patel so far as they wish to do so.[47]MISS CHAPMAN: I have in the lunch time adjournment had my attention drawn to the case of E v Secretary of State for the Home Department. Whilst again this is a case originally concerning exclusion, the remedy which was successful in that case - which was with the agreement of the parties - was that it was appropriate as a declaration that the leave on humnaitarian protection be granted. That is my authority for that point. In the alternative, I would ask as a minimum, given it has been 18 months since the determination was promulgated allowing the appeal. It was I think 13 July 2008 that the Secretary of State expeditiously granted appropriate leave.[48]DEPUTY JUDGE: The point you are making is whether in a sense the application for family reunion would follow.[49]MISS CHAPMAN: The difficulty is that I think the claimant has to have the humanitarian protection in her hand before she makes the family reunion application.[50]DEPUTY JUDGE: I understand that. The first thing you are saying is that you want this document swiftly.[51]MISS CHAPMAN: I think that is our primary concern, if I can put it that way.[52]DEPUTY JUDGE: From when would the leave run?[53]MISS CHAPMAN: To some extent, whether it is in fact from last July or from now probably is not that material vis-a-vis the expedition.[54]DEPUTY JUDGE: It is simply the question of settlement.[55]MISS CHAPMAN: Yes.[56]DEPUTY JUDGE: I will deal with that and if there are any other applications I will come back to you.[57]MR PATEL: I think it is appropriate that the decision is quashed which is what your Lordship has done. But we do not think, whatever was agreed in E, we are not of the view - - certainly my instructions are not to agree to a declaration in this case. The humanitarian protection leave is granted by the Secretary of State under his policy. It is appropriate that it is done by the Secretary of State. Of course we will look at the application and we will look at the grant of leave expeditiously given the circumstances and, given the circumstances of the claimant's case, the duration of that leave and grounds of settlement if they may arise or be looked at in that way.[58]DEPUTY JUDGE: In the light of the judgment of the court?[59]MR PATEL: Of course.[60]DEPUTY JUDGE: (To Miss Chapman) Do you want to argue that, Miss Chapman?[61]MISS CHAPMAN: No.[62]DEPUTY JUDGE: I am not minded to grant a declaration in this case. I have no evidence of the circumstances that have occurred since, although for the purposes of the decision made in this case, a change in circumstances was put forward for that purpose. In those circumstances the order will be to quash the decision but no declaration will be made. My reasons for the decision are set out in my judgment.[63]Do you have any other application?[64]MISS CHAPMAN: We have an application for indemnity costs. This is by reason of the fact that the claimant's representatives on 7 October 2008 - and I took you to that letter - set out their stall that she should have been granted humanitarian protection. Permission in respect of this application was granted last July. There have been numerous attempts - set out in the correspondence between the parties - to resolve this without the necessity to come to court. Those instructing me have raised the issue of indemnity costs in their letters to the Treasury Solicitor. I merely bring that to your attention.[65]DEPUTY JUDGE: Do you have the test for indemnity costs? Is it set out anywhere?[66]MISS CHAPMAN: I know it is 44 of the CPR. I did make a note about it; I do not have it to hand. It is whether - - it can be on an indemnity basis if they occurred unreasonably. We say the Secretary of State has had ample opportunity to resolve this claim prior to coming to court.[67]DEPUTY JUDGE: I just want to have the test.[68]MR PATEL: That is set out in Part 44. I cannot remember the sub-paragraph but it is very short. (Pause)[69]DEPUTY JUDGE: You are not looking at all?[70]MISS CHAPMAN: I do not have it with me.[71]DEPUTY JUDGE: I am not happy about dealing with an application for indemnity costs without seeing the relevant guidance on it. I am plainly familiar with an application for indemnity costs but before I make any decision against the Secretary of State I need to be quite confident that I have the relevant provision before me. I think it is 1194. (Pause) It seems that the advice generally in the White Book is that it should involve - although not necessarily - a conclusion that I should disapprove of some conduct of the defendant in this respect.[72]MISS CHAPMAN: Yes. I accept it is a high test which is why I am not pushing it unduly. I feel obliged to raise it because of the history of this case and the delay and numerous attempts to get the Secretary of State to resolve the matter, including raising that issue at the end of last year.[73]DEPUTY JUDGE: What about quantum? You are applying for costs anyway, I take it.[74]MISS CHAPMAN: Yes. I do not think we have a costs schedule. We are legally aided so we are asking for detailed assessment of the claimant's costs and then it will go to the taxing master.[75]DEPUTY JUDGE: The form of order is?[76]MISS CHAPMAN: Detailed assessment of the claimant's costs.[77]DEPUTY JUDGE: Let me be absolutely clear on that. The order - if I make it - is not to be enforced without leave of the court.[78]MR PATEL: No. That is only if you are trying to seek costs against the legally aided person.[79]DEPUTY JUDGE: You are absolutely right, I am sorry.[80]MISS CHAPMAN: It can be enforced. The Secretary of State is substantial enough.[81]DEPUTY JUDGE: What you are asking for is detailed assessment. You are not asking me to assess them.[82]MISS CHAPMAN: No. Your Lordship does not have to assess them. They will go off to the taxing master. And for the claimant's costs to be paid by the respondent. They are two separate orders but tied together.[83]DEPUTY JUDGE: Anything else?[84]MISS CHAPMAN: No.[85]DEPUTY JUDGE: (To Mr Patel) I need not trouble you on indemnity costs. Do you resist the principle?[86]MR PATEL: No.[87]DEPUTY JUDGE: Do you have any other applications?[88]MR PATEL: No.[89]DEPUTY JUDGE: Do you have any other applications, Miss Chapman?[90]MISS CHAPMAN: No.[91]DEPUTY JUDGE: I will quash the decision allowing the application for judicial review. There will be the claimant's costs to be paid by the defendant, a detailed assessment to be made of the publicly funded costs. Is there anything else either of you need?[92]MR PATEL: No.