Whyte, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1818 (Admin)

Case No CO/2798/2007[2010] EWHC 1818 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 10 June 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BURNETT
Between
THE QUEEN ON THE APPLICATION OF WHYTEClaimantv
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 N Mallick appeared for ClaimantMr C Zwart appeared for Defendant
J U D G M E N T

Introduction

[1]This is an application for judicial review of a decision of the Secretary of State for the Home Department dated 21 December 2006 which was re-taken and affirmed on 8 May 2009 and again on 13 January 2010. By that decision the Secretary of State refused to grant the claimant leave to remain in the United Kingdom as the unmarried partner of a British national who, it was claimed, had been living with her in a relationship akin to marriage for at least two years and with the intention of doing so permanently.[2]The bases of challenge are now relatively limited. First, the application for leave to remain was made one day after the claimant's extant leave had expired. Because there was no extant leave at the date of the applications, the Secretary of State concluded that there was no right of appeal against the decision. The claimant disputes that conclusion on two different grounds:(a) that it was irrational for the Secretary of State to treat the application as made after the expiry of extant leave when it is argued he had a discretion to deem it made before and thereby confer a right of appeal;(b) that the terms of a letter from the Secretary of State dated 26 November 2006 conferred a substantive legitimate expectation on the claimant that she would be able to appeal any adverse decision.[3]Secondly at the time of making the decision the Secretary of State did not serve directions for removal upon the claimant or otherwise initiate removal action pursuant to Section 10 of the Immigration and Asylum Act 1999. It was, submits the claimant, irrational and conspicuously unfair not to do so because, in response, the claimant would have advanced her Article 8 arguments in an attempt to defeat removal. If those arguments were not accepted by the Secretary of State there would be an appeal. The Secretary of State has not initiated removal action whilst these proceedings have been in contemplation or in existence. That too, submits Miss Mallick on behalf of the claimant, is unlawful.[4]In identifying the date of the original decision - three-and-a-half years ago now - it is apparent that the progress of this claim has been extremely slow. No one would benefit from an exploration of the reasons. It is sufficient to note that the pre-action letter was written on 5 January 2007, arguing a point no longer relied upon. Proceedings were issued and served in April 2007. The legitimate expectation point was taken from the outset.[5]Mr Justice Collins granted permission on the papers on 1 October 2007, no acknowledgement of service having been served. He did so because he was - " ..... concerned that the material sent in the solicitors' letter of 15 December 2006 does not seem to have been taken into account, and it may be that the application was lodged ..... before the leave expired." The reference to a letter from the claimant's solicitors is a reference to a letter enclosing some further information. It is now common ground that the application was posted one day after the extant leave expired. Mr Justice Collins suggested that the Secretary of State might like to reconsider the matter. That was what, in due course, happened. The claimant first provided further information. That course led to the affirmation of the decision on 8 May 2009. Thereafter the claimant amended her grounds attacking that new decision.[6]The matter was listed before Mr Justice Stadlen for a hearing on 10 November 2009. He adjourned the case for further material to be produced, a proper bundle to be prepared, for the Secretary of State to consider up-to-date material and thereafter for the claimant to re-formulate her grounds if the decision of Secretary of State remained adverse. The letter of 13 January 2010 was an adverse decision. By re-amended grounds dated 27 January 2010, the claimant raised the argument based upon Section 10 of the 1999 Act. It had been floated before Stadlen J. In the light of the decision letter, Miss Mallick does not seek to suggest that the substantive decision in the original application for leave to remain was wrong. Neither does she pursue another ground - also found in the re-amended grounds - that the Secretary of State's rejection of the claimant's Article 8 arguments was irrational. The Facts[7]The claimant was born in Jamaica on 16 September 1981 and came to the United Kingdom in 2003. She came to study with leave to remain until 27 October 2006. It is now accepted that she posted her application for leave to remain as an unmarried partner on 28 October 2006, that is to say after her leave had expired. The application was based upon a claimed relationship of two years' standing, equivalent to marriage, with Vincent Houghton. She and Mr Houghton have a daughter, Faith, who was born on 15 October 2004.[8]The application was made on the correct prescribed form, FLR (M). The form was prescribed by the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2006. Although these Regulations have twice been superseded, they applied and continue to apply to this application. Regulation 14 (1) provides:
"The following procedures are hereby prescribed in relation to an application for which a form is prescribed in regulations 3 to 12: (a) the form shall be signed and dated by the applicant, save that where the applicant is under the age of eighteen, the form may be signed and dated by the parent or legal guardian of the applicant on behalf of the applicant; (b) the application shall be accompanied by such documents and photographs as specified in the form; and (c) each part of the form shall be completed as specified in the form."
[9]Among the documents specified in the form are those providing financial information for three months before the date of the application, together with documents showing that the couple have indeed lived together as man and wife for two years. Additionally documents were required relating to the status of any child.[10]Regulation 15 provides that a failure to comply with Regulation 14 (1) invalidates an application only in limited circumstances. It provides:
"(1) A failure to comply with any of the requirements of regulation 14(1) to any extent will only invalidate an application if: (a) the applicant does not provide, when making the application, an explanation for the failure which the Secretary of State considers to be satisfactory; (b) the Secretary of State notifies the applicant, or the person who appears to the Secretary of State to represent the applicant, of the failure within 28 days of the date on which the application is made, and (c) the applicant does not comply with the requirements within a reasonable time, and in any event within 28 days, of being notified by the Secretary of State of the failure. (2) For the purposes of this regulation, the date on which the application is made is: (a) in the case of an application sent by post, the date of posting; (b) in the case of an application submitted in person, the date on which the application is delivered to, and accepted by, a public enquiry office; and (c) in the case of an application sent by courier, the date on which the application is delivered to Work Permits (UK) at the Immigration and Nationality Directorate of the Home Office."
[11]In this case the Secretary of State for the Home Department notified the claimant's solicitor by letter dated 22 November 2006 that further documents were required. The letter read:
"Thank you for your application on behalf of your client for leave to remain in the UK on the basis of relationship. I return the sponsor's passport, a copy has been kept on file. To help me consider the matter, please send me the following documents. Please send original documents as photocopies are not acceptable for the purpose of deciding the application. Documents required: (1) detailed bank statements covering the last three months of Alicia Amica Whyte; (2) detailed bank statements covering the last three months for Vincent Simnel Houghton; (3) further documentary evidence from November 2004 to June 2006 addressed to your client or jointly, and from November 2004 to September 2006 addressed to your client's partner or jointly. Please see attached guidance note for information on the type of evidence required; (4) immigration status document for Faith Tonique Houghton; (5) passport for Faith Tonique Houghton. Please do not hesitate to telephone the above number if you need assistance. To enable me to decide your client's case promptly, it is essential that you use the enclosed return label and reply as soon as you can preferably within seven days. If you do not produce the information requested within 28 days, the application will be considered on the basis of the documents and information you have already provided. This could result in the application being refused as provided for in paragraph 322 of HC/395 of the Immigration Rules."
[12]On 15 December 2006, the claimant's solicitors responded. The documents enclosed covered the status of Faith, but did not provide pre-application financial information or any documents evidencing the historical relationship, if I might call it that.[13]On 21 December 2006 the Home Office wrote back to the solicitors, stating that the application had been refused for the reasons set out in the notice enclosed with the letter. That notice was in these terms:
"Notice of Decision Refusal to grant leave to remain, paragraph 295D (iv) with reference to 295F or HC/395 as amended. (2) Alicia Amica Whyte, Jamaica, 16 September 1981. Cleveland & Co, Solicitors, applied on your behalf for leave to remain as the unmarried partner of a person present and settled in the United Kingdom, but your application has been refused. On 22 November 2006 we wrote to you requesting further documentary evidence to show that you and your partner have been residing together for the last two years. In view that you did not provide this evidence, the Secretary of State is not satisfied that you and your partner have been living in a relationship akin to marriage or civil partnership which has subsisted for two years or more. An application was made on your behalf on 28 October 2006. However your leave to remain expired on 27 October 2006. You therefore did not have leave to remain at the time of your application. There is no right of appeal against this decision. You have no right to stay in the United Kingdom so are liable to be removed. You must leave as soon as possible. If you do not leave voluntarily you may be prosecuted for an offence under the Immigration Act 1971, the penalty for which is a fine of up to £2,500 and/or up to six months' imprisonment and you will also be liable to be removed from the United Kingdom to Jamaica. You can contact the International Organisation for Migration (IOM) who can assist you in a voluntary return on 0800 783 2332 or via their website www.iomlondon.org. Your documents have been forwarded to your local enforcement office. They can be contacted on 01234 821 600. Help and advice on returning home can be obtained from the Immigration Service on 0208 760 2290 between the hours of 9 am and 5 pm Monday to Friday."
[14]It is paragraph 295D (iv) of the Immigration Rules which requires that the parties must have been living together in a relationship akin to marriage for two years or more. That is the paragraph explicitly referred to in the Notice of Decision.[15]Paragraph 295D (i) of the Rules requires that the applicant must have limited leave to remain in the United Kingdom. That paragraph is not referred to expressly in the Notice of Decision, but it is clear that the refusal was also based on that fact. That is the point covered in the paragraph dealing with the date of the application.[16]Mr Zwart, who appeared for the Secretary of State, submits that the Notice of Decision should be construed as a statement that the Secretary of State considered that the application was invalid for failure to comply with Regulation 14 (1) of the 2006 Regulations, the applicant having been given the opportunity to do so under Regulation 15.[17]I cannot accept that submission for the following reasons:(1) The letter of 22 November 2006 nowhere suggests that it is a notification of a failure to comply with Regulation 14, as is required by Regulation 15 (1) (b);(2) the letter is a request for further information to enable the application to be considered;(3) There is no suggestion in the letter that a failure to send the information will result in invalidity, rather the warning is that the decision will be made on the available information;(4) the reference to paragraph 322 of the Immigration Rules, in my judgment, provides the key. That paragraph contains two bases upon which an application for leave to remain in the United Kingdom must be refused. It also sets out 11 bases upon which such an application will normally be refused, the ninth of those is - "failure by an applicant to produce within a reasonable time information, documents or other evidence required by the Secretary of State to establish his claim to remain under these Rules." It was that paragraph that the letter of 22 November referred to.(5) The Notice of Decision on 21 December 2006 is, on its face, a refusal to grant leave to remain. It does not purport to be a notice stating that the application is invalid;(6) When the application form was returned to the applicant's solicitors, as is the normal practice, there was no indication on its face that it had been treated as invalid.[18]The decision of 8 May 2009, affirming the earlier decision of December 2006, dealt at some length with Article 8. That is because further information had been provided in the interim by the claimant. I remind myself that although the decision in 2006 referred to Article 8, there had been no explicit argument advanced under Article 8 by the then applicant. It said this of the earlier decision:
"Having reviewed our decision, I am satisfied that the decision to refuse your client's application should stand. In addition, I have noted that Miss Alicia Whyte's previous leave as a student expired on 27 October 2006, yet she made her unmarried partner application on 28 October 2006, that is one day later and therefore also out of time for that reason. Therefore the application should have been refused immediately on the grounds that she did not on 28 October 2006 hold any valid leave under paragraph 295D (i) with reference to 295F of HC/395 (as amended) because holding valid leave is a requirement for a person proposing to switch from student status category and into the unmarried partner category. That this was not spotted at the time does not mean that the subsequent decision to refuse your client on the basis that the required relationship not subsisting was incorrect but rather this further matter adds to and strengthens the existing reasons for refusal."
[19]As I have indicated, it seems to me that on its face the Decision Notice in December 2006 did spot the point albeit not by explicit reference to paragraph 295D (i).[20]The letter of May 2009 reinforces the conclusion that a decision on the merits of the application was indeed made. Its thrust however is to suggest that rather than seeking further information, as happened on 22 November 2006, the application could and should have been refused at the outset because there was no extant leave.[21]The decision letter of 13 January 2010 re-affirms the original decision. It also deals in great detail with the current position for the purposes of Article 8 before concluding that, on the facts as the Secretary of State finds them to be, Article 8 will not help this claimant. There is a confused reference in that letter to Chikwamba v Secretary of State for the Home Department [2008] UKHL 40, but nothing turns on that in these proceedings. In very short summary, as helpfully explained by Mr Zwart, the Secretary of State accepts that Faith is the daughter of the claimant and the daughter of Mr Houghton. He accepts that the claimant and her daughter have a family relationship. He accepts continuing contact between Mr Houghton and his daughter. He does not accept, for the reasons set out in the decision letter of January 2010, that the three of them comprise a family unit. That is because he does not accept that the claimant and Mr Houghton live or have lived together as man and wife. Statutory Framework[22]Section 3 of the Immigration Act 1971 establishes that a person in the claimant's position requires leave to enter or remain in the United Kingdom. Section 3C, as material, provides:
"(1) This section applies if — (a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave, (b) the application for variation is made before the leave expires, and (c) the leave expires without the application for variation having been decided. (2) The leave is extended by virtue of this section during any period when — (a) the application for variation is neither decided nor withdrawn, (b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or (c) an appeal under that section against that decision brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act)."
[23]The effect of those provisions, as was uncontroversial before me, is to preserve the status quo of an applicant who applies before its expiry to vary his leave until the decision on that application has been made and any in-time and in-country appeal provided for by statute has taken place.[24]Section 82 of the Nationality, Immigration and Asylum Act 2002 governs the question whether there exists a right of appeal to the Asylum and Immigration Tribunal (as it was when the original decision was made, now the First Tier Tribunal). Section 82 (1) provides:
"(1) Where an immigration decision is made in respect of a person he may appeal to the tribunal."
Section 82 (2) sets out an exhaustive list of immigration decisions which generate a right of appeal.

(g) They provide:

"(2)In this Part 'immigration decision' means — ..... (d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, ..... (g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (removal of person unlawfully in United Kingdom)."
[25]Section 82 (2) (g) is the operative provision for the purposes of the claimant's second ground under Section 10 of the 1999 Act. However - on its face, and again uncontroversially - Section 82 (2) (d) provides a right of appeal only if the result of the decision deprives a person of leave to remain. If there is no extant leave at the time the application is made the decision does not have that result.[26]Section 10 of the 1999 Act makes provision for the administrative removal of various categories of person, which include the claimant, by virtue of Section 10 (1) (a) which provides:
"(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."
[27]As is apparent, by virtue of Section 82 (1) (g) of the 2002 Act, that decision, when made, is appealable to the tribunal. That appeal would be an in-country appeal by virtue of Section 92 (4) of the 2002 Act. Ground 1[28]Miss Mallick submits that the Secretary of State had a discretion to treat the claimant's late application as "in time" and thus, on refusing the application, to confer a right of appeal pursuant to Section 82; further, that the exercise of that discretion was irrational because, in short, the application was only one day late. The Secretary of State was disposed to accept that such a broad discretion exists.[29]It is uncontroversial that in applying the Immigration Rules, the Secretary of State may exercise discretion as regards their strict application. Trivial and unimportant failures to comply with technicalities of increasingly complex rules may, in appropriate circumstances, and subject to the terms of the rule in question, be overlooked. Miss Mallick showed me documents emanating from the UK Border Agency showing that decision-makers are encouraged to exercise discretion in appropriate circumstances. However in my judgment Miss Mallick's argument amounts to an invocation of a much wider proposition which I consider to be erroneous. In effect, the submission amounts to an argument that the Secretary of State should have treated the leave as subsisting in circumstances where Section 3D of the 1971 Act dictates that it was not.[30]Additionally, or alternatively, the argument seeks to support the proposition that the Secretary of State may confer a right of appeal in circumstances not provided for by Section 82 of the 2002 Act. That, too, in my judgment, does not run.[31]There has, as it seems to me been a confusion stemming from the language used in the documents in the bundle and in argument, which is also reflected in text books on this matter, that the application was "out of time". There is no statutory time limit for making an application for leave to remain. A failure to do so during the currency of an extant leave may, however, have serious consequences not least because it can affect rights of appeal. Additionally, on the facts of this case paragraph 295D (i), to which I have already referred, stipulates that one requirement for the grant of leave to remain is that the applicant has limited leave to remain in the United Kingdom.[32]The existence of a right of appeal is governed by Section 82 of the 2002 Act. The claimant's application was made after her leave had expired. She had no extant leave. By virtue of Section 82 (2) (d), the refusal of the application was not an immigration decision for the purposes of Section 82 (1). In consequence, there was no right of appeal against that decision. In my judgment, the Secretary of State had no discretion to treat the expired leave as subsisting at the date of the application. He had, at least arguably, a discretion with respect to the application of the requirements under the rule. But to conclude that there was a broader discretion would be to ignore Section 3D of the 1971 Act. Neither did the Secretary of State have a general discretion to confer a right of appeal in circumstances not provided for by the 2002 Act.[33]Even if this analysis were wrong and a general discretion could be found to exist, I could not accept that the decision of the Secretary of State was irrational. There is no doubt that the previous leave had expired. At the least, the Secretary of State would be required to have regard to the statutory scheme. The application could easily have been lodged before the leave expired. The contrary is not suggested. It is clear that the deficiencies in the material provided in support of the application were substantial and were not made good. In those circumstances, a decision not to grant what would amount to an extra statutory right of appeal, if such power existed, would not be irrational.[34]The alternative route contended for by the claimant, namely via a legitimate expectation generated by the letter of 22 November 2006, the material parts of which I have already read, in my judgment also fails. At its highest, the letter can be taken as an indication that its writer intended to consider the application by reference to the criteria in paragraph 295D. I do not consider that the Secretary of State, by that letter, "committed himself" either to overlook the question whether there was an extant leave or, by one mechanism or another, to confer a right of appeal in the event of refusal. That is the language of the Court of Appeal in R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607, [2002) 1 WLR 237, 24. There is always a need to look carefully at what has been said or done by the public authority upon which reliance is placed to generate the suggested legitimate expectation.[35]In this case the letter is entirely silent on the issues. It is right to observe that the application might have been rejected outright for failure to comply with paragraph 295D (i). The natural inference however is that the author of that letter had not spotted the point at that stage. The point was spotted by the time the decision was made and, as I have indicated, was articulated as one of the reasons for refusing the application. It follows in my judgment that the legitimate expectation argument does not pass first base. Ground 2[36]I have noted the chronology relating to the emergence of the argument that as a matter of law the Secretary of State was obliged to give directions for removal pursuant to Section 10 of the 1999 Act. Had he done so in 2006 or indeed since, an in-country right of appeal would have been generated pursuant to Section 82 (2) (g) and Section 92 (4) of the 2002 Act.[37]Strictly speaking, no permission exists for this ground. However, I understand that it was floated at the hearing before Stadlen J. The Secretary of State has dealt with it on its merits and so I proceed as if permission were granted.[38]Miss Mallick helpfully distilled her argument to the proposition that it was irrational not to have initiated removal action in December 2006 when the notice refusing the application was served. Thus, she submits that in all cases of a refusal for leave to remain enforcement action should be commenced at the same time as the adverse decision is made. Her argument relied upon the decision of the Court of Appeal in TE (Eritrea) v Secretary of State for Home Department [2009] EWCA Civ 174. The facts of that case were that the appellant had appealed an immigration decision refusing to vary her leave. Her appeal on that basis was unsuccessful. At a very late stage, namely a reconsideration of that appellate decision, the appellant raised an argument that she should have available to her in one appeal all arguments that would become available if Section 10 action were initiated. That was because the factors then relevant on the appeal would be different and broader. The reason is that pursuant to an appeal following the initiation of removal action under Section 10, the factors set out in Rule 395C of the Immigration Rules come into play. (It is unnecessary to set that paragraph out).[39]Thus if the two appeals were not heard together and the appellant in that case lost the appeal against the refusal to vary her leave, there would inevitably be a gap before removal action were initiated and any subsequent appeal could be heard. In the meantime she would be potentially vulnerable to prosecution as an overstayer and, in any event, would lose entitlement to many benefits and be prohibited from working. Those were the facts as they emerged in TE (Eritrea).[40]The immediate difficulty faced by Miss Mallick on this submission is that the Court of Appeal did not find that it would always be unlawful for the two appeals to be separated. That emerges from the judgment of Lord Justice Sedley (between paragraphs 17 and 21), with which Lord Justice Jacob agreed. On this point the judgment of Lord Justice LLoyd is to the same effect. Furthermore, and in any event, this is not a case in which there has been a right of appeal exercised against the refusal decision with the consequence that this claimant might face the prospect of a second appeal on the wider grounds available under Section 10 and Rule 395C when removal action is taken. She has no right of appeal in respect of the underlying refusal.[41]Be that as it may, there is no arguable irrationality in the Secretary of State separating this decision to refuse an application and a subsequent decision to take coercive action to remove.[42]In the first place, voluntary removal was encouraged. The decision notice directs the disappointed applicant to those who can assist in that process. It would be extraordinary if, as a matter of routine, enforcement action were initiated at the same time as directing a disappointed applicant to those who can help with voluntary removal. In many cases enforcement will turn out to be unnecessary. Enforcement decisions are taken by a separate section in the relevant department. The process being suggested by Miss Mallick would thus quite possibly engage those concerned in fruitless and wasteful activity. It might also generate further wasteful and useless activity in the disappointed applicant himself. It seems to me to be entirely reasonable to wait and see whether the person concerned leaves voluntarily.[43]In the second place, it is also reasonable to wait to see whether there is any challenge to the underlying decision. Of course, if there is a challenge to the underlying decision and an appeal follows then the considerations discussed in TE (Eritrea) come into play.[44]Miss Mallick's submission that even if this step was rationally not taken in 2006 it should have been since, runs up against a number of difficulties. First, it was not advanced as an argument until January 2010. The Secretary of State cannot reasonably be criticised for failing to take a step which had never been asked of him. Secondly, as Mr Zwart explained, and is well known, it is the policy of the Secretary of State not to initiate removal action against someone who has leave to apply for judicial review.[45]This does not mean that the claimant will never have an opportunity to argue her Article 8 case on appeal.[46]Mr Zwart explained that in the event that these proceedings fail, the claimant's file will be considered by the enforcement section. There is plainly a live issue under Article 8 given the circumstances of this case. The Secretary of State is deeply sceptical of the Article 8 claim but it is not frivolous. Thus, unless there is a change of approach by the Secretary of State from that heralded in his letter of 13 January 2010, enforcement action will be initiated in due course, in respect of which the claimant will have an appeal to the Tribunal.[47]However, so far as these proceedings are concerned, I dismiss the application for judicial review.[48]MISS MALLICK: I know that we are the losing party but nevertheless there is an application that in this case at least 50 per cent of the cost be against the Secretary of State, so in effect that there be a share of the costs.[49]The application is made on the history of this matter. This matter came to court on 6 April 2007 by an application for judicial review that was issued (that is found at page 60) on 18 April 2007. The bundle was served on the Secretary of State. The Secretary of State knew of the judicial review proceedings and the accompanying papers on 18 April 2007 (that is to be found at page 80 of the bundle). On 19 April 2007 the Secretary of State wrote a letter to the claimant that is copied to the court I think. It says that the Secretary of State has 21 days to serve his acknowledgement of service and that is going to be done by 9 May 2007 (that is to be found at page 80). On 16 May 2007 the Secretary of State seeks an extension of time and he writes a letter (that is to be found at page 78). That again is copied to the court. The claimant agrees to the time extension on 16 May, that same day. That letter is sent to the Secretary of State, I believe by fax and by post (that is to be found at page 72).[50]On 16 July 2007 the claimant wrote to the Secretary of State, saying "We have not heard anything. You said you were going to put forward an acknowledgement of service and yet there has been nothing from the Secretary of State", (that is to be found at page 71). On 22 August 2007 the claimant writes to the Secretary of State, again seeking acknowledgement of service (that is at page 68). On 1 October 2007, in the absence of an acknowledgement of service by the Secretary of State, permission was granted by Mr Justice Collins and the Secretary of State is given 21 days to state his position. Nothing is put forward by the Secretary of State. On 31 October 2007 the claimant writes to the court. There has been no response from the Secretary of State (that is page 68).[51]In December 2007 at last we have the defendant's acknowledgement of service (that is to be found at page 97); that is some nearly nine months after the claimant's judicial review was issued. On 10 October 2008 the matter had been listed for a full hearing. The Secretary of State, by consent agreement which we referred to during the course of the proceedings, had put forward to the claimant that they would reconsider everything anew and they would put forward a new decision and that would be done within three months of sealed ordered. Sealed order is then issued on 31 January 2009 (that is at page 156). There is not a decision until 8 May 2009. I made my submissions on that during the course of the proceedings (that is found at 390). On 10 November 2009 there is a failure to include documents in the bundle that was prepared by the Secretary of State. I accept that the defendant had prepared the bundle for the hearing in November. That was because the two solicitors had not got their heads together within the reasonable time frame for the proceedings to have agreed the bundle.

MR JUSTICE BURNETT: That was an issue that Mr Justice Stadlen dealt with - - - - -

[53]MISS MALLICK: He did.[54]MR JUSTICE BURNETT: - - - - - in November. I think Miss Mallick it will not profit us enormously to look at what has happened since then, but there was a fair old muddle about the bundle for today's hearing.[55]MISS MALLICK: There was. The fact is I had asked through my instructing solicitors for this matter to be listed earlier than it was, before April 2010. Then I was asking for it to be joined to a case that had raised the point that I had on the permission application. That is a Section 10 point. My instructing solicitors were in fact talking to the Treasury Solicitor.[56]MR JUSTICE BURNETT: I have seen a letter from your instructing solicitors suggesting that they ask the Treasury Solicitor - or they initiated some sort of question about the bundle to which they did not get an immediate reply and so your solicitors state in a letter that they just assumed that the Treasury Solicitor was doing the bundle which, in the face of an order that they should do it, seems to me to be an entirely untenable position. But let us not worry about that. We can spend hours trawling through what has gone wrong with this case.[57]MISS MALLICK: This is a case that has had a sorry history. It has gone on for a long time. I put forward the submission that the court has a discretion under Section 51 of the Supreme Court Act 1981, and there is the Boxall and Bolton Metropolitan District Council case, each of them quite clear in their principle that the court has a wide discretion as far as costs are concerned.[58]MR JUSTICE BURNETT: What extra costs have been incurred by the claimant as a result of what you would submit is any culpable failure on the part of the defendant?[59]MISS MALLICK: The numerous correspondence that has had to be written to the Secretary of State, particularly in 2007, in chasing the acknowledgement of service and the delay that has resulted in the judicial review proceedings coming before the court, we say, largely because of the Secretary of State and the way that he has chosen to conduct these proceedings. I put forward the submission that the court exercise its discretion in this particular case, to bear in mind the conduct of the Secretary of State and to grant 50 per cent of the claimant's costs. There is no rule in these proceedings that means that costs should follow the event. I accept that we have lost. However I put forward the submission that the conduct of the Secretary of State in these proceedings is such that he is not justified 50 per cent of his costs. Also I point out that we are LSC funded.

MR JUSTICE BURNETT: I had not seen the certificate.

[61]MISS MALLICK: Have you not the funding certificate?[62]MR JUSTICE BURNETT: I do not think it is in the bundle. Is it in the bundle?[63]MR ZWART: It was provided recently to us as well. It proceeds from 8 February 2010.[64]MISS MALLICK: There was an earlier certificate of this matter. When it first started it was privately funded.[65]MR JUSTICE BURNETT: I noted in your argument, I think in the written argument, you make the point that the claimant has incurred expense in all this - - - - -[66]MISS MALLICK: That is correct.

MR JUSTICE BURNETT: - - - - - and so that is why I assumed there was no public funding.

[68]MISS MALLICK: When this matter was first brought to court in 2007 she was not funded. She in fact incurred private legal expenses from her own pocket which are not going to be reimbursed.[69]MR JUSTICE BURNETT: You will need to remind me for public funding what the current position is. The order for costs, if it is otherwise appropriate, is made and then it goes off to be determined now elsewhere.[70]MISS MALLICK: There is legal aid assessment.[71]MR ZWART: Not to be enforced without leave of the court.[72]MISS MALLICK: I ask for 50 per cent of our costs from the Secretary of State.[73]MR ZWART: Four points briefly as follows: first, the criticism made seems to be of a benefit ultimately received by the claimant because, notwithstanding the approach to 2007, it resulted in permission being granted by Mr Justice Collins which must have been to the advantage of the claimant.[74]MR JUSTICE BURNETT: I suppose, leaving aside how it comes out in the wash, there are two points. The first is if the claimant's solicitors were writing lots of letters to the Secretary of State which, for whatever reason, were not being acknowledged, we do not need to go into the whys and wherefores, that inevitably generates costs. Secondly, as we all know from bitter experience, proceedings that take a long time generate additional costs because people keep having to come back to it. Those are the points.[75]MR ZWART: I would put into the balance in relation to discretion that it is quite clear that in practical terms there has been, by any other name, alternative dispute resolution process through consent orders and reconsideration which has resulted, in fact, in not being advanced before you any Article 8 points at all. That process has served a useful purpose. Secondly, the Secretary of State has been entirely responsive practically to the evolutionary nature of the grounds advanced, meaning no disrespect at all to Miss Mallick, including not resisting the amendments advanced in argument for which permission has not been applied.[76]Separately, we would like to apply for our costs. It would seem that there would be two orders which we would impress upon you. The first is costs from the date of claim which is 2 April 2007 to November 2009, which is up to commencement of the hearing before Mr Justice Stadlen, being the case subject to detailed assessment if not agreed. Because his order was in relation to that hearing - that there be no order as to costs - that costs from 8 February 2010 be subject to legal assessment by the Legal Aid Board, not to be enforced without the permission of the court.

MR JUSTICE BURNETT: It is not actually the Legal Aid Board anymore, I think.

[78]MISS MALLICK: It is the Legal Services Commission.[79]MR JUSTICE BURNETT: The process for a successful defendant to recover costs from a publicly-funded unsuccessful claimant during the period of public funding requires there to be a further application by the successful defendant and then an investigation of the means of the claimant. Given the Secretary of State has investigated the position of this claimant, and it forms a lot of the material in the 13 January 2010 decision, it would appear that the prospects of recovering anything from this claimant are n fact pretty slim vis-a-vis the public funded part. I am just wondering whether - I may not be putting this very clearly - - - - -[80]MR ZWART: In relation to the publicly funded element - - - - -[81]MR JUSTICE BURNETT: - - - - - are you really seeking your costs during that period? You might take instructions because it seems rather fruitless to set in train a process which is not going to generate anything but more costs. (Pause)[82]MR ZWART: The practical position - as you have indicated will be in relation to the publicly funded currency - is that there is unlikely to be any recovered. With respect, that started on 8 February 2010. Of course, one may remove from the order so that detailed assessment will be along the lines of by reason of the costs from 8 February 2010 being subject to public funding, the defendant not without permission of the court to enforce in relation to that period to date. That will disaggregate everything, including today. Before that, Mr Justice Stadlen's order already disaggregates the hearing.

MR JUSTICE BURNETT: That is a hearing that has been made.

[84]MR ZWART: We would ask - because there will not be agreement and there may be some need to have a debate - for the order in relation to costs of the claim, but it is - - - - -

MR JUSTICE BURNETT: You are applying for your costs in any event?

[86]MR ZWART: We are. It seems with that structure it is quite straightforward to disaggregate, with reference to the chronology and timetable, and hive off those elements which will not be recoverable. In relation to the proposal by Miss Mallick, you have the factors I have asked you to take into account in exercising your discretion.

MR JUSTICE BURNETT: Do you have any reply, Miss Mallick?

[88]MISS MALLICK: I would ask you to exercise your discretion. If you are not with me that the Secretary of State should pay 50 per cent of the claimant's costs, I do ask you to consider that this matter was commenced in 2008. In 2007 it was in fact privately funded by the claimant from her own pocket. I am not sure as to exactly when LSC funding was granted but I believe it was in 2008. Therefore it was granted for the purposes of this substantive judicial review hearing that has been listed. I would ask you to bear that in mind when exercising your discretion. I have asked for the claimant's costs. In the alternative, I ask for the claimant's costs in respect of her private costs.[89]If you are not with me, then I ask you to make no order for costs because it is not appropriate in this particular case. It is a publicly funded case in substance.

MR JUSTICE BURNETT: There are cross-applications for costs before me.

[91]The background position as to the funding of the claimant is not crystal clear. Miss Mallick tells me that through parts of the currency of these proceedings the claimant has been funding this matter herself. During other periods she has had the benefit of public funding. I am told there has been public funding since 8 February 2010. Additionally Miss Mallick refers to an earlier period of public funding.[92]The cross-applications are these. Miss Mallick submits that in the light of the history of this case, despite the claimant having been unsuccessful on all fronts, the Secretary of State should pay 50 per cent of the claimant's costs. That essentially is founded upon a proposition that in 2007 the Secretary of State failed to respond to a number of letters from the claimant's solicitors and, more generally, that the Secretary of State's approach to this litigation has been in part the cause of it being strung out.[93]Conversely the Secretary of State seeks his costs against the claimant but with an order that they not be enforced without leave in respect of any period that she has or had the benefit of a public funding certificate.[94]As a fall-back position, Miss Mallick suggests that there should be no order for costs.[95]It seems to me that the starting point in this case must be that the Secretary of State has succeeded on all fronts. The original ground upon which leave was granted by Mr Justice Collins has been unsuccessful. The new ground has also failed. Indeed, I think it weak. There is, as it seems to me, a small amount of mileage to be gained from Miss Mallick's submission that at least in 2007 the Secretary of State was not responding to correspondence. We are all regrettably extremely familiar with the general consequence of proceedings being strung out over a long period, namely that the costs increase to some extent. Be that as it may, there is nothing before me which establishes precisely why these proceedings have taken so long to come to a final hearing.[96]My conclusion is that the Secretary of State should have his costs of these proceedings subject to a modest discount to reflect the additional cost to which the claimant has been put as a result of the failure to respond to correspondence. Doing the best I can the order I make is that the Secretary of State should have 90 per cent of his costs of these proceedings. The order will be that to the extent that during any period the claimant has had the benefit of a public funding certificate, those costs are not to be enforced without further order. There will be a detailed assessment in default of agreement as to costs, and the claimant is to have an assessment of her publicly funded costs for whatever period or periods those are in issue.