Walker, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2473 (Admin)

Case No CO/12817/2009

[2010] EWHC 2473 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Sitting at:

Venue Birmingham Civil Justice Centre

Priory Courts

33 Bull Street

Venue Birmingham

B4 6DS

Date Tuesday 29th June 2010

Before

THE HONOURABLE MR JUSTICE BEATSON

Between

The Queen (on the Application of Walker)Claimant

Secretary of State for theDefendant

Home DepartmentDefendant

(DAR Transcript of

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Mr de Mello and Mr Muman (instructed by Rashid & Co Solicitors) appeared for Claimant.

Mr Blundell (instructed by the Treasury Solicitor) appeared for Defendant.

Judgment

[1]This is the hearing of the claimant's application for permission to apply for judicial review to challenge two decisions. The first is that by the Secretary of State to refuse leave to remain in the United Kingdom without granting her a right of appeal. The second is that by the Asylum and Immigration Tribunal to refuse to accept that an appealable immigration decision had been made.

[2]It is heard today pursuant to the order of HHJ Davis QC, the Recorder of Birmingham, that there be a rolled-up hearing. If permission to apply is granted the court will deal with and determine the substantive claim. Accordingly, I heard submissions on the substantive claim. Although it was not developed in oral submissions, the defendant’s position in relation to the effect of delay is dealt with in the Acknowledgement of Service and Mr Blundell's skeleton argument. I have taken it and the submissions on behalf of the claimant into account.

[3]The claimant is a Jamaican national. She is now 19 years of age. She came to the United Kingdom in July 2001. On 17 June 2005 she was given three years’ discretionary leave until she reached the age of 18. The leave was given for her to live with her aunt. On 18 March 2008 she gave birth to a child. Since these proceedings have been instituted, she has given birth to a second child.

[4]On 28 August 2008, two days before her 18th birthday, JM Wilson Solicitors, who then acted on her behalf, submitted a form FLR (O), applying for further leave to remain. The ground in that application was marked as "other purposes/reasons not covered by other application forms". The reasons for the application are stated to be "extension of DLR on Article 8 grounds". The covering letter from her solicitors stated that the claimant’s circumstances remained the same. These were that she is very close to her nan (the term by which she described her aunt), and that since the discretionary leave was granted she has given birth to her son. The letter also states that she still enjoys a private life and a family life with her nan, with whom she still lives. The letter states "We also enclose photographs of the applicant and her friend and also postal orders in the amount" on specified fees.

[5]Mr Blundell, on behalf of the Secretary of State, accepts for the purpose of this application that there was a photograph of the claimant's son with the application. He does so because the copy of the application in the bundle contains a photograph at the appropriate place. It does not contain a photograph of the claimant in section 1. The issue of the photograph is crucial to this application. It is stated in section 6 of the form that:

"It is mandatory to provide the photographs specified below. Your application will be invalid if you do not."

[6]The space on the form for the photographs of the claimant and her dependants has been ticked. On 5 September 2008, that is five days after the claimant's 18th birthday, when her leave expired, the defendant returned her application as invalid. The pro forma letter states that the application was not been accompanied by the specified photographs required. It was returned to the defendant with the required passport size photographs on 9 September. The covering letter from the claimant’s solicitors gives no explanation as to why the photographs were not with the form originally submitted. It does not state that was an oversight, administrative difficulties, or give any other explanation for the omission.

[7]In a letter dated 17 November the defendant asked for additional documents. These were the claimant's son’s passport and documentary evidence about her home, bank statements, college enrolment letter, council tax bill and tax documents, and documentary evidence to show that she had been residing with her aunt for the previous three years. The solicitors responded on 9 December. They provided some of the information required, and explained, in relation to the request for the son's passport, that he did not have one. Their letter also stated that the defendant will have noted that they had stated earlier that their client was no longer living with her aunt and had moved out because she wanted her own space. There is a reference made to the child and to the ill-health of the aunt, who has sadly since died. The letter also stated that the claimant saw her aunt regularly, did her shopping, and that they are very close. The solicitors asked the defendant to bear in mind that the claimant was very young when she was granted discretionary leave to remain and that it is only appropriate that a young woman of her age would like to have her own place. They stated that this should by no means be interpreted as the aunt and her not being close.

[8]On 5 January 2009 the defendant refused the claimant's application. A notice of decision was served together with an accompanying letter. There are features of the accompanying letter which may be difficult but the notice states:

"In view of the fact that you are now living with your son in rental property, naming your mother as an emergency contact, and not financially dependant on your aunt, therefore, the Secretary of State is satisfied that you are now living an independent life and applying for a variation of leave that is not covered by the Immigration Rules, therefore, your application has been refused."

The notice also states:

"An application was made on your behalf on 09 September 2008. However, your leave to remain expired on 30 August 2008. You therefore did not have leave to remain at the time of your application. There is no right of appeal against this decision."

The covering letter states:

"Your clients’ cases have also been considered on an exceptional basis outside the Immigration Rules, but the grounds on which you were granted discretionary leave have now changed. Your mother is living in the United Kingdom and you are now leading an independent life from your aunt. Therefore the Secretary of State is not prepared to exercise his discretion in your client's favour. Furthermore, your clients’ have stated that if they are returned to Jamaica their family life will be disrupted, which would breach Article 8 of the European Convention on Human Rights. Your client’s representations have been carefully considered. However, although [she] has been resident in the United Kingdom for the past 7 years, she has spent the majority of her life living in Jamaica, and her child is young enough to adjust to living in Jamaica. Therefore, there are no insurmountable obstacles to your client’s family life being continued overseas."

The letter concludes that removal would not interfere with their family life and accordingly would not breach Article 8. The reference to the claimant’s mother now being in the United Kingdom as a reason for not exercising discretion in her favour is perplexing.

[9]The solicitors responded to that letter on 9 January. They stated that they noted what the defendant had said in relation to the right of appeal:

"…but feel our client has a right of appeal against your decision in relation to her Article 8 right. You will note although the Article 8 aspect has not been considered in the Notice of Decision, as it should have been, it has instead been made in your letter to us. On this basis we are taking your letter dated 5th January and the Notice of Decision as one document."

[10]An appeal was lodged on 20 January 2009. In the section of the form dealing with late application and extension of time, it is stated that the appeal is resubmitted out of time:

"To avoid judicial review proceedings, the appellant wishes the opportunity to address the tribunal on the points raised in the representations covering letter. Given the exceptional and complex points raised, an extension of time would be in the interests of justice."

[11]In a decision made on 27 January and posted to the solicitors on the following day, Immigration Judge Woolf refused to lodge the appeal. He did so having considered as a preliminary issue the validityof the appeal. He concluded that, as the claimant's earlier leave had expired on 30 August 2008 and the application was made after that date, in the light of the authorities there was no right to an appeal.

[12]In a letter dated 2 April 2009, the solicitors requested that the matter be listed again for a preliminary hearing to deal with the right of appeal. The matter came before Immigration Judge Bailey. In a decision promulgated on 17 April, he refused to entertain the matter for a preliminary hearing to deal with the validity of the appeal. He did so on the ground that the matter had already been before Immigration Judge Woolf, who was satisfied that the applications were made at a time when the claimant had no leave to be in the United Kingdom.

[13]On 16 July public funding was provided. On 7 August the claimant's aunt died. The claimant, in a statement dated 26 June 2010 (very shortly before the hearing), explains that her aunt’s death hit her hard. She sets out the effect on her and accounts for delay in taking proceedings in part because of that and what she describes as her struggle as the single parent of two young children, the second of whom has serious health problems.

[14]These proceedings were launched on 30 October 2009. I referred to the procedural orders by the Recorder of Birmingham. This hearing was stayed by Hickinbottom J, pending the decision in R(Mugodi) v SSHD (CO/12324/2009). A number of decisions were stayed behind that case but it did not proceed. However, some of the issues in it and the present case came before Wyn Williams J in the case of R(Daley-Murdock) v SSHD

[2010] EWHC 1488 (Admin)

[15]The evidence before me consists of two statements by the claimant. It is not clear when the first one was lodged, and it is not dated and not signed. The second one is the one I have referred to dated 26 June 2010. It primarily deals with the Secretary of State's submission that this claim is too late and should be dismissed for that reason. There is also a statement from Mr Sharma at JM Wilson, Solicitors dated 22 June.

[16]The grounds at the time these proceedings were launched were as follows. First, it was unlawful for the Secretary of State not to make an appealable immigration decision alongside the unappealable refusal to extend the claimant's discretionary leave to remain. In the light of the decision in Daley-Murdock’s case Mr de Mello and Mr Muman, who had conduct of the case until recently and who is responsible for a number of the skeleton arguments, did not pursue this ground at the oral hearing. They were right not to do so. In the light not only of Daley -Murdock but the other cases considered by Wyn Williams J, that ground is unarguable. Secondly, it was contended that the second application, the one with the photographs on 9 September, should not be regarded as a second application but as a variation of the first in-time application. Mr de Mello and Mr Muman relied on JH (Zimbabwe) v SSHD

[2009] EWCA Civ 78

. Thirdly, it was submitted that the Article 8 decision was substantively flawed. Finally, it was submitted that the applicable terms of section 82 of the 2002 Act should be read down to be compatible with the claimant's rights under the Convention. This ground was also not pursued. Again, in the light of the decision in Daley-Murdock, in which Mr de Mello unsuccessfully advanced a similar argument, that was a realistic decision.

[17]Before me the argument almost wholly involved the question whether the original application made on 28 August just before the claimant's 18th birthday was a valid in-time application. The arguments in support of that position have evolved during the course of these proceedings. I say that not by way of criticism but just to reflect the reality. Today, the argument based on JH (Zimbabwe) was not at the forefront of Mr de Mello's submissions. Indeed, he did not mention it in his oral submissions. But it is still there in his written submissions and was not abandoned. Today, his primary submission, which was foreshadowed in Mr Muman's skeleton argument, was that, effectively, the prescription requiring the use of form FLR(O) does not apply to an application outside the Immigration Rules.

[18]He submitted that it followed from this that the requirement that an application be accompanied with photographs did not apply to this application. As originally developed in Mr Muman’s written submissions, this was based on the need to preserve safeguards which were in the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2007, which are not replicated in the provisions in the Immigration Rules. In short, the submission is that the form is not prescribed or specified for this purpose, so the sanction does not bite. Reliance was placed on the decision in R (Forrester) v SSHD

[2008] EWHC 2307 (Admin)

by Sullivan J, as he then was. That dealt with the consequences where a cheque which had been submitted was returned unpaid because of insufficient funds, but was resubmitted promptly. The defendant in that case did not exercise her discretion to accept the re-submitted application. At paragraphs 17 and 16 of the judgment, Sullivan J stated that the failure in that case to exercise discretion in the claimant’s favour was a classic example of a thoroughly unreasonable, disproportionate, inflexible application of a policy without the slightest regard to the facts of the case or indeed elementary common sense and humanity. His Lordship stated that such an approach diminished rather than encouraged respect for the policy in question.

[19]It was common ground that the relevant provisions are now those in section 50 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) and the amended provisions of the Immigration Rules introduced in 2008 by HC 321. Section 50(1) and (2) of the 2006 Act provides: (1)Rules under section 3 of the Immigration Act 1971 (c. 77)—(a) may require a specified procedure to be followed in making or pursuing an application or claim (whether or not under those rules or any other enactment),

(b) may, in particular, require the use of a specified form and the submission of specified information or documents,

(d) may make provision for the consequences of failure to comply with a requirement under paragraph (a), (b) or (c).

(c) ”

[20]HC 321 introduced Rules 34 to 34J. The relevant rules in this case are 34 to 34C and in particular 34, 34A(vi)(a) and 34 C. “34. An application form is specified when:(i) it is posted on the website of the United Kingdom Border Agency of the Home Office,

(ii) it is marked on the form that it is a specified form for the purpose of the immigration rules,

(iii) it comes into force on the date specified on the form and/or in any accompanying announcement. … 34A Where an application form is specified, the application or claim must also comply with the following requirements: (vi) where the application or claim is made by post or courier, or submitted in person: (a) the application or claim must be accompanied by the photographs and documents specified as mandatory in the application form and/or related guidance notes, … 34C.Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34A, such application or claim will be invalid and will not be considered.”

[21]It was submitted by Mr de Mello that section 50(1) of the 2006 Act applies to applications within the Immigration Rules and to applications which, although outside the Immigration Rules, are either linked or ancillary to applications within the rules. That provision, he submits, does therefore not authorise rules for applications altogether outside the Immigration Rules. He accepts that section 50(2) applies to applications "in connection with immigration" but has maintained that the rule-making power does not extend to covering applications outside the Rules and therefore Rule 34C, specifying the consequences for non compliance, does not apply to such an application. He submits in any event that Rule 34C is ambiguous because it refers to an application form which is “specified”. It is not clear, he maintained, that FLR (O) is specified because Rule 34 provides that an application form is "specified" when inter alia "it is marked on the form that it is a specified form for the purposes of the Immigration Rules". Accordingly, it is not clear from this that it applies to applications outside the Rules. The consequence of the ambiguity in Rule 34C, he submits, is that the Secretary of State should not treat an application which does not contain all the documents and photographs as per se invalid but should give a chance to an applicant to correct them. In any event, on the facts of this case, because the Secretary of State took and kept the fee, he had in fact partly considered the application and so paragraph 34C does not apply.

[22]Mr Blundell's submissions on this are in my judgment to be preferred. Their starting point is that section 50(1) of the 2006 Act gives the Secretary of State a power which expands the power in section 3 of the Immigration Act 1971 to make Immigration Rules, to make it clear that rules can provide for procedures to be followed. It is clear from the terms of section 50(1) that it applies to claims whether or not under the Immigration Rules: see section 50(1)(a). As far as subsection (2) is concerned, he submits that this provision enabled changes of form without having to change the immigration rule. The requirements for an application form to be specified, set out in paragraph 34 are: 1) that it is posted on the website of the Border and Immigration Agency 2) it is marked on the form that it is a specified form for the purpose of the Immigration Rules; and 3) that it comes into force on the date specified on the form and/or in any accompanying announcement.

[23]What of Mr Mello’s argument that the way the statute and the rules are worded the specification is only for applications within the rules? Mr Blundell submitted that the specification is in respect of both applications within and outside the rules. This is seen by the references in the statute to “applications” or to “any application in connection with immigration” and the same words in the heading to rule 34. It is also seen by the fact that the forms are not specified for a purpose but for "the purposes of the immigration rules”, ie all purposes and not for a type of application. These matters show that the specification applies to both categories.

[24]I have concluded that, while the language of the legislation and the rules is not entirely free from difficulty, Mr Blundell’s submissions are correct and I accept them. It follows from this that the form applied to this application. It also follows that Rule 34A(vi)(a) applied to this decision. That states:

"…the application or claim must be accompanied by the photographs and documents specified as mandatory in the application form and/or related guidance notes."

If that is so, non-compliance is, according to paragraph 34C, fatal to the validity of the application. Mr Blundell submitted that, given the number of applications made and the need to consider them with expedition, there needed to be a system in place which had clear-cut rules. This is clearly so, but the apparent absence of any discretion in paragraph 35C is on its face startling.

[25]The defendant's Immigration Directorate Instructions concerning specified application forms and procedures do, however, provide for some flexibility. Section 18 is headed “discretion” and recognises that there is an element of discretion. The relevant part of paragraph 18.1 states: "The requirements have been limited to things which are relatively simple to check, important to the decision making process and which applicants should normally have no difficulty in complying with. The exercise of any discretion should therefore be confined to exceptional circumstances, and must be authorised by an officer of at least SEO level … Specific examples of where the exercise of discretion should be considered are given within the relevant preceding sections of this instruction.”

[26]And as far as photographs are concerned, the relevant paragraphs are in Part 8 of the instruction. Paragraph 8.2 deals with the exceptional circumstances in which applications supplied without the required photographs may be treated as valid. It provides: "The application should be accepted as valid where one photograph meeting the mandatory formatting requirements has been provided. In such cases, there will be no need to request an additional photograph. Similarly, an application may be accepted as valid when an applicant is unable to provide photographs because they are temporarily incapable of doing so because of a serious illness or accident. Written medical evidence should be provided as verification. In such cases, caseworkers will still need to request photographs as part of the consideration and decision-making process but the application should not be treated as invalid. An applicant should always be required to produce photographs as part of their application unless there are extreme extenuating circumstances – for example, if there is written evidence from an appropriate professional that somebody included in an application is terminally ill or a new-born child in special care.”

[27]As far as the failure to provide at any rate a photograph of the claimant is concerned, paragraph 4 of the grounds states that the photographs were not provided because of "practical difficulties" but does not give any explanation as to what those practical difficulties were. The covering letter’s reference to a photograph of the applicant and her friend suggest that something may have gone wrong. The application, when resubmitted, contained no explanation for the failure. No material was put in front of the Secretary of State at that time for exercising discretion to treat the application as valid.

[28]When one looks at a particular claim of an individual, who is, as this claimant is, a young woman with two young children, it is easy to suggest that it is wrong to insist on technical requirements. But it was not until the claimant's statement dated 26 June that there has been any explanation for the absence of the photographs. That explanation was given to meet the argument based on delay. Moreover, the claimant’s explanation does not fit with what was said by her solicitors in the grounds, and the absence of any explanation when the application was resubmitted. Mr de Mello was right to remind me that applicants and claimants are not to be blamed for the failures of their legal representatives but, equally, the Secretary of State cannot be expected to exercise discretion unless material upon which she could properly exercise discretion was before her at the relevant time.

[29]In this case the application form makes it clear that the photographs are mandatory. The covering letter states they are provided. The resubmitted application gives no reason for an exercise of discretion. Insofar as Mr de Mello's submissions rely on discretion, this is not a case like Forrester'scasewhere the grounds for exercising discretion were before the defendant but the defendant did not exercise it. Mr Blundell, who appeared in that case as well, is said by Sullivan J to have maintained the defendant's position notwithstanding Sullivan J's indications that it was wholly perverse. The present case is in a sense a hard case, but, given the material in front of the defendant, those epithets cannot apply to the decision taken.

[30]For these reasons, on the substantive aspect of the claim, I am going to give permission but I am going to refuse the claim.

[31]There remain several points. First, there is the JH (Zimbabwe) point. Although it was not at the forefront of Mr De Mello's submissions, he submitted that case is distinguishable. In that case the Court of Appeal rejected a submission that the first application was invalid because it was for limited leave on the wrong form. Richards LJ at paragraph 22 stated that the defendant's submission to that effect was hopeless. The claimant in that case had signed a form for indefinite leave to remain although that application was fatally doomed. The defendant argued that the application on the form for indefinite leave should be treated as an application for limited leave. That was rejected. So in that case JH had made an in-time application for indefinite leave. Although, as Richards LJ stated, her position meant that it was doomed to failure, it was valid and as such, on any view, the statutory extension of leave pursuant to section 3C of the Immigration Act 1971 was triggered. The issue for the court was whether the later valid application was a variation of the earlier one for ILR and permitted within section 3C(5); was a second application prohibited by section 3C(4); or whether it was a withdrawal of the earlier application. Richards LJ held it was the first of these alternatives.

[32]Moreover, in that case the defendant had treated the first application as valid. Indeed the matter had gone before the tribunal and, on the second reconsideration, the tribunal of its motion raised the question of the validity of the application. Those circumstances are truly extraordinary. Here there is no possibility of a variation of an application within section 3C(5) because, in the light of the rules that apply, the Secretary of State complied with the requirements for treating the application of 28 August as invalid. There was therefore no application before the Secretary of State to vary before the expiry of the claimant's leave. There was no material, for the reasons I have given, upon which the Secretary of State could be said to have acted illegally in not exercising discretion in respect of the first application.

[33]Finally, there is the question of delay. I would have been reluctant to dismiss this application on the grounds of delay. I have therefore considered the substance. The claimant's witness statement states in paragraph 1 that she is disappointed that the defendant is seeking to knock out her claim on the grounds of a technicality. Nevertheless, it must be said that, although she has explained parts of the delay, the delay as a whole between 5 January and 30 October 2009, when the application was launched, is not explained by the undoubtedly tragic effect of her aunt's death on her, because that only occurred on 7 August. The real cause of the delay was a deliberate decision to lodge an appeal to the AIT despite the fact that the Secretary of State had said that the first application was invalid and the second application was therefore made after the period of leave had expired. It would appear that the delay between January and April 2009, when the decision of the second preliminary hearing was known, was caused by that decision. My reluctance to dismiss the application on the ground of delay is because I bear in mind what Sedley LJ has said about not foisting the consequences of professional advisers’ decisions on the claimants in these situations.

[34]This is a case in which the effect of the defendant’s decision does not mean that the claimant will be removed, let alone removed to a country in which there are serious human rights concerns. Her situation has changed even since the launch of these proceedings by the birth of her second child and what she has recently said about the dynamics of the relationship with the father of that child. There is also the question of where in all of this her own mother fits. There has been no challenge by the claimant to the Secretary of State's references in the notice of decision and the covering letter to the fact that, as at the beginning of January 2009, the claimant's mother was either living in the United Kingdom or that she had named her mother as an emergency contact in the context of her rental property. These matters will no doubt have to be considered if the Secretary of State decides to take enforcement action.

[35]When the Secretary of State does that, it will be desirable for the background to this case to be looked at carefully. The Secretary of State is entitled to expect claimants to comply with strict requirements, but the questions to which I have referred in the decision letters in this and in the earlier case that I dealt with today, mean that it is reasonable for me to remark that the court does expect the Secretary of State, with all the pressures of a caseload that is very large, nevertheless to look at these cases carefully and, where a mistake or a difficulty has arisen, when reconsidering the case to take account of that fact and exercise special care.

[36]Accordingly, for the reasons given, leave is given in respect of the validity of application point but leave is not given in relation to the Article 8 point or the “no appealable decision” point. I do not need to reach any firm conclusion on the effect of delay. Mr Blundell has not been able to obtain instructions or full instructions on the effect of the most recent statement by the claimant. The Secretary of State will no doubt want to consider all those factors when the claimant’s position is next considered. MR JUSTICE BEATSON: I am grateful to both of you. MR BLUNDELL : My Lord, I am very grateful for that very clear judgment. Obviously the comments that your Lordship has made about mistakes in the case I am sure that (inaudible) the Secretary of State (inaudible) the Treasury Solicitor. My Lord, again just one consequential matter. MR JUSTICE BEATSON : I know this claimant is publicly funded, so we just have an action replay of the order in the last case MR BLUNDELL : My Lord, I am grateful. MR DE MELLO : My Lord, two things. Would your Lordship consider granting permission on the first point, which you considered carefully, but given the nature of the language of section 50 combined with the rules is of some importance? MR JUSTICE BEATSON : Yes. You are asking for it under the second limb rather than the first limb? MR DE MELLO : Yes. MR JUSTICE BEATSON : Have you got the appeal form for me? I thought that's what you were reaching for. Thank you. I think that given the ... I am going to give you permission on that point. Would you like to be heard first? MR BLUNDELL : : My Lord, it may be a redundant exercise. MR JUSTICE BEATSON : No, no, no. As you will know, Mr Blundell, I have even withdrawn a judgment after giving it MR BLUNDELL : Your Lordship is completely open-minded. I do appreciate that MR JUSTICE BEATSON : It can sometimes be really problematic. But at least I have told you that I half told you where I am coming from. I am not sure whether this case satisfies the public importance test, but I have some concern about the way in which strict requirements are applied and whether the Court of Appeal should have an opportunity to look at that, but you say what you want to say. MR BLUNDELL : My Lord of course, but can I just make these points? First of all, in my submission this does not meet the public interest, the second limb of the appeal test. It is not a point which is coming up frequently or in lots and lots of cases. This is the first time certainly I have come across the argument. Your Lordship has given a very clear ... MR JUSTICE BEATSON : You said that about my last judgment. Do you always say that when you win? You know it is rather like the little boy who cries wolf. If you say it about every judgment people will stop believing you, knowing that of course the judge always likes to feel that his judgments are clear. But as Mr de Mello will know that I take all that with a pinch of salt. MR BLUNDELL : My Lord, I feel I have to say that about your Lordship’s judgment. It’s correct, it was an extremely clear judgment but my Lord, it does not satisfy the burden of public interest point. There aren’t a huge number of cases on this issue. It is an extremely narrow point and one in which the answers in my submission are perfectly clear, and it is the answer that your Lordship has given. What made this case unusual in my submission were some of the difficulties around the facts, what in your Lordship's words made it a “hard case”. Obviously your Lordship has made comments that will be fed back to the Secretary of State now, but that has to be hived from the narrow issue of law which Mr De Mello has been dealing with. In my submission, it does not meet that second test. I am grateful, my Lord MR JUSTICE BEATSON : Mr De Mello. You saw that I hesitated. MR DE MELLO : Yes. MR JUSTICE BEATSON : Right. The reason I hesitated was exactly because of this frequency point and also because on the discretion point, that you haven’t got the right factual scenario for it. MR DE MELLO : No ... MR JUSTICE BEATSON : I know I have done this to you before. It is that there may be an arguable point but not on these facts. Having broken my first rule of judging which is always to hear both sides, I am teetering. So just say what you would like to say. MR DE MELLO: My Lord, on the question of no other cases it is because throughthe industry of Mr Muman this (inaudible) point, it would affect all the others. A lot of applications are being made outside the Immigration Rules. There should be clear indications as to how those applications ought to be treated. It is not good enough of the Secretary of State to say that the present paragraph 34 of the Immigration Rules applies across the board without any clear guidance. The way the forms are set out, particularly taking away the discretion, the discretion being contained of course in the external document and leading to an immediate sanction containing 34B and 34C. It becomes important for this diktat (?) to be publicised widely and the Court of Appeal should have the opportunity to look at it because of the way the rigid structure of the Immigration Rules through the new procedure has been implemented. The delegated legislation has vanished and the Secretary of State now has introduced this through this mechanism and it is right and proper that the Court of Appeal should have a look at it. My Lord, just one more thing, irrespective of what I have just said to you. I think your judgment will be the same, as I understand it, notwithstanding that I said something about the child's photograph being included .... MR JUSTICE BEATSON : I think…my judgment is assuming that the child's photograph was there. MR DE MELLO : Yes. MR JUSTICE BEATSON : I think the Secretary of State was lumbered with that in this context. It does appear to be that way from the bundle MR DE MELLO : Yes, and your decision therefore is ... MR JUSTICE BEATSON : Yes. MR DE MELLO : (inaudible) For those reasons we say it is of some public importance and the fact that it has not been picked up before is an indication that ... MR JUSTICE BEATSON : (inaudible) MR DE MELLO : Yes, absolutely when he told me about it, I said it is a point worth looking at. MR JUSTICE BEATSON : Yes, well I am going to display the fact that I am open-minded by saying that I think the fact that now that Mr Muman has seen the point, this may become similar to what last year was called the BA (Nigeria) point. This may be an incipient thing that the Court of Appeal ought to hear but not in a context where the facts are fragile and we are only concerned with the second limb. I think that their Lordships ought to decide whether they want to hear it. You know Mr De Mello, it depends who you get, they may well decide they want to hear it MR DE MELLO : Right, yes MR JUSTICE BEATSON : But there we are. So I will just fill in the form and I will tell you what I say. MR DE MELLO : Yes, of course. MR JUSTICE BEATSON : What I have said, Mr De Mello, is that application was made on the basis of the public interest limb of the test in CPR 52. The point is not one that is coming up frequently. It is also a fragile one on the facts of this case. Thank you. MR DE MELLO : Thank you very much. MR BLUNDELL : Thank you, my Lord.

Cited in 1 later judgment

Fu, R (on the application of) v Secretary of State for the Home Department 2010