Nasar, R (On the Application Of) v Secretary of State for the Home Department [2012] EWHC 2079 (Admin)

Case No CO/76/2012[2012] EWHC 2079 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate Wednesday 9 th May 2012
M3 3FX
Before
HIS HONOUR JUDGE PELLING QC(SITTING AS A JUDGE OF THE HIGH COURT)
Between
The queen on the application of NasarClaimantSecretary of StateDefendantfor the Home DepartmentDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No:  020 7404 1400  Fax No: 020 7404 1424Official Shorthand Writers to the Court)
The Claimant appeared in person. for in personMr Michael Baumgartner (instructed by the Treasury Solicitor) appeared for Defendant.
Judgment

HH JUDGE PELLING QC:

[1]This is the hearing of a disposal application in relation to judicial review proceedings commenced by Ms Nasar against the Secretary of State for the Home Department.[2]The underlying background to the application is this. The claimant is a national of Pakistan who was born on 7 April 1984 who seeks to challenge a decision of the 26 August 2011, which as originally formulated stated that a review had been carried out of her case and the conclusion had been reached that she had no basis to stay in the United Kingdom. A further decision was taken on 2 November 2011 informing the claimant that her further submissions made on 7 October 2011 had not been accepted.[3]The current proceedings were commenced on 29 December 2011 and on 13 March 2012 (albeit out of time) the Treasury Solicitor, acting on behalf of the Secretary of State, filed an Acknowledgement of Service. The Acknowledgement of Service in section C referred to the fact that the Acknowledgement of Service was out of time in respect of requesting an extension and then said at paragraph 2 as follows : 4. "The defendant has agreed to reconsider the claimant's case. On that basis the claimant has been invited to withdraw the judicial review application and an open letter (copy attached) was sent to the claimant on 9 March 2012. A response is awaited."[4]The letter to which reference was made referred in turn to a draft consent order that was attached to the letter. The consent order provided that the defendant agreed to reconsider the claimant's case within three months of the sealed order absent special circumstances, rehearsed that the claimant was agreeing to provide the defendant with any representations she wished to have considered by a date which was identified in the draft as 23 March 2012 and further provided that the claimant would agree to provide without delay any further information reasonably required. On that basis the draft order provided that the claimant should have leave to withdraw the claim for judicial review with no order as to costs.[5]The case came before me on paper on 18 April 2012, because by then a signed consent order had not been forthcoming, in circumstances where, on the face of it, the proposal made by the Treasury Solicitor on behalf of the defendant represented a sufficient vindication of the claimant's application to make it inappropriate to take up resources in further considering what had become an academic application. Accordingly, I directed that this application be listed for a disposals hearing, giving as my reasons the following: 7. "The Claimant is in person and the most cost efficient manner of disposing of these proceedings is by listing for disposal. On the face of it the principles identified by Ouseley J in Rathakrishnan [2011] EWHC 1416 (Admin) at paragraphs 8-10 appear to apply. If this is not the answer then the Judge will be able to make orders or set directions to the further conduct of the proceedings for the hearing.”[6]Since that order was made, two further documents have been received by the court. The first, apparently addressed to the court by the Treasury Solicitors, although only received by way of copy attached to a letter to the court from the claimant, is a letter purportedly addressed to the Administrative Court Office here in Manchester and is dated 13 April 2012. It confirms that the Treasury Solicitor acts for the Secretary of State, notes that the matter has been listed for disposal on 9 May and further says that it is intended that the Secretary of State will not appear or be represented, no doubt in order to save costs and in circumstances where these proceedings are perceived by the Secretary of State to be academic for the reasons I have identified.[7]The letter then sets out in a series of numbered paragraphs the history in a little more detail than I have so far set it out, down to paragraph 8 which rehearses the filing of the Acknowledgement of Service to which I have drawn attention. Then at paragraph 9 the Secretary of State says as follows: 10. "The defendant also provided the claimant with an opportunity to provide any further information which she wished to have considered given that her records appear to be incomplete and missing some relevant information. The defendant has requested that the claimant responds to her reasonable request for information to assist with the reconsideration of her case. By fax of the 21 March 2012 the claimant sent to the defendant's solicitors further information and copy documents attached and stated that the originals had been sent directly to the UK Border Agency. The original documents were not received by the relevant case worker in the defendant's case until 26 April 2012."[8]Pausing there, I note the careful phraseology of that paragraph. There was an implied assertion that the claimant had not sent the documents as she had claimed, but on proper analysis that is not what is being said and the delay is at least capable of being explained by inefficiencies within the organisation of the UK Border Agency. Be that as it may, the Treasury Solicitor then continues at paragraph 12 in these terms: (checked to audio as court retained bundle) "The defendant hopes that with the claimant's continued cooperation reconsideration of her case will be completed shortly."[9]The claimant wrote to the court by letter dated 4 May 2012. Insofar as is material, Ms Nasar said in her letter as follows: (checked to audio as court retained bundle) "The claimant was of the view that the signing of any withdrawal or entry into an agreement with the defendant for an out of court settlement would badly affect her interest and at the same time the case could not determine on merits. The claimant as explained above cannot enter into an agreement or withdrawal or send a notice of discontinuance or sign a consent order as it is not in her interest. Therefore she looks for a decision by the court on the merits.” This is one of those very unfortunate cases where, because the claimant is not represented and is not legally trained, there is perhaps a misunderstanding as to the functions of the court and of the effect of the consent order that is proposed. None of this is Ms Nasar's fault, for as I have said she is not a lawyer, is not legally qualified and is dealing with an area of the law which is replete with technicality. However, the position established by case-law over many years is that the court will not embark upon what will become an academic inquiry, and one of the ways in which a claim for judicial review can become academic is where the defendant, in this case the Secretary of State for the Home Department, has conceded for pragmatic reasons that there is a need for a reconsideration of the decision challenged. Once that stage has been reached, further consideration of the question whether the original decision was wrong or can be impugned on rationality grounds becomes an entirely academic exercise which is wasteful of resources and time and therefore is something that the court will not countenance. It is for that reason that the Secretary of State proposed the order that is attached to their letter to the claimant, to which I have already referred.[10]One of the possibilities available to me in a case such as this, where a further decision is going to be forthcoming sooner rather than later, would be to stay these proceedings so as to enable the claimant to file fresh grounds in relation to the issues that arise once the further decision letter has been forthcoming. This is an issue which requires careful consideration, but in my judgment the principles identified by Ouseley J in Rathakrishnan [2011] EWHC 1406 (Admin) are pertinent to that decision. Insofar as is material, Ouseley J said in that case as follows:
“9. It would be a wholly exceptional case in which a claimant could postpone the effective quashing of the decision which he sought to have quashed in order that he might at some later stage bring a different challenge in respect of a different decision based on different evidence without having to go through the necessary applications, including payment of fees, for the purposes of challenging that further decision and should thereby evade the filter mechanism and simply take his place on a seemingly adjourned renewal application. Such a process has occurred in cases where permission has been granted or a renewal hearing is awaited, with the upshot being a series of letters which may or may not constitute the decision letter, further representations often addressed to the court rather than the Secretary of State by way of unamended grounds of challenge, amended grounds of challenge which are expressed in skeleton arguments without formal amendment and real difficulty for the court in knowing what is the focus of the challenge, what are the grounds that are relied on and what material can lawfully be admitted in order to show that there was an error of law. And due fees are left unpaid. 10. It is too often that these cases have come before the court at a point where the hearing is no more than an interruption in the process of the exchange of correspondence between the Secretary of State and the claimant. This makes for a wholly unsatisfactory process of litigation.”
[11]Whilst the facts being considered in that case were different to this, and whilst the judgment contemplates that there will be exceptional circumstances which would justify maintaining the current proceedings on foot with directions being made for the filing of additional further or amended grounds, particularly where for example it may be necessary to apply on extremely short notice for injunctive relief, none of those circumstances apply in this case. Indeed, precisely the mischief which is identified by Ouseley J is likely to apply in a case of this sort if it is allowed to proceed on the basis of challenges to further decisions on the basis of revised grounds.[12]Thus the appropriate course, it seems to me, in relation to this application for permission to bring judicial review proceedings was precisely that which was identified by the Treasury Solicitor in the consent order that it invited the claimant to enter into. Clearly it is impossible for me to direct, absent consent, that the claimant co-operate or provide information and so on, and in any event my understanding is that all relevant information has now been provided.[13]So the question which arises is what to do with these present proceedings. In one sense it is tempting simply to dismiss them, but I prefer on this occasion simply to give the claimant leave to withdraw the claim for judicial review, which achieves the same objective, making no order as to costs for the reasons I have already given: that is to say that these proceedings have become academic in the light of the decision of the Secretary of State, represented by the Treasury Solicitor, to reconsider the decision previously made.[14]There is one final point which I ought to make and which perhaps ought to be drawn to the attention of the Home Department to the extent that the information is not already available to it. The point which the claimant made to me, and which is a source of obvious concern and distress to her, is that all her immediate family, she tells me, that is to say her mother and her various siblings, have been granted leave to remain, though the terms on which they have been granted leave to remain are not known to me. Her point is therefore that the Home Department appears to have focussed on her and is treating her differently from all the remaining members of her family and for reasons which have not been properly identified or identified at all. This is a factor which the Secretary of State may wish to bear in mind as she processes through the reconsideration of the claimant's application, though I make clear this forms no part of the order and is simply included in the judgment because the Secretary of State may not be able to get the information by any other means than reading a transcript of this judgment.[15]In the circumstances, therefore, the only order that I make is an order that Ms Nasar have permission to withdraw her current judicial review claim, leaving her free if so advised to bring fresh judicial review proceedings in relation to the further decision if it is necessary to do so.[16]Transcript at public expense please.