Solaja, R (On the Application Of) v Secretary of State for the Home Department [2013] EWHC 3431 (Admin)

Case No CO/13497/2012[2013] EWHC 3431 (Admin)IN THE HIGH COURT OF JUSTICEADMINISTRATIVE COURTSitting at:Venue Manchester Civil Justice Centre1 Bridge Street WestVenue ManchesterM60 9DJDate Monday, 12 August 2013
Before
HIS HONOUR JUDGE WAKSMANSitting as a Judge of the High Court
Between
THE QUEEN ON THE APPLICATION OF SOLAJAClaimantSECRETARY OF STATE FOR 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)
Mr A Mustakim (instructed by Spring Solicitors LLP) appeared for Claimant.Mr V Mandalia (instructed by the Treasury Solicitor) appeared for Defendant.
JudgmentHHJ WAKSMAN QC:
[1]This is an application brought by way of judicial review to challenge a decision of the defendant, the Secretary of State for the Home Department (“the Secretary of State”), made by a letter dated 20 November 2012. In that letter the Secretary of State refused the claimant’s application for leave to remain under the Tier 1 points based system because he did not satisfy the maintenance requirements under Appendix C. As I shall explain hereafter, strictly speaking there was indeed that failure to meet these requirements.[2]The background to this matter is as follows. The claimant, Mr Solaja, came to this country from Nigeria on 12 September 2009 under the Highly Skilled Migrant Programme (HSMP) for which he was given leave to remain for approximately three years until 5 August 2012. His wife, together with their daughter who was born on 25 May 2007 and was therefore two years old at the time, joined him on 5 May 2010. On 3 August 2012 the claimant then applied for extended leave, effectively permanent leave, to remain as a Tier 1 Migrant under what by then was the points-based system and for a biometric residence permit. The relevant validation requirements at that stage included the payment of a fee of £1,500 for himself and £750 for his dependants. It is common ground for reasons I shall explain hereafter that he failed to pay the correct fee and instead paid a fee of £500 plus £250. That application was rejected as invalid for that reason some time later on 17 September 2012.[3]He resubmitted an application on 24 September including the correct fee. However, the decision under challenge rejected that application not because of the question of fees but because if the bank statements, viewed for the period 6 June to 4 September 2012 we analysed, the minimum £1500 credit balance was not throughout, for example on 21 August. I should add -- and it is in my judgment a very important factor in this case -- the original fee of £750 was collected by the Secretary of State on 8 August and was not remitted back to the claimant’s bank account until about 28 September.[4]One might ask how it was that the defendant had bank statements running to 4 September and a little beyond if the claimant had made his application on 3 August. The reason is this: that on or around 10 September, he made the necessary further application in relation to his dependent children. That would still have been in time notwithstanding the expiry of the earlier leave on 5 August because of the 28-day period from expiry which meant that provided the application was made less than 28 days after the expiry of the last leave the applicant would not be regarded as an overstayer. It seems that in the material submitted in the latter application a slightly later set of bank statements were submitted, hence their later end date.[5]The claimant makes two points by way of challenge. The first is that when the Secretary of State looked at the 90-day period in which to assess the holding of £1500 for the purpose of gaining the necessary ten points, she should have looked at a period which ended at the date of the first application, that is, 3 August, and not some later date. I shall refer to this as “the fresh application point”. It is accepted by the defendant that if the claimant succeeds on the fresh application point, then the claimant had complied substantively with the funding requirement and leave ought to have been given.[6]However, if the claimant’s contention here is wrong and it is contested by the defendant, the second ground of challenge is that the defendant, albeit finding that the claimant was strictly in breach of the maintenance funding requirements, should have gone on to consider whether or not to exercise a discretion so as to grant leave in any event. The remedy sought in this application is the usual one if the claimant succeeds, which is to require the defendant to reconsider that discretion. It is not for the court to pronounce what the outcome of that discretion should be. It is also accepted by the claimant that it is not in each and every case that the defendant should go on and consider the position more widely than the compliance with the Rules so as to go through a discretion exercise inevitably.[7]What the claimant says here is that there are sufficient unusual and/or exceptional circumstances to impel the defendant at least to give consideration whether or not to exercise that discretion.[8]There was a third point canvassed in the claimant’s skeleton argument, in fact taken as a first point, which is whether the collection of the fee and an acknowledgement letter gave the claimant some legitimate expectation to proceed upon the basis that the claim was in fact valid first off. That specific contention is not now pursued before me although some of the points made in relation to it reappear when I have to consider the question of discretion.[9]That is by way of background. I next need to say something more about the facts. It is not disputed that the claimant and his dependants have lived in this country without incidents or trouble in any way since their arrival. The claimant has made good use of the three years afforded to him. He is a lawyer qualified in Nigeria and in the time spent here he has re-qualified as a solicitor who will in due course or would have in due course been able to practise in England and Wales. He has undertaken and passed the conversion course, he has completed the relevant training contract period with a firm called Henrys in Manchester and if he if he were to have obtained leave to remain I am told he would then be in a position to obtain a practising certificate.[10]The story really begins with the original application form and some guidance which accompanies it. The guidance notes, which are replicated at page 22 of the bundle, say as follows: “For an application made on this form as a Tier 1 Migrant there is a fee of £1500” and then later it says that there is a dependant’s fee of £750, but it goes on to say this: “Reduced fee where applicant has a valid HSMP approval letter: applicable transitional arrangements.Where a Tier 1 (General) applicant has a valid HSMP approval letter, but has yet to obtain the associated leave to remain, the fee payable is £500” and then it would be £250 for a dependant. Over the page there is reference made to those transitional arrangements. The position was that the HSMP scheme from about 2009 was effectively taken out of existence and replaced by the general points based system. The last line of the wording at page 23 says that HSMP approval letters are valid for a period of six months from the date of issue. It is common ground in this case that the claimant did indeed have a valid letter of approval for the purpose of HSMP from about April of 2008. However, since those letters are only valid for six months, it was manifestly out of date. Indeed, as Mr Mandalia for the defendant accepted, really any reference to discounted fees or HSMP as at 2012 is completely anomalous because by definition all of those letters would be out of date and they could not serve any purpose to any applicant, so that the notion of any discounted fee was entirely redundant and irrelevant. What happened here however was that Mr Solaja, taking the rubric on the first page at face value, considered, mistakenly as it turns out, that he was eligible for the reduced fees. It is not suggested that this is anything other than an honest and genuine mistake. It will be seen hereafter that when it was drawn to his attention that the higher fees where payable, he had the funds to do so it appears without any real difficulty.[11]The application was sent in on 3 August. It was acknowledged on 7 August. All the acknowledgment says is that the application would be passed to a caseworking team for validation which would deal with things like fees, passport photographs and so on, and consideration, in other words on the merits, looking at the relevant points sought to be achieved. That is all that that letter said, and that was on 7 August. On 8 August the payment was taken. It would be taken because in the application form the relevant bank details and debit card details had been provided. Nothing further happened until 17 September when Mr Solaja received a letter saying that the required fee of £1500 and £750 had not been paid. It did not consider that any exception to the requirement to pay applied to the case:
“your application is invalid and we are returning your documents”
. It sets out what the correct fees are and the steps to be taken “to ensure that you make the correct payment when returning your application”. It then goes on to say this:
“Making a valid application, that is, one on the correct form which complies with the above requirements does not guarantee the application will be successful. The application will be considered on its own merits and where appropriate, in accordance with the Immigration Rules and published policies.”
What then happened is that Mr Solaja made a further application with the correct fee. On 17 December the Secretary of State had returned all the materials that had gone back to Mr Solaja, and when Mr Solaja made his renewed application he returned all those documents back to the defendants. They included the bank statements. In his letter of 24 September accompanying his application, which he described as referring to the returned application, he said that the fees the he had paid “was out of a sincere genuine mistaken believe as to the fact that I was entitled to pay the reduced fees because I had a valid HSMP approval letter. I was led to this believe because of the provisions of the payment guidance notes on the application form on page 4”, and I have recited the relevant passage. He said, “As you would know I applied for Approval on the 6th Feb 2008 and got an approval in April 2008”, and then he makes further reference to the guidance notes. He says that he was told by a member of staff at the Immigration Enquiry Bureau on 19 September that there was confusion because the form applied to two sets of applicants. He then asked their indulgence to consider the application as returned with the appropriate fees for exceptional compassionate circumstances. He then sets out what those circumstances were: a host of examinations; the fact that his wife was now studying in England at university and paying fees at an international school for £9,000 a year while preparing to start her second year at university; he had a job and was settling down into his profession; he had been economically self-sufficient and had not recourse to public funds since he came to the UK; he had maintained himself and his dependants and was still ready and able to do so; he had spent £7,000 on studying since coming to the UK; he wanted to say the he now makes a claim for £1500 and £750 in respect of the wife separate to the £500 and £250 initially paid which he has not received yet (in other words, he has not had them back) but somewhat diplomatically says “I would not mind getting a refund later on” and then referred to established legal principles that to deny him consideration of the application would be interfering with legitimate expectations, Human Rights Act implications including section 55 of the 2009 Act on the question of children. That is acknowledged in turn on 4 October and on 20 November the application is rejected on the grounds that having assessed the maintenance funding period for 90 days from 6 June to 4 September, there was evidence that it had fallen below £1500 on several occasions, for example on 21 August 2012.[12]I interpose here to say that it would appear that given when the second application was made, the Secretary of State did exercise some discretion in terms of at least primary validation in the sense that it accepted the application albeit that it was now out of time more than 28 days since the first period of leave had expired.[13]It is necessary to say something about the bank statement position. What it effectively shows if one takes the period to 4 September that everything is well in order until about 15 August, before then there is more than £1500 in the account and indeed on some occasions more than £2300 in account. There is however on 15 August a diminution to around £1000, though it would appear for one day, and the next incident is on 20 August when the figure drops to some £781 and it goes as low as £730 on 23 August, up to £1000 and then towards the end of August £600-£800, mainly nearer the £800, until 4 September. It has to be recalled that the £750 payment was taken out on 8 August and prior to that date there was no difficulty in meeting the £1500 requirement. It is accepted by Mr Mandalia realistically and correctly that if that £750 had come back timeously or indeed in something like a week after it had been collected, then for the remaining period to 4 September the £1500 threshold would have been met, bar perhaps for a few pounds on one or more days, but it was not suggested that that would not have attracted some degree of discretion on the part of the Secretary of State. In short, and I will consider the significance of this hereafter, the fact the £750 had been paid and retained by the Secretary of State, although it was not part of the second lot of fees, has made all the difference in this case when one considers the points-based requirement.[14]Against that factual background I turn to the issues which have been raised. The first issue is whether in fact as a matter of law the Secretary of State should have treated the second application as in some way still a manifestation of the first and, even if so, with the effect that she should have calculated the 90-day period back from 3 August. I reject that suggestion. It is plain to me from the documents that the first application was rejected in its entirety and the claimant was asked to start again by paying the correct fees. I do not see that it can be regarded as a variation of the first application although obviously the reason why there was a second application was because of a defect in the first application, and Mr Mandalia has shown me analogous provisions that where there is a variation sought of an existing leave is must be considered, for example, by reference to the immigration rules which prevail at the time of the sought variation as opposed to some earlier point. So for those brief reasons I consider that when considering whether the funding requirement had been met, the Secretary of State was entitled to start the backwards-looking period when she did, or to put it another way, she started the forward-looking period from 6 June. The real point in this case concerns the question of discretion to consider granting leave outside of the Rules. That being the case, it is, as other judges have said in other discretion cases, a highly fact-sensitive matter. Each case must depend on its own very particular facts and I consider that that is certainly so for this case.[15]I should mention some background materials before looking at the question of discretion, and I refer first of all to the fact that the guidance to caseworkers or those dealing with such applications, of which I have a copy valid from July 2013 (but it is not suggested that it was different in 2012), says that while there can be discretion exercised in relation to the validation requirements, that does not apply to the incorrect payment of fees. They cannot be waived unless the regulations provide for that. But what the guidance does say is this, first of all at page 14: that the application is invalid and must be rejected if the correct fees have not been paid, and in the majority of cases this should be done before the case reaches the caseworking team. In other words, at least the aspiration for most cases is that before getting to substantive consideration the first thing that should be done is to check the fees and if the fees are not right it must be rejected without more.[16]The second point, which is raised at page 42, is that in terms of rejecting an application it should be rejected as soon as possible. All validation checks should be applied before they reject the application so that when it is rejected the applicant is not under the false impression that while it may have been rejected for one reason it is valid in every other respect. That again seems to me to make it plain that if at all possible the applications where they fail on a validation requirement should be rejected as soon as possible. There is obvious good sense about that, especially if time is running where the leave period has expired because it gives the applicant the best chance to put his house in order next time.[17]I should add here, though it deals with the first points that I have rejected, but I should say as a matter of completeness, at page 44 the guidance notes say that if an application is rejected as invalid but it is decided later to reverse the decision, the date of the application is the date on which the application was first made. That in my judgment has nothing to do with the fresh application point. That is where a first rejection is that decision is reversed. It was not reversed in this case.[18]The question of a timeous response where there is to be a rejection on fees has attracted some judicial comment, and I refer here to the decision of Blake J sitting with an Upper Tribunal Judge Macleman in the case of Basnet [2012] UKUT 00113 (IAC). It is not necessary to deal with the underlying facts here but the observations of the learned judge are important. He says this at paragraph 32:
“32. [...] in the future: (i) The fee is processed immediately on receipt of the application and before an acknowledgment letter has been sent. (ii) The standard letter is amended so that it constitutes an acknowledgement that a valid application has been made. (iii) In cases of a failure to collect the fee in an application made in time, there is prompt communication with the applicant to afford an opportunity to check or correct the billing data. [...] 33. The absence of such measures, or cogent reasons why they cannot be adopted, may well result in a determination that the consideration of the application has been unfair and therefore not in accordance with the law...”
[19]The particular and perhaps unusual problem that has arisen in this case is really this. First of all, there was something of a delay before the Secretary of State told this applicant that his application was being rejected. I bear in mind of course that there is considerable pressure on those who deal with these applications, many hundreds per day, no doubt, with the staff that they have. It is not possible to make an instantaneous response but here there was a delay in telling Mr Solaja about this and importantly for this case in my judgment there was allied to that delay a second delay which was the delay in refunding the £750. I am told that those who take the payments may not be those who deal with validation and therefore it is possible that someone may take a payment without any idea as to whether it is the correct payment or not. But that has in my judgment given rise to a very real unfairness, at least one that ought to be considered, because the fact of the matter is that the reason why the £1500 threshold essentially was not met for the latter part of the three-month period is not simply that there was £750 missing which was paid in good faith by the claimant, but it was a payment which had not been returned and which had been retained by the defendant for no good reason. It was not to be treated as part of the second fee. That is made plain in the correspondence. It was known and the claimant understood that he would have to submit a fresh set of fees, which he duly did. If that combination of delay had not been made then the claimant would have been in a much stronger position because he would have known at an earlier stage that he would have to make a further application and indeed could well have been within the 28-day period that was still running from 5 August. He would do so on the footing moreover that he had £1500 now still in the bank account because the £750 had come back. But also importantly in my judgment, if one analyses the bank statements as they were, had he been told timeously of his first application’s rejection, and had he resubmitted or made a fresh application timeously, then on the facts it very much looks like there would not have been a problem with the £1500 anyway, which there was no problem on until 15 August, and indeed the real dip, if I can put it in this way, and the one that was relied upon by the Secretary of State, did not occur until 21 August. So first of all he may well have been in a position, using the same materials, effectively to require the Secretary of State to take it to the starting point something in the first half of August, but in any event even if there was a later application the £750 had come back. Either way, this claimant would have satisfied those requirements. And the question of delay in my judgment is given added impetus by what the guidance says that I have referred to and moreover what is said by Blake J, though of course those are nothing more than observations, that is, not a binding rule of law. In addition of course the claimant had already made plain to the Secretary of State in the covering letter that the reason for failing to pay the correct fees was a genuine and I would say understandable error on his part. He also set out to the Secretary of State effectively his record in this country and none of that has been challenged.[20]The other factors which the claimant reminds me about are set out in paragraph 50 of his skeleton argument and which on its face were or should have been apparent to the reader of his letter and anyone who had been dealing with his application, and I see no reason not to include in that fact the fact that the £750 had not come back, namely a bona fide mistake, an explanation for the incorrect fee, the fact that the maintenance requirement was satisfied apart from the incorrect fee, excellent immigration history, a disproportionate effect of the decision on the claimant’s wife and child who have settled in the UK, and the effect of requiring the claimant to go back to Nigeria (on that point Mr Mustakim says, and it is not disputed, that because any application now from Nigeria for entry clearance would be out of time, it would be rejected a mandatory basis out of house so there is a real appearance of prejudice there) and then the reference to the delay.[21]So those are all factors which in my judgment would point towards at least requiring the Secretary of State to consider whether or not to exercise her discretion. Of course, as Mr Mandalia reminds me, there are factors which could be said to go the other way. First of all, he says, that discretion to waive the rules about threshold requirements should not be lightly given or even lightly considered. That is because the whole purpose of a very clear set of rules is to make it certain for the applicant and the recipient alike to understand what the requirement is with no room for doubt. As a general proposition I agree with that. I agree with the proposition, as I indicated earlier, that discretion is not to be considered every time an application is to be made, and that the cases in which it should be considered and exercised are bound to be rare. Mr Mandalia, in answer to a question from me, said that any applicant who is making an application requiring a level of funds for a particular period should not consider that the job is done after the application is made, because there is always the possibility it may be rejected on some technical ground which would allow him to resubmit the application when the question of funding will be viewed afresh and for a different period and therefore that he should keep the £1500 there until it is plain, at least over a reasonable period, that his application has now been substantively accepted or substantively rejected. I see the force in that. But on the particular facts of this case, where the reason why the £1500 has dipped is because the Secretary of State has been holding on to the £750 and has not come back in what I consider ought to have been a shorter period to inform him of the outcome and pay the refund, that point loses much of its force.[22]Mr Mandalia reminds me that this is a case where the claimant has chosen to make his application for leave to remain very close to the expiry of his prior leave to remain. That is true, but as Mr Mustakim has reminded me, and I am aware of this, there is a degree of urging on the part of the Secretary of State of applicants in the position of the claimant not to make the applications too far away from when the expiry dates are.[23]I have also to consider some case law. It is, I must say at the outset, of limited value because of the fact-sensitive nature of these cases. There is from the perspective of the claimant the case of Kobir [2011] EWHC 2515 (Admin)where there was an application where it was refused on the grounds of insufficient funds and there was a further application required over the Christmas period which was then met with the response that it was out of time. In that particular case it was said that if she went back to her own country entry clearance was likely to be successful. This was a recital of the fact (inaudible) by the deputy judge, Belinda Bucknall QC, in the Kobir case.In the Forrester case ([2008] EWHC 2307 (Admin)),“Sullivan J did not dispute the SSHD’s contention that the decisions accorded with the rules but pointed out that that was not the end of the matter because the SSHD had a discretion which had to be exercised with a modicum of intelligence, common sense and humanity”. The learned judge in Kobir distinguished another case, Walker [2010] EWCH 2473 (Admin), where the initial application failed because there was no photograph. It was resubmitted without any explanation for the failure. There was therefore no material on which to exercise the discretion. That was a very different case. The learned judge in Kobir also took into account a delay which she said was conspicuously unfair. Almost as a separate factor, it seems to me, that was a significantly greater delay than in this case, I think of some twelve months or something along those lines. The learned judge also said that there should have been consideration of the Article 8 rights “rights and those of his family at that time and the decision not to do so was irrational”. That was in the context of a requirement that they should leave as soon as possible, something which is mentioned in the correspondence here.[24]Mr Mandalia refers me to other cases. He refers me to a decision of Ian Dove QC sitting in the case of Pureesa (2 November 2011). He distinguished Perigreer on the facts on the basis that each of these cases is highly fact-sensitive, as he said in paragraph 30, “and the delay there caused the claimant substantial prejudice”. But again, Pureesa is different from this case. This was a case where the claimant applied to extend her leave and that was returned in October 2009 on the basis that no payment had been made at all. She therefore resubmitted it with the appropriate fees being met. But that was returned in December because the application had been made on an incorrect form. That was put right and she resubmitted the application. That application was refused on 15 February on the basis she had not demonstrated that she had the requisite funds in her account.[25]There are obvious differences on the facts between that case and this. First of all, there were two earlier attempts which failed on which it appears to be the case there was really no explanation at all, or none that would stand any kind of scrutiny. And secondly, so far as the inability to keep the funds is concerned, there was not the somewhat unusual connection between the reduction in funds and the retention of the monies by the Secretary of State that we have in this case. Further analysis of such cases is not in my judgment productive for the reason, as I have now emphasised several times, that all of these cases are highly fact-sensitive.[26]I am quite satisfied that on the facts of this case and facts which either were expressly or should have been known to those dealing with this application, it called out for a consideration as to whether the discretion should be exercised. Mr Mustakim has referred me to Article 8 considerations. That does not form a fundamental plank of his case and it certainly does not form an essential part of my reasons for agreeing with it. I note only that under the present law it would seem that where the question of discretion is to be considered, the Secretary of State would at least have to turn her mind to the question of Article 8 and section 55, though with what effect will obviously be a matter for her. Because there was no attempt to consider the exercise of discretion where I find that there should have been, I will uphold this claim, I will quash the decision and I will remit it to the Secretary of State for reconsideration. Where that will lead will be a matter for her, properly exercising her discretion. I will now hear counsel on any residual matters. MR MUSTAKIM: My Lord, there is a residual application which is regards costs in this case and I am not sure how much you would like me to address you on that. JUDGE WAKSMAN: Well, you say you should have your costs in principle. MR MUSTAKIM: Indeed, my Lord. JUDGE WAKSMAN: Well, I am going to hear what Mr Mandalia says about that. MR MANDALIA: My Lord, I do object to the application for costs. I do so because of the nature and way this claim has developed. JUDGE WAKSMAN: Yes. MR MANDALIA: If one turns to the initial grounds of claim, and there to be found at page 33, they are very different to effectively the arguments that the claimant has succeeded upon today. The claimant’s case has simply up until the end of last week been that (a) there was an error on the part of the defendant for not treating the second application as a continuation of the first application and that she then dealt with matters wrongly and given that that is the case, and given that when one looks at the amended grounds as they were put before the court they are to be found, my Lord ... I do apologise, it’s page 64 of the bundle. These are the amended grounds, the claimant having secured permission. Again, what the claimant seeks to challenge is the fact that the defendant invalidated the first application. Well, you found that the defendant is entitled to do that given the law under the circumstances. The second ground of challenge is the decision of the defendant to treat the first and the second claimant’s returned application for leave to remain as a fresh application, is again a ground of appeal disposed of and found against the claimant, and essentially this claim has only been allowed upon the issue of discretion. As you say, that is a very fact-sensitive issue, given the way that this claim has developed in my submission and given that that was not really made plain until the claimant’s skeleton argument, which (inaudible) was filed even after the defendant had filed her skeleton argument earlier last week... JUDGE WAKSMAN: I wanted to ask you about that because my copy of the claimant’s skeleton argument is dated July but it does mean it was sent to anybody in July. MR MANDALIA: It certainly was not sent to us. We received it I think on about Wednesday or Thursday of last week with the claimant’s bundle, and you will see from the skeleton argument that we filed that we made plain that we filed that in the absence of any skeleton argument or copy of refined grounds from the claimant. JUDGE WAKSMAN: And your client said that they did not appear on the oral hearing before Judge Davies (inaudible). MR MANDALIA: That is right. Of course, permission being refused on the papers and the grounds upon which His Honour Judge Davies granted permission were very different to what was being advanced on the papers previously. It was of course on the basis of what counsel said before him, and based on counsel’s skeleton argument, so unsurprisingly perhaps the defendant did not appear on that occasion and the (inaudible) claim that this is really the first opportunity in which she has had to make any submissions at all. JUDGE WAKSMAN: Now what were you saying about costs? Are you simply saying that you should not pay any of their costs? MR MANDALIA: We should not, and the appellant (inaudible) his costs. JUDGE WAKSMAN: Right, thank you very much. Well, what do say about that? MR MUSTAKIM: My Lord, We made a ground of appeal, the grounds have it set out there in paragraph 1, it is page 64, the defendant’s decision on the first and second claim was unfair (inaudible). This is what the ... all these cases is about, the principle of fairness. At paragraph 2, the unfairness was “confounded further by the practice of holding the applications for almost Seven weeks”. It is clearly set out there, my Lord. So, “The decision...”, it goes on, blah blah blah, “was made without exercising fair discretion and therefore unlawful”. My Lord, then it goes on to the next page, page 65 at the top, “is disproportionate to the Claimants right to family life under ... Article 8”, just before this is in the first paragraph of that page, paragraph 5, “was made without exercising fair discretion”, paragraph 6, this is the defendant’s duty to exercise discretion, a duty which must be exercised fairly ... “circumstances of the case which includes”, and then sets out the circumstances. So, my Lord, it is not the case. I was before His Honour Judge Davies, I produced a skeleton argument, it was given on the basis of the arguments that I put forward and then he ordered that it be amended and it has been amended. My Lord, you have decided the case pretty much according to the grounds which have been put forward, my Lord, so it is not the case that this is all new. The Secretary of State had an opportunity to reject or to concede (inaudible) these grounds and not to continue with the duties through you. My Lord, he did not, and then he lost and then he should pay the consequences. JUDGE WAKSMAN: How much are your costs? MR MUSTAKIM: My Lord, I don’t know how many ... I don’t have a skeletal summary, my Lord, but we can provide that and if your ... JUDGE WAKSMAN: So what are you asking me today to do, just to make a costs order? MR MUSTAKIM: Well, if you are agreed, then subject to detailed assessment. JUDGE WAKSMAN: That means you did not lose on your breach of a legitimate expectation that was not pursued and also on the fresh application point. MR MUSTAKIM: My Lord, the arguments which have been fitted in my respect has been in a different way albeit not in that strict formality of legitimate expectation in the strict rules that apply, my Lord. But in my respectful submission the substance of the arguments are there, my Lord, and we have not wasted court time here today, certainly on pursuing those kind of rigid arguments, my Lord. And either applicant with regard to JH point, my Lord, the Zimbabwe case, that is pretty much on fours as I explained with the 3C point which is not an issue because they concede, the Secretary of State concedes the point that the second application was one which was valid, so therefore one need not go there except for the issues of maintenance. So, my Lord, I believe that they have been dealt albeit in the way that we have looking at ... in the case you can’t expect all arguments to succeed, my Lord, and certainly it hasn’t preoccupied the court’s time and I haven’t preoccupied the court’s time on those two points, my Lord. JUDGE WAKSMAN: Yes. So this is a case where permission was originally refused... MR MUSTAKIM: Yes, my Lord. JUDGE WAKSMAN: Well, Mr Mustakim, I am not going to give you all of your costs for two reasons. First of all, the case does seem to have changed shape, certainly by the time it got to HHJ Davies, and the amended grounds which we require are certainly much closer to the points which have been made today. And secondly, although one does not always make issue-based costs orders, the fact is that you also did maintain the points about fresh -- effectively that it should go back to the original application, and breach of legitimate expectation. I appreciate on legitimate expectation you have more or less abandoned or did not pursue it with any vigour today, but that was up for grabs today, and it seems to me that that has got to be reflected. The matter has been going on since ... if I can just find the original claim ... where is the original claim made in 2012? MR MUSTAKIM: Yes, my Lord, 14 December. JUDGE WAKSMAN: 14 December 2012? MR MUSTAKIM: Yes, my Lord. JUDGE WAKSMAN: Right, what I am going to do, Mr Mustakim, is, giving recognition for those two matters, I am going to give you 60% of your costs. Alright? MR MUSTAKIM: I am grateful. JUDGE WAKSMAN: And that will have to be subject to a detailed assessment if it is not agreed. Alright? MR MUSTAKIM: I am grateful. JUDGE WAKSMAN: I am afraid you’re ... both counsel ... I am just worrying if I can give anything back here, or do you want all of this to right to your solicitors? MR MUSTAKIM: I would be grateful, my Lord. MR MANDALIA: Well, I could perhaps take the authorities bundle back. JUDGE WAKSMAN: Oh yes. And I can be of ... I think all of that goes back to Mr Mustakim. Alright? Well, thank you both very much indeed. Can I get you to draw up ... Could you draw up an order? MR MUSTAKIM: Yes, my Lord. Would you like to take it down now? JUDGE WAKSMAN: You can do it now and leave it in manuscript or you can get it emailed to the court. It’s not a problem. MR MUSTAKIM: I am grateful. JUDGE WAKSMAN: Alright? And if there is anything else you need to discuss with the Secretary if your client is going to be required to write a fresh letter or anything like that, then you can discuss that with Mr Mandalia. MR MUSTAKIM: Okay. -----------------------------------------------------------------

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