Rameez, R (On the Application Of) v Secretary of State for the Home Department [2013] EWHC 4302 (Admin)

[2013] EWHC 4302 (Admin)Case No CO/11871/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 14 October 2013
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE TURNER
Between
THE QUEEN ON THE APPLICATION OF RAMEEZClaimantv
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 7404 1424(Official Shorthand Writers to the Court)
Mr Sharaz Ahmed (instructed by 12 Bridge Solicitors) appeared for ClaimantMr Zane Malik (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]The claimant in this case is a citizen of Pakistan. He came to the United Kingdom on 25 September 2009 with entry clearance as a student. That was valid from 11 September 2009 to 31 November 2011. Towards the end of that period, on 26 June 2007, he was issued with an EEA residence card on the basis of his marriage to Jana Cerna, who is a citizen of the Czech Republic who then lived in the United Kingdom.[2]The matters giving rise to the substantive issues before me commenced on 26 June of this year. The claimant had spent some time in Pakistan but upon his return to this country he encountered an immigration officer at the airport. An interview ensued. During the course of that interview questions arose as to whether or not the marriage to Miss Cerna was a sham. The immigration officer acting on behalf of the Secretary of State reached the conclusion that it was. In consequence the claimant's EEA residence card was revoked and he was refused admittance to the United Kingdom. The decision of the Secretary of State, which is controversial, is that the claimant's marriage was one of convenience and that the purpose was to equip him to stay in the United Kingdom where otherwise he would have no such right. Following that decision directions were issued for the claimant's removal from this country on 5 July 2013.[3]It is not in dispute that this decision was an EEA decision within the meaning of the Immigration (European Economic Area) Regulations 2006. On the face of it, therefore, the claimant had an in-country right of appeal under Regulation 26. He went to solicitors, Berkley Solicitors, who lodged a notice of appeal on his behalf to the First-tier tribunal on 28 June 2013. That was when things started to go wrong.[4]It is a requirement that a notice of appeal should, save in particular defined circumstances, be accompanied with payment of the relevant fee. Those then representing the claimant used the wrong form, and it may at least be in part a consequence of that that they did not, it now appears, proffer the relevant fee. Had they deployed the correct form it would have drawn their attention specifically to the need to pay that fee. As a result of the claimant's commencing the appeal process, directions for his removal were cancelled and he made repeated applications for bail, all of which were refused. For reasons that are not evidenced in the papers before me, those solicitors responsible for launching the appeal no longer represent him and those who represent him on this application took the matter forward, until, on 13 August 2013, during the course of one of the bail hearings, an issue arose before the tribunal as to whether or not the fee had actually been paid.[5]On the day before that, 12 August 2013, the tribunal had sent out a closure of appeal notice purporting to be addressed to the claimant and to his former solicitors. Whether or not the tribunal was aware of the identity and location of those solicitors presently representing the claimant may be a matter of dispute. Suffice it to say, however, that the notice provided for the following:
"CLOSURE OF APPEAL Your appeal was lodged on Wednesday 3 July 2013 without payment and no application for Lord Chancellor's certificate of fee satisfaction. The tribunal notified you that unless a payment of £140 was received by Monday 22 July 2013 your appeal would be closed. No fee payment has been received by the tribunal. Your appeal is therefore closed and the tribunal will take no further action on it."
[6]Subsequently, on 21 August 2013, directions were given again for the claimant's removal from the United Kingdom on 25 August 2013 on the basis that there was no pending appeal.[7]In response to these developments the claimant issued judicial review proceedings and sought an injunction to stay his removal from this country. This application came before Wyn Williams J on 23 August 2013. He considered the application and refused the application on paper on the basis that there was no pending appeal. Two days later, on Sunday 25 August, the out of hours duty judge of the Queen's Bench Division, being myself, granted an injunction pursuant to a renewed application from the claimant, having heard submissions orally from the claimant's counsel, who remains his counsel today. I granted interim relief at that stage, primarily for the purpose of finding out precisely what had gone wrong because it was not clear whether or not the fee had been paid, and there remains some issue about that.[8]Understandably, the Secretary of State complains that that there has been an unacceptable delay before an attempt has been made to rectify the situation arising out of the non-payment of the fee. In response to that, it is said on behalf of those instructing Mr Ahmed of counsel, who appears for the claimant, that they were having difficulty in getting a response from the tribunal, which was determinative of the issue. I do not find for the purposes of my adjudication today that it is necessary for me to resolve the extent, if any, to which there is some level of foot-dragging on the part of those representing the claimant. I do find, however, that there is no tactical motive behind the delay and that there is no basis upon which I could reasonably conclude that the matter has taken so long to get back in front of me in a fit state to be adjudicated upon that can be referred to as strategy and forensic tactics as opposed to a genuine belief on the part of those instructed by the claimant that they could not be sure until 1 October 2013 that no fee had actually been paid.[9]The position, therefore, is that certain questions have to be resolved by the court in order to determine whether it is appropriate that the interim relief which I granted in August of this year should be continued pending determination of the procedure before the First-tier tribunal.[10]The relevant Rules determining the powers of the tribunal are the Asylum and Immigration Tribunal (Procedure) Rules 2005, as in force from 19 December 2011.[11]The claimant has attempted to progress his arguments in relation to his appeal in two distinct ways. One way in which that argument has been put forward is under Rule 17: withdrawal of appeal. Rule 17A provides:
"17A. Striking out an appeal for non-payment of fee Where the Tribunal is notified by the Lord Chancellor that a certificate of fee satisfaction has been revoked the appeal will automatically be struck out without order of the Tribunal and the Tribunal must notify each party that the appeal has been struck out. 17B Reinstatement of an appeal struck out for non-payment of fee Where an appeal has been struck out in accordance with rule 17A, the appeal may be reinstated if – (a) the appellant applies to have the appeal reinstated; and (b) the Lord Chancellor has issued a new certificate of fee satisfaction."
[12]In my view, the claimant has an insuperable difficulty in attempting to rely upon this Rule. In this case the Lord Chancellor was never asked to provide a certificate of fee satisfaction by those solicitors previously representing the claimant. It is not, therefore, a case in which the Lord Chancellor has revoked a certificate, but one in which he has never provided one in the first place. Accordingly, Rule 17A does not apply on a plain reading of that Rule and, consequently, Rule 17B, with reference to reinstatement, cannot apply either. On that basis, therefore, I reject the contention that there is any reasonable argument that the claimant has a residual opportunity under Rule 17A or B to reinstate this appeal.[13]The basis upon which the appeal was closed was a matter that counsel were agreed upon so far as the consequences were to be taken by this court as the equivalent of a dismissal. Subject to the argument which I have rejected with reference to Rule 17 I am not further invited by the claimant to look at the question as to whether or not the original appeal could be resurrected in some procedural sense following the closure. For that reason, I make no further consideration or analysis of the legal position to the extent that neither party seeks to persuade me that there is any basis upon which that original appeal could be resurrected or reinstated. The claimant, therefore (and, it would appear, as a result of, in part at least, some encouragement from the First-tier tribunal), seeks in the alternative to rely upon Rule 10 of the 2005 Rules relating to late notice of appeal, which provide:
"(1) If a notice of appeal is given outside the applicable time limit, it must include an application for an extension of time for appealing, which must— (a) include a statement of the reasons for failing to give the notice within that period; and (b) be accompanied by any written evidence relied upon in support of those reasons."
[14]It is evident that those circumstances in which that Rule is likely in practice to apply are those in which there has been no predecessor appeal, there has simply been a delay from the time when time starts running to the time when grounds of appeal are lodged. The attempt to bring what is effectively a second appeal within the scope of Rule 10 is not supported by any example from authority of such a course having been taken previously or endorsed by the court. The element of novelty does not, however, prevent me from reaching a decision, if I consider it is a correct one, that this 1 October appeal could be brought within the scope of Rule 10. My attention is drawn to Rule 4, which identifies the overriding objective to be applied in determining the issue. The overriding objective provides:
"The overriding objective of these Rules is to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible; and, where appropriate, that members of the Tribunal have responsibility for ensuring this, in the interests of the parties to the proceedings and in the wider public interest."
It will be noted from the wording of the overriding objective that it is not drafted as encouragement to indulge one side or the other but to identify matters which relate not only to the interests of the party but also the wider public interest.[15]It is not evident to me, therefore, that the wording of Rule 4 requires me to apply any strained interpretation to the scope of Rule 10 and that it is possible to fulfil the balancing act required by the overriding objective by a straightforward and common sense approach to Rule 10. In this case I am satisfied that Rule 10 has no application to the appeal of 1 October. This is a case in which the claimant is not attempting to persuade the court to look at reasons for initial delay prior to the launching of a first appeal but in which the claimant is effectively wanting a second bite of the cherry having already previously had the opportunity to launch an appeal which would have been effective had the proper fee been paid. The purpose behind Rule 10 is not, in my view, to permit parties who have already launched potentially valid appeal proceedings which have been legitimately dismissed to try again, challenging the same decision on effectively the same substantive grounds.[16]The conclusion I reach acknowledges the fact that it is unfortunate indeed for a claimant who may himself be without blame in relation to the consequences of the procedural default but, subject to particular matters which I will come to consider later on in this judgment, the proper starting point is that set out in the case of Al-Medhawi v Secretary of State for the Home Department [1990] 1 AC 876, which is a House of Lords case to which I was referred. In that case, Lord Bridge, at page 901 at B, made the following observations: "Here again the argument proceeds from the assumed premise that where a party has been deprived of a hearing through his own solicitor's negligence there has been a breach of natural justice and a flaw in the decision-making process. I have already sought to explain why I think this premise cannot be sustained. But I would add that if once unfairness suffered by one party to a dispute in consequence of some failure by his own advisers in relation to the conduct of the relevant proceedings was admitted as a ground on which the High Court in the exercise of its supervisory jurisdiction over inferior tribunals could quash the relevant decision, I can discern no principle which could be invoked to distinguish between a 'fundamental unfairness', which would justify the exercise of the jurisdiction, and a less than fundamental unfairness, which would not. Indeed, [Sir Charles Fletcher-Cooke QC] was constrained to rest on the proposition that, in the last analysis, it was all a matter of discretion and the court could be trusted only to exercise its discretion in extreme cases where justice demanded a remedy. I am of the opinion that the decision of the Court of Appeal can only be supported at the cost of opening such a wide door as would indeed seriously undermine the principle of finality in decision-making. The effect of this conclusion in a deportation case may appear harsh, though no harsher than the perhaps more common case when an immigrant's solicitor fails to give notice of appeal under s 15 within the time limited by r 4 of the 1984 rules. But it is perhaps worth pointing out that in neither case is the immigrant left wholly without a remedy. In the case of a notice of appeal served out of time, the Secretary of State has a discretion under r 5 to extend the time 'if he is of the opinion that, by reason of special circumstances, it is just and right so to do'. In the case where the immigrant has failed to attend the hearing of his appeal to the adjudicator and the appeal has been heard and dismissed in his absence, the Secretary of State has the discretion conferred on him by s 21(1) of the 1971 Act whereby he 'may at any time refer for consideration under this section any matter relating to the case which was not before the adjudicator . . .' If such a reference is made the adjudicator is required by s 21(2) to 'consider the matter which is the subject of the reference and report to the Secretary of State the opinion of the adjudicator . . . thereon'. It would, as it seems to me, certainly be open to the Secretary of State, if persuaded that the merits of a case required it, to invite an adjudicator to hear the oral evidence of an appellant whose appeal had, through no fault of his own, been dismissed in his absence, and to report his opinion whether this evidence would have affected the outcome of the appeal.[17]In this case, the consequence for the claimant of losing his right of appeal through the conduct of his solicitors has to be placed in the balance and I have to be careful that there is no "arguable complaint" with respect to matters involving his rights under the European Convention on Human Rights. The position in this case represented to me by counsel is that the consequence of his removal from this jurisdiction following the Secretary of State's decision would be delay as he started from Pakistan the process of seeking readmission to this country and the inevitable expense and inconvenience which would be generated. I do not underestimate those consequences. Nevertheless, it has to be said that nothing has been put before me in relation to the claimant's wife. No suggestion has been made, nor evidence put before me, to suggest that she is in this country or has been in this country for the last few months. No suggestion has been made to me that there will be any element of family life disrupted as a result of a decision which effectively brought to an end the interim relief which I had previously granted.[18]In those circumstances, having reached the clear conclusion that Rule 17 and Rule 10 provide the claimant with no realistic comfort of success before the tribunal and having decided that there are no independent bases upon which it would be appropriate to forestall his removal from this jurisdiction I would order that the interim relief that I granted on 25 August will now come to an end and there will be no further order which prevents his removal henceforth.