Ansar v Secretary of State for the Home Department [2014] EWHC 4361 (Admin)

Case No CO/8515/2013[2014] EWHC 4361 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 3 December 2014
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE McKENNA
(Sitting as Judge of the High Court)
Between
ANSARClaimantv
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 A Pretzell (instructed by Haris Ali Solicitors) appeared for ClaimantMiss C Rowlands (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]THE JUDGE: This is a somewhat unusual claim in that the claimant Muhammad Ansar seeks various mandatory orders from this court. They are set out at page C14 in the bundle, namely: a mandatory order requiring the Defendant Secretary of State for the Home Department to provide reasons for delay and to act without any further delay, and a mandatory order requiring the Secretary of State to concede what is described as irrefutable evidence as to the claimant's claim to paternity to a particular child along with his application under article 8 of the European Convention on Human Rights.[2]Permission was granted on the papers and in the absence of any acknowledgement of service filed on behalf of the Secretary of State by Carr J on 19 February 2004.[3]By way of background, the claimant is a Pakistani who used a false passport illegally to enter the United Kingdom, having once been removed. He then applied for leave to remain as an unmarried partner of a person present and settled in the United Kingdom on 9 August 2010, by means of a letter from his solicitor, which is in the bundle at C38 and following. In that application, Mr Ansar asserted that he had a durable relationship with Mrs Sonia Naseer whom he had met in July 2007, and that she had three children. At this stage at least he did not assert that the third of those children, was his child. Rather, he said, that he had assumed parental responsibility for Mrs Naseer's children.[4]That application was refused by the Secretary of State on 11 October 2010. A copy of the letter is at C35 in the bundle. Summarising the grounds for refusal, they were his poor immigration history, the lack of evidence to support the application, and on the basis that any interference with the claimant's right to family life was justified in the light of the need to maintain effective immigration policies. Some 16 months later on 15 February 2012, the claimant, by his solicitors, again wrote to the Secretary of State, C33 and following in the bundle, in which the following material passages appear:
"Out Client arrived in the UK in 1996 via an agent and claimed asylum at Terminal 4 at Heathrow Airport. Our client was subsequently interviewed, however his application was refused in 1998 and all appeal rights were exhausted. Our Client voluntarily returned to Pakistan in November 2002 and returned to the UK in March 2003 on a valid visa and has remained in the UK since. Our Client then submitted a FLR(M) application on 9 August 2010 and received an acknowledgement letter on 12 August 2010 which was refused on 11 October 2010. Our Client's previous representatives requested for the case to be reconsidered on 29 October 2010. We have not received any coherent progress to date. Out Client has been residing with Mrs Sonia Naseer since July 2007. Our Client's partner has been granted Indefinite Leave to remain and is of Pakistani origin. She has two children from her previous partner and has one child with our Client who was born on 5 June 2007. It is evidence that our Client has established his family and private life in the UK. We request that our Client's Article 8 ECHR is respected. Our Client submits that Mrs Naseer's children from her previous marriage consider our Client as a father-figure. She has a daughter aged 8 and a son aged 6. They have settled in school and have made close friends. Our Client's son is 5 years old. We submit that it would be disproportionate to expect the children and Mrs Naseer to return to Pakistan with our Client in order to maintain their family life. We request that discretion is exercised and our Client is granted status in the UK so he may embark upon his family life with his partner and children."
[5]On 28 July 2012 the Secretary of State responded to that letter (C30 and following in the bundle). She upheld the earlier decision, rejected the assertion that the child in question was the claimant's son in the following terms:
"Your letter now asks to consider the fact that your client has child with Mrs Sonia Naseer born on 5 June 2007, however we are well aware that this child is not your client's child as we have a copy of the birth certificate for [a child] born 5 June 2007 to Sonia Naseer and Arshad Mehmood. We are also aware that your client has tried to use deception in order to continue to remain in the UK and consideration will be given to this fact in any future applications made."
[6]The letter also concluded that as the only fresh information, as it were, was, in the Secretary of State's view, inaccurate, the Secretary of State was not prepared to reconsider the claimant's application for leave to remain.[7]On 15 May 2012, the claimant's solicitors wrote a further letter to the Secretary of State and under the heading "Request" the following appears:
"We request that our Client's case is reconsidered or he is granted with a full right of appeal due to his strong article 8 European Convention of Human Rights he has developed during his time in the UK."
The claimant's immigration history is then repeated in very similar terms to the earlier letter to which I have referred.[8]As counsel for the defendant submits, and rightly so in my judgment, the letter makes no fresh assertions, although there is a reference to the claimant intending to undertake a DNA test to substantiate his paternity of the child. I should say, in parenthesis, that it was submitted on the Secretary of State's behalf that that DNA evidence which was duly obtained and forwarded to the Secretary of State was not, in any event, acceptable to the Secretary of State, there being no proof that the sample tested was that of the claimant. That is a submission, however, that was only made in the defendant's skeleton argument for this hearing, and was not a conclusion which had ever previously been communicated to the claimant or those representing the claimant.[9]The claimant's solicitor then wrote a further letter on 1 August by way of a letter before judicial review proceedings which were threatened in the absence of what was described as coherent progress within the next 14 days. On 29 August 2012 (C19 in the bundle) the defendant responded to that letter, and it is the contents of this letter of 29 August which forms the meat, as it were, of the claimant's claim against the Secretary of State today. The material passage in that letter is in these terms:
"In order to give full consideration to the points which you have raised, we will be required to review your client's Home Office file. It can take some time to recall the file and undertake a full review, as such we will endeavour to issue a response to you within 14 days from the date of this correspondence. If we are unable to meet this deadline we will contact you to discuss an extension to this time scale."
[10]It is common ground that the Secretary of State neither provided a response to the letter within the 14 day period nor contacted the claimant's solicitors to discuss an extension of the time scale, and on 19 July 2013 this judicial claim was issued.[11]So far as relevant law is concerned, I was referred by counsel for both parties to various authorities on the subject of legitimate expectation. Counsel for the claimant referred me, in particular, to R(Nadarajah) v SSHD [2005] EWCA Civ 1363 and, in particular, to the discussion about legitimate expectation in the judgment of Laws LJ which begins with the arguments at paragraph 59 and then has his conclusions beginning at 66. At paragraph 68, Laws LJ says as follows:
"The search for principle surely starts with the theme that is current through the legitimate expectation cases. It may be expressed thus. Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. That being so there is every reason to articulate the limits of this requirement – to describe what may count as good reason to depart from it – as we have come to articulate the limits of other constitutional principles overtly found in the European Convention. Accordingly a public body's promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body's legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances."
[12]I was also referred to the later decision of Mr Justice King in Geraldo v SSHD [2013] EWHC 2703 (Admin), a case involving the so called legacy cases where it was asserted that there was a legitimate expectation that cases that fell within the legacy programme would be decided by July 2011 and that it was therefore unfair to change the usual practice to grant indefinite leave to remain to a practice of three years discretionary leave to remain which could be extended and eventually lead to settlement. In particular, I was referred, in this instance by counsel for the defendant, to what was said by King J at paragraphs 102, 103 and then 108 and following on the subject of delay.[13]What is said on behalf of the claimant is that the effect of the letter 29 August 2012 was such that the claimant was entitled to assume that the defendant was going to recall the claimant's file, was going to undertake a full review of that file, and was going to undertake that full review in the light of the matters raised by the claimant's solicitors in correspondence, to which I have already referred, and that the defendant was either going to do all of that within 14 days or, if not, that the defendant would contact the claimant's solicitors to discuss an alternative time frame. In fact, as I have recorded, the defendant did neither, hence this claim. The defendant, it is said, has consistently failed to offer any explanation for the delay, and that delay is, in all the circumstances, unreasonable. I should add that the claimant also prays in aid the duty imposed by section 55 of the Borders, Citizenship and Immigration Act 2009 with regard to safeguarding and promoting the welfare of children, and submits that the defendant knew that the application involved the claimant's biological son, and yet she did not deal with the claimant's request for a review, notwithstanding that the best interests of the child would have required a consideration in a timely manner.[14]In his oral submissions to the court this morning,which appears nowhere else in the papers, counsel for the claimant also relies on a document entitled "Requests for removal decisions". As for this latter document, it is fair to observe, however, that at no stage before this morning, has the claimant referred to this document, nor has he asked for a removal direction to be made, and there is no relevant relief sought in this claim in respect of any alleged failure on the part of the Secretary of State to comply with the provisions of that document. To my mind, that is perhaps not surprising given that the claimant does not, as it seems to me, fall within the policy in any event.[15]Turning now to what I have previously described as the meat of this claim, I do not accept the characterisation of the letter of 29 August in the way that it is put forward by counsel for the claimant. It is not, to my mind, a clear and unequivocal statement as is required by the doctrine of legitimate expectation. The letter, or the paragraph, relied upon by the claimant is in two parts. The first part indicates that the Secretary of State:
"will endeavour to issue a response" within 14 days. Those words are, to my mind, plainly conditional, and the letter plainly anticipates that the 14 day target period might not be achievable. I think it is fair to say that counsel for the claimant concedes that were he to be relying on those words alone he might be in some difficulty in the argument that he puts forward. What he says, however, is that there is a second part to the paragraph which is in these terms: "
If we are unable to meet this deadline we will contact you to discuss an extension to this timetable." That, he says, in effect, makes the difference.[16]I am afraid, with respect, I disagree. I do not think those words import anything like what it is said they do, on the claimant's behalf. The substance of the letter taken as a whole, it seems to me, is not one of a promise from which it would be unconscionable on the part of the Secretary of State to resile. It is really no more than an expression of hope, and the more, or less conditional, wording that the claimant's solicitors would be contacted to discuss a timetable does not seem to me to change the essential characterisation of the letter as being conditional.[17]Nor do I accept that the Secretary of State has by her letter indicated that a full review would necessarily take place. All the Secretary of State has said, in effect, is that she will look at what she has received from the claimant and effectively she is entitled, as it seems to me, to take whatever action she reasonably considers appropriate in respect of those documents. She has not, by the letter of 29 August, committed herself to making a fresh decision, a decision or a course of action for which there was no duty on her behalf in any event, she having already made the original decision and having once reconsidered the decision in the 28 April 2012 letter, in the light of the submission made at that time that the third child was indeed the claimant's biological child.[18]It does not seem to me that the later submission of purported DNA evidence takes the matter any further forward. Moreover, as it seems to me, even though the defendant did not respond to the claimant's correspondence, and it is of course regrettable that the Secretary of State has for so long failed to respond, any response would only ever have been a reiteration of what was said in the 28 April 2012 letter.[19]It was submitted on behalf of the Secretary of State that in order for the claimant to get home on his argument, even if I was with him on the construction of the letter, there would have had to have been some detriment and it was submitted there was no detriment to the claimant in having to wait for any further response. Counsel for the claimant sought to counter that submission by suggesting that there was some detriment to the relationship between the claimant and his, on the claimant's case, biological son because of the failure to make a decision speedily. I do not accept that submission for a minute. I am not persuaded that the claimant has in any way acted to his detriment in reliance on the letter of 29 August 2012.[20]It follows, in my judgment, therefore that the claimant plainly is not entitled to the relief which he seeks. Rather, what he should have done was to have sought judicial review of the original decision or, having asked for a review, the refusal to change the original decision in the letter of April 2012. It is, and of course has always been, open to the claimant to make a fresh claim. And that too, as it seems to me, is another basis on which this claim ought to fail, judicial review being a remedy of last resort.[21]For all these reasons, therefore, I refuse this claim, which should be dismissed. Costs presumably follow the event. I have seen a costs schedule. Have you, Mr Pretzell?[22]MR PRETZELL: My Lord, no, I have not seen it.

THE JUDGE: Do you have a copy, Miss Rowlands?

[24]MISS ROWLANDS: Yes.[25]THE JUDGE: Shall we deal with it this way. Miss Rowlands, you ask for your costs in this sum. Mr Pretzell, do you need a little time to look at it?[26]MR PRETZELL: My Lord, I have not had the opportunity, so I would appreciate a moment.

THE JUDGE: All right.

[28]MR PRETZELL: My Lord, the only observation I have in respect of page 2, work done on documents, is that the 10 point something hours seems to be somewhat excessive bearing in mind the narrow issues of this claim. The second observation I would have is that the attendance at hearing, which is point (b) on the subsequent point, is not 4 hours because we have only been here for 2. Other than that, I cannot resist on the issue of costs in principle for obvious reasons.[29]THE JUDGE: Thank you very much. Yes. Two points then. Costs of attendance today should be paid by the claimant in any event. With all due respect to whoever is sitting behind you, and I do not criticise him for being here, I do not consider that the claimant should have to pay that as well.[30]MISS ROWLANDS: My Lord, it is not exactly a fast track trial. Judicial review is (Inaudible).[31]THE JUDGE: I know, but. Go on.[32]MISS ROWLANDS: I am in your Lordship's hands.

THE JUDGE: And work done on documents?

[34]MISS ROWLANDS: It does include the preparation of detailed grounds of defence, which really should have been under counsel's fees rather than work done on documents. That maybe explains why it is higher than it perhaps might otherwise have been.[35]THE JUDGE: Thank you for that. I order that the claimant should pay the defendant's costs of the claim summarily assessed at £4,474. I simply deducted £640, attendance at today's hearing.[36]MISS ROWLANDS: So be it, my Lord.

THE JUDGE: Thank you both very much.