Yousuf, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 663 (Admin)

Case No CO/13095/2013[2016] EWHC 663 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 16 March 2016
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE HOLMAN
Between
THE QUEEN ON THE APPLICATION OF YOUSUFClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer aided transcript of the stenograph notes of WordWave International Ltdtrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Ms Emma Stuart King (instructed by Fadiga & Co) appeared for ClaimantMr Sarabjit Singh (instructed by Government Legal Department) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE HOLMAN: The situation in the present case raises again the question of whether it is appropriate to stay an application for judicial review when the defendant public authority has agreed to reconsider the decision in point, from scratch, with a fresh and open mind.[2]I can summarise the essential factual circumstances of the present case quite shortly for the purposes of this judgment. The claimant currently lives in Somalia. She asserts that she was born in Aden in 1949, and that by application of the relevant legislative framework to those facts she is a British Overseas Citizen and entitled to a passport as a British Overseas Citizen.[3]She first applied for such a passport in March 2012. She has never, so far as I am aware, entered the United Kingdom, and she made the application from Somalia where she lives, and made it through the Foreign & Commonwealth Office.[4]The authorities requested a range of documents to be produced in support of the application and, as I understand it, she participated in an interview with an official at the British Embassy in Addis Ababa.[5]The application was formally rejected by a decision letter dated 10 October 2012. That begins with these words:
"Your application for a British passport has been considered, and I regret to inform you that on the basis of the documentation you have provided and following your interview we are unable to grant you passport facilities."
[6]That letter is headed from the "Overseas Passport Management Unit" at an address in London SW1, but is signed by a named official who is described as "Passport Section, British High Commission Nairobi".[7]The letter included the following:
"Your application contained a fraudulent birth certificate. Furthermore, you have failed to submit sufficient family history documents to establish your identity and birth in Aden. We have therefore not been able to establish that you are the true holder of the claimed identity and we have determined that you are not entitled to a British passport."
[8]The last sentence of the letter says:
"As we cannot be satisfied that you are the true owner of the birth certificate submitted in this application, this document will not be returned to you."
[9]The letter did not contain any further elaboration or reasoning in support of the proposition that:
"Your application contained a fraudulent birth certificate."
[10]The letter stated, I assume correctly, that there is no right of appeal from that decision; and later, by a claim issued on 13 September 2013, the claimant commenced the present proceedings for judicial review of that decision of 10 October 2012 and a consequential decision of 20 May 2013. The claim for judicial review was, of course, considerably out of time, but time for bringing the claim was subsequently extended by a judge.[11]The claim named the Secretary of State for Foreign and Commonwealth Affairs as the first defendant, and the Secretary of State for the Home Department as the second defendant. It appears to be fully agreed that the correct defendant for these proceedings is, and was, the Secretary of State for the Home Department alone, and one formal order which I will make today is to remove the Secretary of State for Foreign and Commonwealth Affairs as a defendant to these proceedings.[12]So far as the Secretary of State for the Home Department (SSHD) is concerned, she filed an acknowledgment of service, very belatedly, on 20 March 2014, now almost exactly 2 years ago. That states as follows:
"On the particular facts of this case, the [SSHD] will agree to reconsider her decision of 10 October 2012 to refuse an application for a British Overseas Citizen passport on the basis that the claimant submits a new completed application form and new photographs and any further documents, if available, that the [SSHD] may request for the purposes of the reconsideration. On that basis, the claimant has been invited to withdraw the judicial review application and an open letter was sent to the claimant's solicitors on 20 March 2014. A response is awaited. It is hoped that the parties shall agree a consent order to withdraw the judicial review application."
[13]The claimant did not agree, and indeed never has subsequently agreed, to "withdraw" her application for judicial review.[14]The next significant development was that on 12 May 2014 Phillips J granted permission to the claimant to apply for judicial review against the SSHD only. His written reasons include the following:
"[...] 2. The second defendant has belatedly offered to reconsider her decision if the claimant submits a new application but does not state what documents will or will not be accepted. As the claimant's complaint is that she can only obtain a scanned copy of her birth certificate, whilst the second defendant has stated that she will only accept originals, the offer does not meet the gist of the claim nor render it academic. 3. Further, despite several extensions, the second defendant does not address the merits of the claim. It appears to be arguable. The bare assertion that the birth certificate submitted by the claimant is "fraudulent" is inadequate, particularly where the second defendant simultaneously invited the claimant to re-apply."
[15]Not a great deal of real significance appears to have happened between then and August 2015. There was three-way correspondence between the Treasury Solicitor, on behalf of the SSHD, the solicitors for the claimant, and the office of this court around the issue of whether or not the claim should be "stayed" or "withdrawn" on the basis of the offer by the SSHD in her acknowledgment of service to reconsider the whole matter.[16]This came to something of a head on 12 August 2015, when the solicitors for the claimant wrote to the Passport Office enclosing a fresh completed application by the claimant for the grant of a British Overseas Citizen passport, and submitted various documents. That, therefore, constituted (and still does constitute) "a new completed application form and new photographs [...]" as referred to by the SSHD in her acknowledgment of service.[17]The SSHD has not yet concluded her consideration of that fresh application. There is a witness statement dated yesterday, 15 March 2016, by Paul Meakin, an examiner quality consultant based within the Passport Office at Liverpool, which states that last summer he was allocated to this case, and describes his initial consideration of it and the further material that he needs before reaching a final resolution of it.[18]It is perfectly clear from paragraph 14 of that statement that Mr Meakin has what he describes as "concerns" about a number of aspects of the application and the documents so far produced in support of it. In particular, he says:
"The applicant's birth certificate is a colour scanned copy. Certified copies or scanned images of documents are not normally acceptable on their own for passport purposes as they can be obtained by anyone after the event. Where originals cannot be provided, collaborative and contemporaneous evidence as close as possible to and since the event would be requested to support the application."
[19]Pausing there, it should be noted that in that passage Mr Meakin says that copies "are not normally acceptable" and says that “collaborative evidence” would be "requested". He does not state that certified copies or scanned images of documents are never acceptable, nor that collaborative evidence would necessarily be required, if ultimately it cannot be produced.[20]Another concern which Mr Meakin expresses is that:
"The signature of the registrar on the birth certificate in column 9 and the bottom right-hand corner is in a different ink to the rest of the document."
[21]Mr Meakin continues his statement by saying that:
"In spite of these concerns and the fact that the applicant has not been able to produce all the requested evidence, it has been decided to refer her to an interview. This is to give her the opportunity to establish her identity and claim to BOC, by putting forward an explanation of why she has not been able to provide the requested documentary evidence and address the concerns pertaining to some of the documents."
[22]Meanwhile, the following situation arose in relation to the procedural aspects of these proceedings for judicial review. Despite, and subsequent to, the three-way correspondence between the solicitors and the court, to which I have already briefly referred, the solicitors for the claimant and the Government Legal Department signed on 15 February 2016 a further "form of consent" inviting the court to make a detailed order by consent, the essential thrust of which is that the present proceedings "be stayed pending the issue of a new decision", but going on to make detailed provision for further pleadings, skeleton arguments and the like in the event that, after that new decision, the claimant notifies the defendant and the court that she intends to continue with the proceedings.[23]That form of consent was placed before Cranston J for him to consider on paper early in March 2016. He refused to make a consent order in the terms that had been agreed by both solicitors, and refused to vacate the substantive hearing which had been fixed for today's date.[24]The heart of the written reasons of Cranston J. is as follows:
"I do not accept the existing claim for judicial review should be stayed pending the outcome of a new decision being made. The correct procedure is for the current claim for judicial review to be withdrawn and if a challenge still remains after a new decision is reached, then new proceedings should be issued (subject to any claim by the claimant for costs) in accordance with the principles as set out in Bhatti, R (on the application of) v Bury MBC [2013] EWHC 3093 (Admin)."
[25]Despite the terms of, and very clear steer given in, those reasons by Cranston J, who is currently the lead judge of the Administrative Court, the claimant has declined to "withdraw" her present claim. Patently, "withdrawal" is a voluntary matter for a claimant alone to decide whether to do or not to do. There is no suggestion that a claimant can be ordered or forced to "withdraw" a claim, if he or she is not willing voluntarily to do so.[26]Accordingly, the position of Ms Emma Stuart King, who appears on behalf of the claimant today, is that there are only three courses open to me.[27]First, to agree that the claim should be "stayed" as originally suggested by both solicitors and notwithstanding the decision and reasons of Cranston J. Pausing there, I make clear that I do not regard the decision and reasons of Cranston J made on paper as in any way binding upon me; and I unquestionably accept that, if I thought it right to do so, I could, today, stay these proceedings. The fact that Cranston J was not willing to stay them on paper on 4 March 2016 does not preclude me from staying them after an oral hearing with both parties present today.[28]Second, Ms Stuart King suggested that I could "decide the issues between the parties in part"; third, that I could "determine the issues between the parties in full."[29]Naturally, Ms Stuart King did not put it forward, but there is a fourth possible outcome today, which is that I dismiss completely the claim for judicial review. The one thing that I cannot compel, as I have already indicated, is that the claimant withdraws it.[30]Although I am not bound in any way whatsoever by that decision of Cranston J of 4 March 2016, nor by his reasons, I strongly agree with both the decision and the reasons.[31]I am well aware that over many years innumerable claims for judicial review of decisions of a range of different public authorities have by agreement been stayed, or "parked", whilst the public authority reconsiders the matter in point.[32]If the decision on reconsideration is favourable to the claimant, then of course the claim for judicial review is rapidly brought to an end. If unfavourable, then there has been a practice of removing the stay and reviving the pre-existing proceedings for judicial review, often on the basis of amended grounds of claim to reflect what is said in (or perhaps omitted from) the fresh decision.[33]I freely acknowledge that I will have made a number of consent orders to that effect, both on paper consideration and I expect at hearings, when the public authority often offers at a very late stage to reconsider the matter in point. But although it may appear pragmatic, it is an objectionable course. If a claim is made for judicial review of a pre-existing decision and it is agreed that that decision will be reconsidered completely afresh with a fresh and open mind, it is illogical that a pre-existing claim for judicial review should later encompass the fresh decision.[34]But it is not simply a matter of logic. There are, in my view, at least three reasons why this is an undesirable and inappropriate procedure, which I mention in descending order of importance[35]The first and most important reason is that it is quite wrong in principle that a public authority should be reconsidering a decision afresh with the court metaphorically looking over the shoulder of the public authority or the decision maker. Judicial review does not exist to regulate or micro-manage decision making by public authorities. It exists, rather, to consider the lawfulness or rationality of such decisions once they have been made.[36]In this regard, I repeat and echo some words of Munby J at paragraph 33 of his judgment in R (on the application of P) v Essex County Council [2004] EWHC 2027 (Admin), which are repeated and reproduced at paragraph 21 of the judgment of HHJ Pelling QC in Bhatti, R (on the application of) v Bury MBC [2013] EWHC 3093 (Admin) which is the authority in this field to which Cranston J referred in his written decision of 4 March 2016.[37]Munby J said that it is not part of the function of the Administrative Court to:
"[...] monitor, regulate or police the performance by the County Council of its statutory functions on a continuing basis [...] The function of the Administrative Court is [...] to review the lawfulness of a decision, action or failure to act in relation to the exercise of a public function. In other words, the Administrative Court exists to adjudicate upon specific challenges to discrete decisions [...]."
[38]If proceedings of this kind are merely "stayed" whilst the decision maker reconsiders a decision, then the important principle enunciated by Munby J in that passage becomes offended, and the important distinction between the decision making roles of public authorities on the one hand, and the court on the other hand, becomes blurred.[39]The second reason and objection is that the practice of "staying" claims in these circumstances, to be revived if the later decision on reconsideration is unfavourable to the claimant, has the effect (even if this is not a primary intention) of avoiding payment of a fresh court fee. If there is a reconsideration and a fresh decision and a renewed challenge to that decision, then the appropriate specified fee for commencing a claim for judicial review ought to be paid.[40]The third reason is that this practice of "staying" proceedings, sometimes for periods measured by years rather than months, hampers the efficient administration of the working of the Administrative Court. This is, of course, the least of the objections and reasons; but nevertheless the orderly administration of this court requires officials of the court to be able clearly to identify that a case has come to an end, to draw a line under it, and to file away the papers. A significant number of stayed cases merely clutters that process.[41]These considerations are particularly potent in a case such as the present, in which there is not merely an offer and agreement to "reconsider", but, rather, an offer and agreement to give fresh consideration from scratch to a completely fresh claim that has been made in this case. Quite frankly, everything that occurred prior to 12 August 2015 recedes completely into the history of this case and is now irrelevant, save, possibly, in relation to costs.[42]This claimant has made a completely fresh application for the grant of a passport that will be considered in due time. It may be granted; it may be refused. If it is refused, then logically this claimant should make a completely fresh claim for judicial review if she seeks to challenge that refusal.[43]Everything that I have said on this aspect so far is entirely consistent with, and in line with, the decision and judgment of HHJ Pelling QC in Bhatti, R (on the application of) v Bury MBC [2013] EWHC 3093 (Admin).[44]Today, Ms Stuart King has drawn attention to the current regime in relation to the provision of Legal Aid and public funding for claims in judicial review which, she says, should qualify what HHJ Pelling said in paragraph 27 of that case.[45]She points out that since new regulations were made in 2013, Legal Aid funding is not normally available in advance of a decision of the court to grant permission to apply for judicial review. The detailed position is more complicated than that, and derives from regulation 5A of the Civil Legal Aid (Remuneration) Regulations 2013 as amended in 2015. But the detail does not affect the broad thrust of her point, that lawyers who supply services in relation to applications for judicial review up to the stage of the grant of permission do so at risk as to costs. If permission is granted, then Legal Aid will cover retrospectively work done prior to the grant of permission, but if it is refused it will not be. If solicitors and barristers act prior to the grant of permission, they must either do so on a pro bono basis, or at any rate taking the risk whether or not permission will be granted, in which case they may retrospectively be paid.[46]Ms Stuart King says, very understandably, that this claimant resides in Somalia, and I will assume is of limited means, and would find it very difficult acting in person from afar to launch a fresh claim for judicial review. I recognise and acknowledge that difficulty, but if the current policy of Parliament is as expressed by those regulations, the court should not readily adjust its own procedures so as to avoid the effect of that policy.[47]For all these reasons, although I have considered the matter afresh, I refuse, just as Cranston J did, to stay the present claim.[48]I can see no basis on the facts and in the circumstances of this case to "decide the issues between the parties in part", which was one of the outcomes suggested by Ms Stuart King. It seems to me that, after these very protracted proceedings first issued in 2013, I must grasp the nettle today and either allow or dismiss the claim. My first instinct was to dismiss it, on the basis that the present proceedings are now completely academic in that the SSHD has said that she will reconsider the whole matter and is in the process of doing so.[49]However, Ms Stuart King has homed in, in particular, on the reference in the decision letter of 10 October 2012 to the earlier application containing "a fraudulent birth certificate". She points out that that is a very strong statement to make without supporting elaboration or reasons, and she echoes the words of Phillips J, with which I agree, that:
"The bare assertion that the birth certificate submitted by the claimant is 'fraudulent' is inadequate [...]."
[50]For that reason, Ms Stuart King expresses an anxiety that, so far as can be done, the whole of that decision letter and, indeed, the decision itself of 10 October 2012, should be expunged altogether from this whole case between the applicant and the SSHD.[51]On behalf of the SSHD, Mr Sarabjit Singh has said that it is not really necessary to expunge that decision and letter because the Secretary of State has already indicated that she will consider the matter afresh with a fresh and open mind; but he went on to say that the Secretary of State would not object to that letter being quashed. It is, in any event, the case and position of the Secretary of State that she will consider the application made last August with a fresh and open mind by an official or officials who were not involved in the decision communicated on 10 October 2012.[52]As I have mentioned, that decision letter was signed, at any rate, by an official in the British High Commission in Nairobi. The current application is being considered by a completely different person, namely Mr Meakin in Liverpool.[53]I wish to stress that I have not given any detailed consideration at all to the underlying merits of the present claim for judicial review, although I have indicated both during argument, and in this judgment at paragraph 49 above, that it is not good enough simply to describe a document as "fraudulent" without giving the slightest reason why it is so described.[54]But in view of the position sensibly taken by Mr Singh today, I am willing finally to resolve the present claim for judicial review, for which permission was given as long ago as May 2014, in the following terms:
"Without any adjudication by the court as to the merits of the current claim for judicial review number C0/13095/2013: (i) The said claim is allowed to the following extent only: (ii)The decision letter dated 10 October 2012 and everything contained in it is quashed. (iii)The SSHD must consider the application submitted on 12 August 2015 with a fresh and open mind by an official or officials who were not involved in the decision communicated on 10 October 2012."
[55]To that extent, and for those reasons, the present claim for judicial review is resolved in that way. That may now leave an issue as to costs, upon which I will now hear argument and rule.[56]What application, if any do you wish to make as to costs, Ms Stuart King?[57]MS STUART KING: My Lord.[58]MR JUSTICE HOLMAN: I do not want you to elaborate, I just want to know what application if any you make. What do you say I should order?[59]MS STUART KING: We would ask for our full costs in the matter, or alternatively in part, certainly up to the grant of permission and we say up until -- alternatively up until the order of Cranston J.[60]MR JUSTICE HOLMAN: All right. Do you, Mr Singh, agree or accept that you should pay what she calls the full costs? This is obviously all subject to assessment, we are talking about the principle.[61]MR SINGH: No, my Lord.[62]MR JUSTICE HOLMAN: No. Just a minute. "No".[63]Do you accept that you should pay part of her costs up to the date of Cranston J's order?[64]MR SINGH: No, my Lord.[65]MR JUSTICE HOLMAN: Do you accept that you should pay part of her costs up to the date of the grant of permission?[66]MR SINGH: No, my Lord.[67]MR JUSTICE HOLMAN: Do you make any application with regard to costs, leaving aside the fact that she may have the protection of the Legal Aid legislation?[68]MR SINGH: Yes, well, my Lord, the submission I was going to make --[69]MR JUSTICE HOLMAN: -- no, I do not want to hear the submission. I just want to know outcome you ask for?[70]MR SINGH: No order as to costs.

MR JUSTICE HOLMAN: No order.

[72]MR SINGH: Yes.

MR JUSTICE HOLMAN: So you do not make any application as to your costs?

[74]MR SINGH: Well, no, my Lord, because when I make the submission, it will be clear that -- what I say is that in principle, the claimant should have costs until 20 March 2014, because that is when there was a decision to reconsider but that we should have our costs from 9 March 2016, and one cancels the other out.

MR JUSTICE HOLMAN: Wait a minute, wait a minute.

[76]MR SINGH: Yes.

MR JUSTICE HOLMAN: She should have her costs to what? Just tell me the date.

[78]MR SINGH: 20 March 2014, because that is when the offer of reconsideration was made by the Secretary of State.

MR JUSTICE HOLMAN: Yes.

[80]MR SINGH: But that we should have our costs from the 9 March 2016, which will include the costs of this hearing.

MR JUSTICE HOLMAN: Because?

[82]MR SINGH: Because the claimant was invited to withdraw the claim.

MR JUSTICE HOLMAN: And refused to withdraw.

[84]MR SINGH: Refused to withdraw, and wanted to have a number of matters determined today, all of which she failed to get determined.[85]MR JUSTICE HOLMAN: Just let me think, all right. So, 9 March 2016. I am just not quite sure exactly the event on that day. You in fact agreed this stay order back in February.[86]MR SINGH: We did.

MR JUSTICE HOLMAN: Cranston J refused to make it.

[88]MR SINGH: Yes.

MR JUSTICE HOLMAN: His order was dated 7 March.

[90]MR SINGH: Yes, it was sent out on 7 March, that is right.[91]MR JUSTICE HOLMAN: When you talk about the 9th, are you just assuming that as a date of receipt of the Cranston J order?[92]MR SINGH: No.

MR JUSTICE HOLMAN: No, what happened on the 9th?

[94]MR SINGH: Well, we will look at what happened on the 8th first. On the 8th, the Secretary of State sent a consent order to the claimant's solicitors which provided for the withdrawal of the claim in the light of Cranston J's order.

MR JUSTICE HOLMAN: I see.

[96]MR SINGH: On the 9th, the claimant's solicitors replied and they indicated they wanted to know.

MR JUSTICE HOLMAN: I see -- I did not know this.

[98]MR SINGH: I can hand you up a copy.

MR JUSTICE HOLMAN: It is all right.

[100]MR SINGH: This is the date when they insisted that the hearing should go ahead, so that they do get to the question of entitlement to their British Overseas Citizenship determined.

MR JUSTICE HOLMAN: All right.

[102]MR SINGH: Yes, so the reason over all I say no order, my Lord, is --

MR JUSTICE HOLMAN: -- well, you are just saying the one cancels out the other.

[104]MR SINGH: Yes.[105]MR JUSTICE HOLMAN: Well, I do not know whether it does. So logically, at any rate, you are saying the claimant should have her costs of and incidental to the claim up to and including 20 March 2014?[106]MR SINGH: Yes.[107]MR JUSTICE HOLMAN: You are saying, logically there should be no order between 20th, or shall we say 21 March 2014 and 9 March 2016, and then you should have your costs of and incidental of the claim on and after 9 March 2016?[108]MR SINGH: Yes.[109]MR JUSTICE HOLMAN: Those may or may not balance out. I do not know, and I do not know that I should, myself, reach for an outcome that assumes that they do. Do you have a detailed costs' schedule?[110]MR SINGH: We have our overall costs from 9 March, my Lord.

MR JUSTICE HOLMAN: Yes.

[112]MR SINGH: We have a costs schedule and it should have been sent to the court.[113]MR JUSTICE HOLMAN: All right. I think I have that, actually. Do you have any cost schedule, Ms Stuart King?[114]MS STUART KING: My Lord, I do not, no.[115]MR JUSTICE HOLMAN: Your costs -- this is a so-called "grand total" of £4,199, is it, Treasury Solicitor?[116]MR SINGH: Yes, my Lord, although it should be noted that that was based on this hearing only taking 2 hours, so it was estimated. We get paid per hour.

MR JUSTICE HOLMAN: Do you? Do you get paid per hour?

[118]MR SINGH: Yes, the panel rates are per hour, my Lord. So that would have to be revised slightly to take into account that we have been here for more than 2 hours, and in addition to counsel's costs are the solicitor's costs.

MR JUSTICE HOLMAN: At the moment I cannot see where counsel's costs feature.

[120]MR SINGH: My Lord, if you look -- it is the page just before the signature for the Treasury Solicitor.

MR JUSTICE HOLMAN: "Counsel's fees".

[122]MR SINGH: The fee has been calculated on the basis of the number of hours it took to draft the skeleton argument.

MR JUSTICE HOLMAN: Well, I cannot see where it says that.

[124]MR SINGH: It does not say it in here, my Lord, but that is how it has been calculated.

MR JUSTICE HOLMAN: I see.

[126]MR SINGH: That is how they pay us.[127]MR JUSTICE HOLMAN: All right. What, realistically, might it come out if one allowed 5 hours for this hearing?[128]MR SINGH: Well, it would be another £600 of solicitor's costs and there would be another £360 of counsel's costs, so about another thousand-odd pounds.

MR JUSTICE HOLMAN: You mean that the gentlemen sitting with you is charged out for another £600?

[130]MR SINGH: Yes.

MR JUSTICE HOLMAN: But you are only paid £360?

[132]MR SINGH: I am cheaper.[133]MR JUSTICE HOLMAN: I would not want in any way to suggest he has done less work or had a less important role than you, but it is hard to see that he has done more work or had a more important role.[134]MR SINGH: It is just his hourly charge out, his hourly rate.[135]MR JUSTICE HOLMAN: I know they are. Anyway, if you add that on, well, basically it brings it up to, in round figures, £5,000.[136]MR SINGH: Yes, my Lord.

MR JUSTICE HOLMAN: Do you have any schedules here?

[138]MS STUART KING: My Lord, I do not have a schedule with me, no.[139]MR JUSTICE HOLMAN: At the moment I am not deciding anything on the principle, but of course what Mr Singh is saying is that if I go down his route you would have to pay him £5,000 since 9 March.[140]He is speculating that if he had to pay your costs up to 20 March 2014, which I think he would have some difficulty -- well, I think he more or less concedes that he should, they would be about the same -- but I do not know.[141]If you are not able to help me, I am not saying this critically of you do not misunderstand me, but if the situation is that you cannot help me as to what your costs are and what they are between particular periods, I do not think I can actually, in adjudication, adopt Mr Singh's cancelling out approach, although when the solicitors exchange bills they might see that they are more or less cancelled out and agree just to treat them as cancelling out.[142]MS STUART KING: My Lord, I cannot help you with the actual costs --[143]MR JUSTICE HOLMAN: -- no. Why do you say you should have your full costs?[144]MS STUART KING: My Lord, certainly, if not full costs, certainly until yesterday.

MR JUSTICE HOLMAN: What is the difference between yesterday and today?

[146]MS STUART KING: When we received --

MR JUSTICE HOLMAN: -- Mr Meakin.

[148]MS STUART KING: The witness statement.

MR JUSTICE HOLMAN: What time did you receive that, roughly, just roughly?

[150]MS STUART KING: I personally received it about mid-day.[151]MR JUSTICE HOLMAN: Yes, I think in fact if you receive something at so late a stage, well, under the old-fashioned regime, with briefs being delivered and fees incurred and all of that, if you only got it yesterday, if that is material, there is no great deal between receiving it yesterday or 10.30 this morning.[152]But is that the material document? Is not the material point here that by her acknowledgment of service, this is where the 20 March 2014 comes in, the Secretary of State said: 'You put in a fresh application I will consider it'.[153]MS STUART KING: My Lord, first of all, the Secretary of State, although she said that in her initial acknowledgment of service that she thought the claim should be withdrawn, that very shortly afterwards -- and I am looking at the -- so from 13 May 2014, the Secretary of State was prepared to stay the matter and that has been held --[154]MR JUSTICE HOLMAN: -- no, but in a way this is all neither here nor there, whether it is withdrawn or stayed. You said: We do not like your decision of October 2012. But you could never have got the court just to decide that you are a British Overseas Citizen, so the most you could ever have got was quashing reconsideration.[155]She said, admittedly belatedly, March 2014:
'You make a fresh application, I will consider that from scratch'
. That has been her position. It took about a year for you to make the application, I do not really know why but it does not matter. It was made in August and the Secretary of State is considering it. Frankly, these whole proceedings for judicial review have achieved nothing since the stated decision of the Secretary of State of March 2014. I know that I have, without adjudication on the merits, allowed it and I have quashed the letter. I have only done that to please you, to be quite frank, and because Mr Singh does not object. I have just done it because it merely expresses in the form of an outcome to the judicial review that which the Secretary of State agreed and offered.[156]She could have said, instead of saying 'you withdraw', she could have said in March 2014, 'I will agree to that letter being quashed and if you make a fresh application I will consider it with a fresh and open mind'. I know she did not put it that way, but that is what it amounts to.[157]MS STUART KING: Well, my Lord --[158]MR JUSTICE HOLMAN: -- I mean, I think you should unquestionably have your costs up to 20 March 2014, it is not even resisted, but I am not clear you should have them after that date.[159]MS STUART KING: My Lord, there are two points: one in relation to the outcomes that we could possibly have achieved; and secondly, in relation to the difference between -- well, the fact that the acknowledgment of service did not actually say 'we are considering with a fresh and open mind' the relevance of that.[160]Firstly, in relation to the possible outcomes, my Lord, with respect, I submit that the authorities on similar matters do point to the fact that the court can and will give a declaration as to the granting of it.

MR JUSTICE HOLMAN: I know that.

[162]MS STUART KING: So I appreciate, my Lord, the reasons that you have given why it would not be possible in this case but --[163]MR JUSTICE HOLMAN: Yes, I completely agree they can, I told you that many hours ago. I agree that, but I do not see how the court would be able to, on the facts and in the circumstances of this case, without the presence of the lady, and I do not see that that is going to happen.[164]MS STUART KING: My Lord, with respect, that is something with which the claimant would not agree. We would say that it would obviously depend on the nature and type of the decision that was the made by the Secretary of State. It would depend perhaps on video arrangements, et cetera. So, it has only been today and hearing it from your Lordship that it has really been taken from your mind that that could have been a possible outcome.[165]MR JUSTICE HOLMAN: Of course if the Secretary of State wrote a letter and said: 'We do not like people who claim to have been born on 23 April', or whatever it is, 'so we just automatically refuse any claims if they say they are born on 23 April'; of course that would be so irrational that if that was the reason put forward then you could, of course, have achieved an order from the court, but that is not how it would have been.[166]MS STUART KING: But my Lord, the Secretary of State may have come back and said: 'We accept your identity, we accept that you prove who you are but your birth certificate (which is signed with two different coloured inks) we do not accept to be a genuine document', and therefore that is something that the court could have looked at.[167]You know I speak hypothetically, it would seem for the court's decision to take but there are decisions of the court of that nature that could have been dealt with by the court on the papers.

MR JUSTICE HOLMAN: All right, well --

[169]MS STUART KING: The second point is that in relation to the Secretary of State's position as to the scope of her reconsideration, as it were, that even until her letter of 1 September 2015 she was still stating in there: i. "We cannot accept photocopied documents unless otherwise stated."[170]So she did not even then say that she was willing to accept and consider the scanned original birth certificate which in her original decision letters of October 2010 she said, "we will not consider these scanned documents" and it is only yesterday that:(a) It appeared from the witness statement of Mr Meakin that he would look again at that.(b) That the claimant could be invited for an interview.[171]Now the absence of a proper interview, and giving her an opportunity to address the concerns about fraudulence about her identity was something that was expressly pleaded in our original grounds; and that yesterday was the first time that we were told that that procedural element of which we complained was unfair would, in fact, be addressed.[172]MR JUSTICE HOLMAN: I understand these points, but on the footing that you were making a fresh application, yes, it may be that things would have been done again which you considered were unfair, they may yet be done which you consider unfair, but that all goes to a challenge to the new decision, not the old one.[173]MS STUART KING: My Lord, I think you have my points.[174]MR JUSTICE HOLMAN: I do, but I think at the minute I have a lot of difficulty in seeing that you should have your costs subsequent to the acknowledgment of service, I really do.[175]I do not know how this has got so protracted, in fact. Clearly a year went by before that fresh application was actually made and I know there has been a lot of wrangling with the office of the court about staying or withdrawing and all of that. At the moment I am not prepared to give you your costs beyond the date of the acknowledgment of service.[176]Now, do you want to deal with Mr Singh's application that he should have his costs from 9 March?[177]MR SINGH: My Lord, do you want me to -- I was going to make that application by reference to correspondence. I have not actually made it yet.[178]MR JUSTICE HOLMAN: No, I know you have not. All right, but just whilst she is on her -- well, all right. If you want to make me through the correspondence, Mr Singh, you had better do that first.[179]MR SINGH: Yes, all right. May I first hand up a clip of correspondence to you, my Lord?[180]MR JUSTICE HOLMAN: Yes. Has Ms --[181]MR SINGH: -- well, it is all correspondence between Tsol --

MR JUSTICE HOLMAN: -- forgive me, has Ms Stuart King got it?

[183]MR SINGH: She has now, yes. (Handed)[184]MR JUSTICE HOLMAN: You are giving it to her now. (Handed to judge). Thank you.[185]MR SINGH: So you have --

MR JUSTICE HOLMAN: Hang on.

[187]MR SINGH: Just before we get to this it may be worthwhile to have a look at the judicial review claim form to see what was being claimed.

MR JUSTICE HOLMAN: Yes.

[189]MR SINGH: My Lord, in this supplementary bundle, if you go to -- it is the typed page 7, in the bottom right-hand corner.

MR JUSTICE HOLMAN: Yes, I have that.

[191]MR SINGH: Do you see "details of remedy" including "any detailed remedy being sought"?

MR JUSTICE HOLMAN: You are in the actual form?

[193]MR SINGH: Yes, in the actual form, section 7.

MR JUSTICE HOLMAN: Section 7, quashing order.

[195]MR SINGH: Yes, but then there is a declaration declaring: i. "The procedure adopted by the defendant in relation to the decision making on fraudulent documents is unlawful."[196]Whatever that means, exactly.

MR JUSTICE HOLMAN: Yes.

[198]MR SINGH: Then a declaration carrying that: i. "In the light of the evidence provided, the claimant is entitled to a BOC passport."

MR JUSTICE HOLMAN: Well, she would not have got that.

[200]MR SINGH: Yes, would not have got that. So, my Lord, you have determined the application today and the claimant has at least succeeded in one, but in substance she has succeeded in one on 20 March 2014 when the defendant agreed to --

MR JUSTICE HOLMAN: -- I agreed that.

[202]MR SINGH: Yes, and she has failed on the other two. I just make that point, bearing in mind my learned friend's application for all of her costs.[203]What followed after 20 March 2014, my Lord, was this lengthy process of the parties agreeing consent orders between themselves providing for reconsideration and then staying but then the court declined to see all the orders.[204]My submission is that for that long period there should be no order as to costs. The claimant gets costs until 20 March 2014. No order to costs is until 9 March 2016. On 7 March, Cranston J made his order that had actually been withdrawn rather than stayed.[205]This is now when we get to the correspondence, my Lord, because you will see the first letter from GLD on the 8 March 2016, and it says, middle paragraph: i. "In the light of the judge's ruling, we attach for your client's consideration a consent order which provides for the withdrawal of this judicial review claim."[206]My Lord, that order is then the next document.[207]MR JUSTICE HOLMAN: In other words, you are saying, 'we agreed earlier between us that we would do a stay'.[208]MR SINGH: Yes.[209]MR JUSTICE HOLMAN: Outcome: Cranston J does not like that, he has clearly said that the claim should be withdrawn.[210]MR SINGH: Yes.

MR JUSTICE HOLMAN: So we are now consistent with Cranston J, you withdraw, is what you are saying.

[212]MR SINGH: Yes, exactly. What I am saying is --

MR JUSTICE HOLMAN: -- all right, so that is what you have said, all right.

[214]MR SINGH: Yes.

MR JUSTICE HOLMAN: I understand that.

[216]MR SINGH: The claimant has not obtained a better result than suggesting this order.

MR JUSTICE HOLMAN: All right, let us see what they say.

[218]MR SINGH: They then say on 9 March, my Lord, you will see what they say. You may want to have a quick read of it.[219]MR JUSTICE HOLMAN: Yes. When they say "the proposed consent order" are they talking about the one that you sent the day before?[220]MR SINGH: Yes, they are talking about that one.

MR JUSTICE HOLMAN: Yes, all right.

[222]MR SINGH: They are saying that is the one that you suggested on 20 March 2014. They make a point there --

MR JUSTICE HOLMAN: -- hang on, I am --

[224]MR SINGH: Yes, sorry.

MR JUSTICE HOLMAN: That was very ambitious.

[226]MR SINGH: Yes, exactly, my Lord. They wanted to press ahead to get the entitlement determined. They said things about the defendant not reconsidering as she should have done, which are wrong when we look at the consent orders they agreed to.[227]Then, my Lord, if you look at the response to that letter from the GLD.

MR JUSTICE HOLMAN: Do I have to read all of that?

[229]MS STUART KING: You probably do not need to read all of it.

MR JUSTICE HOLMAN: Is Mr Heyhoe the gentleman in the Court room.

[231]MR SINGH: Yes.

MR JUSTICE HOLMAN: I am sure it is a wonderful letter, but could we home in on the bit that matters?

[233]MR SINGH: My Lord, yes. The bit that matters is -- if you look at the second page, penultimate paragraph.

MR JUSTICE HOLMAN: Yes, for your client.

[235]MR SINGH:
"At this very late stage to reject this approach", ie, withdrawing the proceedings on the basis that the Secretary of State has failed to properly reconsider the case: i. "
Does not accurately report properly or reflect the past issues which are set out", and then, "should the hearing proceed, we will drawing the above to the knowledge and attention of the court. We will also be seeking our costs of attending the hearing."[236]Then, my Lord, the claimant's solicitors reply in fairly bullish terms to that on the same day and that is the next letter. It is a very long letter, it sets out at length --

MR JUSTICE HOLMAN: Which do you say is the bit that matters?

[238]MR SINGH: My Lord, if you go to the third page.

MR JUSTICE HOLMAN: Everybody will be charging a fortune for writing all these letters.

[240]MR SINGH: Yes. My Lord, it is the final main paragraph on this page.

MR JUSTICE HOLMAN:

"We are not willing."
[242]MR SINGH:
"We are not willing to withdraw our claim pending your client."
[243]That should be, I am not sure -- I think that is a typo:
"Pending your client making a further decision", perhaps that should read, "the defendant has at no point since the start of these proceedings indicated the basic ...(Reading to the words at speed)... to be fraudulent."
[244]Again, that is plain drawing on the sort of points that my learned friend raised: no reasons as to why the past was not acceptable, no substantive consideration. That all ignores the point that the defendant is due to reconsider the matter:
"Your client was well aware that there was a deadline of 11 December on which he was to make a further decision."
[245]It is not clear why that is regarded as the point against the defendant because there was an agreement as to the timetable. Then you will see from the paragraph below that the claimant again reiterates that they will be asking the court to make a finding that --

MR JUSTICE HOLMAN: -- sorry, where did you say it was?

[247]MR SINGH: Sorry, my Lord. If you are looking on the final page, the paragraph beginning: "It is the claimant's position", yes.

MR JUSTICE HOLMAN: All right.

[249]MR SINGH: Yes.[250]MR JUSTICE HOLMAN: All right. Well, I am afraid I do think that was ambitious.[251]MR SINGH: Yes. My Lord, and again that point was again made in my learned friend's skeleton. She reiterated that the issues that she wanted to determine were that the Batty(supra) issue, which was --

MR JUSTICE HOLMAN: -- all right, anyway.

[253]MR SINGH: My short point is --

MR JUSTICE HOLMAN: -- your short point is that Cranston J said what he said.

[255]MR SINGH: Yes.

MR JUSTICE HOLMAN: You came back and said: 'Look, see what the judge has said'.

[257]MR SINGH: Yes.

MR JUSTICE HOLMAN: 'We can't do this stay outcome'.

[259]MR SINGH: Yes.

MR JUSTICE HOLMAN:

'You should withdraw.'
They said: 'No, we are not withdrawing because we want the judge to declare that she is entitled to a BOC passport'.[261]MR SINGH: Yes.

MR JUSTICE HOLMAN: Which I am afraid they have not got off the ground.

[263]MR SINGH: Yes. Exactly, my Lord. So we say for those reasons, we should have our costs.[264]MR JUSTICE HOLMAN: All right. I have the point and I am sure Ms Stuart King has got the point.[265]MR SINGH: Yes.[266]MR JUSTICE HOLMAN: But what do you say in reply, Ms Stuart King? We have spent longer on costs than on the substantive issue.[267]MS STUART KING: My Lord, two points. Very briefly, that the Secretary of State, until this letter, has always been of the same agreement that there should be a stay.[268]MR JUSTICE HOLMAN: I agree that, which is why I am certainly not going to say that you should pay the Secretary of State's costs while you are all proposing a stay. So he limits his claim to after the judge has firmly told you: 'You cannot do that’.[269]MS STUART KING: My Lord, yes. Our reasons for continuing were this point about seeking a declaration. We say on the basis of the authority that that was not unreasonable to take.

MR JUSTICE HOLMAN: No, but the thing is, look, look --

[271]MS STUART KING: -- my Lord, I understand that. I will explain that was the reason for us decide to continue. Secondly, from today that we have got more than simply just withdrawing the claim, in that that decision has been quashed fully, the decision --[272]MR JUSTICE HOLMAN: -- well, it has, but I do not really think that I can state that I would have minded that outcome. If you had said back in March, 'all right, we will make a fresh application, you consider that from scratch but meantime we want that decision quashed' She probably would have said, 'all right, because I am agreeing to start from scratch anyway'.[273]MS STUART KING: My Lord, we did at several points, raise the fact that we had had no response about this issue about the fraudulence of the birth certificate and the Secretary of State has not at any point come back and said 'no one is scrapping that part of the decision as well', she did not.[274]MR JUSTICE HOLMAN: All right, but let us just focus on this last period. What Mr Singh is saying is, 'look, you all saw what Cranston J said. We, [the Secretary of State] would have been perfectly happy to do this stay thing. The judge will not do that, so we had better do what the judge says, you withdraw.' You say, 'no, we are not prepared to withdraw'.[275]Part of that reasoning at any rate is you are actually going to try and get the judge at this hearing today to say that you are entitled to a passport and Mr Singh's submission is that that is unrealistic and forlorn.[276]MS STUART KING: Well, my Lord, it was not necessarily our position that we would have to do that today. It was that we, that if the case were to have been stayed, that we could have asked the court to do that, after consideration of what further consideration the Secretary of State had made.[277]MR JUSTICE HOLMAN: Yes, but that is what properly belongs to a new judicial review. I am not ruling out that you may on different facts, depending on the content of a further decision, you may be able to get the court to make a declaration.[278]As I have said, just to take an extreme argument, if the Secretary of State accepted everything you said but just said 'I do not like giving passports to people born on a certain day', you would obviously persuade the court that that part of her reasoning was irrational and you would get your declaration, obviously: but as things stand you cannot.

Ruling as to Costs

[279]I am afraid I am going to draw this to a close. I am going to limit it, Mr Singh, to the costs actually of today which is probably the biggest item. In my view, the Secretary of State must pay the costs of the claimant of and incidental to her claim for judicial review up to and including, I will say 31 March 2014, to allow a period of time for consideration of the Secretary of State's offer.[280]I say that because to my mind this decision letter of 10 October 2012 was patently unsatisfactory, with its unreasoned and unparticularised assertion that the birth certificate was fraudulent.[281]In my view, however, the claimant should have accepted the proposal in the acknowledgment of service of 20 March and should have accepted that by at any rate 31 March 2014, and so the Secretary of State should not have to pay any of her costs since that date. I am certainly not prepared to give the Secretary of State any costs in the period up to March 2016, nor indeed does Mr Singh ask for them.[282]Once Cranston J had ruled in the way that he did in his decision dated 4 March, but only sent out on 7 March, the situation in my view does change. He had made quite clear that in his view these proceedings should not be stayed and should indeed be withdrawn.[283]The Secretary of State made sensible constructive proposals by her letter of 8 March reactive to that, and I am afraid the subsequent correspondence indicates that the claimant, or her legal advisers, were determined to persist in the claim in order to seek at this very hearing a declaration to the effect that the claimant is entitled to a BOC passport. To my mind that was forlorn.[284]Until the Secretary of State had concluded her consideration of the fresh claim, it is frankly inconceivable that this court would in the meantime reach a factual determination as contemplated in these recent letters from the claimant's solicitors.[285]In any event, although I fully accept that the court can make a factual determination of entitlement to the passport, it seems to me that it would be extraordinarily difficult for it to do so on the facts and in the circumstances of this case without the personal evidence to the court of the claimant.[286]I am afraid that, in my view, the claimant or her solicitors became far too optimistic in the last few days, but again, to allow a reasonable period of thinking time, I propose to order that the Secretary of State should have her costs of today alone but that the 'no order approach' should persist throughout the days leading up to today.[287]In order to give effect to all of that there will be an order as follows: 1. The Secretary of State for the Home Department shall pay the costs of the claimant of and incidental to her claim for judicial review up to and including 31 March 2014. 2. The claimant shall pay the costs of the Secretary of State for the Home Department of her attendance at court today. 3. All the above costs to be the subject of detailed assessment if not agreed. 4. Save, as aforesaid, no order as to costs as between the parties. 5. Detailed assessment of the publicly funded costs of the claimant.[288]Does that cover it?[289]MR SINGH: My Lord, normally because the claimant is legally aided, I do not know if that is the right practice but within my experience where there is an order that the claimant pays the costs is, at the end it normally says "such order to be enforced".

MR JUSTICE HOLMAN: I will say: "Save by way of set off".

[291]MR SINGH: "Save by way of set off".

MR JUSTICE HOLMAN: Is that not right?

[293]MR SINGH: I am sorry, my Lord? (Counsel indicates he has not heard) -- save by way of set off.

MR JUSTICE HOLMAN: Well, let us say you have to pay her £10,000.

[295]MR SINGH: Yes.

MR JUSTICE HOLMAN: That is costs up to 31 March.

[297]MR SINGH: Yes.[298]MR JUSTICE HOLMAN: And she has to pay you something under £5,000 which is your costs of being here today.[299]MR SINGH: All right.[300]MR JUSTICE HOLMAN: Can you not set off, even although she is publicly funded, or are you not allowed to? I mean, that will not touch her pocket, none of this will touch her pocket.[301]MR SINGH: No, as long as she does not have to --[302]MR JUSTICE HOLMAN: -- no, well let us say: i. "The Secretary of State shall pay the costs of the claimant of and incidental to her claim for judicial review up to and including 31 March."[303]That money will not go to her, of course, it will go ultimately to the Legal Aid fund: i. "The claimant shall pay the costs of the Secretary of State for her attendance at court today, her liability under this sub paragraph being limited to and only enforceable by way of set off against the costs due to her under sub paragraph 1 above."[304]Would that cover it?[305]MS STUART KING: My Lord, I am not sure that that is correct.

MR JUSTICE HOLMAN: Why not?

[307]MS STUART KING: Because that would seem to have the effect of making a wasted costs order.

MR JUSTICE HOLMAN: I am not trying to do that.

[309]MS STUART KING: My Lord, yes, because the costs that then come to the claimant in respect of the work up to 31 March either come by way of payment from the Secretary of State, or come by way of a Legal Aid payment. So if that amount is set off against costs that we have to pay then it comes personally out of the pockets of my colleague, my colleague who drafted these grounds, and those who instruct me.[310]MR JUSTICE HOLMAN: I can assure you I am not trying to make a wasted costs order, and I am not trying to take a penny away from the solicitors of their full bill after their detailed public funding assessment. They will assess their costs at, let us just say, to pick figure out of air, £20,000, and that is what they should be paid by the Legal Aid Agency.[311]MS STUART KING: But my Lord, the fees that are paid by the Secretary of State would be at inter partes rates and they would not come from that Legal Aid sum, they would come from the Secretary of State. So if there is a set off, then that sum that goes into the pocket of the solicitor is reduced and it would not be made up by Legal Aid.

MR JUSTICE HOLMAN: Well, are you right in what you say?

[313]MS STUART KING: My Lord --[314]MR JUSTICE HOLMAN: The solicitors, let us say they charge £20,000, let us just look. So they say their bill is £20,000, their Legal Aid rates' bill, and it is assessed at that by the Costs' Judge. So, the point is, if no order as to costs at all, Legal Aid Agency pays the £20,000.[315]MS STUART KING: Yes.[316]MR JUSTICE HOLMAN: Meantime, under paragraph 1, it is assessed that the Secretary of State has got to pay, let us say, £10,000.[317]MS STUART KING: Yes.

MR JUSTICE HOLMAN: Who receives the the cheque for £10,000?

[319]MS STUART KING: It comes from the Secretary of State to the solicitor and counsel.[320]MR JUSTICE HOLMAN: All right. To the counsel, or to the solicitor?[321]MS STUART KING: Via the solicitor, but there is a particular sum that is paid into two.

MR JUSTICE HOLMAN: The solicitor gets a cheque for £10,000.

[323]MS STUART KING: Yes.[324]MR JUSTICE HOLMAN: Assuming they have not by then been paid by the Legal Aid Agency, they presumably have to say to the Legal Aid Agency: 'We have now received £10,000', so the Legal Aid Agency only pays them £10,000. We are agreed on that now?[325]MS STUART KING: Yes.[326]MR JUSTICE HOLMAN: She has to pay the costs of their attendance by way of set off, and let us say that is £5,000. So, the Treasury Solicitor does not in fact write a cheque for 10K, he writes a cheque for 5K, but the Legal Aid Agency is a starting point, they have to give you 20K, but now instead of crediting 10K you only have to credit 5K, so you get 15K from the Legal Aid Agency, is that not right?[327]MS STUART KING: No, no, my Lord. My understanding is that - perhaps someone can assist me on this -- is that the order for costs that go to the Secretary of State either come directly from the Legal Aid budget or as a direct payment in addition to the sums that go to the solicitors. It is not taken out of the money that the solicitors receive, the funds go -- it is an additional payment that the Legal Aid would make.

MR JUSTICE HOLMAN: Mr Singh, is she right or wrong, because I do not have a clue.

[329]MR SINGH: I think my Lord is correct in the practice. I think it would just be easier if she says, at the end of 2:
"Not to be enforced without the leave the court"
. I think the practical effect is that the person who drafts would not get paid.[330]MR JUSTICE HOLMAN: So she has to pay your costs of attendance today not to be enforced without leave of the court?[331]MR SINGH: Yes.

MR JUSTICE HOLMAN: Under what circumstances are you ever going to get leave?

[333]MS STUART KING: My Lord, that is sort of the form of the normal order.[334]MR JUSTICE HOLMAN: I know it is but it may be different where there is a set off, but what -- I mean in what circumstances are you ever going to get leave?[335]MS STUART KING: It will be --[336]MR JUSTICE HOLMAN: -- no, not you, him, realistically. We have had this great argy-bargy about the costs.[337]MR SINGH: Yes.[338]MR JUSTICE HOLMAN: She is out in Somalia. I suppose if she gets her passport she may come here but she may not want to come here, she may want to travel to other places.[339]MR SINGH: Yes, my Lord. That is the practical difficulty for the Secretary of State. That is why my initial suggestion was no order to costs because practically speaking --

MR JUSTICE HOLMAN: -- I do not think I can do that because I do not think it is logical.

[341]MR SINGH: Yes, but my Lord, that is not the claimant's solicitor's problem. I mean, the order is against the claimant. If we cannot get the money without, you know, for whatever reason then that is our concern.[342]MR JUSTICE HOLMAN: All right. So you say it should say: 1. Secretary of State shall pay costs of the claimant of and incidental to her claim up to 31 March. 2. The claimant should pay the costs of your attendance today not to be enforced without leave of the court.[343]MR SINGH: Yes.[344]MR JUSTICE HOLMAN: Ms Stuart King is not concerned and the point that she has just made then no longer arises, so everybody goes away happy.[345]MR SINGH: Yes, my Lord.[346]MR JUSTICE HOLMAN: Very well. If you are happy, I am happy.[347]Usher, could you very, very kindly give that to Ms Stuart King. Could you very kindly add that and lodge it with today's associate.[348]Is there anything else that now arises -- I think that goes back to you. (Handed, via the Court Usher) is there anything else that now arises?[349]MS STUART KING: My Lord, just that we would make an application for permission to appeal in this matter.

MR JUSTICE HOLMAN: What part of it?

[351]MS STUART KING: On the basis of whether the claimant could ever have been entitled to have a declaration from the court and that the consideration of that, in terms of whether the case should have been stayed for the Secretary of State to complete that consideration.[352]MR JUSTICE HOLMAN: No, I am sorry. I am going to refuse you permission to appeal. It is completely disproportionate. This has already been very protracted proceedings, expensive proceedings. The Secretary of State is giving fresh consideration to a fresh application that you have made and the whole of this case now should recede into history in my view. If you want me to fill in one of those forms, I will get one and so do so, would you like me to?[353]MS STUART KING: My Lord.[354]MR JUSTICE HOLMAN: Yes. Usher, could you get my clerk, please? Oh, you have one. (The form was handed to the Judge) Thank you. (A Short Pause)[355]You are seeking permission to appeal because I have not made the declaration today that you are a British Overseas Citizen, is that right?[356]MS STUART KING: My Lord, no.

MR JUSTICE HOLMAN: What is it that you want to appeal? I have quashed the decision.

[358]MS STUART KING: That, well, seek to appeal the decision not to stay in order to permit to the Secretary of State to conclude her reconsideration.

MR JUSTICE HOLMAN: You want to appeal that one?

[360]MS STUART KING: Yes.

MR JUSTICE HOLMAN: My decision not to stay. (A Short Pause)

[362]MR JUSTICE HOLMAN: I have said: i. "Although the 2012 decision has been quashed and the Secretary of State is giving fresh consideration to the fresh application for a passport already made in August 2015, the claimant now seeks PTA from my decision not to stay the existing proceedings. In my view, a decision not to stay is unarguably correct for the reasons given, and is in line with Bhatti. ii. In any event, the point is now highly academic. The present proceedings have already been far too protracted and expensive. The decision on fresh consideration is awaited. If favourable to the claimant, that is the end of the matter. If unfavourable, she can start a fresh claim for judicial review. An appeal to the Court of Appeal in the meantime would be, with respect to that court, an unnecessary sideshow, wasteful of court time and costs, and probably productive of yet further delay."[363]You can have that. (Handed) If you really decide that you are going to try and renew an application for permission to appeal to the Court of Appeal, it would, I think, be helpful to that court if that could be returned to my clerk, maybe in a scanned form by email, and we will type it out.[364]I am not going to take up time to type it out now. I constantly type these things out and the matter is never renewed at all and it is just a waste of time, but I have written it rather hurriedly.[365]If you actually decide you are going to renew an application to the Court of Appeal it would be, I think, helpful to them if that were typed up and if you send it back to me I would, if you are sufficiently determined do it, but I am not going at the moment because you might think about overnight first. All right? Anything else?[366]MR SINGH: No.[367]MS STUART KING: No.[368]MR JUSTICE HOLMAN: Ms Stuart King, and indeed, Mr Singh. I cannot thank you both enough for all your cogent arguments and help in the court today. A great pleasure to see you both, thank you.

Cited in 1 later judgment