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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Khan, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 4436 (Admin) (16 December 2013) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2013/4436.html Cite as: [2013] EWHC 4436 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF KHAN |
Claimant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Matthew Barnes (instructed by the Treasury Solicitor) appeared on behalf of the Defendant.
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Crown Copyright ©
HHJ Belcher:
"You must now make a formal statement about any reasons why you think you should be allowed to stay in the United Kingdom. This includes why you wish to stay here, and any grounds why you should be removed or required to leave.
...
You do not have to repeat any reasons you have already given us but if you do have more reasons you must now disclose them.
If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application is refused."
That document is dated 26 January 2012. There is a suggestion in paragraph 9 of the Claimant's detailed grounds that that document may not have been received by Mrs Khan. Paragraph 9 says:
"It is unclear whether the First Claimant was ever served with that notice."
However, for the purposes of her husband's appeal to the Tribunal against the refusal of asylum, solicitors acting for the Claimants submitted a bundle of documents to that Tribunal including a copy of the one-stop notice served on Mrs Khan. I am entirely satisfied, therefore, that she received or knew of that notice.
"In conclusion I find the Appellant [that is, Mr Saleem] is not a witness of truth. I am satisfied, on the evidence before me, that the whole of his account has been fabricated in order to gain access for himself and his family to the United Kingdom. Whatever the reasons which caused him to bring his family to the United Kingdom, it is not for the reasons he has claimed in his evidence before the Tribunal."
The rejection of Mr Saleem's asylum claim was upheld by the Tribunal. The Tribunal Judge noticed that the Mr Salleem's account was littered with inconsistencies and his oral evidence was vague and evasive, and he identified the inconsistencies in the course of his judgment. He highlighted the different account given in a screening interview to that given in the asylum interview, and to that in the evidence before the Tribunal, and similar matters of that sort. He also commented that, although Mr Saleem's claim involved threats having been made directly to his wife and children and that they were all ill-treated by the authorities, the appellant's wife did not give evidence nor did she provide a statement to the Tribunal. Those are all matters of relevance in the context of this application before me.
"Before a decision is taken on the application for asylum, the applicant shall be given the opportunity of a personal interview on his application for asylum with a representative of the Secretary of State who is legally competent to conduct such an interview."
It is correct to say, therefore, that the starting point is that an interview is usual. However, there are a number of listed grounds on which a personal interview may be omitted. These are specified in paragraph 339NA, and the relevant grounds here being items (iv) and (vi):
"(iv) the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his claim clearly unconvincing in relation to his having been the object of persecution;
...
(vi) the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his removal."
The rule goes on to say:
"The omission of a personal interview shall not prevent the Secretary of State from taking a decision on the application.
Where the personal interview is omitted, the applicant and dependants shall be given a reasonable opportunity to submit further information."
As I have already said, I am entirely satisfied that there was a reasonable opportunity to submit further information. Whilst the Secretary of State's decision letter does not address the actual test in terms, in my judgement
it is entirely clear that the letter considers the relevant matters even though the rule is not referred to expressly.
JUDGE BELCHER: Yes, Mr Barnes, you are seeking costs.
MR BARNES: Yes, my Lady. There is an application for costs.
JUDGE BELCHER: I have seen a costs schedule. Let me find it. It appeared to have two different counsel attending on the last occasion when I looked at it, briefly. Yes. And apart from telling me what their grades are, it does not actually give me any details about the fee-earners. But first of all, perhaps you could deal with the expenses – oh, there were two oral permission hearings, weren't there?
MR BARNES: Yes, my Lady, I think the first one was adjourned.
JUDGE BELCHER: Why was the first one adjourned?
MR BARNES: I could probably find out if I could have a moment. It was transferred so that it could be moved to Leeds.
JUDGE BELCHER: It did not require an attendance then, did it?
MR BARNES: I think that it was listed in London and it was meant to go ahead but then transferred to Leeds. Yes, I mean, I have a copy of the order, which is paragraph 1: "This matter be adjourned and transferred to the Administrative Court in Leeds."
JUDGE BELCHER: Does it suggest there was an attendance?
MR BARNES: Yes. First claimant appearing in person, Miss F Patterson of counsel on behalf of the Defendant.
JUDGE BELCHER: All right. Right, well what do Grade 6 and Grade 7 mean in terms of years' qualification or anything of that sort?
MR BARNES: They are Civil Service grades.
JUDGE BELCHER: I appreciate that. But in assessing costs, I have to deal with the grades for assessment, do I not, which are A, B and C and D?
MR BARNES: Yes. I think that in fact the rates will be comfortably within --
JUDGE BELCHER: They usually are, but –
MR BARNES: Can I just check? I think, my Lady, the best we can do is to say that you would expect grade 6 to be in excess of four years' PQE and you would expect grade 7s, which are perhaps perversely the lower grade, to be between newly qualified and four years' PQE, but it is difficult to be any more –
JUDGE BELCHER: All right. Are these rates claimed within their relevant bands then? I have not got my White Book here, I am afraid.
MR BARNES: I will just check.
JUDGE BELCHER: I have one in my room, and this is a criminal court so there is not one on the bench. (Mr Barnes reading). It is always difficult to find, I am afraid.
MR BARNES: Yes.
JUDGE BELCHER: Mrs Khan, so you understand what is going on at the moment, I am against you on the claim and the Secretary of State is seeking an order for costs against you. There is a statement of costs, in which they are seeking – it is not signed actually, the copy I have got --...
MR BARNES: I have a signed copy.
JUDGE BELCHER: ...of over £12,000. The procedure is that I carry out a summary assessment, so I have to be satisfied that the hours involved are reasonable and that the rates sought are proper. I have asked Mr Barnes to check the appropriate rates in the White Book and then I will proceed further from there. They are in part 44, are they not?
MR BARNES: I was just looking in the index, but it is very difficult to find.
JUDGE BELCHER: They are always difficult to find, I am afraid. Or is it 43? It is around there somewhere.
MR BARNES: They must be here somewhere. I am obviously struggling to find them.
JUDGE BELCHER: Shall I rise? I am very happy to come back on the bench. I have two options. One is I rise and we sit again at 2.15.
MR BARNES: I suspect, my Lady, no-one in this room will be keen for that.
JUDGE BELCHER: Well, precisely. Which part are you in?
MR BARNES: I have looked in 44 and I am now in 45, my Lady.
JUDGE BELCHER: I am going to rise and get my White Book and come back. It is just along the corridor. I will come straight back. (Judge rises briefly) I am looking also. You have not found it.
MR BARNES: My Lady, I have found it almost as soon as you walked out of the room.
JUDGE BELCHER: I have turned it up, yes.
MR BARNES: So it is in the 2013 edition, 1662.
JUDGE BELCHER: Yes, and Leeds is Band 1.
MR BARNES: Yes, Leeds inner.
JUDGE BELCHER: £200 is a grade A fee earner. Sorry, 2010. It is more than a grade B, is it not? The form is normally set out. The categories are solicitors with over eight years' experience would be a category A. Solicitors and legal execs with over four years' post-qualification experience are category B. Other solicitors and legal execs and fee-earners with equivalent experience, C. I am on page 1661. Trainee solicitors would be the lowest level. So the rates are going to need adjusting, are they not?
MR BARNES: The only thing I would say in response to that is, of course, the Treasury Solicitor is located in London.
JUDGE BELCHER: I think the guidelines are the court, are they not, rather than the –
MR BARNES: Yes, my Lady, although the guidelines are not absolute. They are flexible.
JUDGE BELCHER: Well, they are, but –
MR BARNES: And in circumstances where the Administrative Court is regionalised, if this was a personal injury case, for example involving a local, a firm based in London but operating in Leeds, one can see why you might charge the local rates.
JUDGE BELCHER: Yes. Well I will come back to that. Now explain to me eight hours' attendance on clients. It seems a lot. I appreciate there was a lot in this, but eight hours. That is effectively taking instructions, is it not?
MR BARNES: Yes, my Lady. As my Lady will no doubt be aware, the difficulty when the Treasury Solicitor is involved dealing with a government department, there is much more interaction between client and solicitor than one might otherwise expect. Everything has to be run past the client. One has to make sure that the client fully appreciates the issues in the case and the response.
JUDGE BELCHER: Right. Eight-and-a-half hours' attendance on counsel? Just under eight-and-a-half hours.
MR BARNES: My Lady, can I just take instructions? The short explanation is that there have been three separate barristers instructed, and there has been a lot of interaction between Treasury Solicitors and the barristers.
JUDGE BELCHER: Well, I am mindful that you have had a conference or an advice, at least.
MR BARNES: My Lady, I think that is fee for advice, documents, conference and it would cover the detailed (inaudible). There has been no conference.
JUDGE BELCHER: But I am sure there will have been telephone calls.
MR BARNES: There have been telephone calls and e-mails going backwards and forwards.
JUDGE BELCHER: Well, that does not surprise me at all. Given this is summary I am going to cut the hours for attendance on counsel down to six, because it seems to me attendance for the oral permission hearing does not require anything like the extent of input. Who are the attendances on others? Who are the others? Not the opponents, I have not challenged that, but there is five, six, six-and-a-half hours there.
MR BARNES: My Lady, I will just check. My instructions are that there was some attendance on the court, which will have taken some time. It may be that the transfer of the courts involved more time than one might normally expect. I think, my Lady, if you were to take a summary approach to that and reduce it, there would be little ground for serious complaint.
JUDGE BELCHER: That must be right. And then work done on documents. It has got over 32 hours.
MR BARNES: My Lady, I expect that the reasons for that probably are these. First of all, the need for the solicitors involved to carefully review the file, and that will be both the junior and the senior solicitors. There may be some duplication of work involved in that, but that is what would have been done. Then the summary grounds of defence were drafted by solicitors, so that will have taken some of the time. And then of course reviewing the documents as they came in from the claimant and reviewing the Detailed Grounds of Defence.
JUDGE BELCHER: All right. And then attendance at the hearing, that is today's hearing, is it?
MR BARNES: Yes, my Lady.
JUDGE BELCHER: Right, well what I am minded to say – the 7.9 hours' attendance on client, I am going to say seven hours. Attendances on counsel, and I am doing this simply because it is summary, I am deleting the 0.4 hours at £200 per hour. I am going to allow five hours at £160 and one hour at £90. Attendances on opponents I allow. That is 0.7 hours. Attendances on others is going to be three hours at £160. Documents is going to be 25 hours. Of those five will be at £90 and 20 at £160. The attendance at the hearing I allow. And the previous fee matters. I am going to get a calculation. I have reduced the costs. I have disallowed a number of the hours being claimed on the basis that they may very well – I do not doubt that they have been incurred but I consider it reasonable to reduce, and Mr Barnes will get me a figure in a moment. Is there anything else that you want to say about costs? Is there anything else they want to say to me about costs? In principle, they are liable to pay the costs.
MRS KHAN (speaking through an interpreter): We do not have any money. We get support from here just for the children.
JUDGE BELCHER: Yes. Well, I will make the order for costs, and whether it can be enforced is another issue. But in principle I will be making it. It occurs to me, I am sorry, you ought to take an hour off the attendance at hearing, the solicitor's attendance. We have not been that long. She was not here until 11. I am not criticising her.
MR BARNES: No, my Lady.
JUDGE BELCHER: You are being paid travel expenses in addition to brief fee, are you?
MR BARNES: The brief fee includes the travel expenses at half the hourly rate.
JUDGE BELCHER: Right. Well, there is a claim for your travel expenses. That is all I am querying. If it within your brief fee, it should not be claimed separately? Or are your being paid a brief fee plus –
MR BARNES: No, it should not be claimed separately. I do not think, my Lady, it is.
JUDGE BELCHER: Well, what is this other expenses at the bottom? £930.15. £350, £700.
MR BARNES: That is the train fare.
JUDGE BELCHER: Right, so that is being paid separately.
MR BARNES: Yes.
JUDGE BELCHER: All right. That is fine.
MR BARNES: So the solicitors' costs are £7152. And then --
JUDGE BELCHER: The other figures are added to it.
MR BARNES: So the total should be £9762.15.
JUDGE BELCHER: All right. Paragraph 1 is the claimant's claim is dismissed. Paragraph 2, the claimant do pay the defendant's costs of these proceedings, summarily assessed in the sum of £9762.15. So I have reduced the costs by about £2,500 from what was claimed.
MR BARNES: My Lady, can I just say that I think the reality is, because I am paid on an hourly rate, that the total is – this is an estimate – the total is likely to be ten hours when you take into account travel and prep. And so the fee for hearing should be £1000 rather than £1,180. So the figure should be reduced by £180.
JUDGE BELCHER: All right, thank you very much. £9582.15?
MR BARNES: Yes, exactly, my Lady.
MRS KHAN (speaking through an interpreter): Why our claim has dismissed?
JUDGE BELCHER: Well that is what my judgment – I have explained that fully in the judgment. I have concluded that the Secretary of State was entirely within her discretion and that therefore the claim is dismissed.
MRS KHAN (speaking through an interpreter): Is it possible for me to be granted the right of appeal for my children?
JUDGE BELCHER: Right, so you are applying for permission to appeal? On what grounds? What is the basis? An appeal has to be brought on the basis that my decision is wrong in law in some way.
MRS KHAN (speaking through an interpreter): Because my children, we are in trouble. We did not come here – and no-one from our family came here. We just came here (inaudible). We left without my parents.
JUDGE BELCHER: I am sorry. Everything that she is putting forward, nothing that she is putting before me goes to the legal issues of my decision. She is seeking to challenge the Tribunal's decision, which she cannot do.
MRS KHAN (speaking through an interpreter): I am not challenging the decision.
JUDGE BELCHER: Well if she is seeking permission to appeal, she is challenging my decision.
THE INTERPRETER: Sorry, I am just telling her that I cannot interpret her. A full paragraph, she is hard to interpret. But what she said is "I cannot take my children back because we are in trouble over there."
JUDGE BELCHER: Well, we have been through that.
MRS KHAN (speaking through an interpreter): And I would like to be granted permission to stay in this country with my children:
JUDGE BELCHER: Well, I cannot grant that. I keep telling her that. And even if I could, on the basis of what I have seen, the decisions appear to be completely right. I am refusing permission to appeal. There is a form I have to complete, which if they want to try and get permission from the Court of Appeal they will need that form. It will be at the court office in an hours' time. Thank you very much. Thank you, Mr Barnes.