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||Neutral Citation Number:  EWHC 1724 (Admin)
||Case No: C0/15097/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||18 June 2015
B e f o r e :
HELEN MOUNTFIELD QC
(Sitting as a Deputy Judge)
|| The Queen, On the Application of
PRINCE VIJAYKUMAR BHATT
DHARINI VIJAYKUMAR BHATT
||- and -
||THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Adam Tear (instructed by Duncan Lewis) for the Claimants
John McKendrick (instructed by Government Legal Department) for the Defendant
Hearing date: 10 February 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
HELEN MOUNTFIELD QC :
- The Claimants in this case are a brother and sister who are Indian nationals, who came to this country lawfully on student visas, which were later extended for post-study work leave in 2008. In 2010, the Claimants sought to extend those visas. The immigration advisor who acted for them failed to put in applications based on true facts, and unknown to the Claimants, put in claims based on fraudulent documents. The Claimants have therefore been badly let down by an immigration advisor who has since served a prison sentence for fraud. As I explain below, they have also been ill-served by the Home Office, which mishandled their case. As a result of the immigration advisor's actions, they were wrongly suspected of having used deception to remain in the country in March 2012; and detained before they left the country. They have accordingly been subjected to an unlawful period of immigration detention for a period of seven days between 14 March 2012 and 21 March 2012, and in their removal from the country in circumstances in which they ought not to have been required to do so. Their appeals, conducted out of country, were also mishandled by the Defendant, with documents being lost, and many delays. Once the appeals were allowed, there were severe delays in action being taken to consider how to address the consequence of that.
- This claim is therefore brought in very unfortunate circumstances. As the Defendant's skeleton argument noted (underlining in the original):
[I]t is important to record the Defendant's apology to the Claimants for the manner in which they were treated in March 2012. An error was certainly made. The Claimants should not have found themselves in this situation. They should not have been detained. They should not have been removed in the circumstances they were. The Defendant apologises for this."
- Counsel for the Defendant started his oral submissions by repeating this apology in open court and he was right to do so. As a result of these events, the Claimants may very well have a private law claim for damages for false imprisonment. But that is not the issue in this application for judicial review. Indeed, part of the problem is that it is very unclear what issues of public law the Claimants' lawyers said arose in this case. Ultimately, I have concluded that there is no properly pleaded public law claim, and the grounds as pleaded, even as expanded and re-cast in the skeleton argument, raise no failing by the Defendant which can constitute grounds for a successful challenge by way of judicial review. I make some observations about the way in which this claim was conducted on behalf of the Claimants in paragraphs 26, 31,35-44,54 and 55 below.
The Factual Background to this Claim
- The Claimants, Indian nationals born in 1983 and 1981 respectively came to this country in 2007 and 2005 respectively, initially on student visas. Thereafter, in October 2008, they applied for, and were granted, leave to remain under the Tier 1 (Post Study) Work scheme in the Immigration Rules, which expired in October 2010.
- In March 2010, the Claimants instructed Surge Global Solutions, then OISC regulated immigration advisors, to apply on their behalf for further leave to remain under Tier 1. Unknown to the Claimants, Surge Global Solutions were involved in lodging fraudulent applications for leave to remain. Instead of putting in claims for the Claimants on a proper legal basis, the immigration advisors put in applications for further leave to remain based on false Masters certificates from the University of Delhi and false accounts to demonstrate previous earnings. Since I am told that there was a proper basis upon which the Claimants could have obtained extension visas, it is not known quite why the immigration advisors did this perhaps it was labour saving. In any event, the advisors were investigated under Operation Inkspell and the fact of the false claims were discovered. (As noted above, Mr Gupta, the individual immigration advisor who lodged these claims was ultimately imprisoned for fraud).
- As a result of the March 2010 applications for leave to remain, but before the fraudulent basis for the applications for leave were discovered by the Defendant, the Claimants were granted further periods of leave, from 14 April 2010 to 14 April 2013 and from 12 April 2010 to 12 April 2013 respectively. The Claimants therefore continued their lives in this country, in the belief that they had properly granted leave to remain.
- However, following the Operation Inkspell investigation, on 14 March 2012, the Claimants were arrested in a dawn raid. They were interviewed pursuant to an investigation relating to section 24A(1) Immigration Act 1971, on suspicion of having committed the criminal offence of having obtained leave to remain in the United Kingdom by deception.
- On 14 March 2012, both Claimants were put into immigration detention. By that point, Mr Gupta was serving a prison sentence for immigration offences, though not (I understand) in relation to the Claimants' applications for leave to remain. Although the notes of the interviews which were undertaken with the Claimants have now been lost, the Defendant formed the view that the Claimants had used deception to obtain leave to remain and were therefore liable for removal from the country.
- Paragraph 322(1A) of the Immigration Rules states that where false documents or information have been submitted - whether or not material and whether or not to the applicant's knowledge - leave to remain can be refused or, if already granted, curtailed. Curtailment of leave, however, does not automatically lead to removal. The power of removal under section 10 Immigration Act 1999, so far as is material, only confers a power of removal where a person has "used deception" in seeking leave to remain; and the power of detention can only be used for the purposes of lawful removal. In other words, intention is irrelevant if leave is obtained on a false basis; but intention to deceive or otherwise is relevant to the lawfulness of detention and removal.
- On 15 March 2012, the Claimants were served with decision notices that they would be administratively removed from the United Kingdom under the provisions of section 10 Immigration & Asylum Act 1999 and that they were liable for detention until removal. Removal directions were set on 16 March 2012 for removal on 21 March 2012. Mr Bhatt asked for permission to depart voluntarily, but this request was declined because directions had already been set for removal.
- The Claimants were notified of an out of country right of appeal against the removal decision. They exercised that right, and after serious delays by the Defendant in lodging evidence, their appeal was allowed by First Tier Tribunal Judge Herbert on 21 January 2013. He allowed the appeal on the basis that the decision was not in accordance with the Immigration Rules.
- The Defendant appealed this decision to the Upper Tribunal. The appeal was allowed on the basis that the Defendant was right to say that it had not been open to the Immigration Judge to decide the matter on the basis of the Immigration Rules, so the FTT decision was set aside. However, the Upper Tribunal retook the decision under appeal and allowed it in a decision promulgated on 24 April 2013. The Upper Tribunal found that the decision to remove the Claimants had not been in accordance with section 10(1)(b) Immigration & Asylum Act 1999 because the Claimants had not known about their advisor's fraud. Consequently it was set it aside.
- On 15 May 2013, the Defendant purported to give effect to this decision by writing to the Entry Clearance Officer in Mumbai. The letter incorrectly said that a successful appeal had been made against the Entry Clearance Officer's decision (which was not the issue in the Appeal), enclosed a copy of the 'appeal decision', and asked the Entry Clearance Office to act in accordance with "the spirit of the determination and in the light of the applicants' [ie the Claimants'] circumstances".
- The Claimants were then given leave to enter the United Kingdom for a month between 3 July 2013 and 3 August 2013 to enable them to liaise with the immigration authorities. They returned on 11 July 2013 and under cover of a letter dated 1 August 2013, made applications for leave to remain outside the Immigration Rules. These applications were refused on 18 September and 24 September 2013 respectively. Mr Bhatt was not offered a right of appeal, but in any event, neither Claimant sought to exercise any such right.
- Consequently, the Claimants returned to India on 14 October 2013, and the decisions of 18 and 24 September 2013 remain and are unappealed.
The application for judicial review
- A letter before action was sent to the Defendant on 26 September 2013 asking for a reply by 9 October 2013. In breach of the pre-action protocol for judicial review, the Defendant failed to reply. On 9 October 2013, an application for judicial review was lodged on the Claimants' behalf, and an expedited hearing was sought. The Claim Form (which was not in the agreed bundle of documents, but which was supplied by the Defendant at court) said that the challenge was to the Defendant's "failure to consider within a set time action the Claimants successful appeal" (sic) and was described as "ongoing".
The Claim Form made no mention of false imprisonment.
- On 29 October 2013, His Honour Judge Anthony Thornton QC ordered that the Defendant serve an Acknowledgment of Service within 14 days and that the papers then be placed before a judge for a permission hearing.
- Time for service of the Acknowledgement of Service expired on 30 October 2013, and the Summary Defence was filed with a late Acknowledgement of Service on 12 November 2013. The Claimants lodged a response to this on 15 November 2013.
- On 9 December 2013, Nicholas Padfield QC sitting as a deputy judge of the High Court ordered that the parties should set out, within 14 days, an agreed list of issues in dispute. An agreed list of issues was filed with the Court on 20 December 2013, and on 3 February 2014, Mr Justice Lewis granted permission. The agreed list of issues in dispute made no mention of any issue regarding unlawful detention.
- The Defendant should have lodged detailed grounds of defence on 11 February 2014. In fact they were lodged on 21 March 2014. The matter was listed for hearing on 4 July 2014, and listed for a day on 10 February 2015.
- The Claimant lodged a skeleton argument with four annexes, which included a seven page schedule of damages, on 15 January 2015.
- As the Defendant's skeleton argument dated 31 January 2015 fairly remarked, the issues raised and relief sought were extensively widened by the Claimants' skeleton argument. In the claim form, the relief sought was:
a. (unspecified) declaratory relief;
b. damages for (unspecified) "unlawful actions";
c. damages for the period of detention;
d. damages for breach of Article 5;
e. an order that the Defendant grant a further period of leave to remain in the United Kingdom;
f. an order that the Defendant grant the Claimants permission to work;
g. an order that the Defendant explain the 'handling' of the Claimants' case.
h. 'any other remedy that this Court is willing to grant' and
i. Costs on an indemnity principle
- By the time of the hearing, based on the statement of facts and grounds, list of issues in dispute and skeleton argument, the relief sought was:
a. damages for unlawful detention;
b. damages for unlawful detention while in the purported custody of the Indian authorities;
c. damages under Article 5 ECHR pursuant to section 6 of the Human Rights Act 1998;
d. damages to compensate the Claimants for their legal costs before the First Tier Tribunal and Upper Tribunal;
e. damages for loss of opportunity;
f. damages for specific past losses (to include past loss of earnings; past travel expenses; accommodation in the United Kingdom);
g. damages for future losses (in the form of flights and accommodation).
h. damages for hurt feelings.
Relief from sanctions for Defendant
- As I have noted above, the Defendant was 35 days late in filing and serving detailed Grounds of Resistance. This was said to be as a result of an oversight. It was therefore necessary for Mr McKendrick, counsel for the Secretary of State, to apply for relief from sanctions, pursuant to CPR 54.12. I was invited to apply the principles in Denton v TH White Ltd  EWCA Civ 904,  1 WLR 3296.
- The oversight was not a trivial one, especially in the light of the previous handling of the Claimants' FTT and UT appeals. 'Oversight' is not a very convincing excuse. On the other hand, nor was the delay an especially lengthy one, so it would not be right to describe it as very serious and significant. Nor was it suggested that the delay had caused the Claimants any prejudice. Another aspect of the circumstances was that the way in which the claim was pleaded was diffuse and frankly confusing, and it would have been very difficult for me to evaluate it without the assistance of counsel for the Secretary of State's pleadings and submissions. That is a not insignificant factor in concluding that the good administration of the court was best served by granting relief from sanctions.
Late service of evidence by Claimant
- Mr Justice Lewis directed that if the Claimants wished to rely upon further evidence they should do so within 21 days of service of the detailed grounds of resistance. They did not do so. Evidence was adduced late in the context of the Schedule of Loss, accompanied by statements of truth from the Claimants signed on 9 January 2015. The Defendant invited me to disregard this evidence on the basis of the delay. However, in the circumstances, I would not have thought it right to shut the Claimants out from relying on the late evidence, had it been relevant. It was not suggested in the Defendant's skeleton argument that the late service caused the Secretary of State prejudice, and it is unattractive for a public body to seek relief from sanctions itself while opposing them for an opponent without good cause.
The scope of the claim
- The real difficulty in this case has been to identify the live issues which are properly the subject of challenge in these proceedings. The decision challenged in the claim form was what was said to be the Defendant's ongoing failure properly to consider the Claimants' successful appeal against the decision to remove them. No further decisions were challenged in the Claim Form.
- The grounds of claim challenged the delay in achieving a proper resolution following the Upper Tribunal decision on 24 April 2013 (which the Claimants appeared to consider would amount to restoration of the leave which had been wrongly curtailed), although they did also seek damages for breach of Article 5 in respect of the earlier period of false imprisonment.
- Following the Order of Nicholas Padfield QC, the parties agreed a List of Issues in dispute which was as follows:,
1. Whether the finding of the Upper Tribunal that the original decision by the Secretary of State was unlawful retrospectively rendered the Claimants' removal from the UK unlawful;
2. Accordingly as a result of the findings the alleged failure of the Secretary of State:
a. to reinstate the Claimants' leave or to grant alternative leave in order to remedy the Claimant(s) unlawful revocation of leave;
b. to engage with the Claimants and Claimants' Solicitors, following the email communication from the Deputy High Commission, Mumbai dated the 3 July 2013, which specifically stated that the month of leave was to enable the Claimants to engage with the relevant UK authorities;
c. to address numerous communications to the Defendant by the Claimants, the Claimants' Solicitors and the Claimants' MP in respect of chasing this matter;
d. to consider properly the underlying issues of the Further Leave to Remain applications, made on the last day of the Claimants' leave to remain;
e. to respond to the pre-action letter in a proper and proportionate manner.
f. to consider the allegedly disproportionate act and detrimental impact of the Claimants' leave being revoked and their removal, resulting in their loss of employment, break in continuous leave opportunity to apply for an extension of leave and having to leave the UK.
I assume that the items in paragraph 2 were further allegations of illegality by the Claimants. They amount to averments that the Defendant has acted unlawfully by failing to restore or grant new period of leave to remain, and a number of allegations of maladministration.
- The Claimants' skeleton argument is diffuse and difficult to follow, but the claims there set out appear to be:
a. delay in restoring leave to remain (which the Claimant says the Defendant should have done after the Upper Tribunal's decision) (paras 45-49);
b. following an (unspecified) unpublished policy on removal on 15 March 2012 (paras 50-53);
c. failure to act to follow the decision of the Upper Tribunal by restoring leave to remain (paras 54-55);
d. unlawful detention as a tort of false imprisonment (56-71 there is no mention of Article 5 ECHR in the skeleton);
e. unlawful post-detention conduct by failing to restore leave to remain (paragraphs 72-77).
f. Claims for damages in accordance with a schedule (paras 78-83 and schedule C);
g. 'Further her resolution of their underlying leave to remain issues' including an order that they be granted indefinite leave to remain to restore them to the position they would have been in save for the unlawful decision (paragraphs 84-85);
A clear and unequivocal statement explaining why they have been treated as they have and produce a written policy for the future (paragraph 86).
- Notwithstanding the defects in the Defendant's conduct, I see no proper basis upon which this claim for judicial review and damages can succeed.
- As the Defendant properly recognizes, the Claimants were unlawfully detained between 14 March and 21 March 2012. The Defendant can only exercise powers of detention for the purposes of removal, and removal under section 10(1)(b) of the Immigration & Asylum Act 1999 can only lawfully occur if a person has used deception. The Upper Tribunal held that the Claimants did not use deception in seeking leave to remain in the United Kingdom, so they should not have been removed under section 10 Immigration & Asylum Act 1999 and consequently they should not have been detained pending such removal.
- The facts admitted by the Defendant amount to false imprisonment. This short period of false imprisonment must have been distressing and humiliating for the Claimants, who had lived in Britain for a number of years without doing anything wrong. The limitation period for bringing a claim for false imprisonment is six years, so it has not yet expired. In the light of the observations in the Defendant's skeleton argument it is unlikely that liability would be contested in a correctly pleaded private law claim for false imprisonment.
- However, as the Defendant also points out, there is no claim for false imprisonment in the claim form or Grounds in this case or even any mention of the tort of false imprisonment. A claim for judicial review of the period of detention (brought in October 2013) is out of time, even if time runs, as I accept it might, from the promulgation of the Upper Tribunal decision on 24 April 2013 rather than from the dates of imprisonment in March 2012.
- The decision under challenge here is not the decision to detain, but the failure to take the steps the Claimants say the Defendant ought to have taken to regularize their position after the Upper Tribunal decision. It is inappropriate to bring a private law claim for relief within an application for judicial review in respect of a different public law decision (as here) because at the date of the decision under challenge (ongoing failure to "consider within a set time action the Claimants successful appeal" [sic]), there was no ongoing unlawful detention (BA v Home Office  EWHC 1446 (QB) para 11.)
- It is true that claims can, in appropriate circumstances, be transferred from the Administrative Court to the Queen's Bench Division for trial of issues of fact and/or for assessment of damages. But there is no ongoing public law failure which was live at the date of claim; no properly pleaded private law claim which I could remit to the Queen's Bench Division for a trial; and any event, the lack of any serious legal dispute as to liability and relatively low level of quantum involved would be likely to make this a claim apt to be heard in the county court rather than the QBD.
Breaches of the Human Rights Act 1998
- The claims for breaches of Articles 5 and/or 8 ECHR are not elaborated in the statement of facts and grounds. No such claims are elaborated in the skeleton argument. I agree with the Defendant that Claimants, especially professionally represented Claimants, cannot be permitted to make wide ranging claims for damages under the Human Rights Act 1998 without explaining what the breaches are, or what damages are said to arise pursuant from them. Compliance with paragraph 5.3 of Practice Direction 54A and paragraph 15.1 of Practice Direction 16 matters if the parties and the court are to give effect to the overriding objective of fair and cost effective justice under CPR 1. A party who seeks to rely on a provision or right arising under the Human Rights Act 1998 must give precise details of the Convention right infringed and details of the alleged infringement and specify the relief sought in relation to it. That has not been done in this case. There is no properly pleaded claim in respect of violation of either Article 5 or 8 of the ECHR for the Court to address.
- I also agree that any claim would be outside the primary 12 month limitation period in section 7(5)(a) HRA, and no application has been made for an extension of time under section 7(5)(b). Nor has any basis been given for explaining why this would be just and equitable.
Unlawful decisions/breaches of immigration law/pursuing an undisclosed policy
- The diffuse allegations of breaches of immigration law are not pleaded with anything like the specificity required by CPR 54.6.1.
- It appears to be suggested that the Defendant has been negligent in her use of immigration powers after the Upper Tribunal decision, by failing to restore the 'old' leave to remain which would had it not been cancelled - have expired in October 2013; by failure to grant the Claimants a further period of leave to remain when they returned to the country in September 2013 and made a fresh application; and by failure to grant them Indefinite Leave to Remain in recognition of the fact (the Claimants say) that they would probably have achieved that status by now but for the Defendant's actions in March 2013.
- It is also suggested that the Defendant has acted unlawfully at some unspecified time and in some unspecified respect by following an unpublished policy of some kind, contrary to the law as stated in Lumba & Mighty v SSHD  UKSC 12.
- However, as the Defendant has pointed out, there is no proper explanation of how, if at all, a private law cause of action is made out in relation to the Defendant's various immigration decisions in respect of the Claimants (and there is extensive authority that the Defendant does not owe individuals a duty of care in operation of her immigration powers: see Mohammed v Home Office  EWCA Civ 351, R(Atapattu) v SSHD  EWHC 1388 (Admin) and AB, MVC v Home Office  EWHC 226 (QB)).
- In any event, while the Defendant's decision to refuse to grant the Claimants a new period leave in October 2014 may appear harsh, the Claimants nowhere articulate why and how that was an error of law.
- After the Claimants were wrongly removed from the country they successfully appealed to the Upper Tribunal, which on 24 April 2013, held that the removal decisions of 15 March 2012 were not in accordance with the law. But the Upper Tribunal decision did not grant the Claimants leave to enter or remain in the UK, nor extend their previous Tier 1 (post study work) leave, which had by then expired.
- Moreover, for the reasons identified in paragraph 9 above, the illegality in relation to detention and removal does not infect the decision to curtail leave. Since the March 2010 applications for renewal of leave which were made on the Claimants' behalf, were made on the basis of false documents, albeit without the connivance or knowledge of the Claimants' application of the policy set out in paragraph 322(1A) of the Immigration Rules means that the Defendant in any event acted lawfully in curtailing the Claimants' applications for post-study leave once it was discovered that they had been made on the basis of false facts and documents.
- Thus, although the removal decisions were unlawful (because they were made on the basis of an erroneous assumption that the Claimants were involved in the deception), once Mr Gupta's fraud had been established, the decisions to curtail leave with effect from 14 March 2012 were not: see rule 322A Immigration Rules. What the Claimants ought to have had (on the basis that they were not implicated in the fraud) was a period in country after 14 March 2012 to make fresh applications for leave.
- That is why the Defendant's interpretation of the "spirit" of the Upper Tribunal decision was to grant the Claimants a short period of leave to return to the United Kingdom (reversing the decision of 15 March 2012), so as to enable them to make fresh applications leave to remain with effect from August 2013.
- By the time that application was made, the period of leave which the Claimants had originally been granted in March 2010 had in any event expired. The Claimants sought leave to remain outside the Immigration Rules by their application of September 2013 (not post-study leave); the decision whether or not to grant it was a discretionary one; and it is not said in the Claim Form how if at all an error of law infected the decisions of 18 and 24 September 2013 to refuse to grant leave to remain outside the Rules. There was no appeal against those two decisions which, in the absence of any successful legal challenge, by way of appeal (which may not have been available) or judicial review must stand.
- There is therefore no basis upon which this court can grant any relief to the Claimants, by way of ordering the Defendant to grant any form of leave to remain, as suggested in the skeleton argument, or otherwise.
- As noted above, and as mentioned in more length in the skeleton argument, there were a number of respects in which the Defendant's conduct, throughout the process of dealing with the Claimants, their various appeals and the aftermath of those appeals, has been less than satisfactory. As seems apparent from the Schedule of Loss served with the skeleton argument, even if only some of that loss is accepted, the Claimants suffered considerable financial and non-financial detriment as a result.
- These failings may constitute maladministration, and may give rise to a right to compensation. However, I am satisfied that the appropriate course to seek redress for these losses, at least initially, is through the Defendant's complaints procedure and not through a claim for judicial review: see Anufrijeva v London Borough of Southwark  EWCA Civ 1406;  1 All ER 833 and MD (China) v SSHD  EWCA Civ 453 at .
Conclusion and costs
- For these reasons, and notwithstanding my great sympathy for the Claimants who have been let down by a great many people during the course of this saga, this application for judicial review is dismissed.
- The Defendant having succeeded in defending this application for judicial review, I will consider any application for costs which she may make in writing. Notwithstanding the usual rule that the winner obtains its costs from the loser, in view of the circumstances of this case; the failure to comply with the pre-action protocol; and the delays in lodging both Acknowledgement of Service and Detailed Grounds of Defence, it may take some compelling factor to persuade me to make any order that the Claimants be liable for the Defendant's costs.
- The fact that the claim has not succeeded means that strictly I do not need to address the schedule of costs lodged by the Claimants. However, the Claimants are privately paying clients and I regret that in fairness to them, I ought to say that I regard the sum which would have been claimed for costs in this case which presumably is the sum they are to be charged on a solicitor-client basis - as grossly excessive. It is four or five times more than I commonly see in cases of an equivalent nature which have been well prepared by excellent and efficient advocates. As pointed out in the Defendant's skeleton argument, the Claimants' lawyer has not begun to plead the case properly or to comply with the practice directions as to what should be included in a claim. Moreover, even if the Claimants had succeeded, I would have felt unable to award the costs of the skeleton argument against the Defendant, for the reasons given by Lord Justice Jackson in Inplayer Ltd v Thorogood  EWCA Civ 1511 at -. In that case, refusing to award the costs of a skeleton drafted by the same advocate because it failed to fulfil the intended clarificatory purpose of a skeleton argument, Jackson LJ described the skeleton as constituting "[many] pages of rambling prolixity through which the reader must struggle to track down the relevant facts, issues and arguments". I very much regret to say that the skeleton argument in this case suffered from the same defect. Had this been a case in which the Defendant would have been ordered to pay the Claimant's costs in principle, it would have been an uphill struggle for the Claimant's advocate to persuade me to award a fraction of the sum claimed (though I would have considered submissions from both parties as to quantum before reaching a concluded view). Whether or not the costs can be enforced against the Claimants may be a matter for the Legal Ombudsman; the claim having failed, it is not a matter for me.
- When I sent a draft of this judgment to the legal representatives (in the usual way), for typographical and other corrections, the Claimant's advocate said that the reference to the Legal Ombudsman (LeO) "appears to make no sense in this specific matter. LeO may be relevant to a bill in non litigation matters". He suggested that a contested bill would be assessed by the Senior Costs Office. I have checked this with the Legal Ombudsman's office, and they have confirmed that if a client wishes to challenge a bill from a regulated lawyer in connection with the conduct of litigation as being manifestly excessive, the Ombudsman has jurisdiction to consider it. My reference to the Ombudsman is therefore correct.
- The Claimants' advocate has correctly pointed out that the judgment does not mention two post-hearing notes submitted by the advocates, on 11 and 12 February 2015. I address these briefly below.
- The Claimants' note was an analysis of the case of R(Boafo) v Secretary of State for the Home Department EWCA Civ 44. That case had been cited at paragraph 11 of the Claimant's skeleton argument but no copy was provided at the date of the hearing. The Claimant's note submitted that Boafo was authority for the proposition that a court can grant Indefinite Leave to Remain ("ILR") in its own right if that is the inevitable consequence of a Tribunal's decision, even if the Tribunal does not give directions to that effect.
- The Defendant's counsel also produced a note distinguishing the facts of the Boafo case. He submitted that in this case there was no basis to require the defendant to grant ILR. Even if the Claimants had not wrongly been detained and removed, leave could have been lawfully curtailed because it was obtained by the Immigration Advisor's deception. Even if that had not happened, leave would have expired by the time of the Upper tribunal decision in any event. Mr McKendrick submitted that unlike Boafo, there was no unlawfulness in regard to the decision to refuse the Claimants further leave to remain.
- For the reasons outlined in the judgment, I accept this submission. My reading of paragraph 30 of Boafo is not that the Court was suggesting that it had any freestanding jurisdiction to grant ILR itself. Rather the Court, quashing a decision to refuse indefinite leave, can direct what the lawful result should be on a redetermination i.e that the Secretary of State should himself grant that leave.
- The reference to Boafo makes no difference to my judgment.
- The second observation made by the Claimants' advocate is that there was some delay in handing down this judgment. (The final submissions from the parties were received on 12 February 2015 and the draft judgment was sent to the parties in embargoed form on 15 June 2015). The Court of Appeal has said that judgments should normally be handed down within three months, and this one took just over four. I apologise for this delay, caused by a period of leave in a week immediately after the hearing and thereafter pressure of other work.
- Finally, the Defendant's post-hearing note also attached a copy of the Home office's Complaint Management Guidance version 7. It observed that the usual timescale for receipt of a complaint to the Home office was three months but that this period could be extended and that
"The Defendant is willing to extend time to the Claimants, given the usual and regrettable background circumstances and given the court's concerns. Any complaint should be in writing and addressed to the Treasury Solicitors to ensure it is correctly processed."
- In the light of this undertaking, it may be that a complaint through this route could constitute an effective, cost-free means of obtaining redress for at least some of the detriment which the Claimants have suffered, without the need to commence private law proceedings.
- I have been asked to order that the Claimants may commence private law proceedings if so advised. A claim for false imprisonment would be within limitation, and no permission from me would be needed for such a course. For the avoidance of doubt, I do not consider that it would constitute an abuse of process for such proceedings to be commenced in private law proceedings.
- There is, in the circumstances, no application for costs from the Defendant.
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