CO/1240/2008 
Neutral Citation Number: [2009] EWHC 2676 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 14th August 2009
 
B e f o r e: 

MR JUSTICE OUSELEY
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Between: 
GORAN KADR AHMED 
Claimant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Miss R Chapman (instructed by Elderrahimi) appeared on behalf of the Claimant
Mr S Singh (instructed by Treasury Solicitors) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE OUSELEY:  On 5th August 2009, following a rolled up hearing, I quashed a decision of the Secretary of State for the Home Department dated 26th December 2008, whereby he rejected submissions made by Mr Ahmed.  He concluded those representations did not amount to a fresh claim and no right of appeal to the AIT arose out of them and eventually the claimant was removed.  He was removed after Miss Geraldine Andrews QC, sitting as a Deputy High Court Judge, refused permission on paper (this was on 22nd January 2009) on the grounds that there were no reasonable prospects of a successful challenge on public law grounds and held that an application for oral renewal should not constitute a basis for delaying removal.
2.	On 13th February 2009 the claimant sought an injunction to prevent his removal to Iraq.  On the following Tuesday, Mr Ockelton, sitting as a Deputy High Court Judge rejected the application for an injunction, essentially it seems on the same basis that Miss Andrews had done.  A few days later the claimant was indeed removed to Iraq.
3.	The oral application for permission came before me.  I granted permission and dealt with the matter as a substantive hearing.  As a result of which I concluded that it was arguable that there was a realistic prospect that an immigration judge might find that there was family life but which was not a particularly difficult decision, but more marginally that removal was disproportionate.
4.	The Secretary of State's decision to the contrary was accordingly irrational.  The question of what other relief should then follow was adjourned for argument, which I have had the benefit of, together with written submissions.  In the end the position of the parties become quite simple.  Miss Chapman contends that there has not been a lawful decision on the fresh claim, the only lawful decision on the fresh claim, in the light of the judgment I have come to, would not be that the claimant should be granted leave to remain but that the Secretary of State in rejecting the fresh claim should recognise that there was a realistic prospect that an immigration judge would reach a different decision and accord a right of appeal in country against the refusal of leave to remain.  She contends that that being so, the remedy in addition to the quashing of the decision has to include a requirement that the Secretary of State return Mr Ahmed to the United Kingdom in order that here the Secretary of State can then make a fresh and lawful decision rejecting the fresh claim, but recognising the right of appeal and refusing leave to remain which would grant the in‑country right of appeal.  
5.	Mr Singh, for the Secretary of State says that at the time when the removal was carried out it had the sanction of two different High Court judges.  It was not unlawful.  There was no requirement, as the applicant had left the country, for there to be a fresh consideration.  Indeed, as that would only lead to a refusal of leave to remain, that would be redundant as the claimant was out of the country any way.  The remedy that should follow from my decision would be that the claimant should make an application for entry clearance, that following my judgment, consistently with it, it would be refused, on the grounds that there was no breach of the claimant's Article 8 rights only that it was merely arguable that there was.  The claimant could then appeal against that decision and the appeal, out of country, could be adequately managed by the sponsor giving evidence in the United Kingdom and some DVD, possibly video link from somewhere in Iraq to the United Kingdom sufficing for his evidence.
6.	In my judgment, in essence Miss Chapman's submissions are right.  I entirely accept that when removal took place, the removal took place with the permission of the court and whatever may have been the possibilities of a challenge to Mr Ockelton's decision, none was made.  I also accept, in the light of my decision, that the removal did not breach any of Mr Ahmed's Article 8 rights.  It is merely arguable that that they did.
7.	However, it is also the position that the consequence of  my decision is that the Secretary of State's decision to remove has been held to be unlawful, because it is arguably a breach of Article 8.
8.	In those circumstances, had the Deputy High Court Judges known what decision would be reached, they would not have made the orders they did.  The claimant would still be in the United Kingdom, by now pursuing an in‑country appeal in the AIT.
9.	If the Secretary of State's submissions are right, these proceedings, even though ultimately successful in the claimant's hands, and even though they had not reached fruition at the time that the Secretary of State lawfully acted in the way he did, have effectively become a complete waste of time and the claimant is in no better a position as a result of the order I make, the decision that I have arrived at, than he would have been had he had no such decision from the court at all.  The consequence therefore is that although I have concluded that the decision upon which the Secretary of State acted was unlawful, the person who suffers such disadvantage as flows from it, on Mr Singh's submission, is the person against whom the unlawful decision was made and who has been disadvantaged by it.
10.	I think Mr Singh fully understands that that is not a state of affairs which is obviously appealing to a court which would wish to see those who have been disadvantaged by a decision which the court has held to be unlawful, given an effective remedy in response to the unlawfulness.  It seems to me that there are significant drawbacks to simply having an out‑of‑country appeal.  The first, of course, is that the appeal is out of country rather than with the obvious advantages that accrue from having an in‑country appeal, with the individual able to give his evidence personally and, important to a person on a matter of this sort, to be tested about his claim before a decision on it is reached.  That is one point.
11.	The second is that there are plainly in relation to Iraq some difficulties ‑‑ I do not suggest they are insuperable ‑‑ but there are difficulties in the way of communicating via video link from northern Iraq to London in terms of  suites, hours, hire or travelling to Oman in order to make the application for it to be rejected in order to set up the appeal, which can then be carried out by video link.
12.	The third factor which has some weight is that the position of an in‑country appellant would be judged as at the date of the appeal and would be able to take account of the evolution of family life from the date of decision.  Not without importance where the child who is essentially the foundation for this was only 4 months old, no doubt but older now.
13.	Whereas the out‑of‑country appeal lacks the opportunity and indeed has certain problems in relation to the evidence date for the actual development of the family life, which is the foundation of the appeal, it may not always be the case that these disadvantages meant that the Secretary of State is obliged in these circumstances to bring an individual back.  But it would appear to me, in this case, right that in order to make effective the remedy of the quashing, and in view of the Secretary of State's reluctance to bring the claimant back without an order, it seems to me that I must make an order requiring the claimant to be brought back to the United Kingdom by the Secretary of State and the Secretary of State should take all reasonable steps to contact him and to facilitate his return.  I am quite happy to consider the precise terminology of such an order if it is not agreed.  
14.	I would just add two other observations.  The first is that the courts are asked by the Secretary of State and indeed are perfectly ready to adopt a robust attitude towards those whose claims are clogging up the court and have no merit.  It is right that they should be removed as swiftly as possible.  It will be a very rare case indeed, I expect, where the circumstances such as they are here occur.
15.	It would be very unfortunate if courts were to feel that they ought not to adopt a robust approach in relation to unmeritorious cases, less should it perchance turn out that they have been overrobust, there is no further remedy available to the person who may suffer as a consequence of  that overrobustness.  As that overrobustness is encouraged by the Secretary of State, it is the Secretary of State who should do what he can to bring the individual back and should recognise that if he does not, courts may be more reluctant in the future to adopt an approach which is robust and will simply wait until all legal proceedings have concluded before reaching a final view on the merits.  That is observation one.  Observation two:  the trouble in this case arose, in my view, from the fact that the Secretary of State failed to identify two distinct contingencies when deciding that even if there were family life, it was proportionate to removal.  The one contingency is:  is what is being said true?  In this case the contingency that the Secretary of State was required to put into his mind was:  what I am being told about this family life is true.  Then he should ask himself:  if it is true, should removal take place?  Sometimes the Secretary of State appears to allow a sense of doubt about the truth to creep into his assessment of proportionality, which is a dangerous road to tread.  The other contingency is, accepting that what is said is true, is it arguable that it constitutes a private or family life or is it arguably interfered with.  How you characterise that is a different issue from the question of the consequences of accepting that what has been said is true for the purposes of the contingent argument, even if it is true, what then?  In this case I think the Secretary of State failed to adhere to the necessary logical premiss for the contingency which is what he was being told was true.
16.	For those reasons I propose to quash the decision of the Secretary of State on 26th December and order him to take all reasonable measures to procure the return to the United Kingdom of the claimant and upon his being back into United Kingdom the Secretary of State will need to make an order he will need to make a further decision for there to be a basis for removal. 
17.	MISS CHAPMAN:  I am grateful.  Might we have liberty to apply in the event that there are practical difficulties or some serious delay?   
18.	MR JUSTICE OUSELEY:  Liberty to apply is inherent but I will make it express if you want.
19.	MISS CHAPMAN:  That leaves the question of costs outstanding as well.
20.	MR JUSTICE OUSELEY:  Do you want to say anything about costs, Mr Singh? 
21.	MR SINGH:  In my written submissions at paragraph 19 I said "if the court broadly accepts" the submissions there should be no order for costs.  My learned friend in responding to that described that submission as "breathtakingly arrogant".
22.	MR JUSTICE OUSELEY:  No doubt that was said after a good dinner.
23.	MR SINGH:  That was on the basis that the court accepts the Secretary of State's submissions on relief.  Because you have not accepted I do not think I can resist the order.
24.	MR JUSTICE OUSELEY:  I do not think you can. There will be an order for payment of the claimant's costs to be subject to detailed assessment.