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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Acar, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 3407 (Admin) (13 June 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/3407.html Cite as: [2008] EWHC 3407 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		13 June 2008

1. DEPUTY JUDGE: This is an application by the claimant for permission to apply for judicial review, the application having been refused on the papers by Mr Justice Davis on 14 March 2008.
2. The claimant is from Turkey. He came to the United Kingdom in 1993 and claimed asylum.
3. There were appeals against the refusal of the Secretary of State to grant him asylum which were dealt with first by a special adjudicator and then by the Immigration Appeal Tribunal, concluding in July 1997. Further representations were made on the claimant's behalf. They included a medical report dated 7 July 2003 from Dr P L Sayed, a consultant psychiatrist. That medical report was prepared and submitted shortly before an appeal to an adjudicator against the refusal of the Secretary of State to allow the claimant to remain in the United Kingdom either on human rights or discretionary grounds.
4. On 4 August 2003 the adjudicator dismissed the claimant's appeal. He dealt with arguments that removal to Turkey would infringe the claimant's rights under either Article 3 or Article 8 of the European Convention on Human Rights. Both provisions of the Convention were invoked on grounds of the claimant's physical and mental health. The adjudicator rejected those. His Article 8 claim was also based on the private life which the claimant had established in the United Kingdom in what, by then, had been 10 years. The adjudicator, in brief but sufficient terms, said that he was not persuaded that there would be a violation of Article 8 in that sense by the claimant's removal.
5. Since that decision the claimant's representatives have made further submissions to the Secretary of State in August 2004 and June 2005. Those were considered but rejected by the Secretary of State in a decision of 7 August 2007. It is that decision which is the subject of these present proceedings.
6. On behalf of the claimant Miss Hulse argues two things: one is that the Secretary of State acted unlawfully by failing to consider adequately or at all fresh representations and, secondly, that if the Secretary of State was not minded to grant the claimant permission to remain in the United Kingdom she acted unlawfully in failing to acknowledge that the representations constituted a fresh claim, so triggering, as the claimant would say, a right of appeal to the tribunal pursuant to Rule 353 of the Immigration Rules.
7. It is convenient to take the second matter first. Two particular matters are raised as fresh material. The first is that, subsequent to the adjudicator's decision, the claimant has re-married. It is said that the marriage itself is a further factor which the Asylum and Immigration Tribunal ("AIT") would be entitled to take into account in deciding whether removal would constitute a breach of Article 8. Secondly, it is said, as is undoubtedly the case, that the claimant had been in the United Kingdom for a further four years after the decision of the adjudicator in August 2003 by the time of the Secretary of State's decision in August 2007.
8. Miss Hulse also emphasises that the claimant, unfortunately, has suffered from paranoid schizophrenia - and his mental health is therefore delicate to say the least - and does suffer from a physical condition which was drawn to the Secretary of State's attention. Miss Hulse also says that it is in her client's favour that the Secretary of State has acknowledged that some of the matters that were drawn to her attention through the representations in 2004 and 2005 had not indeed been considered by the adjudicator in 2003.
9. In order to establish that representations do constitute a fresh claim under paragraph 353 there has to be a real prospect that those new materials, when taken with the existing materials that were before the appellate authority, might lead to a result favourable to the claimant. The Court of Appeal has recently reminded the Secretary of State and the courts that the threshold that has to be crossed in order to satisfy that part of the condition is not very demanding.
10. In my judgment, although it is not very demanding, the claimant does not in this case show a reasonably arguable case for saying that the Secretary of State has erred in law in concluding that the requirements of paragraph 353 are not met. The adjudicator on the previous occasion did have the report of Dr Sayed that drew the adjudicator's attention not only to the paranoid schizophrenia from which the claimant was then suffering but also to the physical difficulties under which he laboured and which Dr Sayed also mentioned in his report. The claimant's condition therefore, both physical and mental, are not new matters.
11. The claimant's second marriage is viewed with a degree of scepticism by the Secretary of State given the rather poor quality of the photocopy of the marriage certificate that has been produced to her. The Secretary of State has not decided this matter on the basis that she does not accept that the marriage has taken place. Rather - attention is drawn to the absence of any evidence or representations that the claimant's second wife would not go with him to Turkey if he were removed. If that took place the claimant would be able to enjoy his family life in that sense in Turkey. Of course the removal of the claimant would involve the disruption of other aspects of his private life which he has built up over the years. That was a matter that was before the adjudicator in 2003. I accept that a further four years have passed since then but, even at the time of the 2003 decision, the claimant had already been in the United Kingdom for some 10 years.
12. In my judgment it is not reasonably arguable that a different result would be obtained if the matter were to go back before the AIT because of the passage of those additional four years.
13. Accordingly, I do not consider that there is a reasonably arguable case that the Secretary of State erred in law in concluding that the representations made to her did not amount to a fresh claim.
14. So far as the refusal of the Secretary of State to accord the claimant leave to remain in the United Kingdom is concerned, the focus here has been on the question of the exercise of discretion. The Secretary of State's Immigration Rules have what is known as the "long residence" rule, namely (I paraphrase) if somebody has been in the United Kingdom for more than 14 years then the Secretary of State will ordinarily grant leave to remain in the United Kingdom. The 14 years have to be accumulated before enforcement action is taken. In this case enforcement action began a very long time ago, and certainly well before 14 years residence in the United Kingdom had accumulated. There would therefore be no basis for complaint to the AIT or to this court that the Secretary of State has not accorded the claimant a right under the Immigration Rules - long residence rule in the Immigration Rules - for permission to remain in the United Kingdom.
15. The Secretary of State has a discretion to allow someone to remain even though they do not satisfy the Immigration Rules. In this case the Secretary of State in the decision letter under challenge said that careful consideration had been given as to whether the claimant should qualify for discretionary leave in the United Kingdom, but none of the issues raised would give rise to such a grant of leave.
16. In my judgment it is not open to the claimant - it is not reasonably arguable - that the Secretary of State failed to exercise that discretion or failed to take account of any matters that would be relevant to the exercise of that discretion.
17. Accordingly, the second way in which the claim is put in my judgment has no better prospects of success; it, too, lacks a reasonably arguable basis. For all those reasons I dismiss this application.
18. MISS STRUGO: I am grateful. There is an application for costs in relation to the acknowledgement of service in the sum of £480 for three hours work at £160 per hour.
19. MISS HULSE: I would ask you not to allow that. I know costs normally follow the event. In this case we are talking about immigrants, asylum seekers, where whatever the decision of this court there is a certain amount of compassion - - reason why they should seek to exercise whatever possibilities they can in order to stay here. I would suggest the Secretary of State in dealing with these matters has been quite lethargic. Four years have gone by. In those four years they have continued to live and - as you rightly say - to have a private life. I do not think it is surprising in those circumstances that they should have sought every opportunity to get their application before the court. On that basis I would ask you not to enforce costs against the appellant.

R U L I N G

20. DEPUTY JUDGE: The Secretary of State in this case claims the costs of preparing and filing the acknowledgement of service. There is no claim in relation to attendance today, nor, in my judgment, could there be so. Costs of attendance on an oral permission application by the respondent are not usually granted unless certain conditions are fulfilled; they are not here. The costs of filing the acknowledgement of service are another matter.
21. Since that is a matter which the defendant is required to do by the Civil Procedure Rules, if the application for permission is unsuccessful the courts have concluded that ordinarily the defendant will be allowed the costs of preparing the acknowledgement of service.
22. Miss Hulse, on behalf of the claimant, urges me to take a different course because of the personal circumstances of the claimant, and justifiably - she would put it understandably - wishes to explore all legal avenues. I do understand why a claimant would wish to explore all legal avenues. But those opportunities come at a price. The price in this case is that the claimant must bear the costs of preparing the acknowledgement of service. Those have been claimed at three hours work which I consider reasonable and the amount to represent that time of £480 I also consider reasonable.
23. The defendant's costs of preparing the acknowledgement of service are summarily assessed at £480.