Her Honour Judge Belcher:
- The Claimant in this case entered the UK on a student visa in September 2002 and her visa was subsequently extended and/or leave to remain granted until 31 January 2010. On 27 January 2010 the Claimant submitted an application for further leave to remain as a Tier 4 (General) Student Migrant under the points based system. At that time the Claimant had leave to remain. That leave to remain expired on 31 January 2010, although having made an application for further leave to remain, there is a statutory extension.
- On 24 February 2010 the Secretary of State refused the application as invalid on the grounds that a mandatory part of the form had not been completed and there were problems with the photograph of dependent child (matters I shall come back to). Therefore, on the face of it, the statutory extension of leave to remain fell in at that time, the application having been determined against the applicant, although it would have continued had there been any appeals or matters of that sort. What in fact happened was on 12 March 2010 another application was submitted (the Claimant says it was the original application re-submitted, although that was not pursued in this Court) and by that time there had been changes to the Tier 4 requirements with effect from 22 February 2010 requiring the applicant to produce a CAS (Certificate of Acceptance for Studies) with her application. She was unable to do so and that application was rejected at that time on that basis. There is no challenge to that rejection.
- The Secretary of State on 19 May refused the application with no right of appeal and, as I have said, that is not challenged. There was an appeal to the First Tier Tribunal and the immigration judge decided that no relevant decision had been made and refused to accept the notice of appeal. That was on the basis that leave to remain had expired by the time the second application was made on 12 March 2010.
- As originally drafted, the challenge in this case was to the decision of the immigration judge in July 2010 in refusing to accept the notice of appeal. However, in reality the challenge was to the underlying decision of the Secretary of State, the decision of 24 February 2010, because if that decision was correct then the decision of the immigration judge was, in my judgment, unchallengeable. After hearing argument on the point I gave leave to amend and directed the matter should proceed on amended grounds for judicial review. This is the substantive hearing based on those amended grounds.
- It is right to point out that this is an application for judicial review; it is not a question for this Court whether I, as the judge, would or would not have made the same decision as the Secretary of State. The issue for the Court is to review matters on judicial review grounds and that of course traditionally would be whether there was an error of law or a procedural impropriety or, more relevantly in this case, whether the decision could be said to be irrational or Wednesbury unreasonable. It is trite law that public bodies may adopt general policies governing the way in which they will exercise their discretion but they may not fetter their discretion by applying those policies unduly rigidly.
- I turn therefore to the decision of 24 February 2010. The Secretary of State, as I have already said, rejected the original application on two bases, firstly that a mandatory section of the form had not been completed and, secondly, that the photographs must be in a format specified as mandatory in the application form and/or related guidance notes. The rejection letter is at pages 17 and 18 in the bundle and the letter states that the application is returned as invalid on two sections of the form, indicating the grounds I have already stated. It then states:
"Arrangements will be made to refund any fee which you have paid if we have not received a valid application within 28 days of the date of this letter."
Also on the following page it says:
"Please be aware that as your application has been rejected as invalid under the immigration rules. If you choose to submit a fresh application, the date of your application will be the date that the fresh application form is submitted;"
- As originally drafted it was argued that the second application form was simply a variation of the earlier application form and that was evidenced by the Secretary of State's invitation to submit a fresh application. It is plain from the paragraph I have just read that what was suggested was that a new application might be submitted, not that any new application would be treated as a variation. In fairness to him, Mr Mohammed has not sought to put matters on that basis in this Court. What he does state, based on his amended grounds of judicial review, is that if the applicant is correct in her assertion the first application was not invalid, then the second application must be treated as a variation of the first in accordance with Section 3(c) Immigration Act 1971. Mr Evans points out that really that issue is irrelevant and that if the applicant succeeds in challenging the decision of 24 February 2010 then no decision has been made on the first application; it will have to be revisited and the variation or further application will plainly form part of it.
- In essence, therefore, the issue for me is whether the decision of 24 February was one which the Secretary of State reached lawfully, bearing in mind that I review this on the basis of judicial review powers and not on the basis of any decision that I might have made myself. I stress that point and I have asked Mr Mohammed about it this morning, and he accepts of course that I can only approach this on that basis. In the course of his skeleton argument it is suggested that I have a discretion and indeed his final submission to me this morning was to remind me that I should understand that I am here for a reason. He submitted that the decision does not feel right, reminding me that I am here for a reason, and those are matters he asks me to take into account. It seems to me that that submission is perilously close to saying that I ought to decide whether I consider the original decision was right or wrong in the sense that I should re-exercise that discretion. It is absolutely right that I am here for a reason; I am appointed the judge in this case and I have taken an oath of judicial office to try cases without fear, favour, affection or ill-will and I will decide this case to the best of my skill and ability, applying the law and exercising my judicial responsibilities. Those do not include, in my judgment, simply deciding a case on the basis of feel; they involve deciding the case on the basis of law and considering, as I have to in this case, whether it could be said that the failure to exercise discretion was wholly unreasonably. I say "failure"; I will proceed to explain what I mean by that in the course of this judgment.
- I start therefore from the amended grounds. The amended grounds in relation to the photographs are that on the date upon which the relevant immigration rules were laid before Parliament there was no guidance as to the format in which the photographs were to be provided. The only mandatory requirement is that set out in the application form, namely that the applicant must "…provide two recent identical passport sized photographs of yourself with you full name on the back of each one". The Interested Party accepts the Claimant did this but contests the photographs were not clear enough. Mr Mohammed submits that the clarity of the photographs is not a mandatory requirement and thus the application cannot be invalid on this basis. That is the grounds in relation to the photograph.
- Perhaps for convenience I will read here the further grounds in relation to the failure to answer a question as to whether the Claimant has ever lived in Northern Ireland. The challenge is that this is irrelevant to a material consideration of the Claimant's application, that Immigration Rule 60 applies to an extension of stay as a student and does not require the applicant to demonstrate whether they have lived in Northern Ireland or not; the question is irrelevant to the consideration of the application; there is no basis to assert the question is mandatory and in the alternative the answer to the question can be understood by checking how the Claimant completes the form.
- I have copies of the application form in front of me. The application form states quite clearly:
"For your application to be valid, it is mandatory to provide the following photographs:
- Two recent identical passport-size photographs of yourself with your full name written on the back of each one."
It then goes on to say that the photographs must be in the format specified in the separate photograph guidance, including the requirements which can be found on the website (then the address is given). Mr Mohammed submits that the only mandatory requirements are the first part of that, namely "the two recent identical passport size photographs of yourself with your full name written on the back". That, he submits, was done here and he submits the mandatory requirements are met and that the application cannot be invalid on this basis.
- Section 50 of the Immigration, Asylum and Nationality Act 2006 provides that rules under Section 3 of the Immigration Act:
"(a) may require a specified procedure to be followed in making or pursuing an application or claim (whether or not under those rules or any other enactment),
(b) may, in particular, require the use of a specified form and the submission of specified information or documents,
(c) may make provision about the manner in which a fee is to be paid, and
(d) may make provision for the consequences of failure to comply with a requirement under paragraph (a), (b) or (c)."
- Section 34C of the Immigration Rules provides:
"Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34A, such application or claim will be invalid and will not be considered."
That therefore refers back to 34A and rule 34A states that:
"Where an application form is specified, the application or claim must also comply with the following requirements:"
34A(iii):
"any section of the form which is designated as mandatory in the application form and/or related guidance notes must be completed as specified"
34A(vi):
"where the application or claim is made by post or courier, or submitted in person:
(a) the application or claim must be accompanied by the photographs and documents specified as mandatory in the application form and/or related guidance notes,
(ab) those photographs must be in the same format specified as mandatory in the application form and/or related guidance notes"
- The UK Border Agency Guidance for Immigration Applications made in the UK, Version 4 of 2009 (which is at Tab 6 in the authorities bundle) provides that photographs must be, amongst other things, in sharp focus and clear. It is perhaps helpful to read the paragraph at the top of the guidance, which reads as follows:
"The photographs which you have to provide with your application must be in the format specified below. These format requirements meet internationally agreed standards. If the photographs are not in this format, they will be rejected - and in some cases the application will also be rejected as invalid."
Then in bold:
"In particular, the format specified in the first list of requirements below is mandatory where an application for a biometric immigration document is made. At present this means applications on forms … Tier 4 (General) Student, Tier 4 (Child) Student…"
It then goes on:
"Please note that applications on these forms will be rejected as invalid if any of the photographs provided fail to meet any of the mandatory format requirements. If that happens, you will have to reapply and you may lose appeal rights."
There is then a list of mandatory requirements and that includes the requirement I have just read, that the photographs should be in sharp focus and clear. That is the basis on which the photograph in this case was rejected. There is a further list at the bottom of the page of other requirements such as that a photograph must be free from reflection or glare on spectacles, free from red-eye and matters of that sort. Those are not listed as mandatory although plainly they are important and relevant requirements.
- The Claimant's case is that the failure to comply with the guidance notes cannot invalidate the application because, Mr Mohammed submits, these are guidance notes, they are not part of the mandatory requirements in form and that they therefore cannot be given the status of rules and mandatory requirements. In support of that he relies on the decisions of the Court of Appeal in Pankina v the Secretary of State for the Home Department [2010] EWCA Civ 719 and the decision of Mitting J in Fu v Secretary of State for the Home Department [2010] EWHC Civ 2922 (Admin). The decision in Pankina is to the effect that the Immigration Rules had ceased to be policy and had acquired a status akin to law.
- Pausing briefly at this point, in the course of his submissions Mr Mohammed sought to persuade me that in fact the Immigration Rules are policy and not a status akin to law on the basis, he submitted, that there was inconsistency between the decisions in Pankina and Odelola. I do not consider it is necessary for the purposes of this decision for me to go into that submission but in passing it does not seem to me on the face of it to be incorrect. It seems to me clear that in the course of the decision in Pankina the court was well aware of the judgment in Odelola and indeed stated in paragraph 13 of the judgment (which I have before me), having referred to Odelola and the dicta of Lord Hope, then goes on to say: "The present case makes it necessary to go somewhat further". It does not seem to me that there is any mileage in the argument that those cases are inconsistent, but I do not propose to go any further in relation to that since it is unnecessary for the purposes of this application.
- Mr Evans, who appears for the Interested Party, the Secretary of State in this case, submits that what the court decided in Pankina was that substantive criteria affecting individual status and entitlement must be included within the Immigration Rules and that the Immigration Rules could not refer to external sources which had not been laid before Parliament and which could be changed at will for such criteria. He points out that the case concerned the specification in policy guidance for the requirement to have £800 in funds for a specified period of three months, when all that the Immigration Rules required was £800 in funds held at the time of the application. The case, therefore, was one of a rule supplementing itself by a further rule obtained from a further extraneous source.
- In my judgment that is a correct analysis of the decision, especially when considering paragraph 33 in the judgment of Sedley LJ in which he says this:
"In my judgment the statutory recognition of rules which are to have the character and, on appeal, the force of law requires such rules to be certain. That does not shut out extraneous forms of evidence of compliance, so long as these are themselves specified, but it does in my judgment shut out criteria affecting individuals' status and entitlements…"
In Paragraph 27 Sedley LJ said:
"So the objection is not to rules which rely on outside sources for evidence of compliance. It is to rules which purport to supplement themselves by further rules derived from an extraneous source, whether that source is the rule-maker him- or herself or a third party. While it may be that a policy can unobjectionably do this, the applicants' case is that, save in what one can call the Camden situation, immigration rules cannot."
Sedley LJ was analysing the submission that he then, as I have already quoted from paragraph 32, goes on to accept.
- In my judgment therefore the conclusion arising from Pankina is that a rule cannot be supplemented by a further rule that is something going to and purporting to affect or determine an individual's status or entitlement, but that a rule can be supplemented by an outside source or guidance or evidence of compliance. That is something which does not affect the individual's status or entitlement under the rules. In my judgment the policy guidance in the form of the UK Border Agency guidance on photographs does not affect or determine the individual's status or entitlement under the Immigration Rules. Indeed, Mr Mohammed did not seek to persuade me it did. It is not, therefore, objectionable per se. It is a policy undoubtedly rather than a rule and it does inevitably, therefore - as indeed do the rules - carry an element of discretion. Sedley LJ in Pankina at paragraph 28 said that:
"A policy is precisely not a rule: it is required by law to be applied without rigidity, and to be used and adapted in the interests of fairness and good sense."
That is a matter which I shall have to come back to.
- I have been referred to the case of Fu which is reported, as I have already said, at [2010] EWHC 2922 and which was provided to me at Tab 10 in the authorities bundle. At paragraphs 3 and 4 Mitting J states the following:
"3. In the light of the decision of the Court of Appeal in Pankina v the Secretary of State [2010] EWCA Civ 719, it is common ground that there was at the date upon which the relevant Immigration Rules were laid before Parliament no guidance as to the format in which the photographs were to be provided. Accordingly, the only mandatory requirement was that set out on the face of the form.
4. The mandatory requirement was:
'For your application to be valid, it is mandatory to provide the following photographs:
• Two recent identical passport-sized photographs of yourself with your full name on the back of each one.'"
- Mr Mohammed submits that it is clear from that that those are the only mandatory requirements. Mr Evans submits that I cannot simply rely on that because the issue which arises in this case was not in front of Mitting J. The case of Fu was a case where there were no photographs provided at all and therefore issues as to supplementary policy guidance and the effect of it was simply not before him. Mr Mohammed submits that to treat guidance – the requirements in the policy guidance – as mandatory (he does not put it in these terms but this is how I choose to summarise the argument) is firstly improper in that it gives the policy guidance the status of a rule rather than a policy guidance with discretion and secondly, in the alternative, that discretion should have been exercised. There is no dispute in this case that some discretion rests with the Secretary of State to treat an application which does not in all respects comply with mandatory requirements as a valid application. Mr Evans submits that it is a residual discretion and was so characterised in that way in Fu. He submits that this case had been properly decided and that there can be no valid challenge to the circumstances which have arisen.
- The first question therefore is whether the requirements in the policy guidance are properly categorised as mandatory. I have already referred to the fact that on the application form it is stated that the photographs must be in the format specified in the photograph guidance, including the requirements which can be found on the website, and the website address is given. I have also referred at some length to the details of that guidance which make it quite clear that the requirements are mandatory, that if the photographs are not in the format specified they will be rejected, and in particular that the first on the list of requirements are mandatory for biometric immigration documents such as was the application in this case, and that would lead to the former being rejected if a photograph fails to meet any of the mandatory format requirements. Mr Mohammed's submission is that those requirements cannot be mandatory, that at best it is guidance. He submits it is a guidance which has to be applied with discretion and should not be applied rigidly and that, therefore, failing to meet those matters is not a failure to comply with the mandatory requirement and was not therefore valid grounds for rejecting the application.
- In response to that Mr Evans submits that the notes from the policy guidance can be – and indeed are, in the circumstances of this case – mandatory. He submits that it is illusory to distinguish between what has status on the face of the form and what is stated in the policy guidance. He submits that is illusory precisely because the form on its face says that it must be in the form set out in the guidance notes. To put this another way, if the guidance notes were set out on the face of the form rather than simply being incorporated into the form then those requirements would, on any view, be mandatory. Therefore he submits it is mandatory by incorporation. He points out that the application form is not in itself part of the Immigration Rules in the sense that it is not laid before Parliament. There are changes from time to time in the form of the application form and the statement on the face of the form that something is mandatory is simply incorporating policy guidance. He submits there is no distinction, therefore, between the form, which itself falls outside the rules in the sense of not being laid before Parliament, and the guidance notes which are outside the rules in the same way, especially in circumstances where, on the face of the application form, the guidance notes are referred to and incorporated. The point was not, he submits, considered in Fu and that is plainly right. He submits that once the Pankina challenge is survived on the basis that the guidance notes are not dealing with status and entitlements, then the issue here is with the form of the application form and the details incorporated into that form. He submits that these are mandatory requirements of guidance and that that was a sufficient basis to say that the form was invalid.
- In my judgment, as was recognised in the case of Fu, it was sufficient to state on the front of the form that matters were mandatory and I recognise and accept the submission that the form itself is not governed by the rules. If it is sufficient to say matters are mandatory on the form I see no reason why other mandatory matters should not be specified by reference to another document and incorporation, provided, of course, that it is clearly and properly done so that an applicant knows exactly what they are being asked to meet. The form is quite clear as to reference to the UK Border Agency website and the need for the photographs to be in that form. It states: "they must be in the format specified". In my submission the submissions of Mr Evans are correct and I can see no reason at all why mandatory requirements, provided they do not relate to status and entitlements, should not be incorporated through the use of guidance notes.
- I move therefore to the question of discretion. There is no doubt at all – and it is accepted – that there is a discretion resting with the Secretary of State, as I have already said, to treat an application which does not in any respect comply with mandatory requirements as a valid application. In my judgment the real issue here therefore is whether the refusal of the Claimant's application was a wrongful or perverse exercise of that discretion. The Claimant's case is that it was wrongful firstly on the basis that no discretion was in fact exercised at all because the Secretary of State treated the requirement as mandatory and, secondly, that it was wrongful in the circumstances of the case as a whole.
- Mr Evans relies on the decision of Mitting J in the case of Fu and in particular he referred me to paragraph 19 in the judgment where Mitting J is dealing with the nature of the system for making applications for various immigration rights. On the facts of that case there were no photographs at all and Mitting J states in paragraph 19:
"It was not incumbent on the Secretary of State or his officials to give the Claimant a second chance to provide photographs. The rule provided that the application had to be treated as invalid. This is a tick box system intended to be operated on a mass scale by junior civil servants. To require them to exercise discretion because of a failure by an applicant to fulfil clear mandatory requirements of the rules would be to undermine the basis upon which the system works. It would tend to produce even more argument about individual circumstances than do the clear tick box rules."
- Having said that, I referred Mr Evans to paragraph 18 in the same judgment. Mitting J says this:
"Miss Stout, for the Secretary of State, draws my attention to guidance given to officials (Immigration Directorate Instructions) as to how a discretion should be exercised and in what circumstances it should be exercised. I need not set it out because it is, I believe, common ground that the guidance does not wholly circumscribe the exercise of discretion."
Pausing there, it is common ground in this case that there is an element of discretion in all cases. He goes on to say this:
"I give a homely example: if in fact the rules effectively provided that passport-sized photographs with particular characteristics, for example that the photograph must be taken while a spectacle wearer was not wearing spectacles, were valid, then it may well be that the submission of passport-sized photographs by a spectacle wearer wearing spectacles would call for the favourable exercise of a discretion by the Secretary of State's officials, provided of course that appropriate photographs with the wearer not wearing spectacles were promptly supplied when the error had been pointed out. But that is not the case here."
- At the beginning of his submissions I put that to Mr Evans and said, having read that decision with some care, I was concerned as to whether that argument could be applied here. It appeared that the issue here was not the question of the photographs being of poor quality or poor light, there being no factual dispute that that was the case. I suggested the more relevant issue would be whether the Secretary of State, through her officials, should in fact have returned the application and invited the submission of a fresh photograph.
- Mr Evan submits that Fu is not binding on that matter because, of course, it is a no-photographs case and that is undoubtedly right. He submits that example is in fact wrong and contradicted by the rest of the judgment. In any event, when taking the UK Border Agency guidance on these matters, he points out that the wearing of spectacles is in fact included in the lower list, in other words the list that is not mandatory, and what is said is that:
"The photographs must also
• be free from reflection or glare on spectacles, the frames of which must not cover the eyes
- if possible, we recommend photographs without spectacles to avoid the risk of rejection because of glare or reflection"
Therefore, on reviewing the matter, Mr Evans submitted that it may be that Mitting J was in fact right on that particular example because it is not listed as a mandatory requirement, but that Fu does not deal with the mandatory requirement for clarity and proper lighting and is not binding upon me. It cannot, he submits, be taken for any more general proposition to the effect that if there is a problem with photographs then the Claimant should be offered the opportunity to re-submit those photographs. Mr Evans submitted that the real issues are those set out in Mitting J's very realistic recognition of the system and the realistic realities of the administration of a system with mandatory box requirements and which is in effect a tick box system. He submits that it would be wholly unrealistic to expect a junior civil servant to exercise any discretion when those mandatory requirements are not met, firstly, precisely because they are mandatory, and secondly because the requirements are based on good sense (plainly photographs need to be clear and properly lit for the whole purpose of providing identification of the person applying for immigration status). Finally, he submits it would be inconceivable that a junior civil servant should be asked to make a judgment on that kind of issue in the face of it being a mandatory requirement. To require such a junior civil servant to exercise some form of discretion is giving that civil servant the role of a different one, somebody much more senior, if they were weighing up, for example, an Article 8 claim.
- To counter those submissions, Mr Mohammed's submission is that it was wholly unfair in all the circumstances to reject this application. He points to the fact that this is an applicant who has always been in the jurisdiction lawfully and has renewed her applications lawfully. She is not somebody who, on the face of it, has sought to avoid immigration rules or to stay here on anything other than an entirely legal basis. He further submits that the Secretary of State, through her junior officials, should have undertaken a balancing exercise, considering the impact for this Claimant, the fact that by rejecting the application in effect they are then putting her in a position of having to make an application when her leave to remain has expired and thereby put her into a wholly different situation as regards her rights of appeal. He submits that those are all matters which should properly have been taken into account in, as he describes it, "the bigger picture". Therefore the discretion should be exercised as a balancing exercise.
- He referred me to the judgment of Sullivan J in Forrester and, he submitted that was a strong decision and that sometimes it is necessary I should consider that I am appointed to this position for a reason. I have already made my comments in relation to that.
- Taking into account the comments of Mitting J in the Fu case and the recognition that the mandatory requirements of the rules are essential to the basis upon which the system works, I am persuaded by Mr Evans' submissions that it is not inappropriate for a junior official to apply the policy guidance and to reject photographs where the mandatory requirements set out in the policy guidance are not met. I adopt the statement of Mitting J that to require them to exercise discretion because of a failure by the applicant to fulfil the clear mandatory requirements in the policy guidance in this case would be to undermine the whole basis upon which the system works. He points out that it would tend to produce even more argument about individual circumstances than do the clear tick box rules. Accordingly the challenge on the basis of the rejection of the photographs must fail.
- Similarly in relation to the Northern Ireland question, there is a question on the application form as to whether the applicant has ever lived in Northern Ireland and, as originally submitted, it is a question which required the answer "Yes", in which case you go annex B, question AB1 or, if you answer "No", you go to part C. Neither box was marked with a cross or checked but the applicant did go on and fill out Part C. Mr Mohammed submitted that having done so it was obvious, it should have been inferred, that she intended to answer question B25 - "Has the student ever lived in Northern Ireland?" – as "No". Therefore, he submitted, it was open to the Secretary of State to exercise discretion and to treat that as having been answered "No" by virtue of the fact that section C was then answered.
- The first attack in fact made in the grounds for judicial review is that the question is irrelevant. Mr Evans submits that point cannot be valid and has no relevance; that I should have no trouble with that because it is a matter for the Secretary of State as to which questions she asks and which questions are relevant. That is undoubtedly right and if it is sought to pursue a challenge based on the relevance of the questions that, it seems to me, challenges the Secretary of State's decision when setting up these forms, not the decision rejecting the application in this case. That decision is plainly not before this Court.
- There was a further challenge based on rule 60 of the Immigration Rules but it is accepted that was a bad point because Rule 60 was deleted from the Rules with effect from 31 March 2009. Mr Evans submits that that point was bad in principle in any event; it is a submission I am inclined to agree with, that I do not need to deal with, given that it is accepted by Mr Mohammed that Rule 60 was not part of the Rules at the relevant time.
- I turn therefore to the real thrust of the argument which is that the matter could be dealt with by inference. That, it seems to me, is not a valid submission. It requires the reader of the form to assume that the form is being accurately dealt with throughout. It does not allow for the possibility that the error in failing to complete B25 is further compounded. It could be, for example, that the answer should have been "Yes" and that a different part of the form should have been completed. I illustrate that further by a point which I drew to Mr Mohammed's attention. At paragraph C6 in the form details of current and previous passports are required and in relation to a previous passport it is declared that the passport has been lost and at C7 the details are given as to the circumstances in which it is lost. At question D7 it is asked whether the student's previous passport or travel document which she used for travel into the United Kingdom is missing from the application. That is the very document which is described in C6 as having been lost, and the answer given to the question at D7 is "No", in other words it is not missing from the application. However it plainly is missing from the application because, as has previously been disclosed, it is lost. That is a very good example as to why it should not be for those reviewing the forms to try and infer or deduce what answers are right and what answers are wrong, or to deduce from other answers what answer would have been given to a question to which simply no answer at all has been provided. It is a simple matter in any event. Furthermore, as Mr Evans submits and I accept, the conceptual basis for that argument has, as he puts it, shades of an argument of substantial compliance which was rejected by Mitting J in paragraphs 11 to 13 of the judgment in Fu. He rejected the suggestion that substantial compliance had any place in these matters and I adopt and agree with that.
- Therefore it seems to me that the issue is whether there should have been any discretion exercised. This is plainly a mandatory matter on the face of the form. For the reasons given in Fu about tick box rules and the reasons I have already given, it seems to me that this was not a situation in which a discretion needed to be exercised in relation to that question. Therefore the application fails in respect of the challenge to both matters.
- Before leaving this there are some other supplemental matters which I ought to deal with which were raised in the course of argument. I have already dealt with the question of variation and the fact that that does not need to be dealt with in the course of this judgment in any detail. Two further points were raised. One was that by retaining the fee (I have read this from the original rejection letter), the fee was retained and held by the Secretary of State pending the possibility of a second or renewed application. Mr Mohammed submitted that by holding that fee the Secretary of State was effectively holding over the application and that a payment was being retained for an anticipated application. He submitted that is a fact which should have been taken into account by the Secretary of State and informed the decision as to whether discretion should be exercised in respect of the original application. In my judgment there is no merit at all in that submission. It was plainly a matter of administrative convenience that the Secretary of State would hold the money rather than refunding it and requiring it to be sent again if a second application was made. If no such application was made then the Secretary of State would plainly have to send the money back. I do not consider that holding that for administrative convenience in any way informs discretion. If it did then it would seem to follow that discretion would have to be exercised in every case, which cannot be right.
- Finally, submissions were made that the Secretary of State did not notify the Claimant that she had a discretion which she could exercise. It was submitted that the Claimant should have been notified so that she in fact had the opportunity to make submissions as to why discretion should have been exercised in her favour. In my judgment there can be no possible mileage in that submission. If that submission were right it would follow that in every application that is made the Secretary of State would have to notify applicants whose applications would otherwise fail that she had a discretion and invite submissions. That would undermine the whole system, designed as it is with a simple form with clear questions and mandatory requirements to be dealt with by way of tick boxes. This would lead to arguments in every case as to what would be suitable for discretion and impose burdens on the Secretary of State which, in my judgment, would be wholly unacceptable and cannot properly be said to be part of her obligations. I further accept the submissions of Mr Evans that if the issue of discretion arose at all, it would have arisen at the time of the submission of the second application. He suggested, for example, that if the second application had been submitted indicating that the reason the first application was wrong was, say, that the UK Border Agency website was not working and it was not possible to establish the requirements at the time of the first application, then that information would provide information on which the issue of discretion might have to have been visited. It is not, in my judgment, nor could it ever properly be said to be part of the Secretary of State's function to notify the Claimant that she has a discretion and to invite the submission on matters going to that discretion. If there are matters in front of the Secretary of State which require her to consider whether to exercise her discretion, she plainly must take those matters into account, but she does not, in my judgment, have to write and ask for them.
- It follows from what I have already said that the application for judicial review fails.
JUDGE BELCHER: Very well, the order. Paragraph one, the application for judicial review dismissed. Is there anything else?
MR EVANS: Yes, I do have a costs application. The application is in two parts, the general costs application is that the Claimant should pay the costs of the Interested Party for the simple reason of success on all fronts in relation to the matter. There is a discrete application within that which arises from some remarks that your Ladyship made last time, the costs of 27 April, which your Ladyship did observe appeared to have been wasted by the failure to amend the grounds in this case. I would say that your Ladyship's preliminary view in respect of that matter, formed the last time this matter was before Court, was correct and the whole – just about – of the last occasion, save for possibly a little bit of time at the end of the day when substantive submissions were developed, was wasted. My submission, regrettably, is that that falls within 44.14 of the CPR and it is unreasonable conduct, I would suggest, by a legal representative. I ask that the costs of that day be paid by the Claimant's legal representatives.
JUDGE BELCHER: There is a procedure, is there not, for wasted costs?
MR EVANS: Yes, there would have to be notice. There is effectively notice. If your Ladyship would wish to do it more formally -- It is effectively an application against Mr Mohammed, I regret to say. It could be dealt with on paper so that Mr Mohammed has a chance to deal more fully with matters rather than respond immediately. If a notice to show cause is required then the notice is effectively to show why the costs of 27 April should not be paid by Kingstons and/or Mr Mohammed on the basis that those costs could have been avoided had an application to amend the grounds been made earlier and we could have found ourselves in the position of arguing this case as it is being argued today.
JUDGE BELCHER: If the application had been made earlier there would have been the costs of the application in any event.
MR EVANS: Yes.
JUDGE BELCHER: But the substantive application would have been dealt with then.
MR EVANS: Yes.
JUDGE BELCHER: The costs of the application to amend would in the first instance have been dealt with on paper, or would it?
MR EVANS: It might have been. It might have involved a further hearing. If it had been made properly and there had been something in writing then it would have been a hearing which could have been disposed of rather more quickly than the way in which the matters unfolded last time, because it was only ultimately at your Ladyship's invitation that it was produced in writing.
JUDGE BELCHER: So effectively there would have been, say, a one hour application on that, had it been done properly.
MR EVANS: Yes.
JUDGE BELCHER: Then one day on this.
MR EVANS: Yes.
JUDGE BELCHER: Whereas we have had two days. So you say that the wasted element is effectively four hours.
MR EVANS: In the order of that. I think it is something slightly more than half a day effectively because we then had the consequential application which was to adjourn the matter thereafter. Of course that application would never have been made if it had been decided favourably on paper.
JUDGE BELCHER: That is plainly right. You did not have instructing solicitors here last time, did you?
MR EVANS: I did not, no.
JUDGE BELCHER: So the costs that are wasted are effectively two-thirds of your brief fee. Is that fair?
MR EVANS: It would be an hourly rate effectively because the Secretary of State's representatives attend on an hourly rate which is £110 per hour, so it is four hours, £440.
JUDGE BELCHER: So you are seeking an order that either Kingstons or Mr Mohammed should pay. You are seeking an order for your costs, of which £440 should be paid by Kingstons and/or Mr Mohammed.
MR EVANS: That is effectively it, yes.
JUDGE BELCHER: There is also the costs issue on the disclosure application. Maybe you will want to respond to this. I apologise that the order was only sent out yesterday. Have you seen the order?
MR EVANS: No, I have not.
JUDGE BELCHER: I dealt with it on Friday but I am afraid it was only sent out yesterday. Have you got it, Mr Mohammed? I trust you have seen it, have you?
MR MOHAMMED: It was sent by email.
JUDGE BELCHER: Let me tell you what it says, then I will pass it down. This was the order in relation to disclosure.
MR EAVNS: I afraid I did not hear of that application until Mr Mohammed told me about it this morning.
JUDGE BELCHER: There was an application and I made an order refusing the application but reserving the costs of the application to be dealt with today. My observations were as follows (I will pass this down). It is noted the documents were served late in that an application had to be made. However, the documents, when served, complied with the order insofar as the IP can do so. Whilst the application form is the re-submitted one, that is because the originals were returned to the Claimant and therefore the only copy the document the IP has is now served. The IP states that there were no ID items. Therefore there is no document served. The Tier 4 guidance seeks (inaudible) 31 March 2009. The point I made is that it is noted they were late and an application had to be made. On the face of it, it seems to me that the Claimant should be entitled to costs of that application.
It is right that you should know that it is suggested in the correspondence that the Treasury Solicitor effectively said that it does not matter what the judge has ordered, there is adequate time to provide these documents before the hearing. That is an attitude, if correct, that I regard as outrageous. (Pause) I am just trying to find the relevant document.
MR EVANS: Is it the last paragraph of the letter of 18 May, my Lady, which was wrongly dated 17 May?
JUDGE BELCHER: The thing I really do dislike about this work is the way everything comes -- this is not a complaint at you, but everything just arrives and you get court files and other documents.
MR EVANS: I have to print the application forms off from emails, I regret to say, so I have hundreds of different pieces of paper. It would be nice to have a decent bundle once in a while.
JUDGE BELCHER: I have the answers and it confirms they were late. They were due to be filed and served by 11 May but due to pressure of work have only recently been received. That will not cause any prejudice (inaudible). That was not the point. Somewhere there is -- maybe it is in the application form itself.
MR MOHAMMED: It is in an email. I will pass it to my learned friend and he can pass it up.
JUDGE BELCHER: I have not seen the email. I have seen reference to it. Yes, it is in your witness statement, Mr Mohammed, is it not?
MR MOHAMMED: Yes.
JUDGE BELCHER: Mr Michael Atkins, for the Interested Party replied, amongst other things, stating that the application was unnecessary, the trial was three weeks away and did not provide a time for it. That is the bit that I find unacceptable. I do not have the email but it does not look as though the Interested Party was saying that they were terribly sorry they had not provided the detail by such and such a date; what they were basically saying was that there was no need for a reply, there is plenty of time and they would send the information when they could. I regard that as inappropriate.
MR EVANS: My Lady, I am not going to seek to condone correspondence of that nature. Your Ladyship did reserve costs and I think the best way I can put my case is that ultimately the way in which the hearing has proceeded today should be a factor that bears on the costs decision that has been made, notwithstanding the previous failure of the Treasury Solicitor to respond in time and to write a letter which perhaps was not as well judged as it might have been.
JUDGE BELCHER: I think the costs of that particular application ----
MR EVANS: The costs of that application -- the material that has actually been produced has not found any part in my learned friend's submission. We had an agreed factual position to start with in relation to the photographs and there was a factual position which was not in dispute in relation to the failure to answer the question about residence in Northern Ireland. Whilst one would have expected the application forms ----
JUDGE BELCHER: The application forms I have found very helpful even if they have not formed any further part of the submissions. Until we had the application form we did not have the statement on the front which you have relied on.
MR EVANS: I am not sure I can say any more.
JUDGE BELCHER: Well I am minded to award the Claimant the costs of that application. Mr Mohammed, I am minded to award you the costs on the application for disclosure.
MR MOHAMMED: I am grateful, my Lady.
JUDGE BELCHER: I think they should have the costs of the substantive application, which is the general principle that would normally follow. What is your client's status? Is she assisted funding or what?
MR MOHAMMED: She is privately funded.
JUDGE BELCHER: What do you want to say to me about the costs of the application generally and then we will come to the wasted part of it?
MR MOHAMMED: In terms of the application, my Lady, I accept that. I do not have anything by way of a schedule to address you on the point but I am sure that can be ironed out later.
JUDGE BELCHER: All right.
MR MOHAMMED: In terms of the wasted application costs, I would like time to respond to that.
JUDGE BELCHER: It is going to cost you more than £440 to reply. I do not know whether you want to take instructions from those instructing you. In essence the practical realities would be that your client would not have to pay £440 of the costs to be paid to the Secretary of State; £440 of those would have to come from you and/or your solicitors. It may be that you want me to rise whilst you take some instructions. If you want a notice to show cause then we will go down that procedure. It is something I can deal with in the first instance on paper but if you then want a further hearing the potential costs of that far exceed £440. It may be that those instructing you will take a view. I simply do not know.
MR MOHAMMED: My Lady, is there any mileage in the fact that the matter will have to be adjourned in any event to get documents from the other side?
JUDGE BELCHER: No, because it seems to me that equally you could have made that application at an appropriate time. The reason why matters were adjourned was because of the amended grounds, there was nothing in front of me and matters of that sort. Do you want me to rise whilst you take instructions?
MR MOHAMMED: Given the amount in dispute and the direction you have given, I suspect they will just take a hit on it.
JUDGE BELCHER: They or you?
MR MOHAMMED: You can put both down, my Lady; it does not matter. We are one and the same; I am employed by Kingstons.
JUDGE BELCHER: Very well. Thank you very much. In that case, in relation to the application for disclosure dated 13 May 2011 the Interested Party to pay the Claimant's costs in connection with that application. In relation to the substantive application for judicial review, the Claimant to pay the defendant's costs in connection with that application. Of those costs the sum of £440 shall be paid by Kingstons representing wasted costs on the basis that those costs were incurred as a result of the failure to apply in time for consideration of amended grounds and indeed to submit amended grounds. A considerable amount of time on the previous occasion was wasted while I rose to allow Mr Mohammed to draft amended grounds so that I could consider an application as to whether they should be allowed to proceed, and various matters arising out of that. Those costs are to be subject to a detailed assessment if not agreed.
Thank you very much
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