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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 >> A & Anor, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 1459 (Admin) (15 May 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/1459.html Cite as: [2008] EWHC 1459 (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
		15th May 2008

1. MR JUSTICE PITCHFORD: The claimants in these joined applications for permission to apply for judicial review are sisters. Tabita was born on 18th November 1965 and is now aged 42. Zita was born on 5th January 1973 and is now aged 35. They are both citizens of Pakistan and arrived in the United Kingdom on separate occasions with their respective husbands and children on dates in 2004; Tabita on 27th May and Zita on 28th April. Both were given leave to enter as visitors for a period of six months. On 30th April Zita claimed asylum. Tabita claimed asylum on 13th August. Both claimed that they had a well-founded fear of persecution on the grounds of their religion, that is to say Christianity. Their applications to the Secretary of State for the Home Department were refused; Tabita on 6th October and Zita on 25th June 2004.
2. Tabita's appeal on asylum and human rights grounds was dismissed on 18th January 2005 and Zita's appeal on human rights grounds was dismissed on 18th February 2005. Each of them sought leave to appeal to the IAT on Article 3 and Article 9 grounds. Permission to appeal was refused in Tabita's case on 1st March and in Zita's case on 26th March 2005. The claimants made a joint application on 18th July 2005 to the European Court of Human Rights under application number 27034/05 which was ruled inadmissible by the Fourth Section on 7th March 2006.
3. On 12th April 2006 both claimants made further applications to the Secretary of State for discretionary leave to remain. Tabita's application was refused on 26th May 2006 and Zita's on 12th June 2006. The claimants lodged claim forms seeking judicial review of the Secretary of State's decision. On 23rd February 2007 their applications for permission were considered by Collins J on the papers and permission was refused. He noted that neither claim was fresh, that the law had been correctly applied, and the Secretary of State was entitled to decline discretionary leave. The claimants submitted further representations to the Secretary of State in April and June 2007. In a letter of 27th June 2007 the Secretary of State declined to grant discretionary leave and further declined to treat the further representations as a fresh claim.
4. The applications for permission were renewed and came before Walker J the day after the latest refusal of leave, that is on 28th June 2007. By that time it was apparent that the Secretary of State had been bombarded with additional material. That is not a criticism, it is a fact. Walker J ordered that the claimant's submissions should be incorporated in one document in which all other documentary material relied on to support the claim was identified. Within 28 days the defendant was to notify the claimants of her response. Walker J ordered that an amended claim form should be served within 42 days or the application would be dismissed. The obvious purpose of such an amended claim form was the seeking of relief consequent upon the refusal of the 27th June 2007. In fact, no amended claim form has been lodged, but no point has been taken by the Secretary of State. Skeleton arguments have been lodged by both sides and I have considered the claimants' arguments on their merits. This judgment therefore deals with the claim as originally submitted and the claim in respect of the Secretary of State's decision of 27th June 2007.
5. The claimants' arguments are essentially twofold. First, the Secretary of State was wrong to decline leave to enter in the light of developments in the law since the original asylum and human rights claims were made. Second, the Secretary of State erred in failing to treat representations made up to the date of Walker J 's order as constituting a fresh claim for asylum and human rights protection, the refusal of which would entitle the claimants to appeal to the AIT.
6. It is now necessary to consider the facts on which the claimants rely. Of course, my exposition of them is a summary. The claimants were born and brought up as Christians in Bahawalpur near Lahore. Their father, the Reverend Masih, was a Methodist minister. Tabita married in 1990 and the couple went to live in Peshawar where Tabita worked as a teacher at the Presentation Convent High School. Zita married in 1997 and went with her husband to live in Sukkur on the opposite side of the country from Bahawalpur.
7. On 28th October 2001 during a church service in Bahawalpur, attended by their mother and their brother, six gunmen entered the church and opened fire with weapons, killing about 15 worshippers and wounding several others. There were, in all, about 50 in the congregation. They had been guarded during the service by two policemen, one of whom was temporarily absent when the gunmen arrived. The remaining policeman was himself killed during the attack. It was thought that this outrage was committed by Muslim extremists. One of the injured was the claimant's mother. Both claimants visited their family in Bahawalpur during the aftermath of the attack.
8. On 9th November 2001 the Reverend and Mrs Masih arrived in the United Kingdom with their son, Ilhaq. Mrs Masih needed medical treatment. They were followed to the United Kingdom by a son, Izhaz, and a daughter, Anita. All were subsequently granted leave to remain. Meanwhile, Tabita returned with her husband to Peshawar and Zita to Sukkur. Both sisters say that threatening phonecalls were received at their homes.
9. In 2002 there was a bomb threat at the church in Sukkur. The bomb was found and deactivated by the police. Attacks on Christians increased. On 19th October 2003 Zita's husband and his brother were victims of robbery at gunpoint of a motorcycle which they attributed to the extremists. In 2004 Zita had been in the United Kingdom with her family for three weeks when her mother died. Tabita came with her family to attend the funeral.
10. In considering the claimant's request for asylum, the Secretary of State acknowledged the difficulties faced by some Christians practising their religion in Pakistan. However, Christianity was a substantial minority religion, recognised by the constitution of Pakistan. It was acknowledged that some Christians, as the claimants complain, suffered the attention of Muslim extremists, but it was not accepted by the Secretary of State that such action was condoned, let alone encouraged, by the state of Pakistan. When complaints were made, the police force did what it could to assist and there was objective evidence of a willingness to act, arrests and trials.
11. In Tabita's case the Adjudicator upheld the Secretary of State's view and dismissed the appeal on human rights and asylum grounds. Zita at that time had no right of appeal on asylum grounds because her leave had not then expired. She became an overstayer and appealed the decision to remove her on human rights grounds. In the cases of both claimants, the Adjudicator noted that they had remained in Pakistan between 2001 and 2004 without personally being subjected to threats or ill-treatment. Tabita indeed returned to her teaching post. In Zita's case the Adjudicator noted that she had not been attending church for some years. The events which had overtaken her parents and brother occurred many miles away at the opposite end of a large country. In both cases, the objective evidence established that while Pakistan could not provide complete protection, there was a sufficiency of protection. There would be no breach of Articles 3, 8 and 9 if the claimants were returned.
12. In their application to the European Court of Human Rights, the claimants submitted that they experienced extreme hostility from the majority Muslim population. They were entitled, it was asserted, to the protection of Article 9 of the Convention. Article 9 provides as follows:

"(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

(2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

13. The claimants sought to challenge in the European application the decision of the House of Lords in R (Ullah) v A Special Adjudicator and Others [2004] INLR 381. The question posed in Ullah was stated by Lord Bingham of Cornhill at paragraph 1 of his opinion:

"Whether any Article of the European Convention on Human Rights other than Article 3 could be engaged in relation to a removal of an individual from the United Kingdom where the anticipated treatment in the receiving state will be in breach of the requirements of the Convention, but such treatment does not meet the minimum requirements of Article 3 of the Convention."

Lord Bingham answered that question at paragraph 21 as follows:

"(21) . . . I consider that the only possible answer to the question posed at the outset of this opinion is 'Yes'. I have accepted the possibility of relying on Article 2 in paragraph (15) above. I have questioned in paragraph (16) whether a claim based on Article 4 alone might not succeed. The authority cited in paragraph (17) shows that the court has not excluded the possibility of relying on Article 6, and even Article 5, while fully recognising the great difficulty of doing so and the exceptional nature of such cases. I do not think, on authority briefly cited in paragraph (18) and more fully discussed in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] INLR 349, that reliance on Article 8 can be ruled out in principle. I find it hard to think that a person could successfully resist expulsion in reliance on Article 9 without being entitled either to asylum on the ground of a well-founded fear of being persecuted for reasons of religion or personal opinion or to resist expulsion in reliance on Article 3. But I would not rule out such a possibility in principle unless the Strasbourg court has clearly done so, and I am not sure it has. It is unnecessary for present purposes to consider other Articles of the Convention . . . "

Lord Bingham dealt with the approach to be adopted in claims based on qualified rights further at paragraph 24:

"(24) . . . The correct approach in case cases involving qualified rights such as those under Articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal (Mr C M G Ockelton, deputy president, Mr Allen and Mr Moulden) in Devaseelan v Secretary of State for the Home Department [2002] UK IAT 702, [2003] Imm AR 1 at (111) --

'The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case -- where the right will be completely denied or nullified in the destination country -- that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state.'"

14. Lord Steyn's conclusion upon a consideration of qualified rights is to be found at paragraph 50:

"(50) It will be apparent from the review of Strasbourg jurisprudence that where other Articles [dealing with qualified rights] may become engaged, a high threshold test will always have to be satisfied. It will be necessary to establish at least a real risk of a flagrant violation of the very essence of the right before other Articles could become engaged."

Lord Carswell concluded at paragraph 67:

"(67) . . . Both Lord Bingham of Cornhill and Lord Steyn have set out reasons why in principle Articles 2, 4, 5, 7 and 8 could be engaged in appropriate cases, and I respectfully agree with their reasons and conclusions. I am myself satisfied that a fair reading of the Strasbourg cases requires a national court to accept that these Articles could possibly be engaged and that the exception to the territoriality principle is not confined to Article 3. There does not appear to be any conceptual reason why Article 9 should not be capable in principle of engagement, although I find it difficult to envisage a case, bearing in mind the flagrancy principle to which I am about to refer, in which there could be a sufficient interference with the Article 9 rights which does not also come within the Article 3 exception. It may be for this reason that the European Court of Human Rights appeared in Razaghi v Sweden (unreported) 11th March 2003 to reject the possibility of engagement of Article 9, although, as Lord Bingham of Cornhill has pointed out, the basis of the court's ruling concerning Article 9 is not entirely clear. For present purposes I think it sufficient to say that I would not rule it out.

(68) The European Court of Human Rights has consistently stated that before any Article of the Convention other than Article 3 could be regarded as engaged, it would require an extremely serious breach of the provisions of that Article. In Soering v United Kingdom [1989] 11 EHRR 439 it is said at 479, paragraph 113 of its judgment:

'The court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country.'

(69) The adjective 'flagrant' has been repeated in many statements where the court has kept open the possibility of engagement of Articles of the Convention other than Article 3, a number of which are enumerated in paragraph (24) of the opinion of Lord Bingham of Cornhill in the present appeal. The concept of a flagrant breach or violation may not always be easy for domestic courts to apply -- one is put in mind of the difficulties which they have had in applying that of gross negligence -- but it seems to me that it was well expressed by the Immigration Appeal Tribunal in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702, [2003] Im AR 1 at (111), when it applied the criterion that the right in question would be completely denied or nullified in the destination country. This would harmonise with the concept of a fundamental breach, with which courts in this jurisdiction are familiar.

(70) If it could be said that in principle Article 9 is capable of engagement, it does not seem to me that the case of either appellant comes within the possible parameters of a flagrant, gross or fundamental breach of that Article such as to amount to a denial or nullification of the rights conferred by it . . . "

15. The claimants submitted to the European Court of Human Rights in the present case that courts within the jurisdiction of England and Wales had, in adopting the flagrancy principle, in relation in particular to Article 9, demanded a higher threshold than that, for instance, for Article 8. The test ought to be (and I paraphrase the argument) whether the citizen is in fact prevented from practising her religion openly and expressly by reason of the receiving state's inability or unwillingness to act. The flagrancy principle, it was asserted, undermined such a test.
16. The Fourth Section rejected the argument in a long passage which I need to read in full. It commences at page 7 of the internal numbering of the report:

"The court's case-law indeed underlines that freedom of thought, religion and conscience is one of the foundations of a democratic society and that manifesting one's religion, including seeking to convince one's neighbour, is an essential part of that freedom (Kokkinakis, paragraph 31). This is however first and foremost the standard applied within the Contracting States, which are committed to democratic ideals, the rule of law and human rights. The Contracting States nonetheless have obligations towards those from other jurisdictions, imposed variously under the 1951 United Nations Convention on the Status of Refugees and under the above-mentioned Articles 2 and 3 of the Convention. As a result, protection is offered to those who have a substantiated claim that they will either suffer persecution for, inter alia, religious or will be at real risk of death or serious ill-treatment, and possibly flagrant denial of a fair trial or arbitrary detention, because of their religious affiliation (as for any other reason). Where however an individual claims that on return to his own country he would be impeded in his religious worship in a manner which falls short of those proscribed levels, the court considers that very limited assistance, if any, can be derived from Article 9 by itself. Otherwise it would be imposing an obligation on Contracting States effectively to act as indirect guarantors of freedom of worship for the rest of the world. If, for example, a country outside the umbrella of the Convention were to ban a religion but not impose any measure of persecution, prosecution, deprivation of liberty or ill-treatment, the court doubts that the Convention could be interpreted as requiring a Contracting State to provide the adherents of that banned sect with the possibility of pursuing that religion freely and openly on their own territories. While the court would not rule out the possibility that the responsibility of the returning State might in exceptional circumstances be engaged under Article 9 of the Convention where the person concerned ran a real risk of flagrant violation of that Article in the receiving State, the court shares the view of the House of Lords in the Ullah case that it would be difficult to visualise a case in which a sufficiently flagrant violation of Article 9 would not also involve treatment in violation of Article 3 of the Convention.

In the present application the applicants have failed to make out a case of persecution on religious grounds or to substantiate that they were at risk of a violation of Articles 2 or 3. Neither applicant had herself been subject to any physical attack or prevented from adhering to her faith. Both have claimed to have received unpleasant telephone calls and to have felt at risk of attack. The essence of their case rests on the general situation in Pakistan where there have been, over the past few years, attacks on churches and Christians. The domestic authorities however gave weight to the fact that the Christian community in Pakistan was under no official bar and indeed had their own parliamentary representatives and that the Pakistani law enforcement and judicial bodies respectively were taking steps to protect churches and schools and to arrest, prosecute and punish those who carried out attacks.

The applicants have emphasised that the police themselves fear the Islamic extremists and that the authorities have failed in the past to protect Christian churches despite the presence of guards. Nonetheless it is not apparent that the authorities are incapable of taking, or are unwilling to take, appropriate action in respect of violence or threats of violence directed against Christian targets.

In those circumstances, the court finds that, even assuming that Article 9 of the Convention is in principle capable of being engaged in the circumstances of the expulsion of an individual by a Contracting State, the applicants have not shown that they are personally at such risk or are members of such a vulnerable or threatened group or in such a precarious position as Christians as might disclose any appearance of a flagrant violation of Article 9 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35, paragraphs 3 and 4 of the Convention."

17. The claimants were advised that while the application to the court had failed comprehensively, it was in general a favourable judgment. Thus, they were moved to make a further application to the Secretary of State for leave to remain. Upon refusal, the present claim was made and permission refused by Collins J. As I have said, further representations have since been made based upon written material within the bundles provided for the hearing before me.
18. Mr Diamond has submitted that notwithstanding the rejection of the application in Strasbourg, legal opinion has been moving in the United Kingdom. He relies upon the decision of the Court of Appeal in J v Secretary of State for the Home Department [2007] Imm AR 1. In J the claimant was an Iranian and a homosexual male. He sought asylum on the ground that he would be persecuted for his sexual orientation in Iran. In the event of a complaint the authorities would act to prosecute the offender. If convicted he would be subjected to a significant prison sentence or lashing. The Tribunal found that the claimant had lived discreetly in Iran and had never come to the attention of the authorities. Accordingly, he had no well-founded fear of persecution for his sexual identity.
19. At paragraph 8 of his judgment, Maurice Kay LJ observed that in recent years this type of analysis has received renewed consideration. He proceeded to examine the majority Australian decision in S395/2002 [2003] HCA 71, an authority cited by the claimants to the European Court of Human Rights in this case. In a passage from the joint judgment of McHugh and Kirby JJ, Maurice Kay LJ read these words:

"The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many -- perhaps the majority of -- cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly."

20. Having demonstrated that the analysis in the Australian case was gaining acceptance within United Kingdom jurisprudence, Maurice Kay LJ concluded that the Tribunal fell into error and reconsideration by a differently constituted Tribunal would be required. As to the questions which the Tribunal would need to consider, at paragraph 16 he said this:

"(16) . . . It will have to address questions that were not considered on the last occasion, including the reason why the appellant opted for 'discretion' before his departure from Iran and, by implication, would do so again on return. It will have to ask itself whether 'discretion' is something that the appellant can reasonably be expected to tolerate, not only in the context of random sexual activity but in relation to 'matters following from, and relevant to, sexual identity' in the wider sense recognised by the High Court of Australia (see the judgment of Gummow and Hayne JJ at paragraph 83). This requires consideration of the fact that homosexuals living in a stable relationship will wish, as this appellant says, to live openly with each other and the 'discretion' which they may feel constrained to exercise as the price to pay for the avoidance of condign punishment will require suppression in respect of many aspects of life that 'related to or informed by their sexuality' (Ibid, paragraph 81). This is not simply generalisation; it is dealt with in the appellant's evidence.

(17) The Tribunal will also need to make careful findings about the consequences for the relationship between the appellant and his current partner if the appellant were to be returned to Iran but his partner were to remain in this country (his stated intention). There are unanswered questions about what effect this would have upon the future expression of the appellant's homosexuality in Iran. These are difficult and complex questions. Their resolution will have to await further reconsideration by the AIT."

Buxton LJ put it in the following words at paragraph 20:

"I would only venture to add one point. The question that will be before the AIT on remission will be whether the applicant could reasonably be expected to tolerate whatever circumstances are likely to arise were he to return to Iran. The applicant may have to abandon part of his sexual identity, as referred to in the judgment of Gummow and Hayne JJ in S, in circumstances where failure to do that exposes him to the extreme danger that is set out in the country guidance case of RN and BB. The Tribunal may wish to consider whether the combination of those two circumstances has an effect on their decision as to whether the applicant can be expected to tolerate the situation he may find himself in when he returns to Iran."

21. Mr Diamond submits that the same approach must apply to the issue of persecution and of Article 3 ill-treatment on religious grounds. With this submission I agree. The decision-maker cannot require the claimant in her own interest to live her identity in secret simply because to do otherwise would subject her to the persecution or ill-treatment of which she is in fear.
22. However, Mr Diamond goes further. He submits that this shift in analysis has had the effect of modifying or undermining the opinion of the House of Lords on the application of Article 9 in Ullah. It is no longer the position that the claimants are required to demonstrate that the receiving state is in flagrant breach of Article 9. However, when asked in argument to explain how the judgment in Ullah -- and indeed the European Court of Human Rights in the present case -- were undermined by the decision in J v Secretary of State for the Home Department, Mr Diamond was hard put to do so. He submitted that this should be a matter for judicial consideration upon the recognition of the fresh claim. In fact, in his skeleton argument in support of this renewed application Mr Diamond had reverted to the assertion that Pakistan could not and did not provide a sufficiency of protection. Given the tenets of the majority religion and that Pakistan was an Islamic state, Christians were, as a matter of fact, discriminated against and targeted on the grounds of their religion. It is submitted that the United Kingdom would be in breach of its international obligations by returning the claimants to Pakistan.
23. In my judgment, the Court of Appeal's decision in J has done nothing to undermine the judgment of the House of Lords in Ullah. The Court of Appeal was dealing not with setting the threshold for a decision whether there was a well-founded fear of persecution, but with the proper factual analysis upon which the judgment could be made whether the threshold was met. The court was not dealing with Article 3, against which there had been no right of appeal, but I accept that the principle can be applied equally to the Article 3 and Article 9 judgment. Transposed, the question is whether, if the claimant lived openly as a Christian worshipper in the receiving state, she would suffer such ill-treatment that it would involve a violation of Article 3 or flagrant denial of her Article 9 rights. Accordingly, I take the view that the application based upon the perceived development or error of law must fail.
24. By way of post-script to the decision of the Court of Appeal in J, the matter was indeed remitted to the Tribunal and heard on 25th February 2008 by the President sitting with Senior Immigration Judges Storey and Maher. Their determination dismissing the appeal was published on 18th April 2008. The analysis of the facts in the light of the question posed by the Court of Appeal was illuminating and helpful, although they do not further impinge on the issues which arise in the present cases. I am grateful to counsel for the Treasury Solicitor, Miss Patry-Hoskins, for providing a copy of the report. I am informed that the decision will be the subject of further appeal.
25. I have, in addition, examined with anxious care the question whether the Secretary of State was arguably wrong to decline to treat the claimant's further representations as fresh claims. A good deal of additional country material has been provided. It has been analysed by the Secretary of State and summarised with a commentary in the acknowledgment of service. I accept the analysis there made. The material demonstrates that Christians and Christian congregations continue to be at risk of threats and violence from extremists in Pakistan. It does not, however, arguably demonstrate that the claimants are personally at risk in consequence of any particular feature of their respective backgrounds. Neither does it demonstrate that they are at risk of persecution by or on behalf of the state, nor that there is an insufficiency of protection of such magnitude that Article 3 or Article 9 would arguably be violated. In my view, the Secretary of State was not arguably wrong to conclude that the additional material, taken together with evidence previously considered, gave no real prospect of success on reconsideration and appeal.
26. Mr Diamond further relies on the fact that other members of the family have been granted leave to remain. The Adjudicators long ago drew the distinction between the cases of these claimants and other family members. The claimants were not involved in the principal events on which other family members had relied. They had moved away with their own families, had lived in Pakistan for a considerable period thereafter, and could not be regarded as being in the same or a similar predicament. It is not, furthermore, arguably disproportionate to decline leave to remain on Article 8 grounds. In these turbulent and sometimes dangerous times, individuals suffer anxiety and distress at the prospect of extremism. That is understandable. These are fears which are no doubt shared by others of the 2 million Christian population in Pakistan. Those fears are not of themselves grounds for criticising the decisions of the Secretary of State in this case which, it seems to me, were manifestly made in accordance with her legal duty.
27. MS PATRY-HOSKINS: My Lord, on behalf of both parties I would like to thank your Lordship for a carefully considered judgment and thank you for sitting this morning. The Secretary of State does have an application for costs of the relevant acknowledgments of service. You will have seen the volume of paperwork in this case. It has been necessary for the Secretary of State to prepare four sets of acknowledgments of service: two in the I case and two in the A case. The cost of doing so has been considerable. We are not going to claim every penny, but I can tell you that for each acknowledgment of service the Secretary of State is claiming cost £750. The total for each case would be £1,500.
28. MR JUSTICE PITCHFORD: So £3,000 in all?
29. MS PATRY-HOSKINS: In all.
30. MR JUSTICE PITCHFORD: Are you saying that that is a discounted figure?
31. MS PATRY-HOSKINS: I am told that the real figure is in the order of about £7,000 so it is a heavily discounted figure.
32. MR JUSTICE PITCHFORD: I am familiar with the hourly rate normally charged and allowed for the Treasury Solicitor's work and I have an impression of the sort of magnitude involved in this case. Do you have anything to say, Mr Diamond?
33. MR DIAMOND: I do, my Lord. Obviously, we beg your indulgence on this. What I would say is your Lordship gave a very detailed and lengthy judgment dealing with a lot of very complex issues and, just speaking now, I am not in a position to respond to that judgment without further consideration, other than to restate our position that we do not think the Secretary of State could reasonably say that no newly constituted Tribunal would not come to a different decision. I only say that broadly. I am not quite sure that A will be able to ask for leave to appeal on that.
34. Regarding the costs, what we say is that you have probably noted that among many of the applications that have come before the court on immigration matters, none of the parties have ever been in receipt of any welfare payment from the British state. That is partly because of their religious beliefs and also because they are fairly well-heeled. Their father is a medical practitioner in the country who has been using his income to support them. It is an application that they do feel very strongly about. It may well be that they would like to take it further. In those circumstances, this is a case which has not unduly drained the general purse of the British taxpayer but raised serious issues in which they were relying on the decision of the Court of Appeal. We ask that a decision is made for no order as to costs. I do not know what the position of the parties will be after we have considered this matter. There is probably likely to be an appeal considered.
35. MR JUSTICE PITCHFORD: Thank you very much. I am satisfied that this is a case in which I should make an order for costs in favour of the defendant. I do so because the position at the time of dismissal on the papers of the application for permission has not changed. Costs have been assessed in the discounted sums of £1,500 in respect of each of the claimant's cases. Knowing, as I do, the hourly rate accepted by the High Court for the preparation of acknowledgments of service in cases such as this, and appreciating the amount of work involved, I am satisfied that the figures of £1,500 claimed in each case are reasonable. I shall therefore assess the sum payable by the claimants respectively at £1,500, making £3,000 in all.