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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 >> Bakare, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 3811 (Admin) (12 November 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/3811.html Cite as: [2010] EWHC 3811 (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
		12th November 2010

1. DEPUTY JUDGE: I will refuse permission briefly for these reasons.
2. The contention, put with succinctness and clarity and having raised every conceivable submission that could be advanced in favour of the claimant by Mr Khan, is that the refusal notice and decision were invalid and nullities. It is contended that the operative decision was contained in a two page document, pages 59 and 60 in the defendant's bundle, which Mr Khan submitted is to have been inferred to have come into being long after the date or purported date of the document itself, which is dated 28th July 2008. Moreover the document is not signed. Of course, the document is computer generated and had the signature box been filled in, it would have been using a facsimile signature also generated by the computer.
3. But the submission is that since I am to infer that this document was sent out in that form and is to be read as a two page document, I am to infer that the document decision letter was unsigned and is therefore not in accordance with the requirement of the Immigration Notices Regulations 2003, which provide, it is contended, a requirement for a signature.
4. The claimant's case fails, as I see it, on two grounds. The first is that the evidence that I am asked to infer and which I have already summarised is not as the claimant contends. What was produced by the defendants in his bundle was what appears, on reading it, and taking account of the obvious intention that it is a document which is intended to have legal force, is a four-page composite document being pages 59 to 62. Pages 59 and 60 comprise the refusal to vary leave or variation of leave decision and pages 61 and 62 comprise the reasons for issuing that refusal letter.
5. Thus, when reading the document, even if I did not have an informed view obtained from other cases as to the content and nature of documents involving the service of decisions under the immigration rules, it appears to be, and as I find is, a document in two parts. The operative first part contains the refusal notice which promulgates the decision to refuse to vary leave, that is pages 59 to 60 and the second part, pages 61 and 62, contains the reasons for the decision to issue and serve the first part. It is the difference, using an analogy, between a judgment of the court, which gives the reasons, and the order of the court, which is often confusingly also called the judgment, which sets out the decision. Similarly, that two-fold purpose is what this four-page document does.
6. So on that basis, this document is to be treated, for the purpose of the regulations concerning notices, as a composite document and therefore it is signed since the reasons for refusal letter is signed. Both letters are dated 28th July and I infer, and the defendant also submits, that these two documents, if they are strictly two documents, were sent out together in the same envelope and at the same time.
7. The second basis upon which the claimant's case fails is that even if, at the end of a hearing, the court concluded that only one document of two pages, with no signature on it, electronically generated had been sent out, it is still, as I find, not a document which is to be treated as being a nullity. The regulations that I have been referred to make no provision for a signature, save in regulation 7(3) which provides that where the information about a person to be served with a notice is not known, so that the notice cannot actually be served, then the notice should be deemed to be given when the decision maker enters a record of the above circumstances (that is the facts that prevent service) and places the signed notice on the relevant file. In those circumstance a signature is required. I should have thought the decision maker must himself or herself must sign the document in those circumstances. But that case is very different from the typical case of which this appears to be one, which involves a notice being sent through the post having been generated by an official from a computer.
8. In those circumstances, the regulations do not expressly provide for a signature, they provide for writing and they provide that the defendant must issue the notice. Therefore, strictly speaking, there is no requirement for a signature. It follows that, on that basis, the interesting discussion about the nature of the evidence relating to signature is strictly speaking irrelevant.
9. I should also mention as a subsidiary matter that the claimant did file a notice of appeal against what is described as the decision letter. Given my construction of the documents, that notice of appeal is related to all four pages since there does not appear to be an actual distinction between the letter and the notice itself. If that is correct, the claimant has treated the whole document as being a valid composite document in relation to which a notice of appeal can be served. It is of course the case that the claimant, soon after serving the notice, withdrew the appeal. But that was on different grounds than those now advanced and the withdrawal grounds did not include a suggestion that what was being appealed against was a nullity. However, that is a subsidiary point.
10. For the reasons given, I refuse permission.
11. MR OSBORNE: Very briefly, in light of your decision the defendant does seek two supplementary orders, although that right has borne away. The first is the costs of defending the case in the sum of £480.
12. DEPUTY JUDGE: Well it is not usual to grant costs for appearing on the oral hearing, is it? You are entitled to appear but...
13. MR OSBORNE: The costs are sought in respect of preparation of acknowledgement of service for which costs are normally awarded.
14. DEPUTY JUDGE: Not if the claimant is legally funded.
15. MR OSBORNE: In this matter. My Lord I simply submit--
16. DEPUTY JUDGE: What was the order below?
17. MR OSBORNE: The order made by Irwin J was slightly unusual. It was not a refusal of permission, it was a referral to an oral hearing to allow factual issues to be ventilated as they have been.
18. DEPUTY JUDGE: You are asking for £480. How is that calculated?
19. MR OSBORNE: Three hours of solicitor's work at £160 per hour.
20. DEPUTY JUDGE: I am always puzzled by the Treasury Solicitor's application for costs on these paper applications. The sum seems to depend upon the actual level at which the documents were drafted. If it happens to be a solicitor, then £180 to £220 is asked. If it happens to be a legal executive, a lesser sum is asked.
21. MR OSBORNE: It happens to be counsel it is even less than that.
22. DEPUTY JUDGE: Why is the Treasury Solicitor entitled to charge the hourly rate of the person who actually, by chance, the grade of the person by chance drafts the document?
23. MR OSBORNE: My Lord, the true costs incurred although the defendant in this case, they are a small amount of the defendant's internal costs. They do not put any disbursements.
24. DEPUTY JUDGE: You are asking for three times 180.
25. MR OSBORNE: Three times 160 my Lord.
26. DEPUTY JUDGE: That is the first matter. The second?
27. MR OSBORNE: The second. It is a slightly unusual situation my Lord. The defendant had sought an order, the application was to be determined on paper, that any renewal to an oral hearing not being bar to removal, that is a typical order in these sorts of cases.
28. DEPUTY JUDGE: Have removal directions been issued?
29. MR OSBORNE: No they have not, my Lord.
30. DEPUTY JUDGE: It is not usual to make that order before removal directions are issued, is it?
31. MR OSBORNE: My Lord it is because renewal hearings can sometimes take 6 or more months to come on and within that time, but for the renewal hearing the Secretary of State may have wished the removal directions. I do not push the point.
32. DEPUTY JUDGE: You have had your renewal hearing.
33. MR OSBORNE: Strictly speaking there has not been a renewal hearing.
34. DEPUTY JUDGE: You are not suggesting there be another renewal hearing?
35. MR OSBORNE: The point I was going to make was in the circumstance where this is the oral hearing, there is no need for that order to be made.
36. DEPUTY JUDGE: I do not see there is any need for that order to be made any way.
37. MR OSBORNE: When I rose to my feet this time, I said there were two points although one was probably not pursued and has not been pursued in this case.
38. DEPUTY JUDGE: You are not pursuing. You are just asking for costs for £480?
39. MR KHAN: My Lord I oppose the costs on the basis it was a paper application heard orally today, and the application effectively, if I may respectfully suggest so, has been determined on a submission which my learned friend advanced after the court prompted him to do so on the court's analysis of the documents of hearing argument. In so far as the written work was concerned--
40. DEPUTY JUDGE: I will not make an order for costs. There is no order as to costs. Thank you very much.