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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 >> Niquepa-Sarmiento, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 3812 (Admin) (31 August 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/3812.html Cite as: [2011] EWHC 3812 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		31 August 2011

THE DEPUTY JUDGE (David Elvin QC):

Introduction

1. In this application, the claimant, who is a national of Colombia, seeks judicial review against the decision of the Secretary of State to deport him to Colombia on 8 December 2010. He seeks relief, firstly, in the form of a declaration that the removal on 8 December was unlawful and, secondly, a mandatory order that the defendant take all practical steps to return the claimant to this jurisdiction forthwith.
2. This application came before me as a rolled-up hearing by order of HHJ Jarman QC on 24 June 2011, at a time when the issue differed from the grounds now advanced before me. However, since the compass of the argument before me this morning has in effect dealt briefly and succinctly with arguments both for permission and substantive relief, it seemed sensible to continue with this case as a rolled-up hearing. The defendant did not object, and I will return to the amended grounds shortly.

The facts

3. The claimant came to the UK with his wife and, at that time, two children in December 1993 and, following arrival here, claimed asylum. The asylum claim failed, but the claimant and his family were granted leave to remain. A third child was born in August 2002 and eventually in 2005 the claimant's family were granted indefinite leave to remain.
4. On 2 December 2008, the claimant's wife and the two younger children were granted British citizenship, and on 10 February 2010, the claimant's eldest child was also granted citizenship. Of those children, two are now adults, and only the youngest child remains a minor. On the limited information I have, it appears that the claimant is currently estranged from his wife and youngest child.
5. On 23 January 2009, the defendant was sentenced at Harrow Crown Court to four years' imprisonment following conviction of five counts of sexual assault on a young girl under 13 years of age. In relation to the five counts on which the claimant was convicted, I note that the sentence for three of them was the maximum sentence permissible, which reflects the very serious and distressing nature of the offending. While the claimant was a serving prisoner, the defendant determined to deport him pursuant to the mandatory provisions for deportation, given the term of the sentence and the nature of the offences. Notice of the decision was dated 26 October 2010, and was served on the claimant on 12 November.
6. I do not propose to recite the decision at length, but note that it sets out, as one would expect, the claimant's immigration history. It sets out at length the sentencing remarks of the trial judge at Harrow, no doubt in order to reflect the public interest reasons for deporting the claimant, and to reflect the very serious nature of the offending.
7. The decision went on to consider Convention reasons, dealing firstly with Article 8, and under the heading "Family Life" dealt with the duty to protect the interests of children, considered both private life and interference with private and family life and, I note, towards the end of this section, following a repeat reference to the term of imprisonment for the offences I have described, the letter said this:

"It is considered that your estranged wife has been able to care for and support her children while you are still serving your custodial sentence. It is therefore expected that she would be able to continue to care for herself and her children without support from you. We conclude that your removal will have little impact on your children and they can continue their relationship with you through telephone contact and visits."

8. As a result of this and the other considerations set out at some length, the Secretary of State concluded that deportation would not be in breach of Article 8. The deportation notification, as is common, notified the claimant of his right to appeal under section 28(3)(a) and section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002. I also note that the letter stated in the usual form that if the claimant did not appeal, or the appeal was made and was unsuccessful, the deportation order would be enforced.
9. Under rule 7 of the Asylum and Immigration Tribunal Procedure Rules 2005, as amended, the claimant had five working days in which to appeal to the First Tier Tribunal, which meant that the deadline for appealing fell on about Friday, 19 November 2010. The claimant, who is not fluent in English, did not realise the significance of the notice, and it took some time for the claimant to bring the notice to the attention of his solicitors.
10. The documentation was sent to the claimant's solicitors on 29 November, they having impressed on the claimant the need for urgency in appealing, and this enabled them to lodge an appeal on his behalf with the First Tier Tribunal. The notice was sent under cover of a letter of 1 December 2010, which was also served on the defendant on the same day, and it enclosed, amongst other things, the appropriate appeal notice, the grounds of appeal, and a statement of truth from the claimant to which I will return.
11. The appeal form noted that there had been delays, raised grounds of appeal principally under Articles 3 and 8 of the Convention, and stated that the claimant wished to give oral evidence. The grounds of appeal, which were appended to the notice, specifically accepted that it was necessary to extend time for appealing, and asked that time be extended, and set out five reasons why time should be extended. As I have mentioned, the documents also included a statement of truth signed by the claimant and dated 30 November, which verified the facts upon which the extension of time to make an appeal was sought, and set out that the claimant was not fluent in English at all:

"5. I sent the letter to my solicitor, together with some other letters which I received or I wrote to try and explain my case and my situation with my family.

6. He phoned me today to explain to me that we had five working days from the date the letter was served on me to lodge the notice and grounds of appeal. I have just been advised by my solicitor that the letter was served late on me and I sent it late to his office as well, so I have missed the deadline to lodge the notice and grounds of appeal.

7. He also explained to me that I had to sign a statement of truth explaining what has happened, and also to request an extension of time to lodge the notice and grounds of appeal.

8. Honestly, I did not know the importance of this letter. As I stated earlier, I am not fluent in English, and although I read the letter, I did not know that it was so important.

9. I was able to post full documentation on the notice of the decision to my solicitor late last week. I knew that my sentence will come to an end in January 2011, and I did not know that the UKBA will serve deportation notice on me at this stage."

12. Accordingly, as at 1 December, it seems plain to me that the claimant had done all that was necessary in order to apply to the FTT for permission to appeal out of time. Indeed, this is not disputed by Mr Blundell, who has represented the Secretary of State before me.
13. On the same day, the defendant set removal directions for 8 December. On 2 December, the claimant's solicitors notified the defendant about the lodging of the appeal and provided the documents, and their letter requested that the defendant not proceed with deportation. The letter asked if the Border Agency could set aside or revoke the deportation order pending the determination of the immigration judge.
14. On 6 December 2010, the FTT issued a decision that the appeal was out of time, and noted:

"If you contend that either notice of appeal was given in time or there were special circumstances for failing to give the notice of appeal in time which could not reasonably have been stated in the notice of appeal, you may file written evidence in support of that contention.

Such written evidence may be filed no later than 13 December 2010.

Evidence filed after the expiry of these time limits will not be considered.

When the notice was given out of time, the tribunal may extend the time for appealing, if satisfied that by reason of special circumstances it would be unjust not to do."

15. This decision was sent on 6 December under cover of a letter from the Border Agency to the claimant's solicitors, and noted as follows:

"You state that your client has an appeal pending before the tribunal. However, the tribunal issued the attached notice today indicating that your client's appeal was lodged out of time. There is no evidence that your client has sought to challenge that decision, and therefore the UK Border Agency (UKBA) intends to proceed with his removal."

16. It is clear from both the notice from the FTT and from the Border Agency's letter that it simply had not been understood or appreciated that the notice of appeal and the grounds of appeal had contained the application and the supporting evidence for permission to lodge an appeal out of time. It is clear from the letter of 6 December, in my judgment, that this misunderstanding played a material role in the Secretary of State's decision, because it is in the last sentence of the passage quoted above that the Border Agency states "therefore" the defendant intends to proceed with removal, namely on the basis there had been no attempt to challenge the decision of the tribunal that the appeal was out of time.
17. On 6 December, the claimant again provided the defendant with copies of the notice of appeal, the grounds of appeal and the supporting documents, and again requested that deportation should be deferred pending the determination of the appeal. The fax cover sheet which has been included in the bundle dated 6 December makes it clear that the solicitors acting for the claimant understood the urgency of the matter, since they ended the fax, "We await your URGENT reply".
18. On 7 December, the claimant's solicitors made further written representations to the defendant seeking a deferral of the deportation order. Having referred to the notice of appeal and the grounds, and the statement of truth, and the application for extension of time, the letter continued:

"You would understand that in the circumstances, our client is not to be penalised. In any case, you have given our client an in-country right of appeal. So, please, kindly allow him the chance to have a fair trial and a fair hearing by an impartial Tribunal. His deportation can be deferred and re-scheduled after a short period to allow the appeal hearing to take place.

Should the First Tier Tribunal rule that the appeal is out of time, we will appeal to the Upper Tribunal, and put forward all the facts which were the causes of the delay.

We would, therefore, be most grateful if you could, on the basis of our client's human rights and natural justice, defer deportation of our client to allow him the chance to exhaust all his appeal rights which you have given to him. Let him have a fair trial and a fair hearing by an impartial third party."

19. As a result of contact from the client's daughter, Mr John Cryer, the local MP for the claimant, wrote in support of the claimant and his having an opportunity to pursue his in-country right of appeal and, following his letter to the defendant of 7 December, on 8 December the claimant's solicitors wrote yet again, urging the defendant not to deport the claimant, and putting the defendant "on notice that it would be unfair and unreasonable to deport our
20. Mr Cryer, MP, wrote again on 8 December, and this elicited a response from the Border Agency on the same day. I note that the date fixed for removal had been 7 December, but it is clear that in fact the flight upon which the claimant was booked was one late on 8 December, since that is made clear by this letter. The letter refers to the notification from the tribunal that the appeal was out of time, and said this:

"As you are aware, he is represented by Cleveland & Co solicitors, who have had two days in which to challenge the decision. They have not provided evidence that they or Mr Niquepa have challenged that decision and he and his solicitors have also been aware that the removal directions were set for Mr Niquepa for tonight, 8 December 2010. His solicitors have therefore had sufficient time to obtain a statement of truth or any other documents that they consider necessary to submit a challenge to the Tribunal's decision.

At present, Mr Niquepa will be either in transit to the airport or will be already present at the airport, as his removal directions are set for 20:45 tonight. No explanation is offered by his solicitors for why they failed to challenge the decision of the Tribunal prior to Mr Niquepa being removed from HMP Littlehey. They were notified of the UK Border Agency's decision to proceed with removal directions and served with the Tribunal's decision to refuse Mr Niquepa's appeal on 8 December 2010. The UK Border Agency are satisfied that Mr Niquepa and his solicitors have had ample time to challenge the decision of the tribunal, and/or obtain evidence.

Mr Niquepa's order was initially sent to HMP Littlehey on 5 November 2010 and this was served on him on 12 November 2010. He did not submit an appeal and the UK Border Agency did not proceed to set removal directions until 2 December 2010. He did not submit an appeal until 6 December 2010, in which case he had ample time to set out any reasons for the delay in appealing to the Tribunal. Having failed to do so, the Tribunal refused the appeal on the out-of-time issue. The UK Border Agency are not obliged to defer removal directions on the possibility that Mr Niquepa or his solicitors will eventually challenge the Tribunal's decision. Even in the most recent letter, dated 8 December 2010 and forwarded to the UK Border Agency this afternoon, his solicitors have still not stated that they will challenge the decision by the Tribunal and their only claim is that the tribunal have given Mr Niquepa until 13 December 2010 to challenge the decision and that this means that removing him tonight would be unreasonable. In the absence of a challenge to the Tribunal's decision, the UK Border Agency consider therefore that Mr Niquepa is simply seeking to frustrate his deportation."

21. The length and detail of the letter is remarkable, given that it is almost entirely incorrect. It is clear that the Agency had been served at the beginning of December with the grounds of appeal, including the application to permit an appeal out of time, together with the supporting evidence, and that that material had been subsequently copied again to the Border Agency, and that its existence had been drawn to the Border Agency's attention on at least two further occasions between 6 and 8 December.
22. It is plain from that letter that the Border Agency were placing considerable reliance upon the fact that no application had been made in making its decision to proceed with removal, and indeed, following that letter, Mr Niquepa was in fact removed from this jurisdiction on that day, 8 December.
23. As it then occurred, Mr Niquepa's application for permission out of time was successful, and on 13 December the FTT determined to extend time and that appeal is proceeding. Immigration Judge Woolf accepted that the claimant may not have appreciated that he had to act within a certain time, and there were special circumstances that would make it unjust not to extend time. That appeal, as I have said, is now awaiting determination, and its merits are not for me.
24. It is a significant factor in the case that despite the urgency of the matter and the ample time available, the claimant did not bring judicial review proceedings to restrain his removal from the jurisdiction at the time, despite the clear statements of intention by the defendant, and did not bring judicial review proceedings until 2 March of this year, just within the three months allowed by part 54.4.
25. The claim as it was originally set out in the claim form was that the provisions preventing removal whilst an in-country appeal was pending (see sections 78, 92 and 104 of the Nationality, Immigration and Asylum Act 2002 as amended) applied where an application had been made out of time, but there was a subsisting application for permission to appeal out of time. However, Mr Harris before me did not pursue that point and realistically accepted that this line of argument was inconsistent with the judgments of the Court of Appeal in R (Erdogun) v Secretary of State [2004] EWCA Civ 1087, and of Pitchford J, as he then was, in R (Kagabo) v Secretary of State [2009] EWHC 153 Admin
26. Accordingly, and as notified in paragraph 6 of his skeleton argument, Mr Harris reformulated the grounds of challenge, which reformulation was very fairly not opposed by Mr Blundell on behalf of the defendant. The reformulated grounds deal on a Wednesbury basis with the decision of the Secretary of State to proceed with removal pending the application to the tribunal, and it seemed to me, having heard oral argument this morning, that on the revised grounds as set out in paragraph 6, there plainly was an arguable case, and therefore I granted permission for judicial review at that stage.
27. I now turn to the substantive application for challenge.

The amended substantive grounds of challenge

28. As reformulated and argued before me, there are essentially two issues for my determination. Firstly, whether the Secretary of State through the UK Border Agency erred in law in determining in early December 2010 to remove the claimant, notwithstanding that application for permission to bring an in-country appeal to the FTT had been made out of time with appropriate supporting evidence; and secondly, if there has been an error of law in those circumstances, whether the court should grant relief.
29. Mr Harris's case was put succinctly and clearly. Firstly, if permission were granted, the claimant had an in-country right of appeal, which he wishes to exercise, it having now been granted, by being physically present and giving evidence in his own support.
30. Secondly, whilst it is true he lost the right to appeal through delay, he has acted with a reasonable degree of urgency since then to make an application out of time, and to submit the relevant documents to the FTT and serve them on the defendant, making it clear that he was applying for permission out of time with the appropriate materials. This is not now disputed by the defendant.
31. Thirdly, Mr Harris points out that neither the FTT nor the defendant seems to have noticed, as of 6 December, or indeed at any other stage in December 2010, that the application for permission to appeal out of time had in fact been made at the outset, and the UKBA letter of 8 December, which I have quoted from, clearly demonstrated that the decision to proceed was made on the erroneous basis that there was no subsisting application. This is not disputed by the defendant.
32. Fourthly, Mr Harris stresses that this is not a case of an abusive or late application deliberately made to extend time in hopeless circumstances, but that the claimant has acted with reasonable urgency against a failure to lodge an appeal in time on the basis of facts which indeed subsequently found favour with the tribunal. This is not disputed by the defendant.
33. Fifthly, the FTT ask for evidence by 13 December, so they were likely to determine the application for permission out of time within a matter of days, which they did and there was no need for the haste to remove the claimant, given the few days involved, and the defendant could in any event have checked with the tribunal whether it was likely to take long to process that application, or indeed, asked the tribunal to expedite the determination of the application. This is also not disputed by the defendant.
34. Mr Harris touched on the merits, which involve claims under Articles 3 and 8, and possibly the relevance of the Supreme Court's recent decision in ZH Tanzania [2011] UKSC 4. Other than pointing out that ZH may well be distinguishable on the facts, for reasons which are clear from the letter notifying the claimant of the deportation decision on 26 October, it is not for me to comment on the strength of the appeal, since that is a matter for the FTT to determine. Moreover, the court has little evidence on the substantive merits to be able reach a clear view of the merits.
35. Mr Harris points out the importance of this issue to the claimant. In particular, he draws my attention to paragraphs 362 and 391 of the Immigration Rules, which have the effect that the deportation order, unless quashed, prevents him returning to the UK, and indeed, prevents him returning to the UK for at least ten years from the date of the making of the order.
36. In the circumstances, Mr Harris submits that the decision to proceed with deportation in the circumstances as I have outlined them was Wednesbury unreasonable, and he draws my attention to passages recognising that this issue is amenable to judicial review.
37. Firstly, in the Erdogun case, he points to the remarks of Newman J, giving the judgment of the Court of Appeal, at paragraph 20, and to the remarks of Pitchford J, at paragraph 51 of Kagabo. Pitchford J said this:

"I recognise that the access to justice argument is an extremely important one. Access to a court cannot be ousted save by express statutory language. In my judgment, access to the AIT is not removed. The claimant had an unqualified right of appeal within the time limit set to ensure speedy resolution of asylum and immigration decisions. If she failed to avail herself of a right, that did not amount to a deprivation of the right. Furthermore, a decision to remove while an extension of time application is awaiting decision is reviewable by the High Court in proceedings for judicial review. Where the claimant has "an arguable complaint" that her refugee status or her ECHR rights will be violated by removal, the court will be required to exercise its discretion in the claimant's favour. Formerly it was the Secretary of State's policy not to remove when a judicial review application had been lodged. Now the claimant is required to lodge the application and obtain the order of the court. Only in clear cases will the court, in my experience, refuse a restraining order when the SSHD's decision is challenged by a claim for judicial review. These requirements seem to me to comply with the United Kingdom's obligation to provide an effective remedy to those who claim that their rights are being violated."

38. Some reliance is placed on those last sentences, but I note from the context that Pitchford J was there dealing with cases where judicial review proceedings are on foot, and is in particular pointing to the change in practice some years ago, when the Secretary of State ceased to stay removals automatically on the issue of judicial review proceedings. He was not specifically addressing the case where judicial review had not been instituted at all. However, it does provide a pointer at least to the possibility if not the prospect of the obtaining of some relief on an interim basis in certain circumstances.
39. Mr Blundell for the defendant has said everything that could be said in support of the lawfulness of the deportation order, whilst accepting the manifest errors by the UK Border Agency in thinking that there had been no application for permission to appeal out of time. He maintained the submission that the decision was rational, pointing to the strength of the case in favour of deportation, the ample time in which the claimant had been able to act, the lack of application by the claimant to the court, the questionability of the merits of the appeal, and also the absence of prejudice to the claimant by having to appeal outside the UK. His submissions did in my judgment in several respects look more to the exercise of the court's discretion than to matters directly relevant to rationality.
40. In this context, in my judgment, it is very relevant that he also accepted that the defendant relied on the general grounds in the letter of 26 October for deporting the claimant, and did not consider specifically the circumstances at the time of setting and enforcing the removal direction. Mr Blundell could point to no evidence to show that the Agency had considered the effect of waiting for a few days for the application to be determined, and why it was important to proceed to remove, notwithstanding the short period of time involved. Indeed, it would not have been possible for him to do so, since it was clear in any event that the Agency had thought that no such application had been made.
41. It seems therefore clear to me that the defendant, acting through the Border Agency, erred in law. Firstly, it failed to take into account a relevant matter, namely that the application for permission out of time was made with the appeal, supported by grounds and evidence. Those grounds were ones that were plainly neither not poor or unsustainable and, using hindsight, they clearly led to the grant of permission on 13 December. That failure tainted not only the consideration shown in the letter of 8 December to the Member of Parliament, but also in the letter of 6 December. I have already pointed to the language used and to the use of the word "therefore" in the final sentence of the second paragraph. Whilst one should be careful not to construe letters from administrators over-rigorously, it is nonetheless plain that it was considered material by the Agency that no application had been made out of time, and that that perceived failure was relevant to the decision to proceed.
42. In my judgment, there was also a failure to consider the effect of delay, given that it was only likely to be a matter of days until a decision would be reached, and that the defendant could have pursued expedition of the application in front of the FTT, or it could simply have checked the timing with the FTT to see whether in fact the application for permission would take a significant period of time. That was a relevant failure. Given that the application was pressed by the claimant's solicitors properly, there was no evidence that it in fact would be delayed more than a short period and in the circumstances, this was relevant because of course it would have the effect of depriving the claimant of the benefit of permission out of time which would have given him an in-country right of appeal.
43. I recognise the strength in Mr Blundell's submissions that this was a case where, given the nature of the offending, the Secretary of State was entitled to take a firm view, and it is somewhat ironic in the current climate to find the Secretary of State criticised for acting expeditiously. I do not find that the Secretary of State could not have still determined to remove the claimant, especially given the various serious crimes which were the basis for the deportation decision, but simply that on the facts the Border Agency pressed on with removal on a basis which was materially incorrect. I do not accede to the view that the decision was perverse, in the sense that no reasonable decision maker could have made it, but that it was plainly flawed and Wednesbury unreasonable due to the failures or mistakes in understanding the material facts. I wish to make that distinction quite clear. I am therefore not ruling that in such circumstances that, were the relevant factors to be properly considered, it would not be open to the Secretary of State to continue with deportation directions.
44. I therefore turn to the question of relief.

Relief

45. It is a matter for the discretion of the court in judicial review whether relief should be granted. That discretion is to be exercised having regard to the circumstances, which include the conduct of the claimant and, in the circumstances of this case, I decline to grant relief.
46. Firstly, this is a case where the claimant and his solicitors were fully aware that he was acting out of time, and that they had to proceed with considerable urgency. The Secretary of State, albeit on the basis I have already explained, made it quite clear that she was proceeding to set removal directions and to remove the claimant, and that she was not moved by the pleas not to proceed. Although many requests had been made by the claimant's solicitors not to proceed with removal, this clearly did not meet with a favourable response.
47. In my judgment, there was ample time for the claimant to apply for judicial review and interim relief, as so many about to be removed from this jurisdiction do in order to prevent their removal. Indeed, there were several days in which such an application could be made but, even so, emergency and out of hours applications for such relief are common currency in this court. The claimant's solicitors are plainly experienced in immigration matters, yet no steps were taken to restrain the removal, and judicial review was not begun for nearly three months.
48. As a result of the failure to act, the claimant was removed to Colombia. It is not the case that the claimant cannot conduct his appeal satisfactorily from Colombia. It is clearly not what he wants, and he would prefer to do so from within the jurisdiction. Had his application been in time, or had permission been determined before removal, he would have had an in-country right of appeal. However, as a matter of law, strictly he did not have such a right at the time of removal, and short of perversity, I am not satisfied that there is any principle of law which would require the Secretary of State to allow circumstances to develop so as to confer an in-country right of appeal when none such existed at the time.
49. Evidence out of country can be given, as it often is, commonly in writing, with additional oral evidence and cross-examination which may be able to be dealt with by video link, as Mr Blundell submitted. Such evidence may require a degree of organisation, but it is not suggested that this is unfeasible or unreasonable, or would prejudice the determination of the appeal. Indeed, out of country appeals are part of the Immigration and Asylum Appeal systems in the UK, and there is no reason to believe that the appeal cannot be properly and fairly conducted and determined in the current circumstances. In this context I note the Secretary of State has accepted that if the claimant succeeds on his appeal, he must be allowed to return to the United Kingdom, so that there will be no prejudice on that score either.
50. It is possible that fault with regard to the delay may lie with the claimant's solicitors though this is not necessarily the case and I have no information before me on this which would explained what occurred between solicitor and client.
51. In the circumstances, I consider the court should decline to grant relief. The terms of my judgment make it clear that I consider that the defendant erred in law in the decision to proceed with the removal, but I do not think it appropriate for the reasons I have given to grant the mandatory relief sought, nor is it necessary to make any declaratory relief, since my views on the issues are sufficiently clear from this judgment.
52. It follows that I refuse the application for judicial review.
53. MR BLUNDELL: My Lord, I am extremely grateful for that judgment. May I just take instructions for a moment. (Pause). My Lord, I am grateful for that moment. I have just taken instructions on the questions of costs, given that your Lordship has declined the application. My instructions are to seek no order as to costs.
54. THE DEPUTY JUDGE: I think that is wise in the circumstances.
55. MR BLUNDELL: I am grateful, my Lord.
56. THE DEPUTY JUDGE: Mr Harris, anything else?
57. MR HARRIS: Yes, my Lord, can I ask for a public funding certificate, as this is legally aided.
58. THE DEPUTY JUDGE: You may have that.
59. MR HARRIS: My Lord, forgive the short notice of my application, but I feel I should seek to appeal at this point, partly having come so far, but your Lordship declined to exercise relief by placing weight on a suggestion that the claimant could not obtain in effect a proper appeal hearing -- or, sorry, that he could, from out of country, secure a fair hearing, if I put it like that.
60. THE DEPUTY JUDGE: Yes.
61. MR HARRIS: In my skeleton argument, my Lord, at paragraph 52, I raised the point that the fact of his presence in Colombia prevents him from attending his own appeal and giving oral evidence.
62. THE DEPUTY JUDGE: It does not prevent him giving oral evidence. It prevents him being physically present at the venue of the appeal. We did have a discussion about video links, which you have had the opportunity to make submissions about.
63. MR HARRIS: My Lord, I would observe that there is an assumption that a video link can function between Colombia and this country. Colombia is in Latin America rather than Europe, of course.
64. THE DEPUTY JUDGE: Yes, I believe it is quite possible to contact one's friends and relations by the internet these days, quite easily, and to have a video link on the most informal of bases.
65. MR HARRIS: Yes, I know that on the informal basis, but the tribunal does operate on a rather more formal system, rather more than just simply Skyping between parties.
66. THE DEPUTY JUDGE: Indeed, no, but I merely draw your attention to that to demonstrate the ease by which it can be done.
67. MR HARRIS: Well, apparently that is the ease of using Skype, or such a system.
68. THE DEPUTY JUDGE: Are you saying that government services are rather less apt to using technology?
69. MR HARRIS: Well, yes, my Lord, I am afraid, taking a rather sceptical view --
70. THE DEPUTY JUDGE: Mr Harris, video links are used all the time in children cases. I have conducted two judicial reviews by video link, with someone not present who wanted to attend the hearing but could not be present. It is not impossible for even the court system and the tribunal system to arrange a video link.
71. MR HARRIS: Well, at bottom, there is a concern, my Lord that if we get to the hearing and there is difficulty in ensuring a video link between Colombia and this country for the hearing, it would be remiss of me not to have sought to in some way raise this issue with you when I had the opportunity.
72. THE DEPUTY JUDGE: Yes, point taken.
73. MR HARRIS: And it is really on that basis that I suggest that, as that forms such a central part of what would be your reasoning in refusing the (inaudible) --
74. THE DEPUTY JUDGE: It was a part of the reasoning.
75. MR HARRIS: -- that is where you may have fallen into error, my Lord.
76. THE DEPUTY JUDGE: Very well. I refuse permission to appeal. I understand Mr Harris's concerns, but there was ample opportunity for these matters to be aired in court, and Mr Blundell had to deal with the issues as best he could, given the reformulation of the grounds. It does not in any event seem that the point raised by Mr Harris runs contrary to the view either, firstly, that interim relief could but was not sought, and secondly that out-of-country appeals are at least an integral part of the asylum and immigration appeal system in any event, whether or not video links can be arranged. I do not see that there is any real prospect of success, and it does not strike me as an important enough point of law to trouble the Court of Appeal. You will have to ask the Court of Appeal's permission, Mr Harris.
77. MR HARRIS: I am grateful, my Lord.
78. MR BLUNDELL: I am very grateful, my Lord.
79. THE DEPUTY JUDGE: Thank you, gentlemen, both, for your succinct and effective submissions. Thank you.