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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 >> Omar, R (on the application of) v Secretary of State for the Home Department (Rev 1) [2012] EWHC 3448 (Admin) (30 November 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3448.html Cite as: [2013] Imm AR 601, [2012] EWHC 3448 (Admin)

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

		Birmingham Civil Justice Centre 33 Bull Street, Birmingham, B4 6DS
		30/11/2012

Mr Justice Beatson :

1. The claimant, Osman Omar, is a national of the Cameroon, now aged between 38 and 40. In 2003 he married a Somali national, who is now a naturalised United Kingdom citizen. They have two children, now aged 8 and 6. On 13 September and 12 October 2010, he lodged two applications for permission to apply for judicial review, CO/10040/2010 and CO/10699/2010. They were consolidated when Hickinbottom J gave permission on 6 May 2011 and set a timetable for the filing of consolidated amended grounds. For reasons I shall give later in this judgment, the submissions raised in the first of these applications for judicial review are no longer pursued.
2. The claimant filed amended grounds on 3 June 2011. It was subsequently agreed that it was necessary for the claimant to further amend the grounds of claim and, in an order made on 30 May 2012, HHJ Cooke vacated the hearing that was listed for 24 July and gave permission to the claimant to file amended grounds of claim, and to the defendant to file detailed grounds of defence in response. He also ordered that the issue whether the claimant has permission to rely on the amended grounds of claim was to be dealt with at this hearing. It is accepted by Mr MacKenzie, on behalf of the claimant, that he does require permission to re-amend the grounds. I give that permission. As will be seen, the re-amended grounds include a ground outside those for which Hickinbottom J gave permission. That part of the case has, by consent, been dealt with on what is effectively a "rolled up" basis.
3. There are now only three issues before the court. The first is whether the Secretary of State for the Home Department acted unlawfully on 12 July 2010 in refusing to accept the claimant's application for an extension of discretionary leave without a fee. This involves a challenge to the decision made on 12 July 2010, to the vires of the relevant regulations, which provide for a fee and do not provide for it to be possible for the Secretary of State to waive it in the case of an applicant who seeks leave on human rights grounds but cannot afford the fee because he is either destitute or in receipt only of NASS support. It is the challenge to the regulations which requires permission. The second is whether, in the light of the defendant's decision on 9 November 2011 to grant the claimant three years discretionary leave, there remains no live issue in these proceedings. The third is whether, if no live issue remains, the court should nevertheless deal with the first issue on the ground that it raises wider points of public importance because of the number of similar cases that exist or are anticipated and because the decision sought is not fact-sensitive: see R v SSHD ex p. Salem [1999] 1 AC 450 at 456 – 457 and R (Zoolife International) v Secretary of State for the Environment [2007] EWHC 2998 (Admin) at [36].
4. In resolving these issues, I have been assisted by clear and focussed submissions by Mr Alasdair Mackenzie on behalf of the claimant, and by Mr Jeremy Johnson QC on behalf of the Secretary of State. I first set out the material facts. I then summarise the legal framework, before turning to the submissions and my decision.
5. In approximately March 2004, the claimant entered the United Kingdom unlawfully to seek his wife, using a false Dutch passport in the name of Oliver Kumba. On 10 March 2006 he was sentenced to 22 months imprisonment for kidnapping. On 11 July 2006 he was served with a notice of deportation. During his time in prison, he suffered from serious health problems including hydrocephalus, TB, and meningitis. These led to continuing neurological problems and to the insertion of a shunt, which required him to be monitored regularly for complications and blockages, and which might require further surgery.
6. On 13 December 2006 an appeal by the claimant against the notice of deportation was allowed by the Asylum and Immigration Tribunal. The Secretary of State was granted an order for the reconsideration of the appeal by the Tribunal on a number of grounds. The matter then came before another Immigration Judge. In a determination promulgated on 18 September 2007, the appeal was again allowed, on the grounds of the claimant's strong family ties to the UK, his medical condition, and because medical services in Cameroon were of sufficiently poor quality that the he would not receive the treatment he needed were he returned there.
7. On 9 December 2007 a Senior Immigration Judge granted the Secretary of State permission to appeal. However, the Secretary of State did not file an appellant's notice in time. She did not do so until 1 September 2008, ten months after permission was granted. The Court of Appeal (see [2009] EWCA Civ 383) refused to extend time for this appellant's notice to be filed. It did so because there was no reasonable explanation for the delay, and because the Secretary of State's failure to act was contrary to her own assertion that the public interest demanded the claimant's removal from the United Kingdom. The delay, and the errors in handling the claimant's case, may well, as Moses LJ stated at [30] be attributable to pressure of work on "the system", i.e. those administering immigration control on behalf of the Secretary of State. As those familiar with immigration cases in this court know, there are likely to be continued delays in dealing with the positions of individuals who are in this country without leave, either because they never had leave or because they have overstayed. That position is relevant background to the submissions made in this case.
8. On 27 June 2009 the claimant's then solicitors, the Immigration Advisory Service, wrote to the Secretary of State asking for immigration status papers for the claimant to be issued. They also invited her to grant indefinite leave to remain in the light of the delays in the case. On 22 December 2009, some 27 months after the second appeal had been allowed by the Tribunal, and more than seven months after the Court of Appeal had indicated that delay was fatal to the Secretary of State's application for an extension of time, the Secretary of State granted the claimant six months discretionary leave to remain in the United Kingdom, i.e. until 14 June 2010. The document granting this leave was, however, issued in the name of Oliver Kumba, the false name on the Dutch passport which the claimant had used to enter the United Kingdom. In an email dated 7 January 2010, the claimant's solicitors informed the Secretary of State of this error and asked her to reissue the documents in the correct name. As no reply had been received by 13 February, the claimant's solicitors wrote threatening to institute judicial review proceedings. The Secretary of State, in a letter dated 16 March 2010, agreed to issue an immigration status document in the claimant's correct name.
9. Subsequently, there was further correspondence as to whether it was appropriate for the discretionary leave to be granted for only six months. In a letter dated 10 May 2010, the Secretary of State issued an immigration status document in the claimant's correct name. The residence permit issued was, however, dated 22 December 2009, the date of the previous document, and was valid for a six month period from then, i.e. until 14 June 2010, about a month after it was issued.
10. On 11 June 2010, the Immigration Advisory Service applied on the claimant's behalf for an extension of his leave to remain. The application was for further discretionary leave to remain in the United Kingdom on the ground that failure to do so would lead to a breach of the claimant's Article 8 rights. The application stated that, due to the delay and the claimant's lack of status, he and his wife were experiencing difficulties in their marriage. As she could not support him and the children, he had left the family home to reside in NASS accommodation, but he maintained regular contact with his children, who stayed with him every weekend.
11. The solicitors made the application on two application forms, FLR(O) and HPLD. They stated they did so because it was not clear which form was relevant to his application. Although they had in fact been instructed for almost a year, they said that this was because they had only been recently instructed, and they did not have all the papers relevant to the claimant's case, so that it was not clear to them whether he had made a previous asylum claim. They also stated that it was unclear which form was to be used when applying for further discretionary leave to remain. They maintained that, because the application was for leave outside the rules and was in relation to the potential breach by the United Kingdom of the claimant's Article 8 rights, FLR(O) was not the appropriate form.
12. The claimant's solicitors also raised the issue of the fee. They stated that the defendant was aware that there is no fee in relation to application for further leave using form HPDL, whereas there is a fee for form FLR(O). They stated that they did not consider the claimant should have to pay the fee even if FLR(O) was the correct form. They maintained that there was no prescribed formal fee for an Article 8 claim or a claim based on further leave to stop a breach of Article 8. They also argued that it was unlawful and unreasonable to require the claimant to pay a fee in order to raise the issue that any decision by the Secretary of State to refuse to grant further leave, or to require a person to leave the country, would breach his human rights. They maintained that, although no fee was enclosed, the application was a valid one and should be considered in relation to a potential further breach of the claimant's Article 8 human rights.
13. In the alternative, they submitted that the Secretary of State should use her discretion and waive the requirement for a fee in the claimant's case. They did so on the following grounds. First, the delay in issuing the claimant's status papers meant that he had only received those two weeks before the latest time for an application for further leave. He was therefore not able to put this leave into effect by getting a National Insurance number, and to switch from NASS support to being able to work or receive benefits. He was still housed and supported by NASS, and in the light of the minimum funds granted by NASS, he did not have sufficient funds to pay for the fee. Secondly, they relied on the lengthy delay in dealing with the claimant's matter. They submitted that in the light of that it was unreasonable for the Secretary of State to require the claimant to pay a fee.
14. In a letter dated 12 July 2010, the Secretary of State observed that none of the exemptions in the Regulations from the requirement to pay a fee for applications for leave to remain applied to the claimant. The letter stated that the Regulations did not provide an exemption for Article 8 claims, and that, as the claimant wished to apply for leave to remain in the United Kingdom on the basis of Article 8, a fee was required. The letter referred to the Immigration and Nationality (Cost Recovery (Fees)) Regulations 2010, but this seems to be an error, since the appropriate Regulations are the Immigration and Nationality (Fees) Regulations 2010 SI 2010 No. 778. This letter did not expressly state whether the Secretary of State's position was that she would not waive the fee or whether it was that, in the light of the regulations, she could not. It is, however, implicit (as Mr Johnson QC accepted) that it was the latter.
15. I have referred to the two applications for permission to apply for judicial review lodged by the claimant on 13 September and 12 October. The first (CO/10040/2010) was a challenge to the fact that six months discretionary rather than three years had been granted. The challenge, which contended that the Secretary of State had misapplied the policy to give such leave to those who have been convicted, and that in any event the policy was ultra vires, is no longer pursued. First, Mr MacKenzie's written submissions accepted that, in the light of the decision in R (Morrison) v SSHD [2005] EWHC 217 (Admin) this challenge is doomed. Secondly, in a decision foreshadowed on 27 October and made in a letter dated 9 November 2011, to which I will return, the Secretary of State granted the claimant three years discretionary leave to remain. The second application for judicial review is pursued, although partly on grounds amended after the grant of permission. This application challenges the Secretary of State's refusal on 12 July 2010, on grounds of non-payment of the required fee, to consider the claimant's application for leave to remain and challenges the vires of Regulation 6 of the Immigration and Nationality (Fees) Regulations 2010 SI 2010 No. 778, which has been superseded by Regulation 7 of the 2011 Regulations SI 2011 No. 1055, in respect of which a quashing order is sought. It is the direct challenge to the Regulations which was introduced after permission was given, and for which there is no permission as yet.
16. As to the procedural history of these proceedings, it suffices to state that, after Hickinbottom J granted permission and the amended grounds were served on 6 June 2011, the claimant's then solicitors went into administration and his present representatives, Sutovic and Hartigan, were instructed. There have been six further orders by the court, dealing with inter alia the vacation of the hearing and the timetable for filing re-amended grounds of claim and grounds of resistance by the defendant.
17. The next significant development was a letter dated 11 August 2011 from the UK Border Agency to the claimant. This stated that, in the light of the claimant's conviction for kidnapping, the Secretary of State was considering his immigration status and liability to deportation. The letter invited representations as to why he should not be deported to Cameroon. It appears that such representations were made in a letter dated 17 October 2011.
18. There are two important letters, both dated 27 October 2011. In the first, sent by an official of the UK Border Agency, the Secretary of State informed the claimant's solicitors that she had considered the further submissions and decided to exercise her discretion and grant the claimant discretionary leave for three years. It was stated that consideration was given to the claimant's Article 8 rights, and in particular his parental responsibilities for his children, and the role he played in the aftermath of the end of his relationship with their mother. It was stated that it was considered that the relationship between the claimant and his children was unlikely to change in the foreseeable future. The letter also stated that the Secretary of State had considered whether to remove the claimant as an overstayer, and that the further decision made of her own motion.
19. The second letter dated 27 October is from the Treasury Solicitor's Department, referring to the decision to grant the claimant three years discretionary leave, stating that in the circumstances, these proceedings had become redundant, and inviting the claimant to withdraw them. It is to be observed that the letters dated 11 August and 27 October do not refer to the fact that the claimant's appeal against deportation had been successful in the Tribunal, or to these proceedings. A further invitation to withdraw the proceedings was made in a letter dated 27 October 2011.
20. The formal grant of three years further discretionary leave was contained in a letter dated 9 November 2011. There was then correspondence between the parties in which the claimant's solicitors invited the defendant to confirm the basis for the grant of discretionary leave, and whether the original application was valid. The Treasury Solicitor responded in a letter dated 15 February 2012 stating that the matter was academic and that discretionary leave had been granted as part of the defendant's own consideration whether to make a deportation order, and that the defendant did not accept that the claimant's original application was valid.
21. Following further letters from the claimant's solicitors, in a letter dated 10 July 2012 the Treasury Solicitor's Department stated that the defendant was prepared to address the claimant's remaining concern as to hypothetical future applications for leave by undertaking that the fact that there was a gap in his lawful leave between 14 June 2010 and 9 November 2011 would not be treated as a reason why the application should be refused. This was done "exceptionally" on the facts of the claimant's case with the aim of resolving these proceedings. The claimant's solicitors responded, stating that their continuing concern was not for the claimant's eligibility for leave to remain as a result of the gap, but with his eligibility for Indefinite Leave to Remain and/or naturalisation because of the gap, the possibility that he was committing an offence and the effect of that in future applications, and whether he would have to overstay again in the future if he could not pay the fee. The Treasury Solicitor's Department, in a letter dated 13 August 2012, stated that the first two of these points were dealt with by the assurance given by the defendant, and that it was inappropriate for the defendant, and for the court, to attempt to answer the third question at this stage. Mr Johnson QC confirmed this.
22. The matter had been listed for disposal in February 2012, but following a hearing on 26 March it was ruled that the claim should proceed. This hearing was originally listed for 24 July 2012. At the request of both parties, it was adjourned, and HHJ Cooke's Order of 30 May 2012, to which I have referred, also made by consent, set out the new timetable for the case. On 7 November 2012 Silber J refused an application to vacate this hearing and to link these proceedings with the case of Ahmed (CO/9926/2011) which raises the same issues and is listed for hearing on 30 January 2013.
23. The evidence in this case on behalf of the claimant consists of the statement of facts attached to his form N461 and signed by a solicitor in the Immigration Advisory Service, and the statement of Ms Sicher, a solicitor at Sutovic and Hartigan, dated 21 November 2012. There is no witness statement by the claimant. The evidence on behalf of the defendant consists of the statement, dated 22 November 2012, of Kevin Gardner, an assistant director in the Criminal Casework Operational Policy Team of the UK Border Agency, and previously assistant director for the Criminal Casework, Prison Operation and Removal Teams.
24. Mr Gardner's statement set out changes that will be implemented to the handling of foreign national offenders who have been granted six months discretionary leave under the Secretary of State's policy. It is stated that a revised process will ensure that six weeks prior to the expiry of the initial grant of six months discretionary leave their cases are reviewed. During the hearing Mr Johnson QC stated that he was instructed that the six weeks referred to the start of the process and that the review process would be completed by the expiry of the leave. Mr Gardner's evidence is that the review process will involve the individuals subject to it being asked for information about any change in their personal family circumstances since leave was granted, and making checks about matters such as further offending. After this he stated that the defendant will decide whether to grant further limited leave or pursue deportation. He also stated that foreign national offenders whose initial period of six months leave had expired before the new arrangements without a valid application for further leave having been made will also have their cases reviewed in this way.
25. There was no evidence as to why this process only applied to foreign national offenders who have been given six months discretionary leave. Mr Johnson stated that he was instructed that those who get longer periods of discretionary leave are expected to save funds in the period of their leave to fund a further application but that it was recognised that this was more difficult for those given only six months discretionary leave.

The legal framework

26. Section 3 of the Immigration Act 1971 provides that those who are not British citizens shall not enter the United Kingdom unless given leave to do so, and provides (section 3(2)) that the Secretary of State shall lay before Parliament statements of the rules as to the practice to be followed in the administration of the Act for regulating entry and stay of those required to have leave to enter. Section 24 of the 1971 Act provides that those who knowingly enter the United Kingdom without leave, who remain beyond the time limited by leave to enter, or fails to observe a condition of that leave, are guilty of an offence punishable with a maximum of six months imprisonment and/or a fine.
27. The power to charge fees for an application in connection with immigration is contained in section 51 of the Immigration, Asylum and Nationality Act 2006. Sub-section (1) of this provision states that the Secretary of State may, by order, require an application to be accompanied by a specified fee. Sub-section (3) provides:

"Where an order under this section provides for a fee to be charged, regulations made by the Secretary of State –

(a) shall specify the amount of the fee,

(b) may provide for exceptions,

(c) may confer a discretion to reduce, waive or refund all or part of a fee,

(d) may make provision about the consequences of the failure to pay a fee."

Mr Mackenzie relied in particular on section 51(3)(c).

28. Section 42 of the Asylum and Immigration (Treatment of Claimants) Act 2004 provides that the Secretary of State may prescribe a fee, the amount of which is intended to "exceed the administrative costs of determining the application and reflect the benefits that the Secretary of State thinks are likely to accrue to the person who makes the application, or to whom the application relates, if it is successful". Mr Johnson QC submitted that it is clear from this that the policy of the government is to charge individuals an amount reflecting not just the cost of determining an application by also the likely benefits to an applicant.
29. Provision is made for fees by the Immigration and Nationality (Fees) Order 2007 SI 2007 No. 807. Article 3 provides:

"(1) An application in connection with immigration or nationality to which this Article applies must be accompanied by the fee for the time being specified in relation to the application in question in regulations made under section 51(3) of the 2006 Act.

(2) This Article applies to applications for –

(a) leave to remain in the United Kingdom given in accordance with the provisions of, or made under, the 1971 Act…

(b) the variation of leave to enter, or remain in, the United Kingdom given in accordance with the provisions of, or made under, the 1971 Act…"

30. There is a further layer of regulation. At the material times for the purposes of this application, the Immigration and Nationality (Fees) Regulations 2010 SI 2010 No. 778 provided, in Regulation 6(1) that the fee for applications for leave to remain or variation of leave to remain by a single person is £475, except where a different fee is specifically provided for. Regulation 13 made provision for exceptions in respect of fees for leave to remain applications. The excepted categories are persons making a claim for asylum which has not been determined or has been granted, persons who have been granted humanitarian protection under the Immigration Rules, those granted limited leave to enter or remain outside the provisions of the Immigration Rules when their asylum claim is rejected, and a dependent of such persons. In Regulation 14, provision is made for the waiver of a fee in the case of an applicant who has suffered domestic violence and seeks leave to remain on that ground. By contrast, however, in the case of those seeking entry clearance to travel to the United Kingdom, Regulation 25(c) provided that no fee is payable where inter alia "the Secretary of State determines that the fee should be waived". Mr Johnson QC made no submissions as to the policy underlying the exceptions, the broad power to waive fees for those seeking entry clearance, or the absence of such a broad power in the case of those making applications from within the UK.
31. By Regulation 30 of the 2010 Fees Regulations, where an application which is required to be accompanied by a specified fee is made without that fee "the application is not validly made". These Regulations came into force on 6 April 2010, i.e. about two months before the claimant's June 2010 application for further leave to remain.
32. The 2010 Fees Regulations have been replaced by the Immigration and Nationality (Fees) (No. 2) Regulations 2010 SI 2010 No. 2807, which came into effect on 22 November 2010. Those Regulations have in turn been superseded by the Immigration and Nationality (Fees) Regulations 2012 SI 2012 No. 971. [It is common ground that the 2012 Regulations are materially identical to the 2010 Regulations save that the fee stipulated is higher, and those seeking a short-term extension of leave to enter or remain and children being supported by local authorities are exempt from the fees: see Schedule 1, Table 1 and Table 3.]
33. Paragraph 400 of the Immigration Rules was introduced with effect from 9 July 2012, long after the decision challenged in these proceedings and long after these proceedings were instituted. Mr Mackenzie relied on it as undermining the position taken by the Secretary of State and I therefore refer to it. It is in part 13 on deportation. It provides that "where a person claims that their removal…[from the UK]…would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, the Secretary of State may require an application under paragraph 276ADE (private life) or Appendix FM (family life) of these rules. Where an application is not required, in assessing that claim the Secretary of State or an immigration officer will…consider that claim against the requirements to be met under paragraph 276ADE or Appendix FM, and if appropriate the removal decision will be cancelled".
34. The final component in this summary of the legal framework concerns the specified forms for the purposes of making applications. Form FLR(O) is a specified form which is stated on the Secretary of State's website to be for "other purposes/reasons not covered by other application forms". Rule 34A of the Immigration Rules provides that, where an application form is specified, any specified fee in connection with the application must be paid in accordance with the method specified on the form. Finally, Rule 34C of the Immigration Rules provides that "where an application…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". Accordingly, the combined effects of Rule 34C of the Immigration Rules and Regulation 30 of the 2010 Regulations (SI 2010 No. 778) is that an application not accompanied by the specified fee, or where the specified fee is not made in the specified way "is not validly made" and the application "will be invalid and will not be considered".

Discussion

35. Mr Mackenzie's submissions were almost entirely concerned with the first of the three issues before the court, whether the Secretary of State acted unlawfully on 12 July 2010 in refusing to accept the claimant's application for an extension of discretionary leave without a fee. However, the logically prior issue is whether there is no longer a live issue in these proceedings, and whether, if there is not, this is one of the exceptional cases in which the court should nevertheless entertain the claim.
36. Mr Johnson submitted that there remains no live issue in this case. The claim is, he maintained, "academic", and particularly in relation to the challenge to the regulations, for which permission has not been given, the court should not entertain it. The term "academic" is one which is widely used in relation to cases in which one or other of the parties maintain there is no longer a live issue. It may signify that, even if the claimant gets the relief which he seeks, that will produce no immediate or practical result because he has his discretionary leave.
37. The term can, however, be misleading. It cannot be said that this claim is "academic" in the sense of being of purely theoretical or speculative interest. The issue raised in these proceedings has been around for a while but not decided. It arose in R (Francis) v Secretary of State [2010] EWHC 1122 (Admin), which was decided in May 2010. The claimant in that case also challenged the requirement to pay a fee to secure leave to remain and Mitting J stated (at paragraph 5) that, the heart of her claim was a challenge to the lawfulness of the secondary legislation which prescribes that a fee must be paid when an individual applies for leave to remain, in that case the 2009 Regulations, but that it was "academic" because after proceedings were lodged the Secretary of State made a decision to remove the claimant.
38. .Ms Sicher's statement referred to two other cases in the period since then raising the same point. In one the claimant (like the claimant in Francis's case) had an alternative remedy by way of an appeal to the First Tier Tribunal. In the other, while the individual was in the process of launching judicial review proceedings, the defendant granted him 30 months discretionary leave despite there being no outstanding application and he did not pursue the proceedings. Ms Sicher also stated that her discussions with other immigration solicitors suggest that the issue arises on a widespread basis.
39. I have referred to the case of Ahmed (CO/9926/2011) which is listed for hearing at the end of January 2013. The issue will also arise in that case. I was informed that the defendant has also invited the claimant in that case to withdraw the claim on the ground that, he has been granted three years leave to remain and the claim has become "academic".
40. Moreover, the fact that the defendant has very recently changed the procedures concerning discretionary leave for foreign national offenders in the way described earlier in this judgment suggests that the issue is sufficiently widespread to warrant an extremely busy department making a change of procedure.
41. A number of authorities were relied on, including R v Secretary of State, ex parte Salem [1999] 1 AC 450, R v Board of Visitors of Dartmoor Prison, ex parte Smith [1987] QB 106 and R v BBC, ex parte Quintavelle [1998] 10 Admin LR 425. The effect of those authorities is that in general, and save in very exceptional circumstances, a public law court should not deal with matters where there remains no live issue.
42. Mr Johnson principally relied on the decision of Mitting J in R (Francis) v Secretary of State [2010] EWHC 1122 (Admin), to which I have referred. In that case, after permission had been given but before the hearing of her application for judicial review, the Secretary of State decided to remove the claimant. This meant that, by the time of the hearing, she had and was or would shortly be pursuing an appeal to the First Tier Tribunal against that decision. After considering R v SSHD ex p. Salem [1999] 1 AC 450 and R (Zoolife International) v Secretary of State for the Environment [2007] EWHC 2998 (Admin) Mitting J declined to consider a generic challenge to the regulations. He did so although there was evidence before him that the issue raised by the claimant had arisen in other cases and it was anticipated that it would continue to arise. He stated that he was not persuaded of "any pressing need demonstrated by the existence of a large number of [similar] cases" ([15]) and because cases raising Article 8 were "necessarily fact-sensitive" ([16]) so that the case was not an appropriate vehicle for the determination of what had become an academic issue.
43. I reached the same conclusion in a different context in R (Ferguson and Wilkie) v Secretary of State [2010] EWHC 3756 (Admin). In that case judicial review proceedings were launched challenging the Secretary of State's refusal to make an appealable immigration decision about the claimants. After rolled up hearings had been ordered by the Court, the Secretary of State made a decision to remove the claimants. I refused to entertain the claim on the ground that there was no longer a live issue between the parties and because it was not one of the cases in which, notwithstanding that, a public law matter could properly be litigated. I summarised the position established by ex parte Salem and the other authorities to which I have referred in paragraphs 12 and 13 of my judgment and Mr Johnson accepted that summary was accurate.
44. In R (Ferguson and Wilkie) v Secretary of State [2010] EWHC 3756 (Admin) I also referred to the perception by those who advise claimants that what had happened in that situation was that the Secretary of State had at first chosen to resist the claims, but then decided not to allow them to be litigated, perhaps because it was thought that the court would take a different view to the Secretary of State. I stated (at paragraph 24) that "it cannot be right for a defendant in a public law case to avoid taking decisions by last-minute concessions in a way which puts people at great uncertainty, and which means that those who are less well-advised than [the claimants in those cases] are left in an unsatisfactory position". The fact that was not the position in that case, was one of the reasons I did not consider that the matter in that case could properly be litigated.
45. The concern I then expressed, however, remains. Is it right that issues raising important points of principle which are in dispute between the defendant and those whose position in this country is regulated by the defendant and the UK Border Agency under the legislation, the Regulations and the defendant's rules and policies should not be resolved because they are continuously kicked into touch by individual decisions made after proceedings are instituted. It is said in these proceedings that the decision dated 9 November 2011 granting the claimant discretionary leave had nothing to do with these proceedings and, in the absence of any other indication, I accept that this is so.
46. If, however, it appears that ad hoc decisions are being made to preclude the determination of difficult questions where those advising the Secretary of State consider her position is difficult or because of the undoubted strains and stresses to which the system administered by the Secretary of State through the UK Border Agency is subject, the court may have to think again about the general policy. It cannot be an efficient use of resources to create situations in which individuals are forced, often at public expense, to institute legal proceedings and take up the time of a grossly overworked Administrative Court, only to find at a late stage in the proceedings that the Secretary of State has made a decision which arguably makes the issue moot. The consequence may be, not that the proceedings are abandoned, but that there is then satellite litigation on what might be called the subsidiary point of whether this is one of those rare cases in which the court should nevertheless adjudicate.
47. Mr Johnson relied on the following factors for his submission that no live issue remains in these proceedings. First, the claimant has now been given three years discretionary leave. Secondly, he cannot now be prosecuted in respect of the period between 12 July 2010 and 9 November 2011, because the statutory limitation period has expired.
48. Thirdly, and significantly, the Secretary of State has, since the institution of these proceedings, made it clear that she will not treat what she described as the "fact" that there was a gap in the claimant's lawful leave here between those dates as a reason why a future application should be refused. I pause to observe that the use of the word "fact" in the letters from the Treasury Solicitor's Department dated 13 July and 13 August 2012 assumes one of the points at issue between the parties. It might be better put that the Secretary of State has made it clear that she will not hold her view that no valid application was made in June 2010 as material in the context of any further application by the claimant for leave, including indefinite leave to remain and naturalisation.
49. The fourth factor relied on by Mr Johnson is the new procedure described in Mr Gardner's statement. This means that the claimant will know by the expiry of his current leave whether the defendant will grant him further leave or whether she proposes to remove him. He will not, therefore, be in what Sedley LJ and Cranston J have respectively described as "a half-world" and "limbo": see R (MS, AR and FW) v SSHD [2009] EWCA Civ 1310 at [2].
50. As to the claimant's assertion that he is "entitled to know" whether, if he is unable to pay a fee in the future, he would be required to overstay unlawfully, apart from reliance on the new procedures, Mr Johnson submitted that this is a hypothetical future issue which does not arise in these proceedings and is not suitable for determination because it would be tantamount to a civil court granting a declaration as to the criminal law, which (see Imperial Tobacco Ltd v Attorney General [1981] AC 718 at 742 and 746) should be avoided except in the clearest and most exceptional case.
51. Mr Johnson submitted that this is not such a case because the position depends on the claimant's factual position when his current leave expires. It assumes that in three years time he will not be able to afford the fee, a matter which cannot be assumed, particularly since he has provided no evidence in these proceedings as to his position. It assumes that his situation will not be different, for instance by further reoffending, and that at the end of the period it will continue to be a disproportionate interference with his Article 8 rights to remove him.
52. Finally, Mr Johnson submitted that there is no utility in quashing Regulation 6 or 30 of the 2010 Regulations because they are no longer in force, and that it would be wrong in principle to quash their successors because the 2012 Regulations were not applied to the claimant's case.
53. Mr MacKenzie submitted that the part of the claim that challenges the fact that the regulations preclude the waiver of the fee still raises a live issue. He also submitted that, even if there is now no live issue between the parties, the court should not dismiss the claim, but should consider its substance. He relied on the statements in the cases to which I have referred. In R v Secretary of State ex parte Salem [1999] 1 AC 450 Lord Slynn stated that the discretion to hear disputes which are academic between the parties must "be exercised with caution" and in such cases "the parties should not be heard unless there is a good reason in the public interest for doing so, such as, for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts, and where a large number of similar cases exist or are anticipated, so that the issue will most likely need to resolved in the near future".
54. In a R v BBC ex parte Quintavelle (1998) 10 Admin LR 425, Lord Woolf MR, with whom Aldous and Chadwick LJJ agreed, stated that the court's decision should be governed by two considerations. The first was whether there was any relief which could be granted "which would be of value to those who have to decide matters such as this". The second was whether the particular case was an appropriate vehicle for providing that guidance. Those two cases in fact concerned the question of whether an appeal should proceed where events that happened after the first instance judicial decision meant there was no longer a live issue.
55. Mr Johnson's submissions on the "live issue" point are powerful, as are the considerations which led Mitting J to decline to entertain the claim in Francis's case. The concessions made by the defendant since the institution of these proceedings, when taken cumulatively, mean that it cannot be said that the Secretary of State will be entitled to rely on any discontinuity in the claimant's leave to remain based on the period between 12 July 2010 and 9 November 2011, and thus the position the Secretary of State takes as a general matter will not affect the point at which this claimant can apply for indefinite leave to remain. Secondly, the new procedure means that in principle, provided the timetable in the new procedure is achieved, the claimant will not be required to overstay because by the end of the period of his current leave he will either be given further discretionary leave or will be the subject of a decision to remove him which he will be able to appeal. It is thus difficult to see how there is now a live issue between the parties save in one respect. That is the claimant's challenge to the rule precluding the waiver of the fee because that rule has been applied to him and its successor, which is in substantially to the same effect, will continue to apply to him.
56. As I have stated, in all previous cases before me where the "live issue" question has arisen, I have declined to entertain the case for similar reasons to those given by Mitting J in Francis's case. It is, however, material that in Francis's case there was an alternative remedy in the form of the appeal to the Tribunal and that it was conceded that no live issue remained in respect of the claimant in that case. Moreover, two and a half years have passed since Francis's case. The issue continues to arise and the Secretary of State continues to seek to kick the broader question into touch by addressing the immediate but not the fundamental part of the particular claimant's grievance.
57. Although in a different context, the approach of the court in R v Secretary of State ex parte Mersin [2000] INLR 511, a decision of Elias J (as he then was), is instructive. That case concerned a delay in granting a person refugee after a successful appeal. Refugee status was in fact granted after proceedings were issued, but before permission had been considered. Maurice Kay J (as he then was) held that permission should be granted and the case should continue after hearing submissions about the scale of difficulties facing similarly-placed applicants and because the case could continue as a test case on the question of damages. In fact, damages were not pursued in that case.
58. Elias J stated that what made Mersin's case an exceptional case was that the delays he was considering were not simply the result of what could be called maladministration or things going wrong on an individual basis, but were, to a significant extent, the result of a decision about how to deal with cases of that kind, coupled with what appeared to have been a serious lack of resources at the crucial time. Here the position taken by the Secretary of State reflects her decision about how to deal with cases of this kind rather than a decision that relates exclusively to the position of the claimant which has been addressed by the particular decisions made about his case.
59. I have concluded that, in the circumstances of this case, the concessions made by the defendant and the fact that the Regulations have been replaced do not preclude the court from considering the substance of the claim. Permission has been given in this case and it is only in respect of the direct challenge to the regulations that it has not. For the reasons I shall give, that challenge is, in my judgment, clearly arguable. The substantive issue raised by the claimant is an issue which arises regularly. It arose in Francis. It will arise in the case of Ahmed (CO/9926/2011) which, as I have stated, is listed for hearing at the end of January 2013. The defendant has also invited the claimant to withdraw the claim on the ground that the claimant's claim has become academic because leave has now been granted and will not doubt so argue at the hearing.
60. Secondly, I accept Mr MacKenzie's submission that the claimant's case is not fact-sensitive. In the re-amended grounds, he expressly does not ask the court to determine whether the Secretary of State should in fact exercise discretion to waive the fee in the claimant's case. What is sought is a determination of whether such discretion is provided for in statute, and whether the Secretary of State must consider exercising it. While the actual exercise of discretion in the claimant's case would be fact-sensitive, the question of whether such discretion (to waive the fee) must exist in law is not.
61. Thirdly, as to the question posed by Lord Woolf in Quintavelle, whether there is any relief which could be appropriately granted and which would be of value to those who have to decide matters such as this, the claimant clearly has standing to seek relief in respect of the absence of any discretion to waive fees for people in his position because he was affected by the provision in the 2010 Regulations, and is at risk of being affected by the similar provision in the 2012 Regulations.
62. .I therefore turn to the question of substance. Mr MacKenzie submitted that the Secretary of State acted unlawfully in refusing to accept the claimant's application for an extension of discretionary leave without a fee and treating it as invalid for the following reasons. He submitted that the decisions in S v Secretary of State [2006] EWCA Civ 1157 at [45] – [46], CL (Vietnam) v Secretary of State [2009] 1 WLR 1873 at [27] and MS (Ivory Coast) v Secretary of State [2007] EWCA Civ 133 at [48] show that the claimant is entitled to leave to enter and remain until such time as he can safely be removed without violating his Convention rights. Although the Strasbourg jurisprudence does not prescribe the exact form of residence permit or lawful status document to which a person is entitled, the consequence of these decisions is that the Secretary of State is obliged to grant leave to remain.
63. He submitted that section 51(3)(d) of the 2006 Act empowers the Secretary of State to confer discretion to reduce or waive all or any part of a fee, and the absolute terms in which the secondary legislation and the Immigration Rules requiring the payment of a fee are couched are not consistent with the scheme established by the 1971 Act. Alternatively, he contended that the secondary legislation and the Immigration Rules constitute an unlawful self-fettering of the discretion given by section 51(3)(c) of the 2006 Act to reduce or waive fees.
64. There has, he submitted, been no explanation of why provision is made in the rules for waiver of fees in respect of destitute persons who seek leave to enter (the position considered in R (QB) v Secretary of State [2010] EWHC 483 (Admin)) and those who have been the victims of domestic violence but not for a person whose only means of support are payments by NASS or other categories of people. He relied on the statements of Lord Bingham and Baroness Hale in R (Baia) v Secretary of State [2008] UKHL 53 at [30] and [40], and Black J in QB's case at [30], and the statements of the Strasbourg court in GR v Netherlands application no. 22251/07 10 January 2012 at 51, albeit the court based its decision on Article 13 rather than Article 8 of the European Convention.
65. Mr Johnson submitted that the requirement to pay a fee in order to apply for leave is not unlawful, ultra vires the 1971 Act, or incompatible with the European Convention of Human Rights. He submitted that the key point is that "although a fee is mandatory to make an application for leave, the Secretary of State can nevertheless grant leave without any application being made (and may be obliged to do so if the alternative is a breach of the ECHR)".
66. Mr Johnson accepted that it would be unlawful to remove a person from the United Kingdom where removal would be a breach of Article 8 of the Convention. He, however, submitted that there has never been any threat to remove the claimant and, in the light of the history, and in particular the decisions of the AIT about his case, it would not be possible to remove him until it was established that there was a change in his circumstances such that removal would not breach his Convention rights.
67. Mr Johnson conceded that if a person in the present position of the claimant, a "protected person", could not secure leave to remain without making an application there is a theoretical prospect of a breach of Article 8, but because the Secretary of State has a residual power to grant leave to remain even where no, or no valid, application has been made, that prospect remains theoretical and "the logical premise that underpins the claim is...invalid" (see skeleton argument, paragraph 14). Mr Johnson made a similar submission in relation to the position where a grant of leave was necessary in order to avoid a breach of the scheme under the 1971 Act. A key part of the Secretary of State's case is thus that an application for leave is not the only way of getting leave.
68. On this issue, I have concluded that Mr MacKenzie's submissions are more compelling than Mr Johnson's. It is common ground that the claimant cannot currently be removed from the UK as a result of his successful appeal against deportation. He does not, however, have the right of abode in the UK and is required to have leave to remain. He cannot be accorded a status which is not part of the statutory scheme: see S v Secretary of State [2006] EWCA Civ 1157 and see also R (Alvi) v Secretary of State [2012] UKSC 33 at [26] – [33] and [109] per Lord Hope and Lord Walker. If the claimant remains in the UK after the expiry of a period of limited leave, in principle he will commit an offence under section 24 of the 1971 Act.
69. The tribunal has held that it is a disproportionate interference with the claimant's Article 8 rights to deport him. If he cannot afford the fee, unless he obtains leave without making an application, or there is some flexibility about the requirement to pay the fee, he is put in the position of committing an offence under section 24 and taking the (perhaps remote) risk of being prosecuted. There is also a risk that there will be an interference with his family life. I respectfully agree with Black J (as she then was) in QB's case that what Lord Bingham said in Baia in the context of Article 12 also resonates in the context of Article 8, even though the right under Article 8 is a qualified right. Black J stated that about a claimant who was not in the United Kingdom. In the present case, the claimant is in the United Kingdom and cannot be removed. He has, in the light of the decisions of the AIT, the status of a protected person until there is a material change in his circumstances. In a sense, the decisions of the Tribunal, which the Secretary of State must respect absent any relevant change of circumstances, have conducted the balancing exercise required as a result of the qualified nature of the rights under Article 8, and have concluded them in favour of the claimant.
70. Mr Johnson submitted that QB's case is distinguishable because the claimant in that case was not in the UK and needed to be in the UK in order to exercise her Article 8 rights. But, as he also accepted that in principle a "protected person" such as the claimant who could not secure leave to remain without making an application could be at risk that his Article 8 rights would be breached, this is not a fundamental distinction. Mr Johnson's primary case was that the prospect of a breach of Article 8 is only theoretical because the Secretary of State has a residual power to grant leave to remain of her own motion and because of the other ways a claimant can obtain leave without making an application.
71. I turn to those other ways. The defendant's position was originally that those in the claimant's position who cannot make a valid application to overstay must wait for the Secretary of State to make a decision of her own motion in their case. In the present case, the decision to grant the claimant six months discretionary leave was made some 27 months after the second appeal had been allowed by the Tribunal and more than 7 months after the Court of Appeal had indicated that it would not extend time for an appeal. The decision to grant him three years discretionary leave was made over a year after these proceedings were instituted, 17 months after his earlier period of leave expired, three and a half years after the Court of Appeal refused to extend time, and four years after the decision of the second tribunal.
72. As a solution, waiting for the Secretary of State to make a decision of her own motion is deeply unattractive, not least because it requires a person who cannot be lawfully removed to commit an offence under section 24 of the 1971 Act while waiting for the Secretary of State to do so. Mr Johnson submitted that a person would not be committing a criminal offence by remaining in this country after his appeal and before the grant of discretionary leave. A person, like this claimant, who entered unlawfully or remained in this country after the expiry of a limited period of leave would, however, be committing an offence, although in such circumstances, a prosecution would probably be unlikely. This solution consigns that person to what I would describe as a black, or a grey, hole, and Sedley LJ and Cranston J have respectively described as "a half-world" and "limbo": see R (MS, AR and FW) v SSHD [2009] EWCA Civ 1310 at [2]. See also the comments of Laws LJ in JM v SSHD [2000] EWCA Civ 1402 at [18], albeit in a slightly different context, that it is "wrong in principle that the price of getting before an independent tribunal, for a judicial decision on a human rights claim, should be the commission of a criminal offence and other associated legal prohibitions".
73. As matters stood before 21 November 2012, the effect of the defendant's position was that those responsible for administering the immigration system contemplated a situation in which those who cannot be removed, and cannot afford to apply for further leave to remain, remain in the UK without leave pending the "own motion" decision of the Secretary of State
74. The unattractive nature of this was recognised by the way Mr Johnson structured his submissions. Although he primarily relied on the Secretary of State's "own motion" power, he also pointed to the ability of a claimant to request leave without making an application by bringing his circumstances to the attention of the Secretary of State or by applying to this Court for a mandatory order that he be given discretionary leave in the light of the Tribunal's decision. The former would, for instance, involve submitting that, as a result of the decision of the tribunal and his personal circumstances, he cannot be removed without disproportionately interfering with his Convention rights, and so has to be given discretionary leave without making a formal application. In the light of the Secretary of State's reaction to the letter dated 11 June 2010 from the claimant's former solicitors, which spelled out why he could not afford the fee and why his case should nevertheless be considered, this seems an unreal suggestion.
75. It is of course open to a claimant to apply to this Court for a mandatory order, but that solution is predicated on the assumption that the "own motion" power will not address the lack of status of a person in the claimant's position. It is also unattractive as a way of handling these cases because it pushes a decision which should have flowed from the outcome of the proceedings in the Tribunal into an already overburdened Administrative Court, and, in publicly funded cases, at the expense of the taxpayer.
76. I turn to the two indications that the unattractive nature of reliance on the "own motion" power may have been recognised by the Secretary of State. The first is the requirement introduced in paragraph 400 of the Immigration Rules as from 9 July 2012 that the Secretary of State can require those with no leave who claim that their removal would be contrary to their Article 8 rights to make an application for further leave, albeit only once removal procedures have commenced. This, in itself, suggests that there are limits to the utility of the Secretary of State's "own motion" power.
77. Secondly, as Mr MacKenzie emphasised, where such an application is required it would, of course, attract a fee unless a specific exemption applied. The result has some of the hallmarks of Joseph Heller's Catch 22. The individual who complains that there is no provision for waiver of the fee on making an application is told that this is not a problem because there is no need to make an application, since the Secretary of State, of his or her own motion, will consider the individual's Article 8 rights and may grant a further period of leave without an application. If, however, the Secretary of State does not get round to doing this, but institutes removal procedures, the individual who has waited for the "own motion" decision may be told that he or she must make an application, although they cannot afford the fee.
78. Mr Johnson emphasised that the Secretary of State may not require the submission of an application. But, if no application is required, the effect appears to contradict what Mr Johnson maintained is the clear effect of statute and the regulations; that is to require a fee and not to permit waiver save where provision is made for such waiver in the regulations. Mr MacKenzie asked why, as paragraph 400 does not make an application mandatory and the Secretary of State thus in practice retains the power to waive the requirement for a formal application with a fee, she does not simply waive the requirement in the first place.
79. The second indication of the inadequacy of the defendant's original position as to what should be the stance of a person without the means to make an application is the new procedure introduced last week. It has effect from 21 November 2012, the day before Mr Gardner' witness statement. Mr Gardner's evidence is that, in the case of people who have six months discretionary leave, the Secretary of State will in future address the human rights issues six weeks before the expiry of the current leave and will decide whether further leave is to be given before the end of the period. Accordingly, Mr Johnson submitted that the complaint that there will be a gap in the lawful status of a person in this country will be met.
80. Given the track record of the UK Border Agency, this timetable and target may be optimistic, but for the purposes of these proceedings I assume that it will be met. I note that the new procedure has not been published although Mr Gardner stated that it would be. It will provide a further layer of complexity, albeit operating at a sub-rule level and it will not in any event apply to the claimant and others like him who have three years discretionary leave. I have referred to the fact that there was no evidence as to the claimant's position or the reason for the distinction between six months and three years discretionary leave and to the explanation which Mr Johnson gave on instructions. As to the claimant's position, Mr Mackenzie informed me that he was instructed that the claimant remained dependant on state benefits and is unlikely to be able to save up for the fee.
81. The effect of the introduction of paragraph 400 on the circumstances of a person in the claimant's position and the new process for those granted six months discretionary leave creates further wrinkles in the complex array of statute, rule and policy that characterises our system of immigration law. In an age in which the mantra of many policy-makers is "transparency", I observe that the hallmark of the ways in which Mr Johnson said this part of our immigration law and policy would operate in practice is opacity.
82. Mr Johnson also submitted that the claimant was seeking to require the Secretary of State to change the framework of the 1971 Act and the Rules. I do not consider that this is so or that this would be the effect. The Secretary of State, as a public official, is under a duty to make and interpret rules in the light of section 3 of the Human Rights Act. The requirement in regulations 6 and 30 of the 2010 Fees Regulations that, in this class of case, a fee must be paid, there is no provision for waiver and an application without a fee "is not validly made" must, in the light of section 3, be read subject to a qualification that the specified fee is not due where to require it to be paid would be incompatible with a person's Convention rights. Bearing in mind the approach of the House of Lords in Ghaidan v Godin Mendoza [2004] UKHL 30, I do not consider that the implication of qualifying words with this effect contradicts the essential principles or scope of the regulations. Accordingly, the decision made by the Secretary of State on 12 July 2010 was unlawful.
83. On the assumption that his submissions were rejected, Mr Johnson invited me to do so by adding the following qualifying words to the end of the regulation: "except where that would be incompatible with a Convention right". Mr Mackenzie agreed. I will hear submissions as to the form of relief.