ASN -v- Secretary of State for Foreign, Commonwealth and Development Affairs (anonymity order)

Administrative CourtCivilHigh CourtKing's Bench DivisionAnonymity Order

Case number: AC-2024-LON-003319

In the High Court of Justice
King’s Bench Division
Administrative Court

In the matter of an application for judicial review

29 November 2024

Before:

The Honourable Mr Justice Eyre

Between:

The King
on the application of
ASN

-v-

Secretary of State for Foreign, Commonwealth and Development Affairs

Order

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)

Following consideration of the documents lodged by the Claimant and the Acknowledgement of Service filed by the Defendant.

UPON it appearing that non-disclosure of the identity of the Claimant is necessary in order to secure the proper administration of justice and to protect the safety of the Claimant, pursuant to rule 39.2(4) of the Civil Procedure Rules and section 11 of the Contempt of Court Act 1981 and rules 5.4C of the Civil Procedure Rules

ORDER by the Honourable Mr Justice Eyre

  1. The Claimant’s application for anonymity is granted, and pursuant to CPR Rule 5.4A-5.4D and Rule 39.2, with effect from the date of this order and until further order:
    (a) The Claimant shall hereinafter be referred to in these proceedings as “ASN” and there shall be substituted for all purposes of this case, in place of references to the name of the Claimant, reference to “ASN”;
    (b) There shall be no publication of any name, address, picture or other information likely to lead to the identification of the Claimant as being the Claimant in these proceedings;
    (c) In paragraph (b) “publication” means communication to the public or any section of the public whether by way of report of the proceedings or otherwise. It includes publication in a newspaper or broadcast, or on the internet, by any person;
    (d) The Defendant, and any party served with or given notice of the anonymity order, has permission to apply to discharge or vary that order. Any application for that purpose must be made in writing, on notice to all parties;
    (e) Pursuant to CPR rule 5.4C a person who is not a party to the proceedings may obtain a copy of a statement of case, judgment or order from the court records only if the statement of case, judgment or order has been anonymised such that: (i) the Claimant is referred to in those documents only as “ASN”; and (ii) any reference to the name of the Claimant be deleted from those documents
    (f) Any application for permission to inspect or obtain a non- anonymised version of a document must be made on notice to the Claimant and in accordance with CPR r.5.4C(6).
  2. Time for the filing of the Reply is extended to 15th November 2024.
  3. The application for permission to apply for judicial review is refused.
  4. The costs of preparing the Acknowledgement of Service are to be paid by the Claimant to the Defendant, summarily assessed in the sum of
    £2,842.
  5. The Claimant has the benefit of cost protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The amount of costs that the Claimant shall pay shall be determined on an application by the Defendant under regulation 16 of the Civil Legal Aid (Costs) Regulations 2013. Any objection by the Claimant to the amount of costs claimed shall be dealt with on that occasion.

Reasons

  1. Notwithstanding the importance of the principle of open justice it is appropriate and necessary for the Claimant’s name to be anonymised in the circumstances of this case.
  2. The delay in filing the Reply has been explained and has not caused either prejudice or delay and in those circumstances the extension sought is to be granted.
  3. The challenge is to the decision not to include the Claimant on the list of persons notified to the Israeli and Egyptian authorities. It is significant that the relief sought is a mandatory order that the Defendant deal with those authorities in a particular way. As the Defendant says that is clearly a matter of foreign policy. I accept for the purposes of considering permission that the decision not to include the Claimant’s name is justiciable (or at least is arguably so). However, a very wide margin of appreciation is to be given to the Defendant’s decisions in such matters with the consequence that a wide view is to be taken of the range of decisions properly open to the Defendant.
  4. The contemporaneous rationale makes it clear that the Defendant approached the matter on the footing of considering whether he should exceptionally assist the Claimant but concluded that it was not appropriate to do so. In order to succeed on ground 1 the Claimant would have to show that there was irrationality or unlawfulness in that decision. That would have to be either on the basis that rationality and lawfulness required the Defendant to treat the Claimant’s case as exceptional and to take the steps sought in relation to the Egyptian or Israeli authorities or that the approach taken was flawed by the failure to take account of relevant considerations. There is no realistic prospect of either limb being established.
    (a) As to the first limb it may well be that a different decision could rationally have been taken but that is not the test and there is no real prospect of a finding that the decision taken was not rationally open to the Defendant.
    (b) As to the matters taken into account there is no real prospect of it being held that the considerations to which the Claimant refers were either not inherent in the decision or were so obviously material that rationality required their consideration.
  5. In respect of ground 2 there is force in the Defendant’s point that the urgency of the matter did not require a fuller explanation though that, of itself, would not preclude permission. However, the Claimant has now been provided with the contemporaneous rationale for the decision and any inadequacy in the reasons provided in the Defendant’s emails would not warrant the grant of relief and permission is to be refused for this ground of challenge.
  6. As to ground 3 it is clear that the Defendant did not regard himself as bound by the criteria but instead considered whether steps should be taken exceptionally in the Claimant’s case and there was, therefore, not even arguably an unlawful fettering of the Defendant’s discretion.
  7. At its highest the argument which the Claimant advances in ground 4 might have relevance to the Secretary of State for the Home Department’s decision as to the grant of a visa: though I am not expressing any concluded view about that. That was a separate decision and its lawfulness and rationality fall for separate consideration. In respect of the decision under challenge here it cannot credibly be argued that the Article 8 rights of either the Claimant or her son required the Defendant to take positive steps in relation to a foreign authority in order to assist a person who has no right to enter the United Kingdom.
  8. It follows that the grounds advanced do not have a real prospect of success and permission is to be refused.

Signed: Stephen Eyre
Date: 29th November 2024