YTL and another -v- Secretary of State for the Home Department (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: AC-2023-LON-002774

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

8 December 2023

Before:

Mr David Pievsky KC sitting as a Deputy High Court Judge

Between:

The King on the application of
YTL

YML

-v-

Secretary of State for the Home Department

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 Acknowledgment of service filed by the Defendant:
ORDER by Mr David Pievsky KC sitting as a Deputy High Court Judge

  1. The First and Second Claimants shall be known as YTL and YML respectively. Their identities shall not be disclosed.
  2. The Claimants’ father shall be referred to as F. He has permission to act as the Claimants’ litigation friend.
  3. The Claimants have permission to rely on F’s letter dated 25 October 2023, replying to the Defendant’s Acknowledgment of Service.
  4. The Claimant has a retrospective extension of time in which to bring these judicial review proceedings, if that is necessary. The Defendant has a retrospective extension of time in which to file the Acknowledgment of Service, if that is necessary.
  5. The application for permission to apply for judicial review is refused in relation to Ground 1, but is otherwise granted.
  6. The application is to be listed for 4 hours; the parties to provide a written time estimate within 7 days of service of this order if they disagree with this direction.

Observations

  1. Anonymity. The Claimants are children and their identities should be kept confidential.
  2. Promptness. There is a lack of clarity as to when the claim was commenced. The Claimants’ case is that the claim form was filed on 13 September 2023. That is the date which appears on the version of the claim form sealed on 20 September 2023. It is within 3 months of the date of the decisions challenged (14 June 2023). There are records of the Court which suggest that the claim form may in fact have been filed on 15 September 2023. That would have been one day late. In the circumstances, I do not consider it would be right for the Claimants to be shut out from bringing judicial review on discretionary grounds relating to timing. There is no real prejudice to the Defendant or to good administration. I grant an extension of time, if such extension is necessary, for the Claimant to commence these proceedings. I also grant the Defendant an extension of time so as to allow it to rely on its Acknowledgment of Service, which was filed on 20 October 2023, apparently two days late.
  3. Alternative remedy. The Defendant contends that the Court should refuse permission on the simple basis that the Claimant can apply to the Defendant for a formal review of the 14 June 2023 decision. The Claimants respond that the review system does not constitute an adequate alternative remedy, because it can only be accessed on payment of a (not insignificant) fee, and there is no exemption (as there is for judicial review proceedings). The Defendant fairly points out that the fee can be returned if the review is successful. Be that as it may, in the circumstances, and having regard to the Claimant’s financial difficulties, I do not think that permission should in this case be refused because of the availability of a review. The issue of an alternative remedy gives rise to a question of discretion, not jurisdiction: see R (Parker) v Magistrates’ Court at Teesside [2022] EWHC 358 (Admin) at paragraph 40(i). In exercising that discretion I note that – as a matter of substance – the Defendant has effectively rejected the arguments that would be made by the Claimants on review, in its Acknowledgment of Service. My understanding of the Defendant’s position is that the original decision was not just lawful, but correct. It would seem pointless to require the Claimant to apply for further internal consideration, if the claim is otherwise arguable (as to which see below).
  4. Merits.
    a. The Claimants’ JR Grounds as set out on pages 8 and 9 of their Statement of Facts and Grounds (both of which are referred to in that document as “Ground 2”) are in my view arguable. The decision letter expressly relied on the fact that the Claimants’ mother is not settled in the UK, but it arguably did not engage with whether she is “unlikely in the short or medium term to be returnable to her country of origin”. It also appears not to address whether the Claimant’s father’s British nationality makes the Claimants’ own lack of ILR “less important” to the overall decision (and if so how much less important). Both factors appear to be relevant, according to the Defendant’s own guidance. If the Secretary of State’s real point, having regard to what is said in the Acknowledgment of Service, is that consideration of these factors would have made no substantial difference to the outcome, that has not in my judgment been made sufficiently clear and it is not supported by any evidence.
    b. Ground 1, which contends that the review system is a breach of s.55 of the 2019 Act, does not seem to me to go to the legality of the actual decision challenged, and is in any event unarguable on its merits. I refuse permission on that ground.
    c. I doubt that Ground 3 (the contention that the Defendant failed to consider s.55 of the UKBA 2009 and/or Article 8 ECHR) will add anything, but I do not think it would be right to refuse permission on that ground.

Case Management Directions

  1. The Defendant and any other person served with the Claim Form who wishes to contest the claim or support it on additional grounds shall, within 35 days of the date of service of this Order, file and serve (a) Detailed Grounds for contesting the claim or supporting it on additional grounds, and (b) any written evidence that is to be relied on. For the avoidance of doubt, a party who has filed and served Summary Grounds pursuant to CPR 54.8 may comply with (a) above by filing and serving a document which states that those Summary Grounds shall stand as the Detailed Grounds required by CPR 54.14.
  2. Any application by the Claimant to serve evidence in reply shall be filed and served within 21 days of the date on which the Defendant serves evidence pursuant to 1(b) above.
  3. The parties shall agree the contents of the hearing bundle and must file it with the Court not less than 4 weeks before the date of the hearing of the judicial review. An electronic version of the bundle shall be prepared and lodged in accordance with the Guidance on the Administrative Court website. The parties shall, if requested by the Court lodge 2 hard-copy versions of the hearing bundle.
  4. The Claimant must file and serve a Skeleton Argument not less than 21 days before the date of the hearing of the judicial review.
  5. The Defendant and any Interested Party must file and serve a Skeleton Argument not less than 14 days before the date of the hearing of the judicial review.
  6. The parties shall agree the contents of a bundle containing the authorities to be referred to at the hearing. An electronic version of the bundle shall be prepared in accordance with the Guidance on the Administrative Court website. The parties shall if requested by the Court, prepare a hard-copy version of the authorities bundle. The electronic version of the bundle and if requested, the hard copy version of the bundle, shall be lodged with the Court not less than 3 days before the date of the hearing of the judicial review.
  7. If permission has been granted on some grounds but refused on others, the Claimant may request that the decision to refuse permission be reconsidered at a hearing by filing and serving a completed Form 86B within 7 days after the date this order is served on the Claimant. The reconsideration hearing will be fixed in due course. However, if all parties agree and time estimates for substantive hearing allow, the reconsideration hearing may take place immediately before the substantive hearing. The Administrative Court Office must be notified within 21 days of the service and filing of Form 86B if the parties agree to this course.