Case study cakani

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Neutral Citation Number: [2013] EWHC 16 (Admin)

Case No: CO/3939/2011

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31/01/2013

Before:

INGRID SIMLER QC

(Sitting as a Deputy High Court Judge)

- - - - - - - - - - - - - - - - - - - - -

Between :

DAUT CAKANI

Claimant

- and -

SECRETARY OF STATE FOR HOME

DEPARTMENT

Defendant

- - - - - - - - - - - - - - - - - - - - -

Mr R de Mello (instructed by Karis Law) for the Claimant

Mr C Staker (instructed by the Treasury Solicitor) for the Defendant

Hearing dates: 19 July 2012

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Judgment

Ingrid Simler QC sitting as a Deputy High Court Judge:

1. This is an application for judicial review challenging the Defendant’s decisions

refusing to revoke an exclusion decision made in respect of the Claimant following

his convictions for possession of a false instrument. The initial refusal decision was

dated 28 January 2011. The Defendant made a further decision dated 10 February

2012, and although the Claimant has not sought to amend his grounds to include a

challenge to this subsequent decision, it is implicit in his written argument that he

seeks to challenge this decision as well, on essentially the same grounds as those

directed at the earlier refusal decision.

2. The application was listed for hearing on 19 July 2012. On 18 July 2012 the Supreme

Court handed down judgment in R (on the application of Alvi) v Secretary of State for

the Home Department [2012] UKSC 33 which the Claimant contended had potential

relevance to the matters in dispute between the parties, but had not been addressed in

written argument. Accordingly, I heard argument on the judicial review application,

but allowed both sides to reserve their positions on Alvi, and made directions for

service of further written submissions to address the Supreme Court’s judgment in

Alvi to the extent regarded necessary by each side. Unfortunately, the further written

submissions produced promptly by the parties were not brought to my attention until

late November 2012. Having read those documents I invited the parties to indicate

Judgment Approved by the court for handing down.

Cakani v SSHD

whether they wished to advance further oral argument in addition, and received

confirmation in late December 2012 that both sides were content to proceed on the

basis of their written submissions without a further hearing.

Background

3. Permission to apply for judicial review was granted by Collins J on 12 October 2011.

He dealt with the application without sight of the Defendant’s Acknowledgment of

Service (“AOS”), which had not been served within the prescribed period. However,

having drafted paragraphs 1-6 of his order granting permission, the AOS was served

late and Collins J considered it prior to finalising his order. He remained of the view

that the challenge to the exclusion decision was arguable in circumstances where the

offences of which the Claimant was convicted did not lead automatically to

deportation, and the sentencing Judge considered that the Claimant posed no

detriment to this country justifying a recommendation by him for deportation.

4. There is some controversy as to which of the other grounds Collins J gave permission

to the Claimant to pursue. It is reasonably clear that he refused permission in respect

of grounds 1, 2 and 6 and granted permission on ground 3 subject to one point of

clarification. Although the Claimant has sought to reintroduce arguments based on

grounds 1, 2 and 6 (both orally and in his Further Submissions) he has no permission

to do so, and accordingly, I have not dealt with these grounds. However, Collins J’s

decision on grounds 4, 5 and 7 is less clear. Since I have heard argument on these

three further grounds, I treat them as grounds on which permission was granted and

deal with them below, together with the further argument based on Alvi.

5. The following grounds of challenge are therefore pursued on this judicial review:

(a) Whether the Defendant acted unlawfully in excluding the Claimant or

refusing to revoke the exclusion because she had no residual power to do so,

or acted by reference to rules not scrutinised by Parliament (the “Alvi”

ground).

(b) Whether there was a mistake of fact or belief that the Claimant was

recommended for deportation by the sentencing Judge, that led to and

therefore vitiates the decision to make and/or refuse to revoke the exclusion

decision (ground 3).

paragraph 391 HC 395 whereas the Claimant’s case should have been

assessed under paragraphs 320 (18) and (19) (ground 4).

(d) Whether the decision breached the Claimant’s Article 8 rights (ground 5).

(e) Whether there was a failure to provide adequate reasons (ground 7).

6. Two new witness statements, both dated 18

June 2012, from the Claimant and his

wife, Tina Elliott, were included in the trial bundle without prior notice having been

given to the Defendant. The Claimant contends that the statements simply set out the

factual matters of which the Defendant has been well aware. This is not accepted by

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Neutral Citation Number: [2013] EWHC 16 (Admin) Case No: CO/3939/2011 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/01/2013 Before: INGRID SIMLER QC (Sitting as a Deputy High Court Judge) - - - - - - - - - - - - - - - - - - - - - Between : DAUT CAKANI Claimant - and - SECRETARY OF STATE FOR HOME DEPARTMENT Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R de Mello (instructed by Karis Law) for the Claimant Mr C Staker (instructed by the Treasury Solicitor) for the Defendant Hearing dates: 19 July 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Ingrid Simler QC sitting as a Deputy High Court Judge: 1. This is an application for judicial review challenging the Defendant’s decisions refusing to revoke an exclusion decision made in respect of the Claimant following his convictions for possession of a false instrument. The initial refusal decision was dated 28 January 2011. The Defendant made a further decision dated 10 February 2012, and although the Claimant has not sought to amend his grounds to include a challenge to this subsequent decision, it is implicit in his written argument that he seeks to challenge this decision as well, on essentially the same grounds as those directed at the earlier refusal decision. 2. The application was listed for hearing on 19 July 2012. On 18 July 2012 the Supreme Court handed down ju ...
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