Tribunal decisions

The decision

IN THE UPPER TRIBUNAL

EXTEMPORE JUDGMENT GIVEN FOLLOWING HEARING

JR/2456/2016

Field House,
Breams Buildings
London
EC4A 1WR

20 February 2017

The QUEEN
(ON The application OF neenisha FAWAZ)
Applicant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Before

UPPER TRIBUNAL JUDGE HANSON

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Ms M Dogra of Counsel, instructed by Marsh & Partners Solicitors appeared on behalf of the Applicant.

Mr E Metcalfe, instructed by the Government Legal Department appeared on behalf of the Respondent.

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ON AN APPLICATION FOR JUDICIAL REVIEW

APPROVED JUDGMENT
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JUDGE hanson: The history of this matter is not in dispute. The original claim for judicial review was issued on 4 March 2016 challenging an impugned decision which rejected further submissions made by the applicant as not amounting to a fresh claim pursuant to paragraph 353 of the Immigration Rules. The date of that original earlier decision is 28 January 2016.
2. The applicant has received a number of further supplementary decisions as a result of which she was given leave to amend her grounds of claim pursuant to an order of Upper Tribunal Judge Smith on 22 September 2016. By the terms of Upper Tribunal Judge Smith's order the amended grounds were to substitute in their entirety the grounds submitted with the 4 March 2016 application.
3. The amended grounds seek to challenge the latest decision on her application, that made on 25 July 2016, again refusing to treat the applicant's further submissions as a fresh claim. The only remedy sought in the amended grounds was an order quashing the decision of 25 July 2016.
4. Permission to bring judicial review proceedings was refused on the papers but was granted at a renewed oral hearing by Upper Tribunal Judge Peter Lane, in an order sealed on 17 November 2016 in limited terms, namely in relation to the assessment by the decision maker of the applicant's claim outside the Rules pursuant to Article 8 of the European Convention on Human Rights.
5. I have been shown this morning the full text of a letter sent to the applicant's solicitors by the Secretary of State dated 28 December 2016 in which the respondent offered 1) to withdraw the impugned decision of 25 July 2016, 2) to reconsider further the applicant's claim for leave and 3) to make an offer in relation to costs that would be discussed at the appropriate stage of these proceedings.
6. I am satisfied, as Ms Dogra gave a full, comprehensive and plausible response when the issue of the applicant's actual knowledge was discussed with her at the outset of the proceedings that the applicant has been fully aware of the consequences in law, in public law in particular, of such an offer being made by the Government Legal Department.
7. The consequence of the remedy in the amended grounds being limited to an order quashing the decision of 25 July 2016 is that if that remedy was granted to the applicant all that would happen is that that decision would effectively disappear, it would have no legal standing and the Secretary of State would have to reconsider the matter afresh as there would then be an outstanding application upon which a lawful decision was awaited.
8. The reality of the offer of 28 December 2016 is that the withdrawal of the impugned decision by the Secretary of State gave the applicant exactly what she was seeking to achieve by having the order quashed. The offer on 28 December 2016 to reconsider the matter gave the applicant exactly what she would have achieved had the decision been quashed today albeit that it was made some three months ago.
9. The question of whether a claim is academic is not a question that ends if permission to bring judicial review is granted. It is established public law practice supported by jurisprudence that the obligation stands upon both parties to any case and the Tribunal when considering a matter, even if permission was granted at an earlier date, to consider whether proceedings have become academic. Indeed, in the case of R (on the application of Korkmaz) v Secretary of State for the Home Department [2012] EWHC 1163 (Admin) at paragraph 21 the High Court found that a challenge to a decision that has been overtaken by events, i.e. a remedy sought has already been granted, is a matter that has become academic.
10. In R (on the application of AG (Pakistan)) v Secretary of State [2011] EWCA Civ 998, a Court of Appeal case, at paragraphs 7 to 9 the court found that adjourning a judicial review application where the matter raised had become wholly academic and where it was difficult to see what practical relief could currently be given was inappropriate again because the matter had become academic. They were cases that were similar in some respects to the chronology and structure of this case. Whilst the case may not have been academic prior to 28 December 2016 at that date it clearly became an academic claim.
11. I will read for the benefit of the applicant, who, I appreciate, is not a lawyer, guidance on hypothetical academic issues and utility contained in the Judicial Review Handbook written by Michael Fordham QC, Sixth Edition, where he sums up the principles arising from the various cases that have been reported in relation to this matter and where he states as follows:
"Courts do not like holding moots. One of the great values of public law is in clarifying and guiding respectively that even that function is recognised as a function which arises out of deciding a specific dispute requiring resolution. In general judges need persuading that there is a right to entertain a judicial review challenge where the sole issues are or have become academic or hypothetical. Sometimes it will be in the public interest to grasp the nettle rather than having the uncertainties of yet further litigation in the future. The position on appeal may be different too since there will be a binding judgment which may be erroneous and need considering even though it may have become academic to the parties."
12. Two points in relation to that. Firstly, these are not appeal proceedings and so the principles applicable to appeals where the matters a court can consider are substantially wider than the limited public law grounds in judicial review, which makes the reference to an appeal of no general application to this matter, and secondly, that although the applicant has expressed anger, and I put it in those terms, at the way she has been treated by the Secretary of State making what are three decisions which on the face of them do appear to be affected by similar errors her claim does not give rise to any public law issue or public matter of interest that would be of benefit to the wider community or others in her position, that may warrant this matter being entertained further by this Tribunal.
13. It was no doubt explained to the applicant that judicial review is a discretionary last resort remedy, discretionary meaning that it is at the discretion of the court or Tribunal as to what they do with regard to an application within the bounds of public law. The term 'of last resort' meaning that it is a remedy available if no other reasonable lawful option appears to present itself.
14. In this case, as at 28 December 2016, such an option was presented and made available by the Secretary of State. Allowing a reasonable period of time and allowing for the Christmas and the New Year closures and although I mentioned 7 January earlier I think that would be a little unfair, it is the finding of this Tribunal that as from 14 January 2017 the applicant not only received but had sufficient time to consider the Secretary of State's offer which as from that date she should have appreciated and may well have been advised made the claim one that was hypothetical or academic on the facts and in law. On that basis, I refuse the relief sought.~~~~0~~~~

NOTE: it was indicated in the later discussion relating to costs that the applicant had responded to the respondents offer in a letter dated 6 January 2017 indicating an awareness of the issues before the 14 January 2017 date referred to above.