Michael, R (on the application of) v Secretary of State for the Home Department

1. MR JUSTICE McCOMBE: This is the date for the hearing of a judicial review claim brought by Mr Dubem Lawrence Michael against the Secretary of State for the Home Department, brought with the permission granted by HHJ Vosper QC (sitting at a deputy judge of this court) on the basis at that stage that the claimant's challenge to the defendant's decisions was based on documentary evidence not previously available. Those new documents had not been considered and the learned deputy judge giving permission thought it right that they should be.

2. Following the grant of permission, the defendant agreed to afford to the claimant an in-country right of appeal to the appropriate tribunal by dint of withdrawing his certification of the claim and therefore allowing the matter to proceed.

3. It appears that the claimant at that time was acting in person and, as attendance notes record, and perhaps not unsurprisingly, was somewhat confused by the inter-relationship between what the Secretary of State was offering in the face of these proceedings and the potential for an appeal before the Tribunal. The Secretary of State was quite understandably saying, "Withdraw these proceedings, we have given you all you can hope to have from the claim, please enter into a consent order to that effect". It appears that the effect of that was not fully appreciated by the claimant.

4. When the case was called on this morning, I made the suggestion to counsel for the claimant, then, for understandable reasons, in the absence of Mr Dunlop, who appears for the Secretary of State, that the only problems seem to be that, following the lapse of time, any appeal to the Tribunal which initially had been conceded by the Secretary of State would now be out of time and perhaps the most appropriate course to get things on the right track again was for the Secretary of State to agree that there should be no opposition to an appeal out of time before the Tribunal. I invited Mr Euba, who appears before me for the claimant, to have discussions with his opponent about how to resolve matters and query whether it be appropriate to stay these proceedings pending it becoming clear or not whether a substantive appeal could be mounted before the Tribunal.

5. The case was put back in my list. It re-emerges and the Secretary of State has helpfully offered an undertaking that she will not oppose an application to appeal out of time that is brought before the tribunal. I will qualify the undertaking I require in that respect to say an application for leave to appeal out of time lodged with the Tribunal within 14 days from today. That would put a final limit on the time within which that application can be launched and to which the Secretary of State would be subject to her undertaking.

6. Two questions then remain. First, what should happen to these proceedings: should there be a stay of them, as I tentatively suggested to counsel, Mr Euba, when he attended alone or should, as Mr Dunlop submits, the claim now be dismissed as serving no useful purpose? Secondly, the Secretary of State applies for the costs of the proceedings, following 3rd August 2009, the date on which she conceded, or her predecessor conceded, that an in-country right of appeal should be afforded to the claimant.

7. No application has been made by the claimant for any costs prior to the 3rd August 2009 and it seems to me that the proceedings at the start had substance and some cogent argument to the extent that costs up to 3rd August 2009 should be paid by the Secretary of State.

8. As far as the submission is made now that only the Secretary of State should have some costs because of the events that have happened, I do not accept that. In my judgment, the proper order is to make no order for costs because each side had its rights and wrongs in these proceedings and the fairest order is that each side should pay his or her own costs.

9. As far as the proceedings are concerned, I do consider that they are now expired. I will make an order dismissing the proceedings on the basis that they are now academic but on the undertaking offered by the Secretary of State which must be recorded in the order along the lines that I have indicated in this short judgment.

10. Thank you very much. Would somebody please draft an order to assist the associate? Thank you very much, Mr Euba, Mr Dunlop.