Case No: CO/5820/2009
Neutral Citation Number: [2009] EWHC 2128 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX

Date: Wednesday, 24th June 2009

Before:

HIS HONOUR JUDGE WAKSMAN QC
sitting as a Judge of the High Court 
- - - - - - - - - - - - - - - - - - - - -

Between:

	CARD	
Claimant	
	- and -		
	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Defendant	

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

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7404 1424
Official Shorthand Writers to the Court)

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

Ms Plimmer of counsel appeared on behalf of the Claimant.

Ms Mannion of counsel appeared on behalf of the Defendant.

- - - - - - - - - - - - - - - - - - - - -
Judgment

His Honour Judge Waksman QC:

1.	This is an application for judicial review of a decision made by the Secretary of State for the Home Department by a letter dated 8 June 2009, whereby she refused to treat as a fresh asylum claim further representations made on behalf of the applicant by a letter dated 10 November 2008.

2.	Permission to seek judicial review was refused on paper on 19 June of this year.  Originally today’s hearing was set for an oral renewal of that application for permission.  However, given the narrow compass of the issues involved in this case, both counsel sensibly agreed that I should treat today’s hearing as a rolled up hearing for permission on a renewed application and, if granted, a substantive hearing of the application itself.  I should say at the outset, having heard full argument from counsel, that I am quite satisfied that there is an arguable case for judicial review and therefore I proceed without further ado to consider the matter substantively on the merits.

3.	The applicant, Mr Card, is of Jamaican nationality and is 32 years old.  He arrived in the UK at some point in the summer of 2002 with visitor status and on 11 December 2002 he successfully varied that status so as to be granted leave to remain as a student until 30 November 2003.  There is a question mark as to whether he made a further application out of time for leave to remain in 2004.  That is not a dispute which I need to resolve.

4.	At any rate in 2002 or thereabouts he had commenced a relationship with Ms Knighton, whom it appears he met on an earlier occasion in Jamaica.  She is 46 years old and has a daughter who is now 20 years old. I will return to the question of Ms Knighton and her daughter hereafter.  

5.	In around April 2003 while the claimant was living with Ms Knighton their home was raided by police and he was arrested for drug-related offences, in particular the supply of class A drugs. He was remanded into custody and then released on bail.  He was due to return to the magistrate’s court on 29 May 2003 but did not do so.  He remained at large until some time in 2005 when he was stopped whilst driving and on that occasion he admitted not having a licence or insurance.  A search revealed a quantity of cannabis.  He gave a false name to the police but ultimately he was arrested pursuant to the warrant which had been issued as a result of his failure to surrender to the magistrate’s court in relation to the principal drug matters.  He pleaded guilty to those offences and on 1 June at Manchester Crown Court, he was sentenced to three and a half years in prison. No recommendation for deportation was made by the judge.

6.	 However, the Secretary of State issued a decision of intention to deport which was served upon the claimant on 7 November 2006.  He lodged an appeal. This was heard by the AIT on 20 March and dismissed.  That decision was however the subject of a reconsideration, the result of which was a fresh determination by an AIT in July 2007.  It is appropriate at this stage to refer to some parts of that decision.  It made reference back to the earlier decision and then referred in paragraph 15 to paragraph 2.4 of the grounds of the appeal before it which recited various factual matters.  One of them stated this: 

“In view of the specialist care and surgical procedures Miss Knighton-Gordon continues to require she cannot reasonably be expect to relocate to Jamaica and equally, given that Miss Knighton-Gordon is dependent on her mother in respect of her personal care, mobility and emotionally it is unreasonable to expect Ms Knighton to relocate to Jamaica [see attached extract from Ms Knighton’s statement];”

7.	 Paragraph 16 then states that the judge finds that these statements of fact in the material senses were accurate.  

8.	Paragraph 17 reads: 

“As to the conclusions which it is suggested should be drawn in paragraph 2.4 of the grounds of appeal I find that the appellant’s partner and her daughter cannot reasonably be expected to relocate to Jamaica, largely because of the appellant’s partner’s daughter’s medical condition, the need for further procedures, and the support that the mother provides for her daughter both practically and emotionally.  However, I do not believe that there is any reason why the appellant’s partner and her daughter should not keep in contact with the appellant through visits to Jamaica (they have visited in the past), telephone calls and correspondence.”

9.	And then in paragraph 20 the Judge applies the principles set out by the House of Lords in the well known case of R (Razgar) v SSHD [2004] UKHL 27.  He finds that the removal of the appellant would be an interference with: 

“ … the exercise of his right to respect for his private and family life.  The interference would have consequences of such gravity as potentially to engage the operation of Article 8.  Clearly, the interference would  be in accordance  with the law.  I find that the interference would be necessary in a democratic society in the interests of national security and public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or protection of the rights and freedoms of others.”

10.	He then turns to the question whether the interference would be proportionate and makes a reference to another well known case, namely Huang.  In paragraph 21 he concludes: 

“Taking into account all the factors which I have adopted from the panel determination, updating the position, and, insofar as they have not already been taken into account, adding the factors already referred to, I conclude that it would not be disproportionate to remove the appellant to Jamaica.”

11.	There was then an application for permission to appeal that decision which was heard by Burnton LJ sitting as a single judge on 20 May 2008. He observed that this was a sad case, he recited the history and said that he had heard from Ms Knighton, who was representing the applicant on that occasion. Paragraph 6 of his judgment states that: 

 “The ground of appeal is that the deportation of Mr Card would interfere with his rights under Article 8, and indeed those of Miss Knighton.  The facts relating to the Article 8 claim are really not in dispute. They are set out in paragraph 15 of the determination, and they are facts which led me to say that this was a sad case.  Miss Knighton is obviously, from her submissions before me today, an active, intelligent, sympathetic lady.  She has a daughter who has a congenital hip dislocation and a degenerative bone disease, and it is primarily that which means that her and her daughter’s presence in this country really must continue; and the Immigration judge accepted that if the deportation took effect that would split the family, and it is the family which is the subject of Article 8.  But he concluded that, although there was an interference with the Convention rights of Mr Card and Miss Knighton, nonetheless the deportation order must stand. ”

12.	In paragraph 7 he pointed out that it was for the Immigration Judge in the first place to consider the pros and cons to be weighed in relation to Article 8 when deciding proportionality.  It was only if the result of that decision was one which the court would not have held as being rational that the Court of Appeal could or should interfere.  In paragraph 8 he makes reference to the fact that Mr Card is said to have been a reformed character since he left prison. In paragraph 9 he pointed out that protection of the public was not the only interest dealt with by deportation.  Its object was to a significant extent a deterrent, therefore someone who commits a serious offence loses his right to be here unless the circumstances are highly unusual. He observed that the consequences of deportation in this case were unfortunate in the extreme, but having looked at the determination of the judge he took into account all the facts being put forward on behalf of Mr Card.  He concluded that the decision was not one which the Senior Immigration Judge was not entitled to reach.

13.	In paragraph 10 he said this: 

“Whether I would have reached the same decision as the Immigration judge is not for me to say.  I have a lot of sympathy with Miss Knighton.  However, I do not feel that this is a decision that I can properly interfere with and therefore, unfortunately, I have to refuse permission.”

At this point Mr Card’s appeal rights were exhausted.  In fact no further action was taken at that stage in relation to the decision to deport. He reported weekly in the usual way in accordance with bail conditions.  But then on 2 June 2009 a decision was made to detain him. Removal directions were given on 4 June for a removal on 11 June. As will by now be clear, that removal has in fact been suspended.  At that stage of course there had been no response to the further representations letter of 10 November. That came on 8 June.  The deportation letter itself was only signed on 9 June and this application for judicial removal was issued on 10 June.  The present position is that Mr Card has been released from detention subject to bail conditions.

14.	I turn now to the law.  The relevant provision so far as the treatment of further representations as fresh claims are concerned is of course Rule 353 of the Immigration Rules.  This provides: 
“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, 
created a realistic prospect of success, notwithstanding its rejection.”

15.	The leading case is of course the well known decision of the Court of Appeal in WM (DRC) v SSHD [2006] EWCA Civ 1495.  The test which I have just described is referred to in paragraph 7 of that decision as being a “somewhat modest test that the application has to meet before it becomes a fresh claim”.  

16.	In paragraph 10 the decision continues thus: 

“Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny.  Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

11. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”

17.	The next case to which I refer is the decision of the House of Lords in Beoku-Betts v SSHD [2009] 1 AC 115.  Paragraph 5 of the judgment given by Lord Brown sets out the central question.  It is posed thus: 

“In determining an appeal under section 65 of the Immigration and Asylum Act 1999 (the 1999 Act) (now sections 82 and 84 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act)) against the Secretary of State’s refusal of leave to remain on the ground that to remove the appellant would interfere disproportionately with his article 8 right to respect for his family life, should the immigration appellate authorities take account of the impact of his proposed removal upon all those sharing family life with him or only its impact upon him personally (taking account of the impact on other family members only indirectly ie. only insofar as this would in turn have an effect upon him)?”

18.	Having reviewed all of the authorities including the Strasbourg case law, Lord Brown came to the conclusion that the question had to be answered in the first way: namely, the appellate authorities were to take account of the impact of the relevant person’s proposed removal upon “all those sharing family life with him”.  That approach was consistent with the Strasbourg case law.  In paragraph 41 he said this: 

“Whilst it is no doubt true that only infrequently will the present issue affect the outcome of an appeal, clearly on occasion it will and in any event that could provide no reason for maintaining the present narrow approach if it is wrong—indeed, quite the contrary.”

And in paragraphs 42 and 43 he sets out the reasons why the narrower construction was indeed wrong and concludes in paragraph 44 that the wider construction had to be adopted.

19.	I have been referred to a number of post-Beoku cases.  These cases tend to be fact-sensitive, and so I do not derive any real assistance from them.  That said, I would refer simply to one observation made by Jacob LJ when giving judgment in the case of AM (Jamaica) v SSHD [2008] EWCA Civ 1408 (26 November 2008) in paragraphs 4 and 5: 

“The Immigration Judge in this case clearly considered the Article 8 rights of the appellant. He did not know that he was supposed also to bring into the balance the Article 8 rights of the partner and of the children of the whole family. He did not ask himself, “What is going to be the effect on these children of not having their father?” He did not think he had to and he did not.

5. But we now know from this decision of the House of Lords that he ought to have done. Miss Busch submits that the result would be exactly the same and there is no point in sending it back because the Immigration Judge clearly describes the loving family and recites all the evidence which was put in. That is of course true, but what he did not do is to weigh the effect of that evidence as far as the children and the partner are concerned. It is not for us to do the weighing. It is for him. Therefore for these two reasons the only satisfactory way of proceeding with this case is to remit it so that it can be reconsidered.”

20.	I now turn to the decisions letter itself.  This is a very detailed document which sets out a number of paragraphs under clear headings.  The first heading is “Immigration history” and I do not need to refer to that, the second heading makes a summary of the further submissions and then, under the third heading “Response to your client’s further submissions”, paragraph 353, which I have already read out, is stated fully.

21.	Page 4 of the letter then sets out a number of paragraphs from the AIT decision of 30 July 2007 which I have already referred to paragraphs 17, 19, 20 and 21.  After the quotation the letter reads: 

“As can be seen from the above quotation your client’s rights to respect [for] family and private life have already been considered by the Immigration Tribunal.  Your current representations … raise nothing new but appear to be re‑arguing what has already been considered.”

22.	Page 5 of the letter does not at that stage accept that there was undue interference with Mr Card’s private life. It is said there will be some degree of interference, and as a result of that the question of proportionality had to be considered.  That is dealt with under a second head at page 6.  It is clear from reading the text of that section that this is simply dealing with Mr Card’s Article 8 rights.  It states that for the reasons set out it would not accept that the decision to deport him interfered with his Article 8 rights in a manner which was disproportionate, and then various reasons were given.  

23.	However, at page 7 reference is made to Beoku-Betts.  A brief summary is given of that case and then there is a reference to a further case dealing with a child of the person to be removed, being the case of Onur v UK  (ECHR Application No 27319/07).  

24.	At page 8 the letter says that in considering whether it would be right to deport the client, the effect that it would have upon him and his family and the wider community had been taken into account as well as any disruption to “his family and private life is justified in light of his criminal conviction”.   He then refers to the fact that he knew about the precarious nature of his immigration status when he started his relationship with Ms Knighton.  There is then an important passage which reads as follows: 

“Representations also state that Ms Knighton’s daughter is 19 years of age and now lives independently of her mother and your client. 

In addition, the representations claim that your client continues to help with the care of Ms Knighton’s daughter.  When your client was serving his prison sentence, alternative care arrangements were made during his incarceration, because by his own actions your client made himself unavailable to care for Ms Knighton’s daughter.  Both Ms Knighton and her daughter have already had to manage without your client for a significant amount of time and there is no reason why these arrangements cannot continue. 

Furthermore, Ms Knighton’s daughter is an adult who is capable of living independently of her mother and your client.  It is not accepted that she has such a degree of dependency upon your client that his removal would have such an impact on her life as to engage Article 8.”

It is accepted for the purposes of this application that that represents sufficient engagement on the part of the defendant with the question of the daughter’s Article 8 rights.  What, however, is missing at this stage in the letter is any specific engagement on the part of the defendant with the Article 8 rights of Ms Knighton.

25.	At page 9 it is said that in the light of the seriousness of Mr Card’s criminal offence, his removal was necessary in a democratic society.  There is then the further important passage which I will read:

“Furthermore it would be open to your client’s partner and step-daughter to accompany your client to Jamaica should they wish to do so.  Although it is accepted that your client’s partner and her daughter may not wish to follow your client to Jamaica, this does not in itself present a justification to abandon deportation action against your client.  Although it has been acknowledged that your client’s stepdaughter has some medical problems, there is no evidence to suggest that she, an adult who is living independently of your client, could not relocate abroad if she should wish to do so.  The same could be said of your client’s partner. Furthermore, there is no evidence to suggest that your client’s partner and her daughter could not maintain contact with your client via visits to Jamaica and via modern forms of communication.”

Reference is made at the bottom of page 9 to the fact that the human rights claim had been considered by the immigration tribunal of 30 July and upheld by the Court of Appeal on 20 May.  On 25 July Mr Card had the opportunity to raise and did raise all Article 8 issues mentioned in the recent representations. Reference is then made to Burnton LJ’s refusal of permission to appeal which dealt with the question of the object of deportation being a deterrence, and that was paragraph 9 of his judgment which I have already read.  

26.	It is then stated that: 

“The UK Border Agency is of the opinion that the Immigration Judge’s decision of 30 July 2007 was sound and that it comprehensively addressed of all the issues raised in your earlier submissions. Furthermore while it is accepted that case law may refine the way in which cases are viewed, it is not accepted that there has been such a radical shift so as to necessitate a further review of your client’s Article 8 claims.  The Immigration Judge accepted that your client had established family life in the UK but also found that the decision to deport him was proportionate.  Therefore it is not considered that you have raised any issues which would require the Immigration Judge’s decision of 30 July 2007 to be revised in any way.”

27.	There are three grounds now advanced for judicial review of the decision letter.  For reasons which will become apparent, they are interlinked.  They are as follows.  First, the Secretary of State did not apply or fully apply the test concerning Article 8 and the rights of other family members as laid down in Beoku-Betts.  Secondly, the Secretary of State erred in an unlawful way in reaching the conclusion in relation to the ability or otherwise of Ms Knighton and her daughter to relocate to Jamaica.  Thirdly, the Secretary of State did not ask the right questions in relation to paragraph 353 and in particular as set out in the case of WM.   I deal with those issues in that order.

28.	The Beoku-Betts issue.  The claimant contends that Beoku-Betts was not engaged with at all in the decision letter so far as Ms Knighton was concerned, and that the raising of the Beoku-Betts point as a change in the law in the further representations letter was new material, albeit new  legal material.  It is contended on behalf of the Secretary of State that it would be wrong to characterise it as new or wholly new because to some extent the decision in Beoku-Betts had been preceded by earlier case law in 2007 and in 2008.  But in any event and principally, the earlier tribunals did engage in effect with Beoku-Betts and undertook the relevant and necessary consideration of Ms Knighton’s Article 8 rights, so that Beoku-Betts was in fact fulfilled by reference to her.  If that was correct then there was indeed nothing new in the further representations; there were no new materials and hence the rule 353 analysis stops at that point.  There would be no need for the Secretary of State to go on and consider whether the material would create a realistic prospect of success.

29.	Ms Mannion in her submissions first relies upon the first AIT decision.  That in my judgment is not of any real assistance for two reasons. First, the considerations which make reference to Ms Knighton and her daughter as pointed out to me by Ms Mannion were all made in the context of a standard rule 364 analysis, which was required in any event in answering the question as to whether the presumption in favour of deportation should be displaced.  That is very clear from the decision.  It is also clear from that decision that there was a separate Article 8 analysis which follows the rule 364 analysis.  And when one looks at the Article 8 analysis, the thrust of that was in relation to Mr Card’s Article 8 rights.  The second reason why this tribunal decision is not of any real assistance was because it was in effect displaced by the second AIT decision upon a reconsideration, and indeed to be fair to the defendant the principal AIT decision relied upon by her was indeed that second decision.  

30.	Ms Mannion therefore turns to the second AIT decision.  The key passage is in paragraph 17 which I have read out, namely the finding that it would be not reasonable to expect mother and daughter to relocate to Jamaica. Ms Mannion contends that, in effect, although not by reference to Beoku itself which of course at that point had not been decided, this was a Beoku-type engagement with the Article 8 rights of mother and daughter.  

31.	I do not agree.  First of all the analysis as to the reasonableness or otherwise of their relocation to Jamaica was a necessary precursor to deciding whether there was an interference with Mr Card’s family life at all.  If they were reasonably able to relocate to Jamaica then there would be no interference.  The later analysis of proportionality in paragraphs 20 and 21 of this decision (which I have already cited) support that view.  

32.	Secondly, in any event, in considering Mr Card’s Article 8 rights, inevitably a view would need to be formed about whether Ms Knighton and her daughter could go to Jamaica to join him.  It would be difficult to see how that could not form part of the tribunal’s general considerations in a case of this kind.  That in my judgment is not the same as considering directly the impact on their Article 8 rights of the removal of Mr Card in the context of the overall proportionality balancing exercise.  So I do not accept that a Beoku-Betts-compliant exercise was undertaken in the second tribunal decision. 

33.	I then turn to the observations made by Burnton LJ.  Do they make any difference? In my judgment they do not.  Whatever may be said about authorities which were precursors to Beoku, the fact is that the very clear ruling in Beoku had not been made at that stage and was not put before the learned judge. Of course I take the point that Burnton LJ refers to an appeal based on the interference of Mr Card’s rights and “indeed those of Ms Knighton”. The question for the learned Lord Justice at the end of the day was whether the AIT decision was one which the Immigration Judge was entitled to reach.  He clearly looked at the matter in the round by reference to the other factors set out in paragraphs 7-9 and concluded overall that it was not a decision with which he could interfere.  It is simply not possible to know if Burnton LJ, who clearly had sympathy for Mr Card, would have reached the same view if it was as it were a “full on” Beoku-Betts appeal.  In any event and for present purposes, the relevant material is surely not the decision refusing leave to appeal but the underlying AIT decision considering all the facts which in fairness again to the defendant is what she principally relied on in the decision letter in terms of the earlier material.  And there as I have already said on my analysis there was no Beoku-Betts type engagement.  Essentially the reasoning was concerned with the Article 8 rights of Mr Card alone.

34.	So if in truth the defendant was in the decision letter saying that there were no new materials, that cannot be right in the light of Beoku-Betts and my analysis above.  Indeed, the subsequent consideration by the Secretary of State of the daughter’s Article 8 rights by reference to Beoku shows that at least to that extent, he felt obliged to deal specifically with a family member on a Beoku‑Betts basis. However, that exercise was not undertaken for Ms Knighton. In my judgment, as a matter of law that was an error.  Moreover, it is not a mere technical error.  That becomes clear if one goes to the second ground to which I now turn.

35.	That is the question of the reasonableness or otherwise of mother and daughter relocating to Jamaica.  The passage which I have read out, page 9 of 11, on its face simply contradicts the finding made by the AIT on which in general the Secretary of State has heavily relied.  It is not apparent to me why this is.  Of course the Secretary of State could on the facts some two years later take a different view, but in the light of the importance of this point (was it or was it not reasonable to expect them to go to Jamaica?) – indeed, a key point -- one needs at least some explanation why a different view is taken.  The original view was taken by reference to the medical needs of the daughter and medical needs which had to be attended to in this country -- see the earlier AIT decision and the observations in this regard of Burnton LJ.  Unless there was clear evidence that things had changed, it is simply not possible to see how the Secretary of State could have concluded that there was no evidence that the daughter could not relocate abroad.  The point is not so much about her independence, but her need for medical treatment which must exist irrespective of where she is living.  

36.	I am not prepared to speculate here.  Having looked at that paragraph as a whole, the reasoning is in my view clearly inadequate for such an important change of finding and amounts to the error of law.  Ms Mannion urges me to consider the impact of the last sentence, namely:
“Furthermore there was no evidence to suggest that mother and daughter could not maintain contact with the client via visits to Jamaica and modern forms of communication.”

I take that point, but it is clear from the paragraph as a whole that the principal point being made and relied upon by the Secretary of State was that mother and daughter could reasonably relocate in the first place.  The significance of this error is that it ties that into what might have been concluded if a proper Beoku-Betts approach had been taken to Ms Knighton’s position, ie the impact upon her.  The impact upon her obviously changes enormously if either it was or was not reasonable for her to relocate, and reasonableness here no doubt also involves her existing family ties, ie beyond her daughter, which had been referred to in earlier decisions and which presumably remain as before.

37.	That then leads to the third ground: namely, did the Secretary of State ask herself the wrong question?  It will be apparent from the foregoing analysis and indeed from a reading of the letter as a whole that the Secretary of State did in fact purport to go further than simply reject the fresh claim on the basis that there was no new material.  As I have said, so far as the finding of no new material is concerned, that was wrong.  There is clearly some attempt to deal with paragraph 353 by reference to the passages which I have referred to at page 10 and in particular the second of the two passages which states this: 

 “Therefore it is not considered that you have raised any issues which would require the Immigration Judge’s decision of 30 July 2007 to be revised in any way.”

But I do not regard the formulation of the question in that way as compliant with the decision of the Court of Appeal in WM.  The question is not whether the new material “would require” (ie demand) a revision to the earlier decision, but whether, applying anxious scrutiny, there was a realistic prospect that an Immigration Judge would come to a different view bearing in mind that it is a modest test.  Ms Mannion sought to persuade me that in essence that was what was being said at page 21 but I cannot at all be satisfied that it was.  After all, in this particular case the defendant had had some eleven pages in which to state clearly the question. Moreover some six months had passed since the further representations were themselves made, so there was plenty of time for full consideration of that letter, which itself referred expressly to the decision in WM.

38.	As for the correct question, if it is not asked, then an application for review should be granted - see paragraph 11 of the judgment of the Court of Appeal in WM.  I should emphasise that this is not a hollow point here.  On any view, and as is clear from the observations of Burnton LJ, this might be regarded as a case where the balancing exercise is not straightforward despite the force to be given to Mr Card’s convictions for the serious offences of supplying Class A drugs.  That being so, it is particularly important that the exercise be conducted in accordance with the substantive test laid down by Beoku-Betts, on the firm procedural footing laid out in WM and where clear reasoning is employed in relation to key factual points such as the reasonableness of return to Jamaica. 

39.	Accordingly I shall quash the decision letter which will no doubt mean that the Secretary of State will provide a fresh decision letter in due course.  

40.	I am indebted to both counsel for the excellence of their oral and written submissions and I will now hear counsel on any consequential matters.

MS PLIMMER: My Lord, I am grateful.  Just two small suggested amendments to your judgment.

HHJ WAKSMAN:  Yes.

MS PLIMMER: The first is that when your Lordship refers to the first AIT decision, you refer to standard 395C analysis

HHJ WAKSMAN: Yes

MS PLIMMER: 395C is administrative removal, whereas deportation is 364

HHJ WAKSMAN:  364.  Just a moment.  Quite.  Well, I will read that into the record

MS PLIMMER: My Lord, the second is very minor and that is: towards the end of the judgment where your Lordship makes reference to WM there is a mistake made in that you said House of Lords in WM.

HHJ WAKSMAN:  (Inaudible).  Thank you.  Yes?

MS PLIMMER: My Lord, those are the only corrections that I have observed.

HHJ WAKSMAN:  Yes.

MS MANNION: My Lord, The matter arising in respect of bail is that Mr Card was granted bail by this court last week.  What it is is this: we don’t seek to remove that bail of course, but I am instructed to ask that the conditions be made more stringent.  I have put my learned friend on notice.  There are two material effects.  Do you have a copy of the bail conditions as currently?

HHJ WAKSMAN:  Yes, just a moment.  I have some bail conditions made on 15 June.

MS MANNION: Yes

HHJ WAKSMAN:  There is a residence condition and then two modest sums by way of security and then reporting to the Chief Immigration Officer

MS MANNION: Yes.  In respect of the first condition, the variation I would seek is to add to the end of the residence condition the words “and live and sleep at that house each night”.  I understand that’s uncontentious.

MS PLIMMER:  That’s how it was before.

MS MANNION: It … I am grateful to the indication that that was how it was before.  It doesn’t appear on his Lordship’s order of the …

MS PLIMMER:  That is accepted.

HHJ WAKSMAN:  Well perhaps for the avoidance of doubt the order today should reflect that.

MS MANNION: I would be very grateful if it did.

HHJ WAKSMAN: Yes.

MS MANNION: And finally it’s the reporting.  I would seek that that be increased to ideally a frequency of Mondays, Wednesdays and Fridays, but at least bi-weekly. The reasoning is because those who instruct me are fearful that Mr Card represents a flight risk.  I say that knowing of course how much time your Lordship has given to the background of this case and I know you are well appraised of it, so I don’t put it any higher than that but the concern is there and I would be grateful for slightly more contact.

HHJ WAKSMAN:  Yes, and of course I don’t think you made representations in relation to the first hearing.

MS MANNION: No representations were made at all on behalf of the Secretary of State on that occasion.

HHJ WAKSMAN:  Well, what do you say about that, Ms Plimmer?

MS PLIMMER:  My Lord, the claimant has been reporting once a week since March 2007.  There has not been a single issue raised by the Secretary of State regarding any concerns as to that reporting.  There have been no previous concerns raised in relation to flight risk.  In my submission, the claimant’s stay in the UK is entirely dependent upon his relationship with Ms Knighton, who he agrees to live and sleep with each night, and that the status quo in this case is sufficient to meet any concerns the Secretary of State has, the Secretary of State having not particularised why it is it is viewed that there is a slight risk now when there hasn’t been for the last two and a bit years.

HHJ WAKSMAN:  Thank you.  Ms Mannion, is there any particular material for the court to look at?

MS MANNION: I am afraid there isn’t.  It’s more that, matters having been brought to a head and Mr Card’s recent spell in detention, the fact matters are moving on and it is clear what the Secretary of State’s intention is to bring matters to a head

HHJ WAKSMAN:  Yes, well, thank you for that but in the absence of any further material I am going to leave things as they are.  Right.

MS PLIMMER:   My Lord, if I can raise the matter of costs.

HHJ WAKSMAN:  Yes.

MS PLIMMER:  The claimant would ask for his costs.  We note that HHJ Stewart QC made an order when he refused permission on the papers which we would like to address.

HHJ WAKSMAN:  Yes, I saw something about that today.  I think all that … I think that all he meant by that was: if you didn’t put in an application for oral permission, in other words, the thing ended there, you would be liable to pay the costs that he ordered.

MS PLIMMER:  I am afraid both myself and my instructing solicitor have read his observations a few times and we were a bit concerned that we were getting it wrong but I am grateful that you have been able to clarify that.

HHJ WAKSMAN:  Well that is in essence what it is.  That is a fairly standard order because if there is to be no renewal then that is the end of the matter and then there is no provision for costs unless the judge says something about it at the time but it is entirely conditional, so as far as I am concerned, unless anybody wants to say anything else, the costs are now largely ….

MS MANNION: My Lord?

HHJ WAKSMAN:  Yes.

MS MANNION: I am unassisted by any instructions on the point but I certainly couldn’t challenge your Lordships reading of the order.

HHJ WAKSMAN:  Right.  Well now where do we go from there?  

MS PLIMMER:  Well my Lord, I would have thought that we would obtain an order for our costs to be assessed as well as a detailed assessment of public costs for the costs that may have taken place prior to costs in this.  It’s generally always right, even if we get our costs we still require an LSE order.

HHJ WAKSMAN:  Oh yes.  Right.  Well, first of all of course this is now a disposal of the entire application.

MS PLIMMER: My Lord, yes

HHJ WAKSMAN:  So Ms Mannion, do you resist in principle the costs order as the losing party?

MS MANNION: I don’t see that I can

HHJ WAKSMAN:  Right, thank you.  So you want that the claimant should have the costs of the application and then there is the LSE reference

MS PLIMMER:  The LSE standard

HHJ WAKSMAN:  A form of words which I can’t now remember but … and that’s the costs?

MS PLIMMER:  The claimant is entitled to his publicly funded LSC costs to be assessed if the court agreed

HHJ WAKSMAN:  Claimant … So, defendant to pay to the claimant his publicly funded costs to be assessed, what, by the LSC?

MS PLIMMER: No my Lord.  What should happen is: you have the costs order, which is just that the defendant pays the claimant’s costs of the application, and then there’s a catch-all order, if you like, which is the LSC order, and that order should read that there be an assessment of the claimant’s LSC costs.

HHJ WAKSMAN:  A detailed assessment?

MS PLIMMER:  Yes, a detailed assessment

HHJ WAKSMAN:  … there be a detailed assessment of the claimant’s LSC-funded costs … in the absence of agreement?  If not agreed?

MS PLIMMER: If not.

HHJ WAKSMAN:  Yes.  Well, let’s just – so, lets just do the order because the learned associate can print it out, can do it for you, it is not that complicated.  So, the decision of -- I am dictating now so she can hear me – (1) the decision of the defendant dated 8 June 2009 whereby the claimant’s fresh … fresh asylum, isn’t it?

MS PLIMMER:  Fresh human rights application

HHJ WAKSMAN:  Human rights … whereby the claimant’s fresh human rights claim was refused, is hereby quashed. (2) the defendant do pay to the claimant his publicly funded costs to be the subject of a detailed assessment of those LSC-funded costs, if not agreed.  Does that make sense?

MS PLIMMER:  My Lord, I wouldn’t want to be over-fussy, but usually we have two separate orders as far as costs is concerned, and I am sure my learned friend will correct me, and what I would, I would have thought should take place is that the second matter should say the defendant do pay the claimant’s costs, and then (3) there be detailed assessment of the claimant’s LSC.

HHJ WAKSMAN:  The defendant do pay … the defendant do pay the claimant’s costs … the defendant do pay the claimant’s costs of this application …

MS PLIMMER:  Yes, my Lord.

HHJ WAKSMAN: … full stop.  (3) There be a detailed assessment of the claimant’s LSC-funded costs in the absence of agreement.  Will that do?

MS PLIMMER: Yes, my Lord.  I am most grateful

HHJ WAKSMAN:  Right.  Well, thank you both again very much for your assistance and in particular your -- in my view -- very helpful and sensible approach in getting this matter entirely dealt with today.  Ms Plimmer, if you would wait around for just a few moments after I rise I will be able to give you back the bundle.

MS PLIMMER: My Lord, yes

HHJ WAKSMAN:  And I rise now.