Case No: CO/6894/2012
Neutral Citation Number: [2013] EWHC 1458 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
Date: Thursday 14th March 2013
Before:

HIS HONOUR JUDGE KAYE QC
(sitting as a judge of the High Court)
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Between:

	THE QUEEN ON THE APPLICATION OF Alemayehu
	
Claimant	
	- and -		
	
Secretary of State for the 
Home Department 	

Defendant	

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(DAR Transcript of 
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Mr Hussain  QC and Miss Plimmer and Mr Mackenzie  (instructed by Parker Rhodes Hickmans and Birnberg Peirce and Partners ) appeared on behalf of the Claimant.
Ms Anderson (instructed by Treasury Solicitor ) appeared on behalf of the Defendant.
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Judgment
HH JUDGE KAYE QC:

1.	I have before me the rolled up substantive hearing in four cases although one of them has in fact fallen away leaving three cases which are said to be lead cases arising out of what for the sake of shorthand I shall refer to as the Legacy Programme which was said to be a programme carried out by or on behalf of the Secretary of State for the Home Department between July 2006 and July 2011 dealing with a large number of extant applications by persons seeking asylum or indefinite leave to remain in the United Kingdom.  I was told there was something in the region of 500,000 such cases.

2.	A number of the cases have reached the courts and a number of applications of judicial review have been made to this court, most but not all of them having failed at the paper stage, that is, at consideration of the application on paper, with the result that these four, now three cases were picked with a view to a substantive hearing on the matter, the directions for the trial being made by Supperstone J on 15 January last with a time estimate of one and a half days.

3.	That was followed by exchanges of skeleton arguments on each side.  The claimants' skeleton argument, to be fair, bearing in mind that it is dealing with the remaining three cases, is 32 pages, and the defendant's skeleton argument, with the same preview remark, runs to 35 pages.  If I may with great respect to both sides be forgiven one is tempted to ask for an executive summary in each case.  Shortly before that and after Supperstone J had made his directions evidence was filed particularly by and on behalf of the defendant and it was served as I understand it on the claimants' solicitors on or about 19 February.  The claimants' skeleton argument was dated 4 March and the defendant's skeleton argument 8 March, both I think slightly late and outside the timetable laid down by Supperstone J but I am not going to make any point about that.

4.	It gave rise at that stage when I strongly suspected, again I hope you will forgive me for saying so, that the minds of the professionals involved really started to get to grips with the case in some detail. This was largely due to a plethora of correspondence of mounting anxiety on both sides, with an exchange sometimes in the form of two or three letters a day.  Indeed my own attempts to pre‑read this case were distracted at one stage almost every ten minutes by somebody bringing me the latest copy of the letter that had been exchanged between the parties. 

5.	Two matters of present concern stand out: (1) cross examination; and (2) disclosure.  These matters could not be resolved by correspondence with the result I think putting the whole thing as neutrally as I can, in an application being made yesterday for permission for the claimants to cross examine Mr Parkin and Mr Forshaw. Mr Parkin and Mr Forshaw are officers of the defendant Secretary of State and had intimate acquaintance it is said with the Legacy Programme.  Mr Parkin had not given evidence since he was away on paternity leave at the time but the evidence that he would have given as it were was given in fact by Ms Kate McNulty based on materials and statement drafts no doubt made by Mr Parkin.  Indeed Ms Anderson has candidly said that if Mr Parkin were to be called to give evidence notwithstanding he has not given any witness statement, it can be dealt with very economically and succinctly simply by putting him in the witness box, no doubt asking him whether or not he agreed with and adopted Ms McNulty's evidence.

6.	Mr Forshaw could be made available but one as I understand it is in Liverpool and might have to come over here. Instead investigations were made as to whether or not some kind of video link could be set up but this was rather left unfortunately to the last minute. The second part of the application was to the effect that the Secretary of State should undertake a further search for documentation relevant to certain issues and to disclose the documentation to the claimants. Finally, there was the inevitable application to vacate the hearing consequent on the outcome of the applications for cross-examination and disclosure.

7.	To some extent there is an overlap between the two aspects, cross-examination and disclosure. According to Mr Hussain and his team for the claimants the key issues in the case are (a) what was the timescale for the Legacy Programme, (b) what was supposed to be done within that timescale, (c) with what effect and (d) what should the court do now? though the last question is a strictly legal one and no question of disclosure or cross examination goes to that.

8.	So far as (a), (b) and (c) are concerned, the issues it is said are relevant because the claimants' case, if I can summarise it as briefly as I can, it is said that each of these claimants fell to be dealt with as part of a Legacy Programme.  Had their case been dealt with within what is understood to have been the timescale for the Legacy Programme, that being, i.e., by the end of July at the latest -- I put this as neutrally as I can -- had their cases been dealt with in that time the Secretary of State would, whether as a matter of policy or as a matter of practice, have granted each of them indefinite leave to remain.  In contrast to that the Secretary of State's policy, it is argued, changed on 20 July 2011 with the result that the cases were all dealt with after that date and in accordance with the new policy with the further result that each of them was granted three years’ discretionary leave to remain but with an option that at the end of that three years they could renew and make a further application for an extended period of, it appears, 30 months.

9.	The importance of these processes as I understand it is that Mr Hussain QC on behalf of the claimants in relation to the first and second issues that I have just mentioned says that really what has to be looked at is what is the point of the Legacy Programme. In other words, what had to be done or what was supposed to be done within this timescale?  He says and submits that this has a potential for correction of a historic injustice, namely the time it has taken to deal with the cases. That in itself is not necessarily unlawful as I understand the present state of law.

10.	The potential for correction being that if you can show to the court what would have happened as opposed to what might have happened the former would enable Mr Hussain to present a stronger case than the latter when it came to a consideration of what remedial justice this court might or might not impose if judicial review were granted.  The second point he has is a timescale point, the point being that it is not entirely clear how long the Legacy Programme was to last and that might have made a difference in view of the change of policy on the 20 July 2011.  I think if Mr Hussain came close to suggesting or proposing to argue that by the time the policy changed then it really ought not to have changed, or the change ought not to have been implemented, at least not until the position of the claimants had been determined. In short, fairness, consistency and administrative efficiency meant that his clients' cases should all have been dealt with for consistency's sake on the basis of the policy as it existed prior to the change in policy.

11.	All of these points of course overlap and I have to say for my part I am by no means convinced that cross-examination, as Ms Anderson on behalf of the Secretary of State argues, is either necessary or even proportionate.  Mr Hussain relies upon a number of inconsistencies in statements made by or on behalf of the Secretary of State at various times over various periods as to what was or was not thought to be the point of the programme, whether it was to decide each and every one of a large number of cases on the basis the individual applicant was granted indefinite leave to remain, or not (resulting in his or her removal from the jurisdiction), or whether the point was merely to carry out a review, the latter of course being more consistent with a plan over a lengthy timescale to determine how all these cases should be dealt with: on the spot or putting it to one side for a greater investigation and conclusion at a later stage. The point being that if one knows what the outcome of that question is (whether they were meant to be concluded or merely reviewed), that again might make a difference at the end of the day to the type of relief the court grants if the claimants are successful.

12.	Ms Anderson, as I say on behalf of the Secretary of State, had originally opposed cross-examination. That was wholly understandably because it is apparent, looking at the first few letters that were exchanged, the temperature between the parties had reached almost sort of fahrenheight 451 proportions; the letters were starting to heat up a bit and the trouble with that is that raising temperatures can of course lead to misunderstandings.  I am not blaming anybody.  That is just a fact of life when one gets closer to the hearing date of the litigation.  

13.	But the understandable apprehension on the side of the Secretary of State was that the Secretary of State and her officials were being impugned for bad faith and lack of candour.  Mr Hussain to be fair expressly disavows any imputation of bad faith.  But it is equally fair to say, reading his skeleton argument, if he will permit me also to say, it does contain quite a number of remarks, observations, suggestions and submissions which come pretty close to the line.  I hope as I say he will not mind me saying so but I can well understand why that might have raised the temperature of concern on the side of the defence.  But now Mr Hussain has made it expressly clear that all he seeks to cross-examine on is the alleged inconsistencies in the statements of the various officials and to various committees in the House of Commons and other public statements.  The persons proposing to give evidence on behalf of the Secretary of State are important officials who are involved with the Legacy Programme and they are in as good a position as anybody, to know the policy absent the Secretary of State's personally who I cannot for one moment envisage attending.  But I do of course recognise that the Secretaries of State constitutionally act through their officials and that is what has indeed happened in this case.

14.	If this were not the case that it has in fact become, if these cases were not the lead cases concerning the Legacy Programme, having important implications that may well end up in the Supreme Court, with the potential for affecting the few remaining thousand or so cases that remain of the Legacy Programme, if this were simply the case of each individual separately, I would be extremely reluctant to order cross-examination.  It is not something that normally takes place on judicial review.  Both sides accept it is a matter for the judicial discretion of the court to be exercised judicially and, as I said, I am by no means necessarily persuaded that it is either appropriate, necessary or proportionate certainly on the individual basis or even that anything good will come out of it.

15.	But at the end of the day, given that Ms Anderson does not oppose the application in the sense she really leaves it to the court but with some helpful forensic observations in the nature of a rhetoric observation as to whether in fact would it do any good, with which I am largely in sympathy, I have to say, but I would be immensely reluctant for this case to go off half cocked with at least the potential risk is that it reached the Court of Appeal and went off on a point wholly inappropriate or unnecessary to a case of this potential importance for lack of cross-examination.  I would far rather Mr Hussain and his clients were in a position that they were at least satisfied that they at least had the opportunity to put the points about the alleged inconsistencies to the witnesses.  Whether it will do them any good I have no idea.  That is a matter for the judge hearing it. But I am not going to deprive the claimants of the opportunity of so doing on the, as he correctly points out, factual issues that I have mentioned, namely principally what was supposed to be done during the Legacy Programme and within what timescale and with what consequences.   Whether all or any of these witnesses can add anything to what they have already stated in that respect I do not know. In my judgment the justice of the case ultimately persuades me in his favour.

16.	I will deal with the consequences of that in a moment because there is one other aspect that has influenced my decision in acceding to Mr Hussain's application.  As to his second application, which is disclosure, this even less persuaded me.  Mr Hussain has however fairly raised the point that there has been a history in other cases, some of them of some notoriety, where the Secretary of State of the department concerned has not given as full or as candid a disclosure as might be the case, often where there has been a public inquiry or there is a prospect of public inquiry.  I am not going to mention any specific cases.  They have all been in the public domain.

17.	I am not convinced, despite the criticisms in the claimant's skeleton argument of lack of candour and lack of provision of this or lack of provision of that document or lack of compliant statement as set out within the terms of a published internal guidance document issued by the Treasury Solicitor to the guidance on discharging the duty of candour and disclosure in judicial review proceedings, that this is a case where the Secretary of State has failed in her duty of candour.  The guidance has been in existence since at least January 2010 and no doubt came into being as a result, as Mr Hussain submits, of previous cases.  But it is noticeable from reading the documents in this case that there were early on on behalf of the relevant claimants applications for disclosure of information and documents, and there is no reason for me to think that that has not been complied with.  What I think here Mr Hussain is looking for is whether or not there was some policy rather than a practice in existence as part of the Legacy Programme so that it could be raised to the status of a legacy policy rather than a Legacy Programme or a policy to grant indefinite leave to remain rather than a practice of granting indefinite leave to remain, all of which for the reasons I adumbrated in respect of his first point no doubt make his case more forceful.  I do not see why I should at this stage and on the first day of what was supposed to have been the substantive hearing of the case in that correspondence left to the last minute ask the Secretary of State to embark on no doubt what might be an expensive process of trawling yet again through thousands of files, cupboards of documents and places on the basis that there is some document which they have not yet found which might be tantamount to a statement of policy on something.  I cannot believe that such a document, if it exists, has not been at the forefront of this case given the number of applications that have been made in respect of it and the number of cases that have had to be dealt with.  No doubt there have been policies of some kind as to how to deal with the cases, for example enshrined in Rule 395B or C of the Immigration Rules, which are amended from time to time, or in the enforcement instructions and guidance documents, sometimes referred to as the EIG documents, and chapter 53 in particular of that, but these, as the skeleton arguments and the documentation in this case has made quite clear, from time to time have changed.

18.	That is not as I understand it the sort of policy document that Mr Hussain is hoping for.  Rather he was hoping also for a disclosure statement of the kind referred to in the guidance document I referred to, paragraph 6.1 of which provides as follows: 

" In judicial review cases there is no obligation to provide a disclosure statement but in these, as well as other types of proceedings in which disclosure may have to be given, the case-handler should prepare and retain a statement recording: 

- all searches made 
- all decisions (by lawyers and clients) about the extent of searches 
- all decisions made about the disclosability of documents 
- all decisions about all actions taken in relation to the preparation of documents for inspection. 
In multi-department litigation each body should keep its own internal record in this form."

19.	It is interesting to note that paragraph 6.2 which is to say did not refer me to does go on to provide: 

"It may be helpful in preparing the statement to adapt the format set out in CPR 31 which provides that a list of documents must include a Disclosure Statement setting out the extent of the search that has been made to locate documents..."

And so on.

20.	Paragraph 2.1 of the same document deals with the role of the Treasury Solicitor case handler. It sets out a number of things which the case handler is expected to do. In particular as pointed out by Mr Hussain to "ensure a record is kept of all searches made, all decisions made about extent of searches, about disclosability of documents and arrangements for inspection", and further "be able to explain to the court how the disclosure exercise has been carried out and that it is reasonable and proportionate, taking into account the issues in the case (and in general the matters referred to in CPR Part 1)”.

21.	When this point was raised with the Treasury Solicitor one of the points that was made was that the Treasury Solicitor is going to need more time for disclosure.  The Treasury Solicitor replied as follows in a letter dated 13 March, yesterday: 

"You state that the Secretary of State has said that more time is needed to carry out searches.  That is not what was said.  As you know, the comment about the ease with which inquiries could be made was a response to the [point] you were taking on this aspect.  The position remains that the Secretary of State is satisfied that the court has such material as it needs to decide the matter and no further time is needed to carry out such searches.  Accordingly this concern falls away."

22.	With that I respectfully agree.  I am far less persuaded that any further searches or statements ought to be ordered in this case.  The guidance is there as guidance.  I do not doubt that they have been complied with.  There is already a wealth of material in this case the legal issues of which seem to me to be fairly straightforward or ought to be so.  Neither do I think it is terribly helpful in a case such as the present where it is suggested there might be guidance or there might be policy to escalate or accelerate that to the point that there must be such documents and therefore there must be a document in existence and a search must be carried out to see in fact where such document is.  As I mentioned to Mr Hussain, it is clear that this kind of exegesis is clear from the skeleton argument on behalf of the claimants in paragraphs 74 and 75 which say in effect this, that Ms McNulty stated in her witness statement at paragraph 3 that before 20 July 2011 “the relevant section of the EIG had contained no direction as to the length of grant which was appropriate in [Legacy] cases" but that "for the most part if a case worker decided to grant leave following [consideration of a Legacy case] the grant would be of indefinite leave to remain” [my emphasis].

23.	The points emphasised in that passage are the words ‘no direction’ and ‘if a case worker decided’.  This is then extrapolated in the following paragraph: 

"They proposition that some guidance was in existence before 20 July 2011 which directed the case workers to grant indefinite leave to remain and it is then further extrapolated one stage higher to the proposition that that means the Secretary of State must have filed to disclose that guidance. Candour would require it to be disclosed, therefore a search it follows must be made for that and such other documents."

As I say, I am by no means persuaded that that kind of exegesis leads necessarily to a justification for the disclosure, still less am I inclined to order the Secretary of State at this late stage to carry it out.

24.	I mentioned a moment ago that there was one further factor.  This application and the judgment has now taken half a day of a case that was supposed to last in its entirety a day and a half.  Having read the 32 pages and 35 pages respectively I have my grave doubts as to whether this case could ever have been done in a day and a half. 

25.	In summary I conclude much against my better judgment but in the exercise of my discretion that on balance I shall permit the cross-examination sought for by Mr Hussain.

26.	For the reasons that I have given and not least because I would in any event of the tentative view that I doubt whether this case could be done in a day and a half though that is not of course a reason for granting cross-examination of itself.  Both sides agree it is likely at the outset to add a day and a half.  That brings the estimate to three days.  I remain of the view that these cases could all be done in a far shorter space of time and what I propose to do is to direct with the assistance of a listing officer who has appeared at my request to vacate the case for today, adjourn this case to a fixed date today, which is likely to be in June before King J, I believe, and allow five days, the first day of which will be a reading day unless his Lordship then indicates that he wants further time.  The remaining three days will be devoted to the case.  Unless anybody thinks my mathematics is awry, that leaves a fifth day for overlap or for judgment writing depending upon how the case goes.   If the case goes shorter than that then I am sure the judge, whoever it will be, will appreciate the time for judgment writing.

27.	There are various other directions I am likely to make but I will hear counsel about that in a moment.  I should have added that I am not going to make any order about disclosure at all.

28.	I raised at the outset the question of amended statements of grounds and facts of grounds.  It does seem to me, and I remain of the view myself, that the case as put in the skeleton arguments, notwithstanding the courageous attempts of leading counsel to explain to me that it was really the same case, it is not my view entirely the same case as put forward but Ms Anderson has as ever with all counsel for the Secretaries of State over the years dealt with the case pragmatically and indicated she knows what the case is from the skeleton and is not going to insist upon any amendments.  I am content to leave it on that basis.

29.	There are two further points.  Firstly I have got or been provided with a witness statement of a Mr Salee which it is not at all clear to me why, where and what bundle it is supposed to go in even if it is in the bundle, and I will deal with that with counsel in a moment.  And last but by no means least, I for one have been helpfully provided with the skeleton arguments of counsel in an electronic form, which I always personally find extremely helpful.  However, the electronic form please should be MS Word and not a PDF, which is next to useless so far as judges preparing judgments are concerned.  

30.	That is all I have to say.