Case No: CO/4868/2015
Neutral Citation Number: [2015] EWHC 3377 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/11/2015

Before :

MR JUSTICE EDIS
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Between :

	EHSAN MAZAHERI	Claimant	
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	SSHD	Defendant	

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Keelin McCarthy (instructed by Lawrence Lupin Solicitors) for the Claimant
Tom Poole (instructed by Government Legal Service) for the Defendant

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Judgment
Mr Justice Edis : 
1.	On 14th October 2015 I heard an application for permission to bring judicial review proceedings and, if permission is granted, for a determination of that claim.  An injunction had been granted restraining the defendant from removing the claimant to Iran and the hearing had been ordered to come on very urgently.  This explains the activity of the parties right up to the start of the hearing, and did not assist in the resolution of a potentially complex claim.
2.	I dismissed the application on grounds 1, 4 and 5 of the Amended Grounds and adjourned the application on grounds 2 and 3 for written submissions with a view to giving my decision in writing without a further hearing.  This is that decision.  It follows the ex tempore judgment which I gave at the conclusion of the hearing on 14th October and I shall not repeat that.  I have also received an application for permission to appeal against my decision to dismiss the application on grounds 1, 4 and 5 by the claimant.  Finally, I have been asked to determine the costs issue.
3.	The Amended Grounds are those identified in the Claimant’s Skeleton Argument dated 14th October 2015.  On 14th October I gave leave to amend the Grounds so that they reflected those 5 contentions which appear with supporting arguments at pages 26ff.  This was not opposed by the SSHD.
4.	Essentially, I held that the decision letter of 13th October 2015 dealt with all the evidence which had been lodged on behalf of the claimant in support of his application and that it cured the failings in earlier decisions.  The principal failure in those decisions was they did not deal with evidence which had been lodged, because it had not been placed before the decision maker.  The remaining Grounds are
i)	Ground 2: Unlawfully detaining C on 28/09/2015 despite being on notice that he had outstanding submissions that had not been considered.  The claimant alleges that because he was detained on 28th September 2015 on the basis of invalid determinations his detention between that date and the 13th October 2015 when a fresh decision was made was unlawful.  That detention occurred in reliance on the decision of the 4th September 2015 which was flawed for the reasons given in my earlier judgment.
ii)	Ground 3: Breach of Policy by setting and then maintaining directions for removal of A to Iran despite being on notice that there were outstanding human rights submissions that had not yet been considered.  On 14th October this was another way of relying on the failure at the time of the first two decisions to place all relevant evidence before the decision maker.  Since the hearing and in his written submissions, the claimant has expanded the way in which this is put.  A technical argument is now made that the wrong form was used when removal directions were served on 29th September 2015.  He was given notice under Part B where he should have been given notice under Part C, so it is now said.  Under Part B he would be given a 3 month window during which he would be removed, but that window would not start until a minimum period of 72 hours to seek legal advice had elapsed.  It applies to people who are detained.  Part C applies to persons without leave to remain who have a protection or human rights claim or administrative review or appeal pending.  This simply says that the person will be given further notice of when he will be removed.  It is a less draconian procedure.
5.	These grounds relate to the consequences of decisions which are no longer operative, having been succeeded by a new decision which is not flawed by the defects alleged against the earlier ones.  They are therefore somewhat less urgent and it was appropriate to allow the parties to consider the implications of my ruling on 14th October as well as what had happened on 13th October and make considered submissions about them.
Discussion and Decision
6.	I have received no detailed submissions on the proposition that a decision to detain made after an unlawful decision to refuse to accept a submission as a fresh claim is itself rendered unlawful giving rise to a claim in damages.  I am not prepared to assume that this is so and it appears to me that this issue is best dealt with by way of a private law claim for damages which I direct shall continue as if started by a Claim Form under Part 7.  I shall transfer it to the Central London County Court and direct that it be listed before a District Judge for a Case Management Conference so that directions for statements of case and any other necessary directions can be given.  
7.	I decline to permit the claimant to amend his Grounds further to raise the new point about the use of the Removal Directions form.  It appears to me to lack merit because the claimant’s new submissions did not raise a fresh claim, and also to be academic because no doubt new Removal Directions can now be given in the same form, Part B, because there is now no doubt that there is no claim pending.  The SSHD has decided that the new submissions do not raise a fresh claim and that decision, taken on 13th October 2015, was lawful.  It is not appropriate or proportionate to pursue this argument in these urgent proceedings by raising a new substantive ground in written submissions after the hearing has concluded.  I am also not clear that success on this point would achieve anything at all for this claimant.
8.	Ground 3 as it originally stood raised a similar claim to Ground 2.  It contended that the Removal Directions were unlawful because they followed a flawed decision on the fresh claim issue.  I dispose of it in the same way as Ground 2.
9.	The fact that I have ordered Grounds 2 and 3 to continue as if started by a Part 7 Claim Form in the Central London County Court should be read as any encouragement to the claimant to pursue them.  The loss if he establishes his claim under Ground 2 is modest and I can see no loss flowing from Ground 3, even if it is well founded.  I am deciding only that these claims are best pursued, if at all, by private law action.  They no longer seek any public law remedy.
10.	I refuse permission to appeal against my decision on 14th October 2015.  The claimant will have to seek permission from the Court of Appeal if so advised.  I have yet to see and approve the transcript of my judgment on 14th October 2015 and do not propose to give further reasons for this refusal in these circumstances.  I shall complete the usual form when I receive that transcript which I shall endeavour to expedite.
Costs
11.	The claimant seeks his costs on the basis that until 13th October 2015 his claim would have succeeded in part or in its entirety.  That, if granted, would have resulted in a quashing of the decision of 4th September and an order that a fresh decision be taken on all the available evidence.  That remedy was effectively conceded by that fresh decision being taken on 13th October 2015.
12.	In essence therefore these proceedings were properly brought at least on the findings I made on 14th October 2015.  In those circumstances I agree with the submission that the claimant should have the costs up to and including that hearing.  I noted in my judgment that there was a significant delay between 4th September 2015 and 28th September when the claimant became aware of the first decision on his “fresh claim” application.  Had that not happened, matters might have been resolved by speedy correspondence before any proceedings became necessary.  The problem with the 4th September decision was that an important piece of evidence had been overlooked.  In the rush which followed the 28th September 2015 a second decision was made which overlooked some further evidence which had been supplied. 
13.	For these reasons I consider that I should make an order that the defendant pays the costs of these proceedings on the standard basis to be assessed if not agreed.  I will ask the parties to agree an order which reflects this judgment and ensures that the costs order is correctly stated.