IN THE UPPER TRIBUNAL

R (on the application of Poyraz) v Secretary of State for the Home Department IJR [2014] UKUT 00151(IAC)

Field House,
Breams Buildings
London
EC4A 1WR

 Friday, 28 February 2014

Before

UPPER TRIBUNAL JUDGE warr
upper tribunal judge peter lane

Between

mehmet poyraz

Applicant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑

Mr E Fripp (Counsel), instructed by Danielle Cohen Solicitors appeared on behalf of the Applicant.

Mr T Roe (Counsel) instructed by the Treasury Solicitor appeared on behalf of the Respondent.

‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑

APPLICATION FOR PERMISSION

JUDGMENT

‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑

JUDGE warr: The applicant is a citizen of Turkey born on 20 February 1957.  Permission to bring judicial review proceedings was granted by the Upper Tribunal on 14 January 2014 to challenge a decision to deport the applicant dated 29 October 2013.  The application also requested a declaration that the respondent consider an application made in 2004 and that the respondent might no longer lawfully exercise her power to deport the applicant by reference to a conviction in September 2000.

2.	There has been a long and unfortunate history to this matter.  The applicant arrived in this country, aged 14, in or about 1972 and was granted indefinite leave to remain on 1 April 1976, aged 19.

3.	On 20 January 1984 the applicant married a Turkish national who was granted British citizenship on 12 October 2001.  The couple have three children born in 1985, 1987 and 1994 respectively.

4.	In February 1995 the applicant was charged with possession of class A drugs and a firearm.  It is common ground that the applicant absconded in March 1995 and went to Turkey where he remained until May 2000.  On his return he was arrested and convicted on 26 September 2000 and sentenced to three years’ imprisonment.  He was in custody for fifteen months and discharged on 19 September 2001.  There are unfortunately no records kept by the Probation Service due to the length of time since these proceedings.

5.	The applicant had been granted leave to enter in 2000 apparently on a one year spouse visa but it does not appear to be in dispute that by the time the applicant applied for leave to remain as a spouse on 26 February 2004 his leave had lapsed.  Apart from a drink driving fine of £100 in March 2004 the applicant has not been in trouble since his conviction.  

6.	It is common ground that there has been an extremely regrettable delay in dealing with the applicant’s application.  It is clear that the applicant was making repeated representations about his position including representations to the Prime Minister.  

7.	On 11 February 2013 the respondent notified the applicant that it was proposed to deport him following his conviction in 2000.  Two decisions to deport the appellant had been taken, the first on 21 May 2013 and the second on 29 October 2013.  There had been various attempts to express the reasoning for the Secretary of State’s decisions in the accompanying letters of refusal. Following the first decision the applicant’s appeal came before Judge Lobo on 28 June 2013 who apparently expressed concern at the legality of the decision under challenge.  On 3 July 2013 a revised decision letter was issued by the respondent.  The applicant’s appeal subsequently came before Judge Omotosho and a non-legal member on 23 October 2013.  On that day the judge records that the Presenting Officer sought to withdraw the decision to deport and apologised for the delay in making the application.  He explained that efforts had been made prior to the hearing date to clarify the matters and withdraw the decision and acknowledged that the decision made appeared to be not in accordance with the law but unfortunately the case-worker who had initially made the decision was no longer working for the Criminal Casework Directorate (CCD).  The judge records the Presenting Officer as saying that “as the CCD was the only department entitled to make a decision as to withdrawal, he had to wait to get authority to withdraw and this was only made recently”.

8.	Judge Omotosho records Mr Fripp (who was then representing the applicant, as he does before us) stating that while the delay in informing the applicant of the respondent’s decision was regrettable “nevertheless there was no objection to this.”  He requested the judge, however, to make observations about the applicant’s special circumstances.  The respondent’s decision was not in accordance with the law and it was also unfair to make a decision to deport bearing the applicant’s lengthy residence in the United Kingdom, his community ties and the length of time that had elapsed since the offence and conviction.  He referred to the applicant’s family life in the United Kingdom with his wife and children, his medical condition and the lack of any further offending over the previous nine years.

9.	The First-tier Tribunal acceded to the request to make observations noting, among other things, that the respondent had treated the applicant’s case as one to which the UK Borders Act 2007 applied, when it did not.  The judge said in terms that had the decision not been withdrawn the Tribunal would have found in favour of the applicant both in relation to the lawfulness of the decision to deport and on the issue of proportionality.  

10.	Following these observations came the decision of 29 October 2013, accompanied by a further revised decision letter. In relation to the 2007 Act it is fair to say that a reference to that Act does appear in the earlier refusal letters at paragraph 20 but the reference has been removed in the corresponding paragraph of the letter of 29 October 2013.  The applicant lodged an appeal against the 29th October decision as well as instituting the judicial review proceedings herein on 12 November 2013.  

11.	The First-tier Tribunal has listed the applicant’s hearing of that appeal on 6 May 2014.  

12.	It is the position of the respondent that the applicant has an alternative remedy and submits that the appeal before the First-tier Tribunal does constitute a convenient and effective means of redress and reference is made to Kay v Lambeth London Borough Council [2006] 2 AC 465 at paragraph 30 per Lord Bingham of Cornhill:
“30. The respondents submitted that if, on article 8 grounds, an occupier wishes to resist a claim for possession valid under domestic property law, the proper medium for such a challenge is an application for judicial review and the proper venue the Administrative Court and not the county court. That is the proper forum in which a challenge to an exercise of public power by a public authority should be resolved. If this were a correct submission it would have to be accepted, but it would have very unfortunate procedural consequences. It would lead to the adjournment of the county court proceedings while application was made for permission to apply for judicial review. Even if permission were refused, as would almost always be the case, there would be additional expense and delay, preventing summary disposal of the matter in the county court. The occupier would be restricted to a procedure not well-adapted or routinely used for the resolution of sensitive factual questions and to a court traditionally and rightly reluctant to explore the merits of an apparently lawful decision, as it proved to be in Connors' case. But in my opinion it is not a correct submission. Effect must be given to section 7(1)(b) of the 1998 Act, which provides: 
"(1)  a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) [i.e. in a way which is incompatible with a Convention right] may … 
(b)  rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act." 
This is express authority entitling the occupier to raise his article 8 challenge to the possession order sought against him in those proceedings. It is consistent with authorities such as Wandsworth London Borough Council v Winder [1985] AC 461 and Boddington v British Transport Police [1999] 2 AC 143, and respects the principle that if other means of redress are conveniently and effectively available to a party they ought ordinarily to be used before resort to judicial review: see, for example, R v Huntingdon District Council, Ex p Cowan [1984] 1 WLR 501, 507. Where a party seeks relief, on conventional judicial review grounds, which only the Administrative Court can grant, there will, of course, be no alternative to an application for judicial review, but that will very rarely, if ever, be the case where an occupier seeks to resist a possession order in reliance on article 8.”
13.	Mr Fripp argued that permission had been granted and issues as to alternative remedies were to be considered at the threshold stage.

14.	Having considered the matter we decided that we would hear argument on the alternative remedy point first as a preliminary matter.  Mr Fripp relied on the reply that he had served to the respondent’s detailed grounds of defence.  He pointed out, by reference to R (Shoesmith) v Ofsted [2011] EWCA Civ 642 that the existence of a statutory appeal did not oust the jurisdiction of the court and the relevant question was whether the alternative remedy was equally effective and convenient.  

15.	He pointed to the very significant delay and hardship occasioned to the applicant by virtue of the respondent’s conduct.  The applicant was unable to travel outside the United Kingdom for fear of not being permitted to return and had made persistent enquiries over the years about his application.  He had been significantly prejudiced by delay.  He had suffered stress.  He had had a stroke.

16.	Mr Fripp referred to the respondent’s track record in the case and submitted that the statutory appeal system had already been shown to be susceptible to manipulation and delay by the respondent through withdrawal of previous decisions.  A decision had been withdrawn on the morning of the hearing on 23 October to be replaced in virtually identical terms on 29 October.  There was a potential for almost indefinite delay.  The same might happen in the future.  

17.	The applicant could not visit his elderly relatives in Turkey.  The applicant would not have the benefit of legal aid in the appeal proceedings. There was the issue of the application being made in 2004 and the delay in reaching a decision in that matter.

18.	Issue was taken with the overall conduct of the respondent in the case and the lawfulness of deciding to deport the applicant after such a lengthy delay.  These wider issues were more suitable to be dealt with by judicial review.

19.	Previously it might have been said that the appeal proceedings would provide a hearing before an expert Tribunal but as the matter had come before the Upper Tribunal by way of judicial review that point was no longer a good one.

20.	Mr Roe submitted that the existence of an alternative remedy was a relevant matter, notwithstanding that permission had been granted.  He referred to R v Falmouth and Truro Port Health Authority ex parte South West Water Limited [2001] QB 445. If the applicant had a statutory right of appeal permission should only exceptionally be given – see at page 473 per Simon Brown LJ.

21.	Mr Roe submitted that the First-tier Tribunal would have the powers to deal with all aspects of the case including the lawfulness of the decision and the other matters relied upon.

22.	Mr Fripp had argued that an authoritative ruling was required but it was submitted that the case turned on its own facts.  Mr Fripp had also pointed out that the applicant would not have the benefit of legal aid before the First-tier Tribunal but it was a matter for Parliament how public resources were deployed.  The point relating to delay was noted but the Tribunal hearing was not in the distant future.  In respect of the point based on expertise it would depend on which High Court Judge one was appearing in front of – some judges might have very deep knowledge of the jurisdiction.

23.	In relation to the concern that the respondent might withdraw the decision at the last moment it had not been suggested hitherto that the respondent’s approach had been based on cynicism and was an abuse of process.  An explanation had been given for the late decision to withdraw.  The decision-making process might not be a model but a letter had been recently issued on 17 February 2014 supplementing the earlier letters.  In the letter of 17 February it was acknowledged that the matter of deportation was finely balanced.  

24.	The balance of convenience rested firmly with the matter being determined by the First-tier Tribunal who could hear oral evidence and resolve all matters and make a decision with directions if appropriate.  The applicant had an alternative remedy.  The legal effect of the matters being canvassed before the First-tier Tribunal would be indistinguishable from the matters as determined on judicial review.

25.	Having had the benefit of the submissions of the parties we informed them that we would be dismissing the application on the alternative remedy point and that reasons would follow. We now give these reasons. 

26.	Firstly we are satisfied that it is appropriate for us to consider the question of the alternative remedy notwithstanding the grant of permission.  Upper Tribunal Judge Gill when granting permission on the papers made it plain that she was only considering the arguability of the issue that the appeal hearing might not afford an adequate alternative remedy and she further observed that she only had a very brief Acknowledgment of Service.

27.	We accept Mr Fripp’s point, by reference to R (Shoesmith) v Ofsted, that the existence of an alternative remedy does not oust the jurisdiction of the court. We note the reasons given at paragraphs 97 to 99 per Kay, L.J. including the observation in paragraph 99 that “in the unusual circumstances of this case there was much to be said for keeping the claims against the three public authorities within one set of proceedings, which could only be the judicial review proceedings.”  

28.	However, we find the factors in the present case point very much the other way. It appears to us that it would be quite wrong to ignore the fact that an appeal hearing is in fact imminent.  Apart from the fact that Parliament has conferred a right of appeal on an appellant that would ordinarily provide the appropriate remedy, there is every indication that it would in fact be a more effective remedy than judicial review.  For example, on judicial review, it is rare to hear oral evidence whereas it is routine to hear oral evidence before the First-tier Tribunal.  The appellant and his family can give evidence if so advised.  The Tribunal can make findings of fact.  Most importantly, if it allows the appeal, it can make directions under section 87 of the 2002 Act to give effect to its decision. Such directions bind the respondent.  

29.	It is quite clear that the First-tier Tribunal has power to deal with errors of law and indeed the First-tier Tribunal made it plain what the Tribunal would have done had the appeal proceedings not been withdrawn by operation of rule 17(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 on notification that the deportation decision had been withdrawn.  Despite Mr Fripp’s valiant attempts we are unable to see how the applicant’s position could possibly be improved by any remedy the High Court could issue and indeed bearing in mind the history there is every indication that were we to make the orders requested, far from being an effective and convenient remedy, the result would be further delay. Mr Fripp acknowledged that, even if the applicant were to get the deportation decision quashed, together with a declaration that precluded the respondent from deporting the applicant on the basis of the facts as they currently stood, he would still have to await the respondent’s further decision. This falls to be contrasted with the First-tier Tribunal’s ability to make a direction that leave be granted if it finds the deportation decision falls to be differently decided and/or that Article 8 prevents the applicant’s deportation.

30.	We should make it clear that we are far from unsympathetic to the applicant and his predicament bearing in mind the lengthy history of this case.  However we find that in fact not only is the Tribunal the appropriate forum but it is in fact the better forum from the applicant’s perspective. We do not consider the fact that decisions have been withdrawn at the last minute in the past raises the spectre that the same will happen in May.  The respondent has issued a further explanatory letter and we are not prepared to draw the inference - and indeed Mr Fripp does not invite us to draw the inference - that the respondent’s conduct in this matter evidences a cynical manipulation of the system.  

31.	Nothing can be guaranteed; but we see no reason to suppose that the hearing in May should not go ahead as planned. That hearing should conveniently and effectively resolve the applicant’s case. Accordingly the applicant has an alternative remedy and this application is refused.  ~~~~0~~~~