30/11/2015

When to call it a day…

Gitere, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 3336 (Admin)

The risks of a client deciding to go it alone at the last stage of judicial review proceedings.

Mr G is an asylum seeker, awaiting the outcome of his application in 2012. He had been dispersed to accommodation in Plymouth. Though solicitors he began JR pre-action protocol steps about the adequacy of his accommodation:

The Claimant’s then solicitors issued a Pre-Action Protocol Letter dated 25 September 2013 asserting that the accommodation to which the Claimant had been dispersed to in Plymouth was inadequate and inappropriate to the point of being injurious to the Claimant’s health. In particular it was contended that:
i) the multi-occupancy accommodation was also used by smokers whose smoking habit adversely and seriously affected the Claimant’s asthma;
ii) the accommodation in Plymouth was too far away from where the Claimant’s severely disabled child lived which was Yeovil, Somerset. The Claimant’s son suffers from autism and lives with the Claimant’s estranged partner, herself a UK citizen.

In response, UK Visas and Immigration confirmed that the Claimant was a vulnerable person within the meaning of The Asylum Seekers (Reception Conditions) Regulations 2005 regulation 4 because he suffers from asthma which is aggravated by smoking inhalation. the letter said that he would be allowed alternative accommodation in the Plymouth area.

Mr G, by his solicitors, then commenced a judicial review claim on the basis that smoke free, self contained accommodation nearer Mr G’s son was required. The JR was given permission.

About a year later, on 24 March 2015 TV Edwards solicitors for the Claimant came off the record.

On 26 March 2015 Lawrence Lupin solicitors came on the record as acting for the Claimant but have since applied to come off the record and took no part in this hearing. The judicial review hearing was listed for 15 April 2015 but was vacated by consent with a direction for the Claimant to notify the Court by 14 July 2015 whether he wished to continue the claim.

This was because the Secretary of State had offered alternative accommodation in Bristol, which was taken up, and also to pay the reasonable costs for travel for Mr G and his son between Bristol and Yeovil to maintain contact as well as offering to pay the costs of the JR. In August 2015, Mr G’s solicitors said that this would be accepted if the accommodation in Bristol had a separate bedroom for Mr G’s son at weekends. The Secretary of State refused as the self contained accommodation had been extremely difficult to source and Mr G’s son was not a dependant within the meaning of section 94 of the Immigration and Asylum Act 1999. The circumstances were also not exceptional. It seems that it was after this letter of 22 September that Mr G’s solicitors applied to come off the record.

At the full hearing fo the claim, Mr G was in person and argued:

i) the Claimant had received no further information as to when his asylum application would be finally determined or indeed what stage it was at. This was amplified at the hearing when the Claimant produced a letter dated 22 September 2014 sent by the Claimant’s solicitors to him which stated that following the Claimant’s interview on 12 September 2014 the caseowner confirmed “he will make a decision on your case on 26 September 2014.”

ii) as a result of the problems with the Claimant’s accommodation and the uncertainty surrounding his asylum application his former partner and the mother of his son together with the social services have concluded that he should not have further contact with his son until after his application for asylum is dealt with.

iii) in order to stand any hope of establishing contact with his son the Claimant will need to have a final decision regarding his asylum application and then, if that application is successful and he is allowed to remain, to undertake training so as to be able to look after his son’s special needs and recommence contact. There is at present no contact and such contact will only be obtainable either consensually with the child’s mother or by order of the Family Court.

While this was certainly a difficult situation for Mr G, these were not, of course, the ground of the judicial review. The Court found that the relief sought – self contained accommodation with easier access to Yeovil for Mr G to see his son – had been obtained and the claim had become academic. The other issues were not ones with which the court was seized.

The claim is therefore dismissed. I have heard the submissions from both parties regarding costs. The Defendant will pay the Claimant’s costs up to and including fourteen days after the date of the letter of 22 September 2015, therefore up until close of business on 6 October 2015. The Claimant should have accepted the offer from the Defendant by that time. Thereafter, the Claimant shall pay the costs of these proceedings, but if the Claimant can establish that he had the benefit of legal funding after 6 October 2015, this order may not be enforced, save by way of set-off, without an assessment of the amount which it is reasonable for the Claimant to pay pursuant to section 26(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Comment
To some extent, the question of whether Mr G’s funding certificate was live or not at the time of the hearing is academic. The costs of after 6 October will be a set off against Mr G’s legal costs in the JR. This is unlikely to affect Mr G overmuch, but will unfortunately hurt his (former) solicitors, as a set off against their costs in the JR, despite their success in obtaining the relief that Mr G had sought.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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