NO: C/2000/6010
Neutral Citation Number: [2001] EWCA Civ 371
IN THE SUPREME COURT OF JUDICATURE                      
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(MR JUSTICE JACKSON)
 
                                                                        Royal Courts of Justice  
                                                                                     Strand    
                                  London WC2
 
                             Friday, 9th March 2001

B e f o r e :

LORD JUSTICE PILL

and

LORD JUSTICE TUCKEY
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REGINA

‑ v ‑

SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte FULA ALFONSO
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171‑421 4040 Fax No: 0171‑831 8838
(Official Shorthand Writers to the Court)
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MS S SHARMA (instructed by H S Kang & Co, 24A Longbridge Rd, Barking, Essex 1G118RT) appeared on behalf of the Applicant.
MISS PHILIPPA WHIPPLE (instructed by Treasury Solicitor, London) appeared on behalf of the Respondent

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J U D G M E N T
Friday, 9th March 2001
1.	LORD JUSTICE PILL: This is a renewed and adjourned application by Mr Alfonso Fula for permission to apply for judicial review. The application was first considered following an oral hearing by Jackson J on 7th April 2000. The claimant challenges the decision made on 17th February 2000 to require the applicant to leave the United Kingdom. The facts need not be set out any more fully for present purposes.
2.	In a skeleton argument following the refusal of permission by Jackson J, counsel on behalf of the applicant raised a point upon the lawfulness of the procedure which had been followed. It is signed by counsel Mr Jason Elliott and raises a point on the application of schedule 2, paragraphs 8 and 10 of the Immigration Act 1971. It is submitted that upon the facts in this case only the Secretary of State and not an immigration officer was empowered by the Statute to set removal directions.
3.	The renewed application came before this Court on 26th January 2001, Waller LJ presiding. The first judgment was given by Sir Murray Stuart‑Smith with whom the other two members of the Court agreed. The Secretary of State was not represented on that occasion. The applicant was represented by Miss Sharma of counsel who also appears before this Court today. Other grounds for supporting the renewed application were rejected by the Court, Sir Murray Stuart‑Smith having said in terms:
“... I entirely agree with the single judge that there is no substance in any of them.” 
4.	The question of the validity of the removal directions was considered in paragrapahs 11 to 15 of the judgment. Sir Murray Stuart‑Smith continued:
“The only point which may be arguable is the point raised as the second ground in the skeleton argument and the first ground in the Form 86A.” 
5.	That is the point upon the validity of the directions, to which I have referred. Noting the lack of comprehensive documentation, Sir Murray Stuart‑Smith stated:
“14. What then is to be done with the present situation? In my judgment, the proper course here is to adjourn this one ground of application, namely the point raised in relation to the case of Pershotam Singh, for the Secretary of State to be represented in this court. We do not know whether there is substance in that point; on the face of it, there does appear to be. I think that the Secretary of State should have an opportunity to consider that point whether he wishes to contest it or whether, if it is a good point, he wishes to reconsider the matter and give directions for the removal of the applicant which he can do provided he reconsiders the point and exercises his direction in that way.
15. In order for the matter to be properly considered by the Secretary of State I would suggest that it should not be listed in under 28 days but should be listed as soon thereafter as may be. I would also direct that if leave is given on that occasion the hearing of the motion for judicial review should be determined thereafter by the same court which should be a two‑judge court of this Division.” 
6.	The Civil Appeals Office subsequently wrote to the parties identifying today as the date for the adjourned hearing and the letter to the Treasury Solicitor bears the same date as that of the notification to the applicant's solicitors which is 29th January ‑‑ approximately six weeks ago. A further letter was sent to the Treasury solicitor on 18th February:
“Please find enclosed further copy order and copy of the Court of Appeal transcript.
Can you please ensure that any skeleton argument you wish to file for the adjourned hearing on the 9th March 2001, is filed by the 23rd February 2001.” 
7.	The transcript there referred to is the transcript of the hearing on 26th January from which I have already quoted. No action was taken in the Home Office. The Home Office wrote to the applicant's solicitors on two occasions (2nd February and 26th February), requesting the bundle of documents which the applicant had placed before the Court. Unfortunately there was no response until Wednesday of this week. It was only then (two days ago) that the Home Office was stirred into action.
8.	I am bound to say that I find the failure of the Home Office to take any action following receipt of the letters from the Court and the transcript to be dismal. I understand the pressure of work and that they would wish to have the applicant's bundle. However, it is their documents which are in issue as Sir Murray Stuart‑Smith made clear in the judgment of 16th January. Moreover, the bundle contains (and must have been expected to contain) many documents which were the Home Office's own or documents to which they must have had access having regard to the history of this matter.
9.	On reading the papers but without full knowledge of the background, I requested the appearance of the Home Office at today's hearing. Whether and when that request reached the Home Office I am in no position to say and have no regard to that aspect of the matter, but we have had no explanation, save that the bundle was awaited, as to why the Home Office failed to take action sooner than they did.
10.	Miss Whipple of counsel has acted promptly when, eventually, I understand yesterday afternoon, she was instructed. She has rapidly produced a skeleton argument which outlines the relevance of the point which the Court on 16th January deferred for further consideration. In paragraphs 9 and 10 she states:
“9. If investigation reveals that no notice of attention to remove (or less likely, removal directions) was given to the carrier within the 2 months [that is two months of a very much earlier date], then the removal directions to the Claimant dated 17th February 2000, are ineffective. (see R v SSHD ex parte Parshotam Singh [1989] Imm AR 469).
10. However, the point is technical. The SSHD will, if that is the case, be entitled to cure the defect by issuing fresh removal directions under paragraph 10.” 
11.	Undertakings are offered as follows in paragraph 11:
“In order to deal with this point, the SSHD offers an undertaking through Counsel to (i) look into whether any notice of intention to remove, or removal direction, was given to the carrier within the 2 month period; and (ii) if it was not to set aside the invalid directions of 17th February 2000 (which has now anyway lapsed) and consider the matter afresh. Directions will be given under paragraph 10 if the SSHD thinks it appropriate to do so.” 
12.	Miss Sharma for the applicant submits that in the light of those events permission should be granted. The Home Office had the opportunity and have not come forward with evidence to establish the validity of the removal directions. She was however minded to accept the undertakings which have been given. That is a helpful offer made with the best of intentions.
13.	Miss Whipple submits that the application should now be refused upon the making of the undertakings in paragraph 11, which have been repeated to the Court. While I see the practical advantages in that, having regard to the wholly unsatisfactory recent history of the matter to which I referred, the Court should, in my judgment, remain seized of this matter.
14.	Therefore, I would propose to adjourn the application so that the Court will know what documentation is available to the Home Office. If Tuckey LJ agrees with that course we shall hear submissions as to for how long and on what terms the case should be adjourned. In my judgment the Court is entitled in this case to have an explanation, to see the documentation. To let this matter pass would be no incentive to the parties to assist the Court and their clients on subsequent occasions when points such as this arise. Plainly, the bundle should have been disclosed on the applicant's behalf. Miss Sharma at present, having conferred with her solicitor in Court, is unable to say definitely whether or not it was served, but I start with the assumption that it was not because had it been we would have been told so by the Home Office. That was unfortunate. Equally unfortunate in my judgment is the failure of the Home Office to take any action, having received two letters from the Court and the transcript, and having regard to the fact that the relevant documentation is, or should be, in their possession. The point was very clearly set out by Sir Murray Stuart‑Smith on 26th January.
15.	I would adjourn the application. I would only add that I would hope that further costs may be saved if the explanation is forthcoming. It may be, especially as Ms Sharma has given the indication she has, that this is a case where the Court may be prepared to take action refusing the application on paper by consent and on consideration of an explanation from the parties without there having to be a further oral hearing and the costs thereby involved.
16.	LORD JUSTICE TUCKEY: I agree.
(Application adjourned for 21 days; no order for costs)
(Order does not form part of approved Judgment)