In these straitened times the Ministry of Justice has had to crack down on the costs of the UK legal system. But there is one area where apparently money is no object: chasing 70-year-old Pakistani widows from Britain’s shores.
Even when their chums at the Home Office are on a two-year losing streak during which judges twice rejected the case for removing Razia Begum as “disproportionate” given she retains no ties in Pakistan, one last desperate (and expensive) throw of the dice was bankrolled by the public purse.
Thus it was that Home Office lawyers fetched up at the Court of Appeal a couple of weeks ago demanding another go at removing Mrs Begum, even though they had missed an appeal deadline a year and a half ago – owing to “mere oversight”. Their claim for an extension was based on the notion that they “had a good case” against Mrs Begum.
But “the need for litigation to be conducted efficiently and at proportionate cost” is a principle of legal procedure far pre-dating current MoJ rigours. So the notion that the Home Office could, at great expense, lay out its case before two Lord Justices to persuade them it was good enough for it to proceed, then at some later point lay out the whole case again before yet more learned justices during the substantive appeal was not one likely to find favour in the Court.
And nor did it. Lord Justice McCombe said pointedly:
“Such errors when they occur in the offices of private solicitors tend not to give rise to a legitimate excuse for delay warranting an extension of time. The situation is no different in this case.”
There is no special rule for public law cases allowing the Government to get back into a game it has lost by default just because it considers it a matter of public interest. So “the importance of the issues to the public at large can properly be taken into account” but “public authorities have a responsibility to adhere to the rules just as much as any other litigants”, said McCombe.
He drew these principles from R (Hysaj) v Secretary of State for the Home Department  EWCA Civ 1633 , a case in which an asylum seeker had asked the court for an extension after missing an appeal deadline. Funnily enough the Home Office on that occasion was dead set against such an extension – but the Court of Appeal justices granted it. They said the delay was not “serious and significant” in that, although long, it would not have an effect on the proceedings. (The delay had occurred while waiting for permission to appeal whereas the appeal should be lodged within 21 days of the decision appealed.) The Lord Justices were not swayed unduly by the merits of the appeal or the public interest. So in the case of Mrs Begum, McCombe LJ noted that:
“There was little, if any, public interest in the appeal being heard. The decision in the case would have been no more than an illustration of the application of well-known principles to the facts of the present case. I would add that the case turned upon a version of the relevant Immigration Rule that is no longer in force. Hence it is, to my mind, impossible to identify how the present case satisfied the relevant test for a grant of permission to appeal in the first place.”
Basically he is saying it would be a waste of the Court of Appeal’s time to hear the substantive appeal since no point of law relevant to future cases was at stake viz “no real issue of principle or practice is raised in the case at all”. The Court exists to deal with legal issues arising from cases and, he might have added, not to rubberstamp the deportation of 70-year-old widows whose brother, two sons, two daughters (married to British citizens) and 12 grandchildren have lived in the United Kingdom for many years and are all British citizens.
McCombe concluded: “If a similar mistake had been made by solicitors in a private law case, there would have been no question of an extension of time being granted. As Moore-Bick LJ said in Hysaj there is no special rule for public authorities and in this case there were no issues of importance to the public at large.”
Other Immigration items of interest are here: Immigration on Al’s Law
The Razia Begum case can be read here: Secretary of State for the Home Department v Razia Begum (thanks to Bailii.org)
See also: Gordon Exall looks at the case on Civil Litigation Brief
Principles regarding public law cases
Moore-Blick LJ in R (Hysaj): Although many public law cases raise matters of great public interest, that is not invariably the case and indeed many private law cases raise questions of great significance to the public as a whole. Quite rightly, in my view, the Rule Committee has not made special provision for appeals from the Administrative Court to the Court of Appeal and it would be quite wrong for us to construct a special regime for such appeals outside the rules. Insofar as there is a suggestion to the contrary in R (Mohammadi) v Secretary of State for the Home Department  EWHC 2251 (Admin) I respectfully disagree with it. Nonetheless, I would accept that the importance of the issues to the public at large is a factor that the court can properly take into account when it comes at stage three of the decision-making process to evaluate all the circumstances of the case. For similar reasons I am unable to accept that the court can construct a special rule for public authorities. I am well aware that the resources of many public authorities are stretched to breaking point, but in my view they have a responsibility to adhere to the rules just as much as any other litigants. (Paras 41-2)
(i) if the failure to comply with the relevant rule, practice direction or court order [in this case getting an appeal notice in on time] can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly;
(ii) if the failure is not trivial, the burden is on the defaulting party to persuade the court to grant relief;
(iii) the court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted, but merely overlooking the deadline is unlikely to constitute a good reason;
(iv) it is necessary to consider all the circumstances of the case before reaching a decision, but particular weight is to be given to the factors specifically mentioned in [Civil Procedure] rule 3.9.
See: Mitchell v News Group newspaper Ltd.  EWCA Civ 1537 and Denton v TH White  EWCA Civ 906
Rule 3.9 says: (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need
a) for litigation to be conducted efficiently and at proportionate cost; and
b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence.
i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.
ii) The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. ) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.
iii) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders. As listed in para.  of the judgment in Denton.
The Immigration Rules considered by the courts in R (Begum) included this at 276ADE (1) (vi):
“[The applicant] is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”.
This, as McCombe noted, was changed in 2014 so the words “has no ties (including social, cultural or family) with” was replaced with: “there would be very significant obstacles to the applicant’s integration into”. Statement of changes 10 July 2014 (pdf).
This seems to raise the prospect that a person might have no ties with their country of origin but courts could make judgments on whether they could form such ties if sent there. As one commentator noted at the time of the change: “We can perhaps expect more goal post shifting of this nature in future: as the judges get to grips with novel new tests proposed, yet more creative ones will be proposed.”
Colin Yeo: Freemovement.org