JUDGE FOUR PER CENT
Updated 11 July 2018
My client was a young woman from Bangladesh. Her husband was a British Citizen, and he had brought her to England as a wife. They had a baby, who was British by descent from his father.
The husband was violent.
After the second hospital admission she went home and took the baby, and fled to a relation.
The relation tried to negotiate a reconciliation, but the husband would not accept that he did not have a right to chastise his wife when she needed it. He was willing to promise to be less violent.
The young lady pointed out that the two hospital admissions were not the only violence she had received. There was regular violence and she did not want it.
Negotiations broke down.
The Immigration Problem
I was an immigration lawyer rather than a Family lawyer.
I was asked to deal with the Immigration problem. As a wife, she had been admitted to the United Kingdom for two years. Assuming all was well, at the end of the two years her husband would apply for her to be given indefinite leave. Her leave had expired by now, and they were not living together.
I wrote to the Home Office asking for her to be allowed to stay on compassionate grounds.
Her family back home were living quite close to the husband’s family. They were embarrassed by the collapse of the marriage, which was perceived in the village to be the client’s fault. A good wife should not behave in such a way that it was necessary to beat her.
Her parents had made it clear that they could not take her back.
Life is hard in Bangladesh for almost everyone.
A young woman with a baby, homeless and destitute, was going to have a really bad time. Unless she could find somewhere to live they would live rough – sleeping outside.
A young woman in that situation is subject to predators.
It was unlikely that the baby would get enough to eat. Education and health care were simply not going to happen.
If the child lived to be an adult he would be landless and illiterate.
The Home Office wrote back to say that they were going to remove the woman to Bangladesh. The child was a British Citizen, and they had no wish to remove him. If the woman wished she could leave the baby here, or the Home Office would kindly pay his fare so he could be with her. As the Home Office were not doing anything to the child, they had no duty to consider the child’s welfare.
I could not go down the Immigration Court route, because the Minister was within the letter of the law, and the Immigration Court did not have the power to overrule him.
The only road open was by way of Judicial Review. This was an application to the High Court, and a High Court Judge could rule that the Minister had misdirected himself in thinking that he did not have to consider the baby’s welfare.
The process was that I prepared an application to send to the court.
The application explained what decision I was complaining about, what order I wanted the court to make, and it contained all the letters and other information the judge might need to decide the case. It went off to the Court.
Public Interest Research
The High Court had a system for dealing with all the applications for Judicial Review. Each week a different High Court Judge was “duty Judge”. He sat on all the applications for injunctions that week.
Injunctions are urgent applications to the court to order an opponent not to do something – not to cut down a tree, demolish a building, remove a child from the United Kingdom etcetera. I once obtained an injunction against another solicitor to stop him parting with money to his client because my client had a claim on it.
The workload for the duty Judge was variable, depending on the number of injunction applications. To keep him fully busy, all the applications for judicial review that arrived that week were given to him to make an initial decision.
He was not deciding the case. He was only deciding whether the application had enough legal merit to be worth the High Court listening to the case. If he agreed that the case had some legal merit he would “grant leave”. If not, he would “refuse leave”. The “leave” was an acceptance that the case had some merit and deserved a hearing.
A Public Interest legal research group had conducted research into this process. They found that some judges granted leave on 80% of the immigration applications. This differed from judge to judge, one of them granting leave to only 4% of applications!
This Judge became known in Immigration circles as “Judge Four Per Cent”. No-one was supposed to know which judges allowed which percentages, but this judge was already known as “tough”.
Judge Four Per Cent Strikes
The application made was refused leave. I was astonished.
The next step was an “oral application” where my barrister would argue with a different Judge that there was enough legal merit to have a hearing. I chose a good barrister, sent him all the documents, and I waited for the oral application result.
The barrister telephoned me after the hearing.
The barrister had discovered on the morning of the case that his Judge was “Judge Four Per Cent”.
Sick to the stomach he had gone to court ready for a major battle, and already thinking about possible grounds of appeal. The Home Office team turned up. They were fairly cheerful, seeing who the judge was.
When my barrister stood up to open the case, the judge told him to sit down.
The judge turned to the Home Office barrister and indicated that he should rise.
The judge told the Home Office barrister that this was the most disgraceful decision that he had ever seen.
It was simply not possible to make a decision about the woman without thinking about the impact on the child. If they were to be separated so young, what would the effect be on the child? If the child went to Bangladesh, what would the effect be on the child?
Either way, for the Home Office to say that the Minister did not even have to think about the child was a gross error.
The barrister was told to pass on “to those instructing you” the Judge’s comments.
Leave was granted.
The Judge said he was taking the unusual step of ordering that he would hear the full application if the case got to a full hearing. “Those instructing you” should be invited to review the case in the light of the Judge’s views.
Then he turned to my barrister.
“You would like an order for costs. Granted. Anything else?”
“No Your Honour”.
My barrister was still in a state of shock when he telephoned me. If Judge Four Per Cent felt that way about the case, the Home Office would be absolutely mad to carry on.
About two weeks later, the Treasury Solicitor (the Government’s legal section) wrote to me to say that the client was being allowed to stay and asking me to withdraw my case. I had a technical right to insist on the case being heard even though the Home Office had now conceded. I agreed to withdraw it.
A year later, my firm had attracted about 30 similar cases, and none of them needed to go to court. I had a female paralegal processing them, and it was just a matter of waiting for the Home Office to grant them permission to stay “outside the Immigration Rules”.
Some years later the Home Office brought in a Domestic Violence concession, setting out what evidence they needed. Later on, it became a category under the Immigration Rules.
I like to think that my efforts, together with Judge Four Percent, made a difference to this kind of case.