Litigation Recent Decisions 23/07/96

Married illegal immigrant not to be expelled

R v Secretary Of State For The Home Office, Ex Parte Urmaza.

QBD (Sedley J) 11/7/96.

Summary: Decision to remove illegal immigrant married to a woman settled in the UK for five months before enforcement action was taken against him, quashed.

Application by a Filipino seaman who had jumped ship in the UK in March 1993 and had since married a Filipino woman with indefinite leave to remain in the UK, for judicial review of the Home Secretary's decision for his removal. Before this decision his wife had given birth to a daughter. Held: Para.2 of Home Office Policy Document DP/2/93 begins: "As a general rule deportation action… or illegal entry action should not be initiated or pursued where the subject has a genuine and subsisting marriage to a person settled in the UK if (a) the marriage pre-dates the enforcement action…" While the respondent contended that enforcement action began at the moment applicant was reported missing, the applicant contended that no enforcement action was taken against him until almost five months after his interview with the immigration authority, by which time he had married a woman settled in the UK and a daughter had been born to them. In the court's judgment the Secretary of State erred in law in excluding the applicant from consideration under a policy which in its plain and ordinary meaning applied to him. On that ground certiorari would issue to quash the Secretary of State's decision of 7/11/95 to remove the applicant and mandamus would go to require the Secretary of State to determine the applicant's application to remain according to law. The respondent would be granted leave to appeal.

LTL 12/7/96

No recoverable loss when asset value does not fall

Duckwari Plc v (1) Offerventure Limited (2) Brian Stanley Cooper.

Ch.D (Paul Baker QC) 11/7/96.

Summary: Assessment of company's loss as nil on a property purchase where the market value at the date of the transaction is no different from the price paid.

Claim by the applicant for an indemnity against the first respondent and its directors and the second respondent, one of the applicant's directors. All the shares in the first respondent are owned by the second respondent and his wife and as such the first respondent is 'connected' for the purposes of s.320 and s.346. On 7/7/94 the Court of Appeal affirmed a decision of deputy judge Robert Reid QC that an arrangement between the applicant company and the first respondent pursuant to which the applicant took over from the first respondent a contract which the first respondent had made for the purchase of freehold property, was entered into in contravention of s.320 and this inquiry as to damages suffered by the applicant was ordered. On 6/4/89 the first respondent agreed to purchase a freehold property, 12 Corporation Street, High Wycombe, for £495,000 and paid a 10 per cent deposit to stakeholders. On 24/8/89 the second respondent wrote to a co-director of the applicant offering to pass the property on to the applicant at cost price, with the second respondent sharing with the applicant 50 per cent of any profit arising from the development of the land by the applicant but not bearing liability for any loss. The offer was accepted and approved by the applicant's directors but never approved at any general meeting of shareholders. The purchase was completed on 9/11/89 when the applicant paid £495,000 to Nabarro Nathanson, solicitors instructed by the second respondent, £445,500 being paid to the vendors and £49,500 to the first respondent. The property market then collapsed. The applicant was unable to maintain payments on its bank borrowing. The applicant's directors resigned and nominees appointed by the lending bank commenced these proceedings to enforce the indemnity for the loss claimed to have resulted from the fall in market values since the date of the transaction. The claim was for £405,000 on the value with consequential losses of purchase costs, bank loan interest, loss of investment interest and incidental expenses making a total of £854,126 as at 9/9/94.