England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE PENRY-DAVEY)

		Royal Courts of Justice Strand London WC2 Monday, 9th July 2001

Monday, 9th July 2001

1. LORD JUSTICE RIX: This is the application of Mrs Shokunbi for permission to appeal against the judgment of Penry-Davey J given on 9th February 2001. Mrs Shokunbi is not present and there is no one here to represent her. This application was due to come on at 12.30. It is now nearly 2.20 pm so I propose to go ahead and deliver judgment.
2. Mrs Shokunbi is a visitor to this country who has overstayed her permission to stay. She entered the United Kingdom originally as a visitor with a one-month permit on 8th September 1985. Following various extensions of her leave to remain as a student, which came to an end on 12th May 1988, and a refusal of her further application to remain as a student in March 1989, she thereafter remained without permission.
3. On 28th September 1990 she was warned of her liability to deportation and instructed to leave, although there is a question mark as to whether or not that letter was received by her until, at any rate, January 1994. At some time she began a relationship with Mr Shokunbi who is now her husband. On 31st January 1996 her application to remain based upon that common-law relationship was refused.
4. On 12th October 1996 she married her husband. A few days later, on the 24th October 1996, she made a fresh application to remain based upon her marriage. By that time the previous policy in relation to family ties of those who had overstayed their permission contained in DP2/93 had been replaced by the new policy known as DP3/96. It was the latter policy which applied to her application of 24th October 1996.
5. On 22nd January 1998 there was a decision to refuse her application for leave to remain based upon her marriage; on 28th January 1998 there was a decision to deport her. She appealed against that decision to the special adjudicator whose refusal of that appeal, at which Mrs Shokunbi did not appear, was made on 3rd August 1999. Mrs Shokunbi sought leave to appeal from the special adjudicator's decision to the Appeal Tribunal but it refused her application for permission by its decision notified on 4th October 1999. There was then a deportation order on 17th February 2000.
6. By letter dated 18th April 2000 Mrs Shokunbi wrote to the Immigration and Nationality Directorate (the "IND") requesting a revocation of the deportation order on the grounds set out in that letter. Essentially she relied upon the length of her residence in this country and on compassionate circumstances such as her marriage to a person resident and settled in the United Kingdom preceded by common-law cohabitation, and submitting, in essence, that it was unfair that her case had not been considered under DP2/93 which she submitted it ought to have been, whereas if her case was now considered under that policy permission to remain would be granted.
7. On 20th May 2000 there came IND's response and decision not to revoke the deportation order. It is from that decision letter of 20th May 2000 that Mrs Shokunbi applies for leave to have judicial review in these proceedings, an application refused by Penry-Davey J.
8. In my judgment, for the reasons set out by Penry-Davey J, who recites full extracts from the decision letter and considers them in the light of the history of Mrs Shokunbi's case, I agree that there is no evidence of an arguable error of law.
9. In my judgment, the IND was entitled to consider the position on the basis of the decisions made in the past which have not been challenged to judicial review. The situation therefore was that the enforcement proceedings, which under DP3/96 were deemed to have been commenced with the instruction to depart and warning of a liability to deportation given on 28th September 1990, had long preceded the applicant's marriage and her application based upon it.
10. In her application for notice for leave to appeal from the judgment of Penry-Davey J, two grounds are mentioned: the first is that the judge did not address what is called the most important issue, which was whether the IND refusal to remain based on the common-law relationship had been disclosed to her husband. The fact is that the refusal of the application based on a common-law relationship had been made by the decision of 31st January 1996, which was well before the marriage of 12th October 1996, and although it has been suggested that the decision was not received by the applicant, there is no evidence that it was not, and the judge below, in any event, did refer to that suggestion in his judgment and therefore took it into account.
11. Secondly, it is submitted that the IND's decision letter of 20th May gave no reasons for refusing to follow the policy guidance under DP2/93. However, the letter did refer to the refusal of the earlier application, to the IND's unwillingness to go into the decisions of the special adjudicator and of the Tribunal of Independent Appellate Authority, and to the subsequent applications which themselves necessarily involved comment on the previous background. The decision letter also explained that Mrs Shokunbi's application to remain had to be dealt with under DP3/96 and not DP2/93.
12. I can see no error of law in any of this. In essence this application for permission to appeal which arises from a series of decisions culminating with the one for which application for judicial review has been made, does not address DP3/96, which is the basis on which these decisions have been made, as distinct from DP2/93, which goes back to an earlier stage concluded in 1996 and in respect of which no application for judicial review has ever been made.
13. Therefore I regret to say that permission to appeal must be refused.
(Application for permission to appeal refused)