England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR JUDICIAL REVIEW

		Royal Courts of Justice Strand London WC2 Friday, 26th January 2001

1. LORD JUSTICE WALLER: I shall ask Sir Murray Stuart-Smith to give the judgment.
2. SIR MURRAY STUART-SMITH: This is a renewed application for permission to apply for judicial review from a decision of the Secretary of State for the Home Department to require the applicant to leave the United Kingdom pursuant to instructions given on 19th or 20th January 2000. Permission to move for judicial review was refused by Mr Justice Jackson on 7th April 2000 following oral submissions by counsel for the applicant. Neither on that occasion nor this has the Secretary of State been represented in court.
3. The brief facts are these. The applicant is an Angolan national who was born on 1st January 1955. He is married and has a wife and three children in Angola. He entered the United Kingdom on 21st August 1993, together with a young boy then 10 years old called Pedrito Cavalho. On entering the United Kingdom, both the applicant and Mr Cavalho made applications for asylum, it being said at the time that Mr Cavalho was the nephew of the applicant although there is some doubt as to whether that is the true relationship. The applicant's asylum application was based on the grounds that he was a member of the Bakongo tribe and a UNITA supporter and faced persecution at the hands of the MPLA Angola. He was granted temporary admission to the United Kingdom on 21st August 1993, but the application for asylum was rejected and removal directions were given by the Immigration Service on 23rd December 1993. It also appears that Cavalho's application was similarly refused.
4. However, on 17th March, in a letter from the Secretary of State, it appears that the removal directions were deferred pending appeal by the applicant to the special adjudicator against his refusal of asylum. That appeal was refused. The applicant thereupon sought to move for judicial review of the adjudicator's decision, but leave was refused on 26th November 1997. He also sought to challenge the decision of the special adjudicator by appealing to the Immigration Appeal Tribunal. He was refused leave for that on 23rd October 1997. Since then it appears that the applicant's removal from the United Kingdom was deferred following representations that Cavalho's temporary admission should be extended because of peculiar circumstances in his case. Amongst other things, he was apparently a witness at the Philip Lawrence murder inquiry and also he was completing his schooling.
5. In March 1999 two of the applicant's children arrived in the United Kingdom seemingly unlawfully and have been living with the applicant since then.
6. In December 1999 Cavalho was granted exceptional leave to enter because of the circumstances of his case.
7. It seems that the applicant was re-interviewed to establish his position and determine whether or not he should be granted exceptional leave to remain. That was not granted. In a letter dated 19th January 2000 it was said on behalf of the Immigration Service:

" .... there is no basis on which you qualify to remain further and therefore arrangements for your departure have been made ..... "

8. By a letter of 20th January he was informed that removal directions had been arranged for 17th February 2000 on a flight to Angola. It appears that those were subsequently varied because the latest information that we have is a letter to him (at page 80 of the bundle) which indicates that he was to be flown out on 24th February.
9. The Form 86A (at page 57 of the bundle) raised a number of grounds. The first was that the immigration officer's further notice of removal was flawed and invalid because it failed to comply with paragraphs 8 and 10 of the Second Schedule of the Immigration Act 1971. In effect, it not having been issued within two months of the refusal of leave it was not valid, it having to be signed by or on behalf of the Secretary of State. That point was reinforced by the decision of this Court in Parshotam Singh v Secretary of State for the Home Department [1989] Imm AR 469. The second ground was
10. that given the state of civil war and civil rights abuses in Angola, the decision to direct the applicant's return was Wednesbury unreasonable. Thirdly, the removal of the applicant was inconsistent with the grant of exceptional leave to Cavalho who was a member of the applicant's family and depended on him. Fourthly, it was perverse of the Home Office to require the applicant to make arrangements for flights for the two children to Angola and that the children will effectively be abandoned in the United Kingdom and that was contrary to the Human Rights Act.
11. When the matter was before Mr Justice Jackson it does not appear that the first ground, the one relating to invalidity of the notice for removal, was raised. Certainly, it is not dealt with in the judge's judgment. Miss Sharma, who appears for the applicant today but did not appear before the single judge, has no explanation as to why that was the case. It was the first ground in the Form 86A and it is the first ground raised in the skeleton argument produced by Mr Elliot who appeared before Mr Justice Jackson but is unable to be here today.
12. We have no explanation as to why that point was not apparently argued before the judge. We do not have the actual removal directions which are directions to the airline to remove the applicant. We have a letter to which I have already referred of 20th January which refers to the fact that the immigration officer has given instructions for removal. We have the letter to the applicant of 17th February 2000 indicating that he is liable to be detained and arrangements for his removal have been made for 24th February. The position with regard to the other grounds of relief are that they were dealt with by the judge. He rejected them all. Miss Sharma has not sought to argue them in this court. We have carefully considered the other grounds. Speaking for myself, I entirely agree with the single judge that there is no substance in any of them. 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. There is nothing in the first point raised in the skeleton argument, namely that in some way the appeal to the special adjudicator was undermined because he had no jurisdiction. Any point to be taken on the invalidity of the previous removal instructions should have been taken much earlier at the previous
13. judicial review proceedings. Similarly, in my judgment, there is nothing in the point that it was wrong to allow Cavalho exceptional leave and not the applicant. That matter was dealt with fully by the Secretary of State's letter setting out the reasons. Equally, I am quite satisfied there is no substance in the point that there is a breach of Article 8 because the applicant's children are here. They are unlawfully here; they have no right to be here; they can go back with the applicant if he has to go back. In my judgment, there is no substance in that point at all. The applicant has a wife and three children in Angola.
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 discretion 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
16. of the motion for judicial review should be determined thereafter by the same court which should be a two-judge court of this Division.
17. LORD JUSTICE DYSON: I agree.
18. LORD JUSTICE WALLER: I also agree.
Order: Application adjourned.