England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Wednesday, 16th May 2001

1. LORD JUSTICE SIMON BROWN: This is Mr Kwan's application for permission to appeal against the order of Ouseley J on 26th January 2001 refusing him permission to apply for judicial review of removal directions issued by the Secretary of State on 27th September 2000 to take effect on 15th October 2000.
2. The applicant is a 48-year-old Hong Kong national who came to this country in 1984, was given one month leave to enter, and has since very successfully played the system and stayed. Having overstayed his initial leave, he applied for and was refused indefinite leave to remain. He was served with a notice of intention to deport under section 3(5)(a) of the Immigration Act 1971 and unsuccessfully appealed against that.
3. In May 1995 a deportation order was made against him. A year later, in May 1996, he made a claim for asylum. That claim was refused, as also was the applicant's appeal against the refusal, as also was an application for permission to apply for judicial review to quash the rejection of his asylum appeal (by Jackson J in March 2000), as also was an application for permission to appeal against Jackson J's order (by this Court in July 2000).
4. As stated, removal directions were given on 27th September 2000, although the applicant denies having received them until he was arrested on 13th October just two days before the time set for his removal. The applicant sought to challenge the directions on three basic grounds: first, that it was served too late; second, because the period of some two and a half weeks given by the directions was too short, in particular having regard to the applicant's wife's ill health (she suffers from Crohn's disease); third, because of compassionate circumstances which it is said should prevent removal, namely the ill health of both Mr and Mrs Kwan as set out in Dr North's letters of 5th September 2000 (letters I may say not received by the Immigration Service until 7th October 2000).
5. Ouseley J rejected all three grounds. In my judgment he was plainly correct to have done so. The applicant's skeleton argument, prepared by a Mr Windebank, who apparently trades as an Immigration Counselling Service, is not, to my mind, very helpful, showing some misunderstanding, as it seems to me, on basic immigration law and practice. It suggests that the judge placed too great weight on the applicant's immigration history, and thereby prejudiced his application. That seems to me a hopeless point: it would be quite absurd to overlook the history of a case like this when coming to assess the value of a fresh challenge.
6. With regard to Dr North's letters, the judge noted the respondent's submission that because they had been received after the Secretary of State issued his removal directions on 27th September, they could not be used as a basis for challenging that decision. The judge continued:

"I am not entirely satisfied in my own mind that, where a decision has been made which is yet to be acted upon, it is not arguable in certain circumstances that the coming to light of new information can be used to upset continued reliance upon the decision which has been taken. However, in so far as they do contain new material, the Secretary of State's position in relation to compassionate circumstances is as follows: the Secretary of State now having received those letters, is giving consideration to the material contained in them, to see whether any of the circumstances warrant the exercise of the extra statutory medical circumstances concession on the part of either the husband, the claimant, or his wife, or possibly, although it would be wrong for there to be any inevitable consequential effect, an effect on the husband's position as a result of the wife's ill-health. But that is a matter for the Secretary of State and he is examining it."

7. The applicant's skeleton argument, having quoted the first sentence of that paragraph, continues:

"The Learned Judge erred in that until there has been a proper conclusion and all steps have been taken by the Home Office not only in regard to the Appellant but also to his wife that additional or new information can be and should be considered where such new information would alter the decision which had been taken."

8. That completely misconceives the judge's comment. The fact is that whilst, of course, the Secretary of State will review the question whether and, if so, when to remove the applicant (which may or may not be with his wife) his decision to do so, taken on 27th September 2000, cannot in law be challenged by reference to subsequent material. In any event it is the complete answer to the first proposed ground of challenge that whenever the removal direction was in fact received there cannot now be any useful challenge to it given that it was designed to have taken effect on 15th October, a date which has now long since expired.
9. Any suggestion that the respondent gave too short a notice or that it was served too late, has long since become wholly academic and immaterial, given that, consistently with the past history of this case the applicant has now secured in any event many more months. The decision whether and, if so, when to deport or remove this applicant as someone subject to a deportation order remains with the Secretary of State. It is much to be hoped that when eventually his decision is taken, whatever it may be, there will not be yet further legal proceedings brought. The application is refused.
(Application for permission to appeal refused)