ON APPEAL FROM THE HIGH COURT OF JUSTICE
Sir Michael Harrison
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE ELIAS
| The Queen (on the application of YZ (China))
|- and -
|Secretary of State for the Home Department
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Paul Greatorex (instructed by The Treasury Solicitor) for the Respondent
Hearing date : 19 July 2012
Crown Copyright ©
Lord Justice Richards :
The facts in greater detail
"Third the Secretary of State must form the opinion that there is no satisfactory reason for that matter not having been raised in an appeal against the old decision (section 96(1)(c)) or that there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice (section (96(2)(c)). As stated above, your client was served with a 'one stop' notice on 19 March 2008, which he exercised on 17 July 2008. Your client's family life was considered at appeal and no further evidence has been provided and no satisfactory explanation has been given as to why he failed to do this."
The judgment under appeal
"31. The issue I have to decide in this case is whether I should exercise my discretion to require the defendant to return the claimant to the UK pending reconsideration of his case by the defendant and any possible subsequent appeal. It is a wide discretion to be exercised having regard to the matters covered by the submissions of the parties which I have just summarised."
"34. In my view, the assumed illegality of the certificate provides the strongest point for the claimant on the issue of return because, if that decision had not been made, the claimant would not have been deported because he would have been able to remain in the UK to pursue his appeal against the defendant's refusal to revoke the deportation order. It has led to the claimant's separation from his partner and the child and to the potential of an out of country appeal.
35. On the other hand, the claimant's deportation to China was, at the time, perfectly lawful as being in accordance with the court order of Mr Ockelton who, when refusing permission to apply for judicial review, expressly ordered that renewal of the application was not to operate as a bar to the claimant's removal. Whilst I accept that the fact that the claimant's removal was lawful at the time is not determinative, it is, in my view, a highly material factor against the exercise of discretion."
"37. I accept Mr Khubber's point that, if the claimant is not returned, he will be separated from his partner and the child for up to 10 months before a decision is made by the defendant at a difficult time for his partner and the child. I will assume for these purposes that the claimant is the father of the child as it seems reasonable to assume that the claimant's partner will provide an affidavit to that effect. I also bear in mind that the best interests of the child is a primary consideration (see ZH (Tanzania)), and I also bear in mind the provisions of section 55 of the 2009 Act [the Borders, Citizenship and Immigration Act 2009] relating to the need to safeguard and promote the welfare of children in the UK. However, the separation of the claimant from his partner and the child will be for a relatively short time until a decision by the defendant is made, and the child is still very young, not yet one year old. It is not for me to judge the merits of the Article 8 claim. That will be a matter for the defendant to decide. Suffice it to say that the defendant's decision on 23 February 2011 that there was insufficient evidence of family life or paternity could not be said to be irrational on the evidence then available to her."
"39. In my view, the claimant can effectively pursue his appeal from China. I have no reason to doubt that it should be possible for the claimant to give evidence by video link. I am not impressed by the suggestion that information about the background of the claimant and his partner may be disseminated to the Chinese authorities. I see no reason why the video link cannot be operated from private premises. I also do not foresee any difficulty in communication between the claimant and his partner. The evidence is that they have been in daily contact over the internet using Skype. Similarly, I do not see any real difficulty in the claimant giving instructions to his solicitors. There is no suggestion that there has been any difficulty thus far. Also, the claimant's partner will of course be able to give oral evidence at any hearing. For all those reasons, I am satisfied that the claimant can effectively pursue his appeal from China. Furthermore, I share the view of Blake J and [Jackson] LJ [in Lewis and CM (Jamaica) respectively] that there is no reason to believe that an out of country appeal will always be ineffective."
"42. In deciding how I should exercise my discretion in this case, I have taken into account all the various competing considerations, both those that I have mentioned and others that were urged upon me, and I have weighed them in the balance. Having done so, my clear conclusion is that this is not a case where it would be appropriate for the court to exercise its discretion to require the defendant to return the claimant to the UK pending reconsideration of the decision to revoke the deportation order. In those circumstances, it follows that this application should be refused."
"The fact is that, especially but not only where credibility is in issue, the pursuit of an appeal from outside the United Kingdom has a degree of unreality about it. Such appeals have been known to succeed, but in the rarest of cases. The reason why the Home Office is insistent on removal pending appeal wherever the law permits it is that in the great majority of cases it is the end of the appeal."
"I have no doubt in this case that any discretion that the court has should not be exercised in favour of the claimant. I reach that conclusion for the following reasons:
i) No application on an interlocutory basis had been made to restore him to the United Kingdom and I am satisfied that if an application had been made it would have been bound to fail.
ii) No out of country appeal was lodged, even under protest that it should have been an in-country appeal. Pursuit of such an appeal might have resolved the matter without the need to continue this judicial review.
iii) Although I have concluded that the question of legality of removal is not decisive in this case against the existence of discretion it is a highly material factor against the exercise of such discretion.
iv) The fact that the court's order for a stay was not effectively communicated to UKBA was in part contributed to by the claimant's solicitor's failure to take fairly obvious steps that might have led to its communication and efficacy. These included steps required by the Practice Direction.
v) The issues in any Article 8 appeal the claimant may now choose to lodge will be focussed on the impact that deportation has had on his children and family members here, rather than of anything he can contribute by way of primary narrative facts. The children and family members will be able to give evidence to the IJ determining the appeal. The claimant can participate in those appeal proceedings.
vi) This is a case in which if he wished to participate through video link it is likely that with the assistance of the defendant an available mechanism can be found to enable him to do so …."
"I endorse the view expressed by Collins J (a former President of the Immigration and Asylum Tribunal) in MK at first instance that common sense indicates that an appellant who has to pursue an appeal while he is out of the country faces considerable disadvantages, particularly in the context of an appeal to SIAC …."
Although that observation has a wider application, it was plainly directed principally at the particular context of appeals to SIAC. The rest of the paragraph elaborated on the handicaps under which appellants labour in any event in appeals to SIAC, in which context Sullivan LJ said that the court should be vigilant to ensure that appellants were not further disadvantaged by a failure on the part of the Secretary of State to comply with the relevant regulations.
The parties' submissions
i) The judge erred in failing to make a clear ruling on whether the certificate under s.96(2) was unlawful. An assumption that it was unlawful was not of the same strength or relevance as an actual finding that it was unlawful. The appellant was entitled to a ruling on the point, especially in circumstances where the Secretary of State had subsequently withdrawn the certificate on "pragmatic grounds" without admitting its unlawfulness or explaining why such action was being taken.
ii) If the decision to remove the appellant was made on the basis of an unlawful certificate, the Secretary of State would have secured an advantage through her own wrongdoing. It would have deprived the appellant of the in-country appeal to which he was entitled and which had significant advantages over an out of country appeal.
iii) It would also have deprived the appellant of his entitlement to live with his family while an appeal was being pursued, and would have had a negative impact on the strength of the appellant's family life claim under article 8 for the purposes of any future appeal. The adverse impact on the family unit is accentuated by the fact that the case concerns a very young child; the appellant was removed while the child was still a baby. At the time of the hearing below he had been separated from her during the majority of her first year; that has now substantially increased. The deprivation, in the case of a very young child, of support from both parents is a weighty matter. Reliance was placed on what was said by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4 about the need to have regard to the welfare of children as a primary consideration in article 8 cases, and on the duty under s.55 of the Borders Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. CM (Jamaica) and Lewis were decided without reference to those developments relating to the welfare of children.
iv) The issue was not whether the appellant could pursue an effective appeal while in China but whether he should have to pursue an out of country appeal at all when he had a right to an in-country appeal. But the judge also erred in relying on the possibility of effective video link evidence. The position of a witness giving evidence via video link from China (and especially a witness who had previously sought asylum unsuccessfully) was on any reasonable view more difficult than, for example, that of a witness giving evidence from Jamaica.
Lord Justice Elias :
Lord Justice Lloyd :