England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		28 November 2002

1. MR JUSTICE COOKE: This is an application for Judicial Review following the grant of permission to apply for it by the Single Judge.
2. The claimant, who is aged 37, claims to be an Indonesian national who has come from Indonesia and challenges the decision of the Secretary of State for the Home Department in issuing directions for her removal to Jakarta following a refusal of her asylum appeal by an Adjudicator on 17th August of last year.
3. Some six days before the Adjudicator's decision in July 2001 she had married a British citizen of Vietnamese origin who is now 68 years old, whom she had met in February 2000, and she then applied immediately following that marriage and prior to the Adjudicator's decision for leave to remain as a spouse.
4. In essence there are two grounds put forward as to why it is that she should not be removed. Firstly, it is said that there is no power under paragraph 8 of Schedule 2 of the Immigration Act to remove her to Indonesia because at the time of seeking that removal the defendant did not believe and could not show that she was an Indonesian and indeed it was suggested that the Adjudicator had made a finding that she was not Indonesian. The latter point was put forward in the skeleton argument but by the time the matter came before me it was accepted that the Adjudicator had not in fact made such a finding, and I will come to the details of that in a moment.
5. The second ground put forward was that it would be a breach of Article 8 of the European Convention on Human Rights for her to be removed.
6. The chronology of events is as follows. On 23rd May 1999 the claimant arrived in the United Kingdom concealed in the back of a lorry. On 26th May 1999 she claimed asylum. On 28th June 1999 she submitted a statement setting out the basis of her claim for asylum, namely that she feared attacks on her in Indonesia by Indonesians because of her Chinese ethnicity. She said she had a well founded fear of persecution there for that reason and that this was therefore a Convention reason.
7. In February 2000, according to her own evidence, she met Mr Cuu Tu and started a relationship with him. On 11th September 2000 she submitted the statement of evidence form and on 10th January 2001 she was interviewed by the Home Office. It was on 15th January 2001 following that interview that the Home Office set out their reasons for refusing asylum referring to the following matters.
8. Firstly, the Secretary of State did not accept that there was any official policy on the part of the authorities in Indonesia to persecute the Chinese community there, nor did he accept that the claimant would face persecution there if she were to return. He did not consider that being a member of the Chinese community in Indonesia gave rise to a claim for refugee status.
9. Secondly, he assessed that there was no genuine fear of persecution relying essentially on the fact that she had travelled through Europe in the back of a lorry and did not claim asylum at the first safe country that she had reached.
10. Thirdly, he assessed that she was unable to answer a number of simple questions regarding geography and common knowledge of Indonesia and that led him to believe that she was not of Indonesian nationality.
11. Fourthly, he was satisfied that she had not established a well founded fear of persecution and fifthly, he was satisfied that there were no human rights breaches involved in his decision.
12. When the Adjudicator came to consider the matter she stated this in relation to the evidence that she had from the claimant in relation to her knowledge and the answers she gave about Indonesia:

"This lack of consistency and failure to answer basic questions relating to the geography and common knowledge of Indonesia and the region she hails from lead me to doubt that she is in fact Indonesian. It is significant not only that she did not claim asylum immediately on arrival but her reply when it was put to her was that she knew 'nothing about this'. Those words are not consistent with those of a genuine asylum seeker."

13. She then went on to deal with other matters including the allegations of harassment of the Chinese community and found that there was nothing to suggest that any such harassment was state sanctioned. She remarked that the applicants's father, brother and other members of her family remained in Indonesia as did other successful Chinese people which suggested that the situation had not become intolerable for them. She again expressed doubts as to whether or not the claimant came from Indonesia and then found that the incident she had referred to in her past was not persecution for a Convention reason and that there was not therefore a valid claim for refugee status under the Refugee Convention. Moreover she was satisfied that there was no human rights point that could be pursued by her.
14. It is therefore clear that the Secretary of State for the Home Department believed that the claimant was not of Indonesian origin and that the Adjudicator had doubts about it but did not decide upon it. That is expressly accepted as a summary of the position by the applicant's counsel.
15. Paragraph 8 of Schedule 2 to the Immigration Act of 1971 provides as follows:

"Where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may ...

(c) give ... directions requiring ... arrangements for his removal ... to a country or territory so specified, being either:

(i) a country or territory of which he is a national or citizen; or

(ii) a country or territory in which he has obtained a passport or other document of identity; or

(iii) a country or territory in which he embarked for the United Kingdom; or

(iv) a country or territory to which there is reason to believe that he will be admitted."

16. In this case the claimant maintains that she is of Indonesian nationality and that she had come from Indonesia to this country. This she states in clear terms in a witness statement of 25th October 2002 and that was always her case both in making representations to the Secretary of State and in pursuing the matter before the Adjudicator. On her evidence she is therefore from Indonesia and falls within the terms of (i) of paragraph 8 of Schedule 2 to the Act since Indonesia would then be a country of which she is a national or citizen. Inevitably, it seems to me also that on her own case she would fall within each of the following subparagraphs of the rule as well.
17. The claimant previously argued that the Secretary of State was bound by the findings of fact of the Immigration Appellant Authority. If the Adjudicator had found that the claimant was not from Indonesia then this point might have some force but she did not do so and the Secretary of State's belief is neither here nor there in this context. The question is not one of the Secretary or the Department's own subjective belief.
18. As the judge who gave permission for Judicial Review said, it is scarcely an attractive point for a claimant to make that she cannot be sent back to the country of which she says she is a national and from whence she says she came. But it is said by the claimant that there is no country which falls within paragraph 8(1)(c) of Schedule 2 of the 1971 Act and that unless the Secretary of State shows that there is such a country there is simply no power of removal open to the Secretary of State at all.
19. The defendants points out that there are only two possible situations here. The first possibility is that the Secretary of State is wrong in his belief and that the claimant is an Indonesian national as she has always claimed. The second possibility is that the Secretary of State was right in disbelieving her and that she is not Indonesian but of some other nationality which she refuses to divulge. The defendant says that if the claimant is Indonesian then relief should not be granted because the effect of the removal directions is that the claimant, an illegal entrant who is subject to removal, would be removed to the country of her nationality which is one of the very destinations provided for in paragraph 8(1)(c). If the facts are as asserted by the claimant then she can suffer no possible prejudice and therefore Judicial Review should not be given to her.
20. Alternatively, it is said that if the claimant is not Indonesian then she has persistently lied in her representations in a situation where she continues to refuse to identify what is her true country of origin. It is said that it is open to her at any point to tell the truth about this and then to ask the Secretary of State to remove her to the appropriate country rather than Indonesia and in the face of a refusal on her part to do this, once again Judicial Review should not be granted.
21. It is in this context that I was referred to Section 67 of the 1999 Act and to three decisions of the Immigration Appeal Tribunal, all being starred appeals, in cases where there had been a deception practised by the claimant who had then taken the point that he or she could not be removed to the country from which they had falsely said they had come.
22. Section 67(2) of the Act provides that a person against whom directions for removal have been given may appeal to an Adjudicator against the direction on the ground that he or she ought to be removed to a different country specified by him or her. The claimant has in this case not exercised any right to appeal against the removal directions on the basis that she ought to be removed to a country other than Indonesia, nor has she specified such a country. That would be directly contrary to the case that she has always maintained.
23. The rules, however, therefore do envisage that this sort of situation might arise and the section itself provides for an opportunity for the person being removed to tell the truth about his or her country of origin should they be found to have been falsely stating the position at some earlier stage in their application to stay. The claimant has maintained that Indonesia is the appropriate country but, of course, has the option of saying differently at any other point.
24. There is, as the judge said in giving permission, an unattractiveness about the position adopted on behalf of the claimant. The cases in the Immigration Appeal Tribunal go further than this and suggest that it is an abuse of process to be saying on the one hand that: I come from a given country, and on the other hand to say that: there is no power in the Secretary of State to send me back there. It seems to me that I do not need to go so far as to say that. Whenever the question of Judicial Review is involved there is a clear element of discretion on the part of the Court. It seems to me that on being asked to review a decision of this kind made by the Secretary of State where the Secretary of State has decided that the person should be sent back to the country from which he or she says he or she came, there is simply no ground for the exercise of discretion in granting Judicial Review of such a decision at all. It may or may not be an abuse and it is rightly pointed out by the claimant that she must be entitled to say that there is no power to remove the claimant to a destination which falls outside the terms of the rules but when the claimant comes before the Court and asks the Court to take specific action in relation to what is plainly a pragmatic and sensible decision by the Secretary of State it seems to me that there is in these circumstances no room for the Court to exercise its discretion in the claimant's favour.
25. I turn then to the second argument based upon Article 8. The claimant says that her removal to Indonesia would amount to a prima facie breach of her right to family life under Article 8. This is put upon the basis that there is a genuine and subsisting marriage and that it would be unreasonable to expect the claimant's husband to relocate to Indonesia in all the circumstances.
26. Attention is drawn by the claimant's counsel to a number of factors in this respect. The first is that the claimant's husband is now some 68 years old and has lived in the United Kingdom for over 20 years. Attention was also drawn to a medical report on his condition which referred to his need for medication for hypertension and blood pressure and the recent encountering of a shortness of breath which, the medical report said, necessitated the taking of a cardiologist's opinion which I am told has not yet been taken.
27. My attention was drawn to the medical opinion and to paragraph 2 of the conclusions in it where it was said that with regard to his hypertension treatment, the effect of discontinuance or inconsistency in it could lead to complications for the patient. Those complications could result in heart failure, ischaemia, renal impairment and any of these might react one with the other.
28. What was said was that the stress that would be caused by any upheaval in the process of removal would undoubtedly lead to a deterioration of his medical condition. It was also said that there would be greater stress upon the husband in the shape of problems encountered once relocation to Indonesia had taken place. Reference was made also to possible difficulties in getting medication there.
29. The first point to note in relation to this medical evidence is that none of this was put before the Secretary of State at all at the time when he had to make his decision. The letter which went to the Secretary of State on 12th July, two days after the marriage, was extremely brief and essentially simply referred to the fact of marriage as a basis for the application to remain in the United Kingdom. I am reminded of the position of the Court in reviewing a decision of this kind that it is only open to review on the basis of the material which the Secretary of State himself had in front of him when he came to make his decision.
30. The claimant has drawn attention not only to the poor state of health of the claimant's husband but the fact that he is not Indonesian and has no connection with Indonesia and the fact that he is of Vietnamese ethnic origin. It is said that in the light of the current situation in Indonesia and the previous history of violence against the Chinese and other non-native communities in Indonesia it is reasonable to expect that there will be an increase in violence against the non-native communities in Indonesia which would affect him. It is therefore said that the interference with the claimant's rights to family life would not be justified under Article 8(2) as proportionate and necessary in order to maintain what are recognised as legitimate aims of maintaining immigration controls.
31. In this connection the claimant again relied upon the fact that she was the primary source of care for her husband, she was the sole source of income for the family and that her husband in her absence would be a greater burden upon the social services and the financial resources of the state than he is whilst she is with him. She herself had secured employment within the United Kingdom and they would between the two of them be able to subsist essentially without recourse to public funds.
32. It was further said that the only point that had been taken by the Secretary of State was essentially in relation to the timing of the marriage application since otherwise the requirements of the Home Office policy DP3/96 would be satisfied. These guidelines laid down by the Secretary of State can be summarised in the following manner. The position is that under paragraph 284 of the Immigration Rules an application to remain as a spouse could not succeed because of the requirement that an claimant should be living here lawfully. Nonetheless, in recognition of the fact that a right of appeal against removal is exercised only from abroad, the practice of the Home Office is to consider applications from an overstayer on an exceptional basis. That would not mean that an overstayer who met the remaining requirements of paragraph 284 would necessarily be allowed to remain because other considerations such as the need to maintain an effective and consistent immigration control would also apply. The guidelines concerned for dealing with marriage applications from overstayers appear in a document referred to as DP3/96. Those guidelines state that it would normally be appropriate to consider granting leave to remain exceptionally on the basis of the marriage if the Secretary of State was satisfied that the marriage was genuine and subsisting, that it pre-dated the service of an enforcement notice by at least two years and that it was unreasonable to expect the settled spouse to accompany his or her spouse on removal.
33. In the letter of 20th May 2002 the Secretary of State pointed out that the marriage did not pre-date the service of notice of liability to removal by two years and further expressed the conclusion that there were insufficient compassionate circumstances to justify any concession on the grounds of marriage. The letter went on:

"The Secretary of State considers that it would be reasonable to expect both parties to have been aware that your client's precarious immigration status was such that the persistence of their marriage within the United Kingdom would, from the outset, be uncertain. Moreover, although your client's spouse is a British citizen, the Secretary of State believes that Mr Cuu Tu could reasonably be expected to live in Indonesia."

34. The relevant principles in deciding matters of this kind are, as is common ground between the parties, to be found in the decision of the Court of Appeal in Amjad Mahmood v the Secretary of State for the Home Department [2001] 1 WLR 840 and in particular in paragraph 55 of the judgment of the Master of the Rolls.
35. My attention however was also drawn to a number of different paragraphs including paragraphs 33, 37 and 38 which dealt with the principles upon which I must review decisions of the Secretary of State including the concept of what is referred to as the discretionary area of judgment. It was pointed out to me also that the argument that has been raised in the present case that this is a one off case which will not affect the general question of maintaining policy is one that is not easy to succeed on in the light of paragraphs 23 and 26 of the judgment of Laws LJ in that decision.
36. In paragraph 55 the following conclusions are drawn as to the approach of the Commission and the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration controls. I set those out verbatim:

"(1) A State has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations.

(2) Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple.

(3) Removal or exclusion of one family member from a State where other members of the family are lawfully resident will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family.

(4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a State if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled.

(5) Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates Article 8.

(6) Whether interference with family rights is justified in the interests of controlling immigration will depend on

(i) the facts of the particular case and

(ii) the circumstances prevailing in the State whose action is impugned."

37. Taking into account all the matters which have been put before me the position seems to me to be as follows. The Secretary of State in making his decision did not have before him any of the medical evidence. He had before him merely the fact of the marriage and the age of the claimant's husband and little more. He knew, of course, of the ethnicity of both of the persons concerned, the claimant and her husband and the destination to which he was proposing that the claimant be removed.
38. It is in my judgment the precariousness of the claimant's situation at the time of her contracting the marriage which weighs most heavily as the most important factor in the present case. Whilst it is not suggested that the marriage is not genuine and subsisting it is right to say that both the claimant and her husband married at a time when they knew that she was likely to face removal from the United Kingdom. It was on 23rd January 2000 that the Home Office Notice of Decision to issue removal directions was given. It was in January, according to the evidence of the claimant, that her husband to be then proposed to her. It was in January that the claimant lodged her appeal with the Immigration Appellant Authority. It was in July when she married Mr Tu and immediately following that applied for leave to remain in the UK as his spouse. That was then followed by the hearing of the asylum appeal.
39. It is right to say that because the marriage happened between the time of the Secretary of State's refusal of asylum and the asylum appeal that it was not a matter which could have been dealt with at the asylum appeal as a matter of right, although I am told that if she had mentioned it at the time, the Secretary of State would have taken a decision as to whether or not the matter could be dealt with in the context of that appeal. Instead, however, she had made the application to which I referred, on 12th July, which led to the refusal of the application in May 2002 and the removal directions with which this hearing today is concerned.
40. On the basis of the material before the Secretary of State there was no basis for him concluding that there were any insurmountable obstacles to the family living together in the country of origin of the claimant, assuming that to be Indonesia as she said. There would, of course, be an element of hardship about that but it is no more than an element of hardship. Even on the medical evidence that has been put before me I am not satisfied that it would make the removal of the claimant disproportionate to the need to maintain immigration policy in accordance with the legislation and rules of this country.
41. Upon enquiry as to the length of time which might be taken up in the removal and subsequent application by the claimant for entry clearance I was told that this was likely to be a matter of months though it might move into a period of a year or thereabouts. It does not seem to me that it is in any way disproportionate given the appropriate policies as set out by the Secretary of State and as referred to in Mahmood, that the claimant should be removed notwithstanding the interference that this does involve with her Article 8 rights. Any such interference would not constitute a breach of Article 8 of the Convention. The Secretary of State was entitled to reach that conclusion and in those circumstances there is no basis for quashing the decision which he reached.
42. If there are any consequential orders that have to be made no doubt the parties will address me on them.
43. MR WRIGHT: I think as the claimant is publicly funded there has to be an order that there is an assessment of community funds.
44. MR JUSTICE COOKE: Yes, can you provide a certificate within 14 days.
45. MR WRIGHT: My Lord, I am sure those instructing me can.
46. MR JUSTICE COOKE: Yes, well, subject to that you can have the order.