QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| R (on the application of Bekim Alia)
|- and -
|The Secretary of State for the Home Department
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Daniel Beard (instructed by The Treasury Solicitor) for the Defendant
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Mr Justice Keith:
"62.…I am not at all sure their relationship can be described as a family. I accept that marriage is not essential to a family but their relationship is a long way from that.
63. However whether this is a family or not one weighs their interest against the interest of the state to maintain a consistent immigration policy to serve both the economic well being of the country and law and order. The Strasbourg jurisprudence makes clear that the latter would generally prevail.
64. I take the view that this is essentially a matter for the discretion of the Secretary of State. I do not believe that Article 8 would be breached if the Secretary of State declines to exercise that discretion in favour of the appellant.
65. But the Secretary of State has not considered this aspect of the case. This couple have behaved entirely responsibly in not marrying at a stage where the appellant's status is insecure and they are not in a financial position to marry. This should not prejudice them in comparison with those [who] are less responsible and do marry. I would hope the Secretary of State will reconsider this aspect of the case and consider whether exceptional leave to remain would not be appropriate."
The adjudicator was not, of course, recommending that the claimant be granted exceptional leave to remain in the UK. He was simply expressing the hope that the Secretary of State would consider whether the claimant's relationship with Miss Lee justified the grant of exceptional leave to remain.
(i) The adjudicator had found that the relationship between the claimant and Miss Lee was "a long way" from family life. The Secretary of State had seen no evidence since the adjudicator's determination that the relationship had "progressed to a point where it might be considered to amount to family life" within the meaning of Art. 8.
(ii) The claimant had no right under the Immigration Rules to apply for leave to remain in the UK because he had entered the UK unlawfully. That would have been the position even if he and Miss Lee had married, because an application for leave to remain in the UK as a spouse could only be made by someone who "has not remained [in the UK] in breach of the immigration laws": see rule 284(iv) of the Immigration Rules.
(iii) In the absence of any new and compelling information, the Secretary of State was not persuaded that there were "any exceptional compassionate circumstances" which would justify allowing the claimant to remain in the UK.
(iv) The Secretary of State rejected the claim based on the possible deterioration of the claimant's mental health on his return to Kosovo. His view was that treatment for the claimant's condition was available in Kosovo, but even if it was not the claimant's worsening condition as a result of his return would not result in him being subjected to "inhuman or degrading treatment" within the meaning of Art. 3.
"A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision….."
"(7) Subsection (8) applies if, on the application of the appellant, …..the Secretary of State makes a decision in relation to the appellant.
(8) The ….. Secretary of State may certify that in his opinion–
(a) one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and
(b) the appellant had no other legitimate purpose for making the application.
(9) No appeal may be brought under ….. this Act against a decision on an application in respect of which a certificate has been issued under subsection (8)."
Thus, the effect of the Secretary of State issuing a certificate under section 73(8) was that, to the extent that the claimant had been entitled to appeal to an adjudicator against the decision refusing him exceptional leave to remain, he could no longer do so. In the light of these events, it was necessary for the claim for judicial review to be amended, and in due course Wall J. gave the claimant permission to proceed with his claim for judicial review of the Secretary of State's decision to issue a certificate under section 73(8). The lawfulness of that decision is now the only issue which this claim for judicial review raises.
The challenge to the certificate
(a) one of the claimant's purposes in requesting exceptional leave to remain in the UK on the ground that his removal to Kosovo would infringe Arts. 3 and 8 was to delay his removal from the UK, and
(b) the claimant had no other legitimate purpose in making that request on those grounds.
Mr Beard contended that the Secretary of State was entitled to conclude that the human rights grounds on which the claimant's request for exceptional leave to remain in the UK was based
(a) had already been decided adversely to the claimant by the adjudicator who had dismissed the claimant's original appeal, or
(b) should have been raised in that appeal, and it was too late for them to be raised then.
Those considerations are said to have justified the Secretary of State's conclusion that one of the claimant's purposes in requesting exceptional leave to remain on human rights grounds was to delay his removal from the UK, and that he had no other legitimate purpose for making that request on those grounds.
"(2) If the appellant serves a notice of appeal making a claim that ….. a decision of a decision-maker was in breach of the appellant's human rights, the Secretary of State may certify that in his opinion –
(a) the appellant's claim–
(i) could reasonably have been included in a statement required from him under section 74 but was not so included, or
(ii) could reasonably have been made in the original appeal but was not so made;
(b) one purpose of such a claim would be to delay the removal from the United Kingdom of the appellant or any member of his family; and
(c) the appellant had no other legitimate purpose for making the claim.
(3) On the issuing of a certificate by the Secretary of State under subsection (2), the appeal, so far as relating to that claim, is to be treated as finally determined."
And sections 73(4)-(6) provide:
"(4) Subsection (5) applies if a notice under section 74 was served on the appellant before the determination of his original appeal and the appellant has served a further notice of appeal.
(5) The Secretary of State may certify that grounds contained in the notice of appeal were considered in the original appeal.
(6) On the issuing of the certificate by the Secretary of State under subsection (5), the appeal, so far as relating to those grounds, is to be treated as finally determined."
So if the Secretary of State thought that the claimant should not be permitted to appeal because the ground on which he wished to rely should have been raised in the original appeal but had not been, viz. the claim under Art. 3 based on the unavailability of treatment in Kosovo for his damaged mental health, the statutory scheme contemplated that the Secretary of State should have issued a certificate under section 73(2) once the claimant had served a notice of appeal making that claim. And if the Secretary of State thought that the claimant should not be permitted to appeal because the ground on which he wished to rely had already been decided in an earlier appeal, viz. the claim under Art. 8 based on the inability of Miss Lee to accompany the claimant to Kosovo, the statutory scheme contemplated that the Secretary of State should have issued a certificate under section 73(5) once the claimant had served a notice of appeal making that claim.
"I am told ….. that although Burton J. did not record that that view was the agreed view of counsel, the skeleton arguments disclosed that counsel for the Secretary of State did not dissent from that proposition."
This view of the meaning of "legitimate" was followed by Davis J. in R (on the application of Soylemez) v. Secretary of State for the Home Department  EWHC 1056 (Admin) at . Davis J. did so only because of a concession by counsel on behalf of the Secretary of State that Burton J.'s approach should be followed in that case. But Davis J. thought that if the legitimacy of the purpose was to depend on the merits of the application, he would have expected the Secretary of State's power to certify to be triggered, for example, if he thought that the application was "manifestly unfounded", which is the language of section 72(2)(a).
"In order for there to be a legitimate purpose there has to be some new material of substance placed before the Secretary of State which goes beyond what has been presented to the Special Adjudicator and it is for the Secretary of State to consider whether it does or does not have any weight. If he considers that it does not, the conclusion follows that he is entitled to certify the claim as one made for the purposes of delay with no other legitimate purpose."
He also noted what Burton J. and Davis J. had said in Vemenac and Solyemez. But he concluded at -:
"15. 'Legitimate purpose' seems to me to focus on the purpose for which the claimant makes his claim, not on its soundness nor on the prior availability or lack of availability of material relied on for the first time in his new appeal. Other phrases could easily have suggested either proposition: in section 72 of the 1999 Act the phrase 'manifestly unfounded', deals with hopeless claims. In section 73(2)(a)(ii) itself, the availability or lack of availability of material is explicitly addressed. I have struggled to discern what the draftsman might have had in mind.
16. [Counsel for the Secretary of State], on instructions, submitted first that what was meant was 'a good reason why he did not include the claim in his earlier appeal' but, as I observed, that is already dealt with in section 73(2)(a)(ii), and the words of subsection (2)(c) are not apt to describe that situation. In the end, [counsel] submitted that the words were there to accommodate situations not foreseen by the draftsman as a long-stop against potential injustice. On the submissions that I have heard that seems to me to be the only acceptable construction of that phrase.
17. [Counsel for the claimants'] propositions as to the meaning of the phrase [namely, that a legitimate purpose must be, first, to remain in the United Kingdom and, secondly, to pursue an appeal which is not hopeless] would, if correct, frustrate the manifest purpose of section 73, which is to produce finality. I am unable to accept that the draftsman had those factors in mind when choosing that phrase. The purpose of section 73 is to require the claimants to bring all claims in one appeal, and to achieve finality in determination of that single appeal. Again, if a common law analogy is permitted, the analogy is with issue estoppel as expanded by the rule in Henderson v. Henderson (1843) 3 Hare Reports 100.
18. It seems to me, therefore, that if the Secretary of State is satisfied that the appellant's claim, in the sense that I have indicated, could reasonably have been made in the original appeal but was not, and that one purpose of such a claim would be to delay removal from the UK, then, save in unusual circumstances in which the claimant had another legitimate purpose, the Secretary of State is entitled to go on to consider whether or not to issue the certificate."
(a) to certify the claim based on the unavailability of treatment in Kosovo for the claimant's damaged mental health (which is a claim that the Secretary of State acted in breach of the claimant's rights under Art. 3) under section 73(2), because of the claimant's failure to comply with the one-stop procedure in relation to that claim, and
(b) to certify the claim based on the claimant's relationship with Miss Lee (which is a claim that the Secretary of State acted in breach of the claimant's rights under Art. 8) under section 73(5), because that claim was considered by the adjudicator in the original appeal.
The issue in (a) turns on the reasonableness of the explanation for the delay contained in the claimant's solicitors' letter of 20 March 2003, and I cannot express any view on that. The issue in (b) turns on what the adjudicator in the original appeal was actually deciding in paras. 62-65 of his determination. Since that depends on how those paragraphs are to be read, and since I was addressed at length on that issue, it is appropriate that I express my view on the topic, even though it does not affect the outcome of the current claim for judicial review.
"…..the Adjudicator has jurisdiction to consider any question which arises on an appeal as to whether the Secretary of State's decision would breach an appellant's human rights ….. jurisdiction is conferred in very wide terms and an appeal can be allowed if the authority concerned has acted in breach of the appellant's human rights. There is no statutory provision which requires the Secretary of State to have considered the claim first in order to found the jurisdiction of the Adjudicator."
If the position was otherwise, the provisions in the 1999 Act relating to the "one-stop" procedure would be unworkable. Moreover, the claimant's case as to how paras. 62-65 are to be read do not give effect to para. 63 and to the second sentence of para. 64. In those sentences, the adjudicator was expressing his view that even if the relationship between the claimant and Miss Lee constituted family life, the claimant's removal to Kosovo would not infringe his right to respect for his family life protected by Art. 8(1), because the need to maintain a consistent immigration policy justified an interference with that right under Art. 8(2). What was the adjudicator doing in these two sentences if he was not expressing his own view on that issue? Thus, what the adjudicator was doing in para. 65 was expressing the hope that the Secretary of State would consider whether sufficient compassionate grounds existed to justify the grant of exceptional leave to the claimant to remain in the UK in order to remain with Miss Lee. The adjudicator could not have been expressing the hope that the Secretary of State would consider whether the claimant's removal to Kosovo would infringe his rights under Art. 8(1), because that issue had already been addressed by the adjudicator. It follows that, in my opinion, the Art. 8 grounds on which the claimant wishes to rely on any future appeal to an adjudicator have already been decided adversely to the claimant by the adjudicator on the original appeal. If that view is correct, it would not be possible for the claimant to challenge a certificate issued by the Secretary of State under section 73(5) on those grounds.