QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| SADIA A
|- 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 Ashley Underwood QC and Mr Daniel Beard (instructed by The Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice Harrison:
"The Secretary of State has considered the statements that you have submitted on your client's behalf, however he is not satisfied that this gives conclusive proof of your client's age. The Secretary of State is aware that your client was issued with an Italian residence permit and an Italian identity card, which clearly state that her date of birth is 13 February 1980. The Secretary of State also notes that the same date of birth is recorded on your client's passport and on a letter written by your client's employer in support of a visa application. In light of the above the Secretary of State does not accept that your client is a minor."
"You allege that your client's removal to Italy would constitute a breach of her human rights under Article 8 of the ECHR, as her mother is presently resident in the United Kingdom. The question for the Secretary of State is whether the undoubted interference with your client's right to respect for her family life, if she were returned to Italy, would be proportionate and commensurate when balanced against his legitimate concerns in the public interest to maintain a credible and effective immigration control to the United Kingdom, and to deter abuse of the asylum system. The Secretary of State takes the view that it will be open to your client to apply at a British Consulate or Embassy in Italy for the appropriate entry clearance to enable her to return lawfully to the United Kingdom to resume her family life."
"37. On the totality of the evidence before him, the Secretary of State remains confident that he was entitled to reach the conclusion that your client's human rights appeal under section 65 of the Immigration and Asylum Act 1999 was bound to fail. Your client is not credible and she cannot establish that removal would infringe her human rights under Article 8. She has given a number of conflicting accounts and she cannot reasonably be believed. She has admitted that her family told her to lie to the Immigration Service and, as a result of this readiness to employ lies and deceit in the furtherance of their ends, they cannot be believed.
38. Contrary to the various assertions and statements from your client and her family, whose credibility has been wholly undermined, the Secretary of State is satisfied that he may continue to rely upon the objective evidence before him. This evidence, provided by the Italian authorities and provided by your client to the British Embassy in Rome, establishes incontrovertibly that your client was living openly and lawfully and working regularly in Italy for over three years with official permission to remain there. The photographs, the videotapes and the visa applications demonstrate that she was able to exercise free will there.
39. Even if your client could be believed about being a minor, which he does not accept, the Secretary of State was entitled to conclude that there would be no arguable breach of Article 8 to return her to Italy, and no Adjudicator could regard his conclusion as unlawful.
40. Your client was obviously able to live safely in Italy. It is inconceivable that an Adjudicator could believe the story of forced child labour and prostitution.
41. Your client had not enjoyed family life with her "mother" for a very long time, on her own account since 1997. In any event, her "mother" and uncle, as recognised refugees in the UK were and are able to visit her in Italy.
42. Any interference with her family life as could be shown by your client is plainly justified. The Secretary of State is entitled to regard the maintenance of a firm and consistent policy of immigration control as of great importance. Your client was able to live independently in Italy and wishes to live in the United Kingdom instead because her "mother" is now settled here. She should have made an honest application for a visa. She has no other claim to be here. Instead she has told a series of falsehoods in order to circumvent immigration control and now wishes to take advantage of her presence here. It is inimical to proper immigration control if those who dishonestly evade the proper controls are allowed to benefit from that evasion."
(2) A person who has been, or is to be, sent to a member State….is not, while he is in the United Kingdom, entitled to appeal -
(a) under section 65 if the Secretary of State certifies that his allegation that a person acted in breach of his human rights is manifestly unfounded."
"1. Everyone has a right to respect for his private and family life, and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"41. But even if the adjudicator were to conclude that the Secretary of State's analysis was wrong, it would not necessarily follow that the Secretary of State acted in breach of a claimant's ECHR rights in such a case. It would remain open to the adjudicator to decide that the conclusion reached by the Secretary of State was lawful (and did not breach the claimant's human rights) because it was in fact a proportionate response even on the factors as determined by the adjudicator.
42. Where the essential facts found by the adjudicator are so fundamentally different from those determined by the Secretary of State as to substantially undermine the factual basis of the balancing exercise performed by him, it may be impossible for the adjudicator to determine whether the decision is proportionate otherwise than by carrying out the balancing exercise himself. Even in such a case, when it comes to deciding how much weight to give to the policy of maintaining an effective immigration policy, the adjudicator should pay very considerable deference to the view of the Secretary of State as to the importance of maintaining such a policy. There is obviously a conceptual difference between (a) deciding whether the decision of the Secretary of State was within the range of reasonable responses and (b) deciding whether the decision was proportionate (paying deference to the Secretary of State as far as is possible). In the light of Blessing Edore, we would hold that the correct approach is (a) in all cases except where this is impossible because the factual basis of the decision of the Secretary of State has been substantially undermined by the findings of the adjudicator. Where (a) is impossible, then the correct approach is (b). But we doubt whether, in practice, the application of the two approaches will often lead to different outcomes."
"Firm immigration control requires consistency of treatment between one aspiring immigrant and another. If the established rule is to the effect - as it is - that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin."
At paragraph 26 Laws LJ went on to remark that it was simply unfair that the claimant should not have to wait in the queue like everybody else unless he can demonstrate some exceptional circumstance which reasonably justifies his jumping the queue.
" In short, therefore, in deciding whether or not the Secretary of State has struck the balance fairly between this appellant's right to respect for his family life and the proper maintenance of immigration control, this court will recognise that the Secretary of State is to be allowed a significant area of judgment. He is entitled to a significant margin of discretion before the court will conclude that he has gone wrong in the relative weight which he has attached to the conflicting interests."
"29. In my judgment, where there is a sequence of events, such as occurred here, which involve deliberately seeking to undermine the asylum regulation provisions within this jurisdiction it is the Secretary of State's entitlement to say to the court in weighing the balance between the interests of the children and the interests of the public weight has to be given to the consequences that would flow from the family being given the right to appeal in this jurisdiction.
30. The problems with which the Government are faced in trying to give effect to their policy in relation to asylum are well known. It is not unreasonable, as Mr Underwood QC submits, to say that if the court were to interfere with the grant of the certificate in this case, this would result in other children, in the position of these children, being faced with the same disruption with which these children have been faced in consequence of the actions which were taken by their parents. It is therefore appropriate, in my view, in finding where the balance lies, to take into account the message that would be sent out if the courts were to decide that the Secretary of State was not entitled to conclude that an appeal to an adjudicator would be bound to fail."
MR JUSTICE HARRISON: For the reasons set out in the judgment that has been handed down this application is dismissed.
MR BEARD: I am most grateful, my Lord. The Secretary of State understands that the claimant in this case is publicly funded, in which case the Secretary of State asks for the ordinary order to the effect that costs be awarded, but will only be enforced with the leave of the court.
MR JUSTICE HARRISON: Yes, there is a form of wording now.
MR BEARD: I am sorry, I do not have it.
MR JUSTICE HARRISON: Then the order will be made in the usual form.
MR BEARD: I am most grateful, my Lord.
MR JUSTICE HARRISON: Thank you very much.
MR JORRO: My Lord, thank you for that indication. My Lord, I have an application to make on behalf of the claimant, which is an application for permission to appeal to the Court of Appeal against your Lordship's judgment.
MR JUSTICE HARRISON: Yes.
MR JORRO: My Lord, there are two points and they relate to paragraphs 38 and then to 39 of your Lordship's judgment. The first point, in relation to paragraph 38, is this
MR JUSTICE HARRISON: Yes.
MR JORRO: My Lord, it relates to the family policy. In your judgment, my Lord, you have agreed with the defendant's proposition that the family policy is relevant to the question of whether or not a section 11 certificate should be issued, and not then relevant to the question of the Article 8 claim being manifestly unfounded.
My Lord, my submission is this: that the family policy is specifically designed to ensure compliance with Article 8. That is its very purpose. On that basis, my Lord, I submit, respectfully, that it is not illogical to say that a policy, the very purpose of which is designed to ensure compliance with Article 8 obligations by the United Kingdom, can be considered to be irrelevant to the question of whether or not the claim by an individual that her Article 8 rights would be breached, is to be considered clearly unfounded. The very essence of the issue in the policy goes to this question of whether or not Article 8 is engaged.
On our submission, obviously, on your Lordship's finding, at least for the purposes of this judgment, the claimant was a minor who had a refugee mother in the country when she arrived here and claimed asylum. On that logic it was wrong, we say, for it to have been certified in the first place. Your Lordship says: well, that goes to a separate issue. My submission is: no, it does not. It goes to the issue which is at the heart of the policy, ie the United Kingdom's obligations under Article 8 of the Convention.
The point, as I understand it, has not been dealt with by the Court of Appeal. It was put aside, as it were, in the case of Nadarajah and it is a live point of general public importance. I would submit that it has a real prospect of success in this case. On that basis I would ask for permission to appeal.
My other submission is this: it relates to your Lordship's paragraph 39, which in turn sets out the Secretary of State's case. Basically the Secretary of State's case is that the claimant is a liar. She has come to this country and told a whole series of lies. On your Lordship's judgment she was a very young child indeed when she arrived in Italy, about 13 years old, and only 17 when she came here. That, I submit, has a relevance to this issue of her deceptiveness. It is different, and it is considered generally to be different, between a child telling lies, particularly when told to do so, from an adult doing so. There is an issue there.
So, my Lord, on both those points, relating, as I say, to paragraphs 38 and 39, I ask for permission to appeal to the Court of Appeal.
MR JUSTICE HARRISON: Thank you very much. Yes, Mr Beard?
MR BEARD: My Lord, the Secretary of State opposes the application for permission to appeal. This is not one of those cases where your Lordship should be granting such permission. It is a matter that, if the claimant wishes to pursue it, should be raised with their Lordships directly.
In relation to the paragraph 38 point, your Lordship has made crystal clear that the matter in relation to their policy relates to the section 11 certificate. That policy relates to whether or not the Secretary of State will exercise his discretion to consider an asylum application substantively. The Dublin Convention makes it possible that where someone has come from another Member State he does not have to do so. That certification was made pursuant to section 11 of the 1999 Act. No challenge was brought, as your Lordship has found. There is no possible ground of appeal that has any reasonable prospect of success in relation to that element.
Your Lordship, furthermore, has considered carefully the Secretary of State's analysis of Article 8, of both 8.1 and 8.2, and reached the conclusion that there is no infringement in the return of this person. The circumstances, therefore, mean that there again reference to the policy adds nothing.
As to the second point, your Lordship has made findings that there are doubts about the claimant's age and identity. Far from saying it was clear that she was in fact 13 or 17 at the relevant points, your Lordship has indicated the continuous pattern of deception recognised that in this case. Those are factual matters which your Lordship has reached conclusions on. Those are not matters either upon which there is any reasonable prospect of success, or, indeed, raise a legitimate point of law in this context, in any event.
In the circumstances, this is not a case where your Lordship should exercise his discretion to grant permission to appeal.
MR JUSTICE HARRISON: Thank you very much. Mr Jorro, anything further you want to say?
MR JORRO: My Lord, very briefly, on the first point only. There is a certain element begging the issue with respect to the Article 8 point, because our submission, of course, is that if your Lordship had considered that the policy was relevant to the Article 8 issue, then it would have been a different matter in terms of the consideration, because, of course, under the policy it is certainly arguable that the claimant would have qualified. She was a minor, her mother was a refugee.
MR JUSTICE HARRISON: Yes, I see. Thank you very much. Well, I am afraid, Mr Jorro, I am not prepared to grant permission to appeal. If you wish to take it further you will have to go to the Court of Appeal.
MR JORRO: Thank you, my Lord.
MR BEARD: I am most grateful.
MR JUSTICE HARRISON: Thank you both very much.
MR JORRO: My Lord, in case I need it, can an order for detailed assessment for that part of the
MR JUSTICE HARRISON: Yes