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
		11th August 2005

Thursday, 11th August 2005

1. MR JUSTICE CRANE: This is the hearing of an application for judicial review of a decision by the Secretary of State on an Article 8 claim by the claimant. The original decision was made on 2nd March 2005 in response to representations in a letter from the claimant's solicitors dated 15th February 2005. There then followed the application and there was a further decision letter, maintaining the previous decision written on 25th May 2005.
2. It is accepted on both sides that the issue today is whether the maintenance of the certification of the Article 8 claim as clearly unfounded in the letter of 25th May should be maintained or quashed. If the certification is quashed, then the case would go to an immigration judge.
3. The essential facts, for present purposes, are these. The claimant was born on 22nd August 1986, so that he is 18, nearly 19, years old. There is a statement from his mother. She asserts that the father of the claimant left before the son was brought up, although in one document since then it was asserted that he had died. There is also an assertion in the claimant's solicitor's letter of 15th February 2005 that the claimant had been dependent on a stepfather, but no stepfather appears to exist, or have existed. However that may be, the claimant appears to have come to this country with his mother in July 1999 when he would be nearly 12, she coming for six months as a visitor. In November 1999 she returned to Jamaica, it appears, leaving the claimant in this country. She left him, it appears, with her brother, the claimant's uncle, Mr Devon Frame. The mother says in her statement that she felt that the claimant needed a father figure and, in effect, that Mr Frame provided that. It appears that the claimant remained living in the United Kingdom with Mr Devon Frame and his parents.
4. The uncle, Mr Frame, applied for the claimant to remain in the United Kingdom. By a letter dated 17th February 2000, solicitors acting on behalf of Mr Frame applied for what was described as variation of the claimant's leave to enter the United Kingdom. As a result of a subsequent request by the Home Office, the uncle, Mr Frame, filled in a SETF form of application for indefinite leave to remain on the part of the claimant. The solicitors, in their letter of 17th February, had stated as follows:

"During Mr Locke's absence his mother died in mysterious circumstances back home in Jamaica, thereby leaving him without any other kit and kin to look after him except Mr Devon Frame his uncle who now sojourns in the United Kingdom."

5. The mother claims that that was simply a lie by the solicitors, but the SETF form that was subsequently completed by, or certainly signed by, the uncle on 9th November 2000 said, in answer to the question, "Do you have any close relatives living outside the United Kingdom?" gave the answer, "No". It is plain that although the claimant cannot cogently be blamed for the lie, Mr Devon Frame was part of that attempted deception.
6. The application was, in fact, refused. The claimant's mother arrived back in the United Kingdom as a visitor in October 2001 and was given leave to enter as a visitor for six months. She now has permission to remain for the purpose of study until June 2006, that being later than was the situation when the Secretary of State's letter was written in May. Meanwhile, she, unfortunately, was diagnosed with cancer in April 2003. She apparently had surgery and, according to her statement, chemotherapy and radiotherapy and she said that her cancer was diagnosed as very severe. It appears, though, that her treatment at the moment consists of medication in the form of Tamoxifen and regular annual checks. She is apparently well enough to undertake study. She says, and it is part of the basis of the claim, that her son has been a pillar of strength to her and that there is a close bond between them. I have no reason to doubt, and I do not think it is doubted in the decision letter, that such a bond of affection remains between mother and son.
7. The letter of 2nd March rejected the Article 8 claim and certified it. It was, at one stage, submitted by counsel on behalf of the claimant that that letter inadequately dealt with the claim that had been put forward, but the claim had that been put forward falls within the four walls of the letter of 15th February, a letter which contained one inaccuracy, on any view, and which was by no means full in relation to the circumstances of the claimant. The argument that the letter of 2nd March, or its conclusion, were at the time inadequate is untenable. The letter of 25th May takes into account further representations which have been put forward in these proceedings and deals more fully with the claim. It is, as I have indicated, the letter of 25th May which falls for consideration.
8. I have been referred to the cases dealing with the manifestly unfounded test, including R (Yogathas and Thangarasa) v SSHD [2003] 1 AC 920. I bear in mind the law, but I do not think that the state of the law is in question in this case, or that it is necessary to set it out in detail. I do, however, consider one other authority to which I have been referred, R v SSHD ex parte Djakaija [2005] EWHC 1394 where Moses J repeated the law but went on, in paragraph 4, to deal with the relevance of the fact that a judge had given permission in the case. That is relied on by counsel for the claimant in the present case, not surprisingly. However, although Sir Richard Tucker gave leave on 14th April 2005, he did not give reasons and it is clear that he did not have all the information that is now before the court. That consideration, therefore, cannot carry great weight in the present case.
9. I turn to the letter of 25th May 2005. Very properly, the Secretary of State makes reference to the grandmother and grandfather. It appears that they have been part of a single household with Mr Devon Frame, the mother and, certainly when he was not away at college, the claimant. The grandmother and grandfather do not, in fact, have any status to remain in this country. There is no evidence before me, let alone before the Secretary of State, that the relationship with the grandparents goes beyond normal emotional ties or constitutes a family life for the purpose of Article 8.
10. In relation to another uncle, Mr Byron Watson, the same considerations apply with greater force because he was removed to Jamaica on 15th March 2005, being an overstayer and at one stage having attempted to take on his brother, Devon's, identity.
11. At the centre of the case for the claimant are the alleged relationships with the mother and with the uncle, Mr Devon Frame. As I have indicated, the mother is now here with leave until June 2006. I have assumed, and this appears to be the position, that they, apart from the periods when the claimant was away at college, have been living under the same roof, and there is clearly an emotional tie, as I have indicated, but she has no status to remain in the United Kingdom beyond June of 2006. It is clear from the original skeleton argument, put forward on behalf of the claimant, at pages 11 and 12, that it is the relationship with the mother, and the family life that is said to result from that, that is primarily relied on, although I accept that if one looks at page 5 of that skeleton, the family life in relation to the uncle, Mr Devon Frame, is relied on.
12. The Secretary of State maintained the view that it was not accepted that family life had been established for the purposes of Article 8 between the claimant and his mother. In relation to the uncle, it has been asserted by the mother in her statement and in the claimant's case, that from the time when the mother originally returned to Jamaica, he had brought the claimant up. It does not appear that there is any serious doubt about that, but the evidence about any continuing dependency on the part of the claimant on Mr Devon Frame is scant. It is, however, accepted by the Secretary of State that Mr Devon Frame is actually settled here and appears to have leave to remain, but on the basis of his marriage. Some question has been raised today, because of a reference to him being single, about whether he is, in fact, married. Nevertheless, for today's purposes, I certainly proceed on the basis, as was accepted in the Secretary of State's second decision letter, that Mr Devon Frame has a status to remain in this country and is settled here, although counsel for the Secretary of State points out that there is little evidence about what he is doing, and even less about the children which, according to one reference, he has. The Secretary of State did not accept that family life had been established with any member of the family, including Mr Devon Frame.
13. In considering whether it would be unreasonable to expect relatives to return to Jamaica with the claimant, if he were removed, the point is made that the mother, as at present planned, will go back to Jamaica in about a year's time. The Secretary of State expressed the view that there was no reason why the other relatives should not return to Jamaica. In my view, there is in this connection a piece of flawed reasoning in the Secretary of State's letter. He says that there is no evidence to indicate that Mr Devon Frame cannot go back to Jamaica. That is correct, as far as it goes, but if it is accepted that Mr Frame has immigration status in this country and is settled and has lived here for a number of years, the possibility of his deciding to leave this country in order to maintain the relationship with the nephew, seems to me, as an argument, Wednesbury unreasonable.

I reach my conclusions, bearing in mind that piece of what I regard as flawed reasoning.

14. In my view, the Secretary of State was entitled to find that there was no family life, for the purpose of Article 8, between the claimant and either his mother or his uncle, Devon Frame, who were the primary candidates for the existence of people with whom he has a family life. It seems to me at least arguable that if the matter rested there, the certification would have been flawed, although, in my view, the Secretary of State was entitled to reach those conclusions. Particularly in view of the state of the evidence before him, the conclusions of an immigration judge might have been different, but the Secretary of State went on to consider the question of proportionality, which has to be considered in Article 8 cases. I bear in mind the authorities, which are not in dispute for today's purposes, in relation to that.
15. It seems to me that, even if an immigration judge were, contrary to the decision of the Secretary of State, to find that there was a family life in relation either to the mother or the uncle or both, and that therefore Article 8 was engaged, there is really no prospect that on the issue of proportionality the claimant could possibly succeed before an immigration judge. That would be putting the existence of family life and its effect at its highest. The Secretary of State was, in my view, unarguably entitled, therefore, to decide that removal would be proportionate and, in any event, I take the view that there is really no prospect, even if one assumes differences in the immigration judge's conclusions from those of the Secretary of State, for an immigration judge reaching conclusions on the facts about the state of family life that would leave the issue of proportionality capable of being decided in the claimant's favour. In my view, therefore, the certification was not flawed. Even if I were incorrect in that conclusion, since the inevitable result of further proceedings, taking into account all that the court has been told, is that there would, in fact, be a decision on the merits against this claimant, there would be no purpose in any event in quashing the certification and allowing a hearing. For those reasons, I must dismiss this application for judicial review.
16. MISS MALLICK: This matter is publicly funded, my Lord.
17. MR JUSTICE CRANE: You are asking for what, sorry?
18. MISS MALLICK: A certificate for public funding, my Lord.
19. MR JUSTICE CRANE: What are you asking for?
20. MISS MALLICK: An assessment for costs.
21. MR JUSTICE CRANE: A detailed assessment. Has a certificate been filed?
22. THE ASSOCIATE: Yes, it has, my Lord.
23. MR JUSTICE CRANE: Yes, a detailed assessment.