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 WC2A 2LL
		29th June 2007

1. ANDREW NICOL QC: This is an application for judicial review by Sopha Chantrat against the decision of the Secretary of State for the Home Department refusing her leave to remain in the United Kingdom in decisions that began on 24th August 2005, have been reviewed from time to time, and most recently were made on 8th June 2007. The claim form was lodged on 25th August 2005, ie, the day after the first of the decisions under challenge. The matter came before the court on various occasions, but at an oral permission hearing on 30th January 2006 permission to apply for judicial review was given by Silber J.
2. The claimant is from Thailand. At the time of the 2005 decision she was 34 and is now 36. Since about March 2004 she has been living with a British citizen by the name of Leslie Seth-Smith. Mr Seth-Smith was 82 in 2005, and he is now 84.
3. The claimant arrived in the United Kingdom in May 2002 and she was given leave to enter for six months. That leave was never extended. She was arrested as an overstayer in August 2005, at which point representations were made to the Secretary of State that she should be allowed to remain because of the relationship she had formed with Mr Seth-Smith and that the two of them were engaged to be married. She alleges that by removing her to Thailand, as the Secretary of State proposes to do, there would be a disruption of her relationship with Mr Seth-Smith and there would thereby be a breach of Article 8 of the European Convention on Human Rights.
4. Mr Seth-Smith, I should explain, is a man whom, I have already said, is now 84 years old and he has medical conditions which include arthritis, high blood pressure for which he takes regular medication, atrial fibrillation and heart disease, which would be adversely affected by the type of air travel that would be necessary if he were to go to Thailand to live with the claimant there. He will also suffer from the climate or temperature in that country. The Secretary of State, for his part, accepts that because of his age and medical condition it would not be practicable to expect Mr Seth-Smith to travel to Thailand and live with the claimant there.
5. The Secretary of State in one of the later decisions of 10th October 2005, in addition to reiterating the substantive decision that he would not give the claimant leave to enter or remain in the United Kingdom, certified that her claim that removal would be contrary to Article 8 of the European Convention on Human Rights was "manifestly unfounded" pursuant to section 94(2) of the Nationality Immigration and Asylum Act 2002. In this application for judicial review the claimant argues in essence that the defendant could not rationally conclude that her argument that removal would infringe Article 8 was manifestly unfounded.
6. The effect of certifying a claim as manifestly unfounded is that the claimant would not have the opportunity to ventilate her human rights claim before the Asylum and Immigration Tribunal. The test to be applied, in effect by both the Secretary of State as the initial decision-maker and by the court in considering an application for judicial review of that certification, has been considered by the courts on a number of previous occasions. They have emphasised that the test is not whether an appeal to the Tribunal would be likely to fail, it is a more rigorous test which the Secretary of State has to satisfy before he is able to certify a claim as manifestly unfounded.
7. Miss Greaney on behalf of the Secretary of State refers to the comments by the Court of Appeal in the case of R (on the application of Bagdanavicius) v Secretary of State for the Home Department [2003] EWCA Civ 1605. In effect the Secretary of State has to be satisfied that the claim is "so wholly lacking in substance that the appeal would be bound to fail". This is effectively the same test as was considered by the House of Lords in the case of Thangarasa and Yogathas v Secretary of State for the Home Department [2002] UKHL 36, where Lord Bingham said that the Secretary of State must be reasonably and conscientiously satisfied that the allegation must clearly fail and added "no matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation" (paragraph 14).
8. It is clear from cases such as those and from the decision of the House of Lords in R (on the application of Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 that the court itself on an application for judicial review of the certificate must also apply effectively the same test. In other words, the court must ask itself whether the claim that human rights under the Convention would be violated is so wholly lacking in substance that an appeal to the Tribunal would be bound to fail. I bear those tests in mind and have done so in the course of this judgment.
9. Article 8 of the European Convention on Human Rights on which the claimant relies says this:

"(1) Everyone has the right to respect for his private and family life, his home 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 wellbeing 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."

Miss Greaney, on behalf of the defendant, accepts that for a period there would be an interference with the family life of the claimant and Mr Seth-Smith if the claimant were removed from the United Kingdom, and Miss Greaney accepts that because of the medical evidence that has been produced Mr Seth-Smith is precluded from travelling to Thailand with his fiancee. However, she submits that that interference would, or could, be of a relatively short duration. The reason for that is that it would be open to the claimant, having returned to Thailand, to apply for entry clearance to join Mr Seth-Smith as his fiancee. Such an application, if successful, would lead in the first place to entry clearance permitting entry for that purpose and would lead, on presentation of the entry clearance to an immigration officer, to the grant of leave to enter for a period of, I believe, 12 months. However, if during that period the wedding took place and the relationship continued, the expectation would be that it would in due course be converted to indefinite leave to remain. Because a fiancee would be on track for receiving indefinite leave to remain, if not immediately but in due course, it would be regarded as an application for entry clearance for settlement.

10. The information on the website of the British Embassy in Bangkok indicates that applicants for entry clearance which are in a category of this kind and which would lead to settlement, should expect to allow at least three months. While that is not a fixed time limit within which a decision will be taken, Miss Greaney submits that it is indicative of the kind of period which the claimant in this case would have to wait before her application for entry clearance was determined. Accordingly, she submits that the interference with the family life of the claimant and Mr Seth-Smith would be of relatively short duration. That is material, as she submits, and indeed as I accept, because when it comes to judging whether the interference is justified under Article 8(2) of the Convention, the court must have regard to the gravity of the interference in the particular circumstances of the case. The Secretary of State in the first place, and the Tribunal, if there were an appeal that came before them, would have to consider whether the interference was proportionate to the end to be achieved. In this case it is accepted that there is a legitimate aim in the form of maintaining immigration control, and the real issue between the parties is whether the interference in this case could arguably be said to be disproportionate.
11. The House of Lords in the recent case of Huang v Secretary of State for the Home Department [2007] UKHL 11 has emphasised that questions of proportionality are for the Tribunal to decide for itself. It has to consider the nature of the interference, the nature of the interest to be protected in pursuit of that interference, and whether or not the interference is proportionate to that aim on the facts of the particular case.
12. Mr Mann on behalf of the claimant says that it is at least arguable -- and I use that phrase as a shorthand reference to the obverse of the tests that have to be satisfied before the Secretary of State can certify -- that in the circumstances of this case the Tribunal might decide that the interference would be disproportionate. He accepts that the separation would be for a relatively short period of time. He relies, however, who on the case of Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045, in which the Court of Appeal held that an Adjudicator was entitled to find that the removal of an elderly man to the Yemen, even for the relatively short period in which the man concerned could apply for entry clearance, was a disproportionate interference, and a breach of Article 8. He would submit correspondingly, that the interference, even for the period of time that I have referred to, might likewise be found by the Tribunal to be a disproportionate interference.
13. In my judgment though the Mukarkar case is very different to the present. In that case it was the elderly man who was due to be removed. His medical condition, summarised in the judgment, was very much more serious than, fortunately for him, Mr Seth-Smith has to put up with. His condition was so serious that the Adjudicator thought that removal to the Yemen, where he would be alone and without family support, would constitute a breach not only of Article 8 but also Article 3 of the Convention. The Adjudicator had borne in mind that the man to be removed was entirely dependant on the care and help and nursing that he received from members of his family in the United Kingdom who, for various reasons, would not, practicably speaking, be able to accompany their relative back to the Yemen.
14. All of that is entirely different from the present case. True it is that Mr Seth-Smith would not be able to accompany the claimant to Thailand, but it is not of course said that that would put the claimant's health at risk. Nothing has been said to suggest that she is anything other than a healthy young woman. Mr Seth-Smith himself suffers from the conditions which I have mentioned, and I should say that the claimant provides him with comfort, solace and, to a degree, care and support in the UK. But Mr Mann very fairly does not suggest that if the two of them were separated that itself would in some way jeopardise the health of Mr Seth-Smith, nor does he suggest that for the needs that he does have, in terms of care and assistance, he could not look elsewhere during that period. He does urge me to have in mind, and I do, that for somebody of Mr Seth-Smith's age separation from a person of whom he has grown very fond would be a blow and would be the more difficult to endure because of the inevitable uncertainties that come with that age and the state of health in which he is.
15. I bear all those matters in mind. However, in my judgment, this is a case where the Secretary of State was entitled to say that an appeal to the Tribunal on Article 8 grounds would indeed be hopeless. I say that the Secretary of State was entitled to reach that decision. So far as the cases indicate, and I suggested that they do, the court must itself consider whether an appeal to the Tribunal would have any chance of success or whether it was doomed to fail. Were I to make that decision, I too would say that an appeal would be doomed to fail and that it would have no chance of success at all. Accordingly, I find that the challenge to the series of decisions that has been taken by the Secretary of State in respect of the claimant does not succeed and the application for judicial review is dismissed.
16. MISS GREANEY: My Lord, I do make an application for the costs. I do not have a schedule. This matter has been going on for some time and I now have a new solicitor. I would simply ask for them to be assessed if not agreed.
17. ANDREW NICOL QC: Mr Mann?
18. MR MANN: I do not think I can say much about that, my Lord.
19. ANDREW NICOL QC: Very well. The claimant is to pay the defendant's costs, to be subject to detailed assessment if not agreed. Thank you both for your help.