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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> I, R (On the Application Of) v Secretary of State for the Home Department [2007] EWHC 3103 (Admin) (28 November 2007)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/3103.html
Cite as: [2007] EWHC 3103 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
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| THE QUEEN ON THE APPLICATION OF I | Claimant | |
| v | ||
| SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendant |
____________________
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Mr D Blundell (instructed by Treasury Solicitors) appeared on behalf of the Defendant
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- MR JUSTICE COLLINS: This is a renewed claim for permission to seek judicial review of two decisions of the Secretary of State refusing to treat representations made in January of this year as fresh asylum and human rights claims. The claimant is a Sri Lankan Tamil. He came here as an unaccompanied minor in June of 2002 and made an application for asylum. That was refused, but because of his age he was granted exceptional leave to remain.
- In January 2004, he submitted an application for further leave, his original leave expiring on 21 January 2004. In August 2004, that application was refused, as was his claim to be allowed to remain because to return him would breach Articles 2, 3 and 8 of the European Convention on Human Rights. On 1 September 2004, he appealed against the refusal, and that appeal was dismissed on 12 January 2005. Some two years later, on 17 December 2006, he was served with a form IS151A, which is the notice to a person that he is liable to be removed. It is that that triggered the submission by his solicitors that he had a fresh claim to asylum.
- The fresh claim was based entirely upon the deterioration of the situation in Sri Lanka since the adjudicator's decision dismissing his appeal. Essentially it relied upon a report in December 2006 of the United Nations High Commissioner for Refugees, which suggested that there should be no returns of Tamils to Sri Lanka, particularly if they came from the north or the east, because there was, due to the deterioration in the situation and the breach of the cease-fire, a real risk of persecution inasmuch as the authorities would be likely to detain and interrogate, and if detention and interrogation takes place in Sri Lanka, there is, as unfortunately there always has been, a real risk of the use of torture and so of breaches not only of Article 3 of the European Convention on Human Rights, but also the Refugee Convention.
- This claim was lodged on 6 February 2007. The application was refused on paper and has since been renewed. At the time that the claim was lodged, the Asylum and Immigration Tribunal had not issued a fresh country guidance because it was necessary to consider the situation because of the deterioration. The decision of mine in Jeyachandran given back in 2002 was based upon the cease-fire, and the hope, that then appeared to be not unreasonable, that there would be a peaceful solution to the problems that had arisen in Sri Lanka between the LTTE and Tamils on the one hand, and the Government (essentially the Sinhalese) on the other. Sadly, that did not happen, and so the new situation had to be considered.
- The Tribunal heard a considerable amount of evidence, and eventually reached its decision at the beginning of August this year in a case called LP; that being a country guidance case. It sets out a number of factors which are material in deciding whether an individual runs a real risk of persecution or of treatment contrary to the European Convention on Human Rights. But it makes it clear that the mere fact that someone is a Tamil is not sufficient to create such a real risk. Of course, the fact that someone is a Tamil is a consideration, and obviously Tamils will, if there are other matters that arise, be likely to be more at risk than others.
- Accordingly, on the facts of this case, since the adjudicator comprehensively rejected the claimant's account and decided that he had not been involved in any way with the LTTE, had never been detained, and was of no interest to the authorities, Mr Paramjorthy very sensibly and properly recognises that he is not going to be able to persuade me that the claim made is one that is now arguable, having regard to the country guidance case of LP and the approach of the court which has been made apparent in other cases.
- Accordingly, on the facts of this case, he recognises that inevitably permission must be refused, and indeed that is the order I make.
- However, I do not want to leave this case without commenting on one important matter. When the claim was lodged, the decision of the adjudicator was not included in the papers to be seen by the judge. Indeed, it was not until the acknowledgment of service that the full history was disclosed. It is essential that those who bring judicial review proceedings appreciate that there is a duty of candour. That means that they must put before the judge all relevant material, and in particular any material which may be adverse, or may appear to be adverse. They must not leave the situation that the judge does not have the full picture in order to make the relevant decision. The history is clearly material in almost all cases where claims are made that removal should not take place because, for example, there is a fresh claim, or because there is a developing situation which leads to the possibility of a breach of human rights. Such claims are frequently brought before this court, largely because the Home Office does not remove those whose appeals fail within a reasonable time. This case is an example: some two years elapsed between the dismissal of the appeals that were brought and the decision to remove. In that two years, or whatever the period may be, frequently situations change, not only in the country in question, but also an individual may for example marry, may have children, may assert that there is an Article 8 claim as a result of the length of time that he or she has been in the country.
- It is essential that the full immigration history is put before the judge, and that must include determinations of the AIT, particularly if those determinations show that the individual's credibility has been rejected. This case is a good example. A lengthy report was obtained from Dr Chris Smith, who has been in other cases recognised to have an expertise in dealing with Sri Lanka. His report is far too long, and most of it is general material as to the situation in Sri Lanka. But he was given the story told by the claimant. Unfortunately, it appears, and certainly he makes no reference to it, that he was not informed that that story had been comprehensively rejected by the adjudicator. Of course, the Secretary of State is entitled to rely on the findings of adjudicators or immigration judges unless, in the course of the fresh material that is said to exist, some doubt is cast upon them. An example of such a case is my decision (which was upheld by the Court of Appeal) in AK, where there was a newspaper report produced which appeared to indicate that there was support for an assertion made by the appellant in that case, albeit the adjudicator had rejected his account. That is not the situation here. But subject to that sort of fresh evidence, the Secretary of State is clearly entitled to rely upon any findings made by an immigration judge or an adjudicator.
- To fail to produce that sort of material will readily be regarded by the court as a failure to comply with the duty of candour. I make it clear that there is ample authority which indicates that the court is entitled to, and will in certain cases, refuse permission purely on the basis of such a breach. Whether or not there might be an arguable claim, a failure to act in accordance with the view to give candour can result in a refusal of permission.
- Furthermore, it is a breach of the obligation of the solicitors and counsel if there has been a failure to include material which is relevant, and particularly if that material is or may be adverse to the claimant. If such a breach occurs, it is open to the court, and the court will have no hesitation in so doing, to make an order that the solicitors in question, and possibly counsel if counsel is also shown to have been in breach of his duty, pay the costs incurred by the Secretary of State in producing an acknowledgment of service personally, and if there is a renewed application, and there should not be, possibly the oral renewal as well. That will depend on the circumstances, but certainly orders are likely to cover the acknowledgment of service.
- Having said that, I make it plain that Mr Paramjorthy has given an explanation -- and equally I make it plain he was not involved in that stage -- which satisfies me that there was no deliberate breach in this case because the claim was based purely upon the UNHCR report, and therefore it appeared that it was not necessarily material that the credibility had been rejected, because essentially the claim made back in February was based upon the assertion then that the mere fact that he was a young Tamil male and a failed asylum seeker would create a real risk so that he should not be returned.
- I am bound to say that I think an error was made. The decision ought to have been included in the papers, and certainly ought to have been included once it was decided to renew the application. On the other hand, it is fair to say that, at the renewed stage, it was in the papers because it had been produced by the Secretary of State in the acknowledgment of service. So perhaps that could not be regarded as compounding the mistake.
- I have dealt with this in some detail because it is, in my view, important that practitioners in this field should appreciate what I have indicated, and should equally appreciate that they run a real risk of having to pay costs if they fail to comply with the duty which I have spelt out. I think this is quite an important matter. It should be known by the profession, and accordingly I will direct that this judgment can be reported.
- So far as the claim is concerned, Mr Paramjorthy, it must be dismissed.
- MR BLUNDELL: My Lord, I am grateful.
- MR JUSTICE COLLINS: You want your costs of the acknowledgment, do you?
- MR BLUNDELL: The cost of the acknowledgment of service is £400, my Lord. I will also ask your Lordship to consider whether this might be an appropriate case also to award the costs of my attendance today. They are in the sum of £350.
- MR JUSTICE COLLINS: Mr Paramjorthy, are you legally aided?
- MR PARAMJORTHY: No, I am acting on a pro bono capacity today.
- MR JUSTICE COLLINS: Does your client have any money?
- MR PARAMJORTHY: No, your Lordship. This is the young man seated at the back here. I am afraid he does not have permission to work and has no immediate family here. I am not putting this as an emotive trump card, it is as a matter of course, you Lordship.
- MR JUSTICE COLLINS: I will not extend to the hearing today. You know what the Practice Direction says and I do not think that I will do that. There is not much point any way. So far as the acknowledgment of service is concerned, they are prima facie entitled to those costs, and £400 does not seem an unreasonable amount.
- MR PARAMJORTHY: It is not an unreasonable amount. What I may ask your Lordship's indulgence on --
- MR JUSTICE COLLINS: I think it is for them whether they enforce. I am afraid impecuniosity is not a ground for saying no order, but if they are going to remove, then there is not much point in enforcing.
- MR PARAMJORTHY: Indeed, and often claimants are removed before any enforcement action is taken.
- MR JUSTICE COLLINS: I get this in many permission applications, and my tendency is to say: if you really want to pursue it, you can have the order. But I suspect that nine times out of ten, 99 times out of a 100, they recognise that there is not any point.
- MR PARAMJORTHY: There is little I can say in rebuttal, your Lordship.
- MR JUSTICE COLLINS: You can have your order for £400, Mr Blundell, but frankly I very much doubt whether there would be any point in trying to enforce it.
- MR BLUNDELL: I appreciate the force of what your Lordship says.
- MR JUSTICE COLLINS: That is a matter for those instructing you. All right, well, thank you very much, Mr Paramjorthy, and I hope that you are not suffering too much.
- MR PARAMJORTHY: I am grateful to you for taking me early.