England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		14 July 2008

Monday 14 July 2008

MR JUSTICE PLENDER:

1. This is an application for judicial review of the refusal of the Secretary of State to grant indefinite leave to remain to Alan Ali Jamal in circumstances that I shall describe. This judgment is given ex tempore, but after the benefit of detailed argument from Mr Bazini for the claimant and admirably concise submissions by Miss Olley for the Secretary of State.
2. The claimant is an Iraqi national who applied for asylum when he arrived in the United Kingdom on 10 November 2000. The basis of his claim for asylum at that time was that he had reason to fear persecution from the Ba'athist regime then in power in Iraq. His application was refused on grounds of credibility. Following the refusal of his application, there came a time at which he was no longer eligible for asylum support. He had no means of subsistence. He contacted a refugee organisation and made a fresh application for asylum. In that fresh application he used a false name. He was invited to attend the Home Office for an interview in connection with that second application for asylum. On that occasion his fingerprints were taken. Very soon they were matched with the fingerprints of the true Alan Ali Jamal, who had applied for asylum on 10 November 2000. He acknowledged that his second application was made in a false name. He was then arrested and prosecuted for the offence of seeking to obtain leave to enter or remain in the United Kingdom by deception. He was convicted and sentenced in accordance with the guidelines currently laid down by the Sentencing Guidelines Council and approved by the Court of Appeal, to a term of twelve months' imprisonment. That conviction was recorded against him on 3 November 2003.
3. On 31 August 2005, the claimant's present representatives made fresh representations on his behalf seeking that he should be granted indefinite leave to remain on the basis of the failure of the Secretary of State to grant him such leave at an earlier date. That is a matter to which I shall shortly revert. The Secretary of State refused indefinite leave to remain in 2005. The basis of the Secretary of State's refusal was that the claimant had completed an Iraqi Consideration Questionnaire, but had done so untruthfully. In response to the question: "Have you ever been convicted of any offences in the United Kingdom?", he answered "No".
4. It is submitted on the claimant's behalf by Mr Bazini that there is powerful mitigation for the untruthfulness of the claimant in completing his form. Mr Bazini points to Home Office statements of current policy in relation to Iraq which refer to two periods, one being of twelve months and one being of 24 months' imprisonment which will disqualify a person from the grant of leave. He says that the claimant would have discussed this matter with others in the asylum-seeking community and would have been misled by their replies into believing that a period of imprisonment of less than 24 months was irrelevant.
5. Of that I have no direct evidence. The question on the questionnaire is, however, a simple one: "Have you ever been convicted of an offence?", to which the claimant answered, "No". It is as plain as could be that the claimant answered that question untruthfully.
6. It is, however, urged on his behalf that the claimant had powerful mitigation. It is said that he is an Iraqi who fled in fear from the Ba'athist regime; that a time came when he was without means of subsistence; and that his only means of obtaining subsistence was to make the fresh application for asylum under a false name. Mr Bazini asks rhetorically in his response: Can it seriously be said that if the claimant had answered the question accurately the Secretary of State would have granted him indefinite leave to remain? His question invites the answer: Of course not. But here, I fear, we come to the nub of the case. The claimant would not have obtained the leave he sought but for the dishonesty in his completion of the form.
7. I have considerable sympathy with the claimant, however, when looking at the history of the matter. At the time when he originally applied for asylum, he was eligible under the policy that then existed to be granted four years' exceptional leave to remain. Mr Bazini has taken me in considerable detail through the policy documents and the case law that existed in relation to that policy. Here is a claimant who could and would have obtained four years' exceptional leave to remain had the policy been correctly applied in his favour initially. I also accept that the claimant is most unlikely to have committed the offence that he did commit had he been granted exceptional leave to remain in accordance with the policy in the first instance. After all, if he had exceptional leave to remain, he had no need of the leave for which he applied on the questionnaire that he completed inaccurately. The policy that had been in force in the period November 2001 to December 2002 would have enured to his benefit and would have resulted in the grant of his leave to remain for four years. He has, however, at this stage lost his opportunity to appeal further against the error which Miss Olley for the Secretary of State candidly admits was made in his case.
8. I now must ask whether the present Secretary of State acted irrationally in refusing indefinite leave to remain in view of the offence committed by the claimant when he made a false declaration on the questionnaire. I have come to the conclusion that the Secretary of State did not act irrationally when so deciding. Others may have acted differently, but in maintaining the policy any applicant who completes the questionnaire untruthfully should not be granted the benefit of indefinite leave to remain. The Secretary of State applied a consistent approach in defence of a policy which is not upon the face of it irrational.
9. For these reasons this application is refused.

MR BAZINI: My Lord, the claimant has the benefit of a legal aid certificate.

MR JUSTICE PLENDER: Miss Olley has not applied for costs.

MISS OLLEY: My Lord, I do have an application, but I am not in a position to say what the sum is, partly because of the way that I am instructed. But I submit that I am entitled to costs in principle, to be assessed if not agreed.

MR JUSTICE PLENDER: I am not minded to grant an order for costs. An order for costs is almost the invariable consequence of the success of the respondent -- whether it is the Home Secretary or anybody else. But in the circumstances of the present case, where there has been an acknowledged error on the part of the Secretary of State, and the more so when it is a question of funds going from one public purse to another, I think it is inappropriate to make an order for costs. But this is no reflection upon you at all, Miss Olley.

MR BAZINI: My Lord, I am grateful. May we have our costs assessed?

MR JUSTICE PLENDER: You may have your costs assessed, yes, but no order for costs.

MR BAZINI: My Lord, there is the question of an application for permission to appeal against your judgment. I do not know whether you want me to make that now or to put something in writing to your Lordship?

MR JUSTICE PLENDER: It is a short matter and I think the application is best made to the Court of Appeal.

MR BAZINI: So be it.