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
		5 September 2008

1. MR JUSTICE SULLIVAN: This is a rolled-up hearing of an application for permission to apply for judicial review with the substantive hearing to follow if permission is granted. For the reasons which will shortly appear, I grant permission and proceed to consider the substantive issues.
2. The decision challenged is contained in a decision letter dated 11 April 2008. That recites the fact that the claimant's application for leave to remain in the United Kingdom, as the spouse of a settled person, had been refused on 23 January 2008, as had her daughter's application. The letter continued:

"You have no right to stay in the UK so are liable to be removed. You must leave the UK as soon as possible. If you do not leave voluntarily you may be prosecuted for an offence under the Immigration Act 1971, the penalty for which is a fine of up to £2,500 and or up to 6 months' imprisonment and you will also be liable for removal from the UK."

Various other points of an administrative nature are then dealt with.

3. The background to that letter is that the claimant is a national of Jamaica. She arrived in the United Kingdom on 13 June 2002 as a visitor with leave to remain until December 2002. She asked for an extension so that she could remain as a student, and that was granted in February 2003, to expire in September 2003. Further applications for leave to remain as a student were made and were granted. Therefore the claimant and her daughter, who had joined her either in January 2005 or January 2006 ,(there is a dispute about that, but it is not significant for present purposes) had valid leave to remain in this country until 30 November 2007.
4. While the claimant was studying she met the gentleman who is now her husband. She asked, and was given permission by the Secretary of State, to marry. They married and following this, on 29 November 2007, that is to say while she still had valid leave to remain in this country, she asked for further leave to remain as the spouse of someone who was present and settled in the United Kingdom. Her husband has been settled in this country, following a grant of indefinite leave to remain, for, I think, 38 years.
5. On 10 September 2007, her application to remain as a spouse was rejected. The sole reason given for the rejection was that although a cheque had been submitted with the application the bank had returned the cheque unpaid, because there were insufficient funds in the claimant's account. Promptly after receiving that refusal, and after the Christmas holiday, the claimant resubmitted the application this time with a cheque that was cleared by the bank. The application was resubmitted on 29 December 2007.
6. On 4 February 2008, that application was refused. The sole reason given for the refusal was that the application had been made when the applicant's leave to remain had expired. Similar reasons were given in respect of the applicant's daughter. Of course the only reason why leave had expired was because the earlier application, which had been made when leave had not expired, was invalid for the sole reason that the bank had not cleared the cheque.
7. As was observed by Dobbs J, that decision was in accordance with the rules. The rules make it clear that if the fee does not accompany the application, and/or the cheque that accompanies the application is not subsequently met by the bank, then there is not a valid application. In terms of the rules it can fairly be said that the decision was impeccable. That, of course, is not the end of the matter. The defendant is given a discretion, and she is given a discretion on the basis that it will be exercised with a modicum of intelligence, common sense and humanity. It might be asked, in these circumstances, what possible reason there could have been for not exercising the discretion in this claimant's favour. Certainly it is apparent from the letter of 11 April 2008 that no consideration whatsoever was given to the impact of removing the claimant and her daughter upon their family life, and upon the family life of the claimant's husband.
8. The defendant's acknowledgment of service makes the point that there has been no formal removal direction and in consequence there has been no formal Article 8 claim. That is to elevate form over substance. I have set out the terms of the letter of 11 April 2008. Unless the threat is an empty one, it is the probable, if not the inevitable, consequence of that letter that removal directions to Jamaica will be issued so that, at not inconsiderable public expense, the claimant and her daughter will be removed to Jamaica.
9. The acknowledgment of service is at pains to point out that as soon as the Claimant reaches Jamaica she will be able to make an application for entry clearance to return as the spouse of someone who is present and settled in the United Kingdom. Although, of course, no promise can be made as to what decision will be made, the acknowledgement of service is also at pains to point out that on the evidence presently available there is no reason to suppose that entry clearance will not be given. Thus the practical consequence of the decision of 11 April 2008 will be that the claimant and her daughter will be removed from this country at considerable public expense to go to Jamaica purely, as far as one can see, for the purpose of requiring them then, at their own expense, to make an application to rejoin the claimant's husband. They will then have to travel back to this country, pursuant to the leave that it is expected will be granted, at their own experience. One would have thought that anyone standing back and looking at this case would have concluded that such a decision was manifestly disproportionate and unreasonable.
10. Mr Blundell valiantly attempted to defend the decision and gave three reasons as to why he submitted it was reasonable and proportionate. First of all, he submitted that the family ties in this case were relatively slight in the sense that the parties had been married for only a year or so, and the claimant's daughter had been in this country for only a few years. Secondly, he submitted that unlike the position in Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 which was referred to by Dobbs J when ordering the matter in for an oral hearing, there would appear to be no insurmountable reasons why the claimant and her daughter would not be able to go back to Jamaica.
11. In Chikwamba it will be recalled that Lord Brown described the conditions in Zimbabwe as "harsh and unpalatable". That was a case where, unlike this case, the claimant's husband was not able to return with her to Zimbabwe. In the present case there is nothing to prevent the claimant's husband from going back to Jamaica. I say that strictly speaking there is "nothing to prevent" him from doing so, but there is of course, as a matter of common sense, considerable substance in his understandable unwillingness to go back since he, having lived here for very many years, has all of his family and private life ties in this country. Nevertheless it is perfectly true, as the defendant maintains, that there is no insurmountable obstacle to him going back to Jamaica with his wife and her daughter, if he so chooses.
12. The last point made is that the claimant's husband married knowing that the claimant's immigration position was not secure. It seems to me that there is only very limited force in that submission because this is not a case where the parties married while the claimant was in this country illegally. They married while she was in this country legally and had been legally in this country for a not inconsiderable number of years.
13. One only has to set out those points to see they fail to address the underlying question: what is the purpose of requiring the claimant and her daughter to return to Jamaica? I readily accept that there is a general need to maintain a fair and firm immigration system and to deter those, who do not have entry clearance, from coming to this country without entry clearance and, as it were, jumping or bypassing the queue. However, there is no question of the claimant jumping the queue in the present case. There is no question of her coming to this country when she did not have entry clearance. She came to this country entirely lawfully. She was in this country lawfully for a number of years and the only reason why her continued presence was not lawful was the fact that a cheque was not honoured by her bank. It is one thing to say that one should have a fair and firm immigration policy, it is quite another to say that one should have an immigration policy which is utterly inflexible and rigid and pays not the slightest regard to the particular circumstances of the individual case.
14. In paragraph 41 of the speech of Lord Brown he asked whether the real rationale for the policy was:

"... perhaps the rather different one of deterring people from coming to this country in the first place without having obtained entry clearance and to do so by subjecting those who do come to the very substantial disruption of their lives involved in returning them abroad?"

I appreciate that those observations were made in the context of an asylum seeker who had come to this country without entry clearance, and whose asylum application had subsequently been refused.

15. As I have indicated, that has little bearing on the circumstances of the present case since the individual in question came to this country with entry clearance. Really the defendant's case amounts to no more than saying that because the claimant's husband could return, if he wanted to do so, to Jamaica with them, because conditions there really are not as harsh and unpalatable as they are in Zimbabwe, and because their period of separation would be relatively brief, the interference with family life would not be very great. That does not address the question of the reasonableness and proportionality of requiring even that limited degree of interference. There clearly will be interference with their family life and what conceivable justification is there even for that slight degree of interference?
16. This is a classic example of a thoroughly unreasonable and disproportionate, inflexible, application of a policy, without the slightest regard for the facts of the case, or indeed elementary common sense and humanity. Such an approach diminishes, rather than encourages, respect for the policy in question. I regret having to express myself in these strong terms, but I did indicate my concerns to Mr Blundell before this case started, while we were awaiting the arrival of Mr Khalid. The defendant, notwithstanding those indications, maintained what, in my judgment, is a wholly perverse position.
17. For these reasons, I quash the decision of 11 April 2008 and express the hope that a little common sense and humanity will prevail when this case is reconsidered by the defendant.
18. MR KHALID: My Lord, can I simply point out that my learned friend did have the opportunity to take instructions. His instructions were that he had to press on. 0n that basis I would invite your Lordship to allow costs. Unfortunately I do not have a schedule from my instructing solicitors, so perhaps an order could be made for a taxation at a later date.
19. MR JUSTICE SULLIVAN: Certainly. You want a detailed assessment. Can you resist costs, Mr Blundell?
20. MR BLUNDELL: In the light of your Lordship's judgment I think it would be exceptionally difficult.
21. MR JUSTICE SULLIVAN: I think it would be actually. The claimant's costs are to be paid by the defendant. Those costs are to be subject to a detailed assessment, unless otherwise agreed. Thank you both very much. Thank you, in particular, Mr Blundell, for taking instructions and doing your best.