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
		7th October 2008

1. MR JUSTICE WILKIE: This is a renewed application by the claimants, Charly Julienne Ndongo Mbongue and her infant son, for permission to seek judicial review of certain decisions of the Secretary of State.
2. Originally the claim was directed at removal directions dated 12th February 2008. The grounds were very largely focused on an alleged unlawfulness in the Secretary of State setting removal directions without effectively offering malaria prophylaxis to the claimants, particularly the second claimant. We are now some 8 months on from that and, although the issue has not gone away, it is accepted that that issue has become more or less academic. The claimant has identified what the problem is perceived to be with the proposed medication and the Secretary of State will no doubt wish to have regard to that in the event that there is, in due course, a removal.
3. The second ground originally asserted was that the Secretary of State, by a letter dated 6th February 2008, had acted unreasonably in refusing to defer removal on the basis that the father of the child is an asylum seeker with an application pending.
4. There was an acknowledgment of service and I will return to that in due course.
5. The matter came before Silber J on the papers on the 10th March 2008. He refused permission and made consequential directions. The application for permission was renewed on 12th March 2008. The relief sought focused on a decision to remove dated 14th February 2008 and a decision to certify the first claimant's human rights claim of 22nd May 2007 by a letter dated 29th January 2008. In oral argument the focus of the claim has moved significantly away from the first claimant towards the position of the second claimant, in particular the relationship of the second claimant and his natural father, Dr Nkana, who is also seeking asylum, in respect of whom there has been no substantive decision by the Secretary of State.
6. I will briefly set out the chronology, which is taken from the acknowledgment of service initially filed by the Secretary of State. The first claimant arrived illegally in the UK on 12th February 2006 by using a passport to which she was not entitled. She claimed asylum within 2 days of arrival, on 14th February 2006. That was refused on 12th April 2006. She lodged an appeal on 11th May 2006, which was dismissed on 21st June 2006. High Court review was sought on 27th June 2006 and refused on 14th July 2006. On 4th August 2006 a further High Court review was sought. That was refused on 13th February 2007. Her appeal rights became exhausted on 7th March 2007. It was in that context that further representations were submitted on 22nd May 2007.
7. On 24th September 2007, the second claimant, Kiefer Nkana Moudiki was born. On 29th January 2008 further representations on behalf of the first claimant were made and were refused. There were then further representations made on 31st January 2008. Those were in respect of both claimants. The Secretary of State responded on 6th February 2008. In that letter she said as follows:

"You state that the father of Kiefer Moudiki is Parfait Nkana Nkana who is an asylum seeker. You submit that, whilst Kiefer's parents are not in a relationship, the father does visit the child regularly, and has visited the child since he and his mother were detained for removal from the United Kingdom. You claim that there is a genuine relationship between Kiefer and his father, and that it would not be proportionate, and would be in breach of Article 8 ECHR, to remove Kiefer when his father's asylum claim is still undecided."

The Secretary of State went on to assert that no reliable evidence had been provided to demonstrate that family life had been established between Kiefer and his father. Even if he did visit the child regularly, it was not accepted that his father had had sufficient time to form a close bond with him, given Kiefer's age. It was arguable that family life did not exist between father and child. She went on:

"Even supposing that family life did exist between them, however, it is not considered that removal of your clients would be disproportionate to the permissible aim of maintaining an effective immigration control."

She went on to say that the claimant's rights to a family and private life had been balanced against the public interest.

8. The brief history of her asylum claim and appeals was set out. It was said that since 7th March 2007 she had remained in the UK without any legal basis of stay, her child had been born at a time when his mother had no legal right to remain and was fathered by someone who himself had no legal basis of stay, pending the outcome of his asylum application. It was said that the claimants made no claim to have lived in a family unit with Kiefer's father and that, in any event, any relationship between Kiefer and his father can be maintained from abroad, given the co-operation which the first claimant had given to facilitating their contact whilst they had remained in the UK. On that basis the Article 8 claim was refused and, in respect of the second claimant, was certified as clearly unfounded.
9. Following upon that, there was a further exchange of correspondence which resulted in the Secretary of State writing, on 12th February 2008, in respect of both claimants' applications. On that occasion the request had been to defer removal, relying on Article 8. The argument in respect of the extent to which there was any family life was largely repeated and the conclusion to which the Secretary of State had come, and expressed in her letter of 6th February 2008, was maintained. She concluded:

"I hereby reject your request for removal to be deferred whilst any application that Mr Nkana has submitted is considered. If your client is still in a subsisting relationship, the correct course of action is for her to seek entry clearance to return to the UK in the proper way to join her partner. The entry clearance officer will consider any ECHR issues."

10. The claim, in oral argument, has been put forward on a number of different bases. The first is that although originally it had been canvassed that Dr Nkana had sought to add his son as a dependent to his asylum claim, that in fact did not happen until 22nd September 2008, when a letter was written to the Secretary of State notifying her that he, Dr Nkana, would like to request that his son, Kiefer, be added as his dependent on his claim for asylum. As yet, there has been no response to that.
11. Mr Nathan has drawn my attention to paragraph 8.81 in MacDonald's Immigration Law and Practice. Paragraph 12.111 in that publication deals with the question of dependents of asylum applicants. It summarises paragraph 349 in House of Commons Paper number 395. That provides that, amongst others, a minor child accompanying a principal applicant may be included in his application for asylum as his dependent.
12. It is accepted by the Secretary of State that if the second claimant was properly to be regarded as a dependent of Dr Nkana, then section 77 of the 2002 Act would prohibit his removal whilst an asylum claim was pending in which he was named as a dependent. The difficulty with that argument, in my judgment, is that, first, the question of the child being a dependent of Dr Nkana has arisen only very recently and certainly cannot affect the lawfulness of decisions taken many months ago; secondly, that the claims being made on behalf of the first claimant were claims made on her behalf and on behalf of the second claimant as her dependent; and, third, that on the facts, even as asserted by the claimants, there is no sensible basis upon which it could be said that the second claimant is a minor child accompanying Dr Nkana as the principal applicant. Therefore, although if he were a dependent it would be conclusive in his favour, at the present time, in my judgment, the claim that he is or ought to be so regarded is unarguable.
13. The second way in which Mr Nathan seeks to argue his case is to attack the conclusions of the Secretary of State that there was no family life between either of the claimants and Dr Nkana. In my judgment, the argument asserting a family life between the first claimant and Dr Nkana is unarguable. Solicitors writing on her behalf on 29th January said in terms that she was not in a relationship and, for the many reasons put forward in the Secretary of State's written submissions, in my judgment the Secretary of State was entitled to conclude that there was no such family relationship.
14. There plainly is a family relationship between the first and second claimant, but the removal directions, the subject of this challenge, would not interfere with that, because they would be together wherever they may be, either within the United Kingdom or having been removed.
15. The real nub of Mr Nathan's challenge has focused on the relationship between the second claimant and his father. He rightly draws my attention to paragraph 8.81 in MacDonald's and the footnotes, in particular footnote 10 in the passage which reads:

"The presumption in favour of family life between parent and child operates between a child and its natural father provided he continues to have a level of contact with the child."

In the footnote:

"Even if, at the time of the birth, the relationship between the parents had ended: Keegan v Ireland 1994 18 EHRR 342."

He says that the Secretary of State was wrong in asserting that no family life had been established between the second claimant and his father, based on the asserted level of contact, which the Secretary of State is not in a position to contradict. In my judgment, to that extent Mr Nathan is right.

16. However, the Secretary of State, in her letters of 6th and 12th February 2008, went on to consider the position if a right to family life existed. She was of the view that, in the circumstances which she set out in those letters, in particular the circumstances in which the first claimant came to this country, remained as an overstayer after all her appeals had expired, had no status, became involved with Dr Nkana, who similarly had, at the time, no status, and therefore the circumstances in which they had a child together, it is not arguable that the interference with the family life, as existing between second claimant and father, would be disproportionate and the Secretary of State could not be said to have been irrational in so concluding.
17. Mr Nathan has drawn my attention to the case of C v Secretary of State for the Home Department [2008] UKHL 40, and in particular to a passage in Lord Brown's opinion at paragraph 44, in which he says:

"Rather it seems to me that only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad."

He points out that, because of Dr Nkana's current lack of status, there really is no basis upon which the first claimant could lawfully apply for entry permission using him as a sponsor and, therefore, to that extent, the passage to which I have referred in the letter of 12th February 2008 overstates the position. However, the letter of 12th February 2008 was a letter which has to be read in the light of the more extensive treatment of the subject in the letter of 6th February 2008, where it was said that the Secretary of State had come to the view that interference with the family life would not be disproportionate, balancing the human rights of the claimants against the public interest, because the relationship between the father and child could be maintained from abroad through the co-operation of the first claimant, at any rate, for as long as it took for Dr Nkana's status to be clarified, which might be a significant period of time.

18. The Secretary of State has drawn my attention to the decision of the Court of Appeal in TG (Central African Republic) v Secretary of State for the Home Department [2008] EWCA Civ 997, which postdates C and sets C in context, and which emphasises the very particular factual background to C, in particular the situation as then was, and may still be, in Zimbabwe. In my judgment, just as in the case of TG, the factual circumstances of this case are very far removed from that of C: there is no pre-existing family relationship in the present case. Neither the first claimant nor Dr Nkana appear to have had any sort of relationship at all until they came to this country and were here without any legal status. Even whilst in this country, they have not enjoyed family life in the fullest sense. At its highest, the Secretary of State was entitled to conclude that they maintained separate lives, albeit joined by the fact of their parenting the second claimant, and no doubt there has been co-operation to facilitate contact between the second claimant and his father, but this is a case which is very far removed from the case of C.
19. It is emphasised in TG that in C, and in the other cases in the House of Lords, the fact-sensitive nature of this issue is very much to the fore and, in my judgment, it cannot arguably be said that the Secretary of State, in her balancing of the two contending interests in her letters of 6th February 2008 and 12th February 2008, has come to a conclusion to which no Secretary of State, properly directing herself, could have come. Therefore, notwithstanding Mr Nathan's erudite and persuasive submissions, I am not persuaded that there is any arguable case.
20. Very much as a backstop, he says that the real problem in this case is the fact that the Secretary of State has taken over 3.5 years to reach the current stage in considering Dr Nkana's application for asylum and only fairly recently was there an interview. He asks me to order a stay on removal, perhaps for a set period of time, in order to focus the Secretary of State's mind on the need to come to a quick decision in Dr Nkana's case, in which case the position of both the claimants and he would be very much clarified. If I thought that would for a moment affect the way in which the Secretary of State goes about deciding which cases to decide and when, that might be an attractive argument, if I thought for a moment that the decision of the Secretary of State in the case of Dr Nkana would clarify his position speedily, that equally would be a very attractive argument, but in my judgment neither of these premisses is remotely realistic.
21. The Secretary of State has many, many applications for asylum to consider and has her way of having them determined in an ordered way. It is not for this court to seek to put pressure, in that sense, on the Secretary of state and, in any event, Dr Nkana would be entitled, and no doubt would be advised, to exercise whatever rights of appeal he may have in-country and thereafter in the event of an adverse decision. So the hope that his position would become crystallised within a short number of months is, in my judgment, unduly optimistic. Therefore, I do not accede to that potentially attractive suggestion.
22. MR NATHAN: My Lord, thank you. I seek permission to appeal on two grounds. I suspect, in light of the time, you would rather I take that application elsewhere. I believe your Lordship has, very briefly, very gravely misinterpreted TG, because in TG, on the one hand, the appellant was trying to show that his case was so bound to succeed that it must be allowed and here -- we are poles apart.
23. MR JUSTICE WILKIE: That is an argument which perhaps you ought to canvass before the Court of Appeal.
24. MR NATHAN: I also ought to bring to your Lordship's attention that Burton J did come to a very different conclusion with respect to -- I have not actually taken it to your Lordship, but it is at page 21 of the acknowledgment of service.
25. MR JUSTICE WILKIE: This is in relation to the stay argument.
26. MR NATHAN: In relation to the stay and I will be seeking permission to appeal.
27. MR JUSTICE WILKIE: That is very courteous of you to inform me but I think you ought to seek to interest the Court of Appeal.
28. MR NATHAN: I appreciate that.
29. My Lord, there are two further applications. The first is for a detailed assessment. The second is this: as a consequence of your Lordship's decision, it is feasible that, as a matter of law, the Secretary of State could detain and set removal directions at any time. We have 7 days to lodge an appeal against your Lordship's decision. I am sorry, I have another application before you. I would ask for an expedited transcript.
30. MR JUSTICE WILKIE: You can have an expedited transcript of the judgment.
31. MR NATHAN: With respect to permission, this not being a statutory appeal to the Court of Appeal, the Court of Appeal's decision in Ex parte Farris (?) applies and therefore we would need to apply for a stay to the Court of Appeal on the papers. The appeal to the Court of Appeal in itself would not necessitate a stay. In light of that, and in light of the fact that this potentially could lead the Secretary of State to detain a mother and child where we know an application is going to be put in, I wonder if I could ask your Lordship to order a prolonged stay.
32. MR JUSTICE WILKIE: How long?
33. MR NATHAN: Just 14 days would allow us to ensure that we get funding sorted out and put in the application to the Court of Appeal, where the paper application, in light of Farris, would then be considered by a Lord Justice of Appeal.
34. MR SINGH: My Lord, I would oppose that. You have made your decision now. If my learned friend wants to stay the claimants' removal, he can apply for an injunction if removal directions are set. He can make his application to the Court of Appeal. There is no need for this court to do anything.
35. MR JUSTICE WILKIE: Knowing Mr Nathan as I do, I fully accept what he says, that he intends, if he can, and he can obtain public funding, or perhaps even if not, to appeal. So why force everybody to go round the houses?
36. MR SINGH: There may be no merit in the appeal.
37. MR JUSTICE WILKIE: There may be. I, by refusing him, am rather implying that that is my view.
38. MR SINGH: Yes, my Lord, and there is no indication from the Secretary of State that removal directions will be set so soon, within 7 days. If they are set, my Lord, then my learned friend can make the necessary applications. The position we are in at the moment is there are no removal directions. So any stay, in my submission, would be inappropriate.
39. MR JUSTICE WILKIE: Thank you very much. Do you really need 14 days? Would 7 days not suffice?
40. MR NATHAN: I would be grateful for 14 days, my Lord. I do not know the circumstances with funding. It covers us. I appreciate my learned friend's suggestion, but it is not as easy as making an application for an injunction to the Administrative Court. Making an application for an injunction to the Court of Appeal is rather more difficult.
41. MR JUSTICE WILKIE: I will stay the Secretary of State from removing the claimants for a period of 14 days. I think that would not prevent them giving notice of removal, as long as the removal was not within 14 days.
42. MR NATHAN: My Lord, yes.
43. MR JUSTICE WILKIE: As you have indicated, you feel that they ought to be giving some significant period of notice, anyway, because of the malarial issue.
44. MR NATHAN: Yes, and I would urge them not to detain a child and cause undue -- but that is all I can say.
45. MR JUSTICE WILKIE: I will order a stay on removal of both claimants for a period of 14 days to permit them to make any application to the Court of Appeal.
46. MR NATHAN: For that I am grateful, my Lord. For what it is worth, your Lordship referred to knowing me as your Lordship does. The last occasion I applied for a stay, I applied on three occasions. I think on the third occasion, over the telephone, your Lordship granted it. I just mention it now because I am glad to say that that client has subsequently been granted refugee status. So it was worth it in the end. I know you do not always get the result.