England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 October 2008

MR JUSTICE SILBER :

I. Introduction

1. Garfield Anthony Rainford ("the claimant") seeks to quash a decision of the Secretary of State for the Home Department ("the Secretary of State") dated 16 January 2008 whereby she certified the claimant's human rights claim as "clearly unfounded" pursuant to the provisions of section 94 (3) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). Collins J gave the claimant permission to proceed.
2. The claimant is a citizen of Jamaica, who as an 11 year old boy arrived in the United Kingdom with his mother on 9 May 1976. Since then, he has resided in the United Kingdom and he has been granted indefinite leave to remain.
3. He has a partner with whom he has been in a relationship since 1989 and they have five children whose ages range from about nine to sixteen years of age. Apart from three further adult children, the claimant has various other relatives in the United Kingdom including 4 brothers, 4 sisters and various aunts, uncles, nieces, nephews and cousins.
4. The claimant has been convicted:

(a) on 19 July 1990 at Leicester Crown Court for wounding for which he was sentenced to 12 months imprisonment;

(b) on 23 April 1991 at Hendon Magistrates Court for using violence to enter premises for which he was fined £50;

(c) on 2 March 1993 at Leicester Magistrates Court for using threatening, abusive and insulting words with intent to cause fear or provocation of violence for which he was bound over for one year in the sum of £100;

(d) on 15 May 1995 at Leicester Magistrates Court for destroying property for which he was sentenced to one day in detention;

(e) on 28 November 2000 for (i) possession of a Class A drug with intent to supply namely cocaine for which he was sentenced to 3 years imprisonment and a confiscation order in the sum of £260; (ii) possession of a Class A drug with intent to supply (while on bail for the first charge) namely crack cocaine and possession of a controlled drug for which he received a sentence of 3 years to run consecutively; and (iii) possession of a Class B drug namely cannabis for which he was sentenced to 12 month imprisonment to run concurrently with his existing sentences; and

(f) on 28 October 2004 at Leicester Magistrates Court for possession of a Class C drug namely cannabis (while on license from the previous custodial sentence) for which he was sentenced to 100 days imprisonment.

5. By a letter served on him on 13 March 2005, the claimant was notified of the Secretary of State's decision to make a deportation order against him on the basis that his deportation would be conducive to the public good. This decision was based primarily on the claimant's convictions culminating in his six-year prison term for drug offences imposed on 28 November 2000 and the comment of the sentencing judge that the claimant was "a persistent and determined street dealer in what is a seriously dangerous drug".
6. The claimant appealed against the deportation decision but his appeal based on the Immigration Rules and on article 8 of the European Convention on Human Rights ("the ECHR") was dismissed on 24 November 2006 by an Immigration Judge, whose conclusions I will have to consider in some detail in paragraph 60 below.
7. An application for reconsideration of the decision of the Immigration Judge was rejected on 16 December 2005. In consequence, the claimant exhausted his appeal rights in December 2005 and the Secretary of State was entitled to make the deportation order.
8. The deportation order against the claimant was signed on 9 May 2007 and it was served on him on 11 September 2007. On 12 September 2007, removal directions were set for the claimant to take effect on 28 September 2007.
9. By a letter dated 21 September 2007 ("the 2007 human rights claim"), the claimant's representatives sought the revocation of the deportation order on the basis that the removal of the claimant from the United Kingdom would mean that the article 8 rights of the claimant would be infringed. In support, it was contended there had been material changes both relating to the claimant and to the law to be applied in the light of the decision in the House of Lords in Huang v Secretary of State [2007] UKHL 11; [2007] 2 AC 167.
10. By a letter dated 27 September 2007, the Secretary of State rejected the application essentially on the basis that "no new issues have been raised that would cause us to revoke the decision". She then certified the claim as clearly unfounded under section 94 (2) of the 2002 Act. On 27 September 2007, the claimant lodged an application for permission to apply for judicial review.
11. The Secretary of State withdrew her decision of 27 September 2007 and she now relies upon a decision dated 16 January 2008, which is the decision under challenge in this case and by which she again certified the claimant's human rights claim as "clearly unfounded". On 28 September 2007, the claimant withdrew his judicial review application and lodged a further application.

II. The Issues

12. The dispute between the parties has centred on whether the claimant's 2007 human rights claim could have been, and should have been, certified.
13. It is common ground that certification can only be made in respect of an in-country appeal because section 94 of the 2002 Act which gives the Secretary of State the right to certify only applies as its head note states to "Appeal from within the United Kingdom: unfounded human rights or asylum claim". To understand the issues, it is necessary to refer to a statement made by Blake J in R (Etame and another) v Secretary of State for the Home Department [2008] EWHC 1140 (Admin) in which the approach to applications to revoke deportation orders was considered and, in particular, how they can be pursued. Blake J held that "only a first claim to asylum or a fresh claim will result in an in-country appeal under section 92 (4) [of the 2002 Act]" [56]. An application has been made for permission to appeal this judgment but it is not yet known whether permission has been granted.
14. Both counsel accepted that I should accept Blake J' statement, which I quoted in paragraph 13 above as being a correct statement of the law and also that in cases in which a party did not have an in-country right of appeal, their proper way of challenging a decision not to revoke a deportation order was by making a "fresh claim", which is a claim made under rule 353 of the Immigration Rules. To be regarded as a "fresh claim", the new claim must be "significantly different from the material that has previously been considered" and the claim will only be:

"significantly different if the content (a) had not been previously considered; and (b) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection".

15. If the new material is accepted as a fresh claim, it gives the subject of it the right to appeal through the appellate system against an order made on the merits on it.
16. Ms Melanie Plimmer, counsel for the claimant, contends that the 2007 human rights claim (which has been certified by the Secretary of State in January 2008 and which is the decision under challenge) was not a first human rights claim as there had been a previous human rights claim made, which had been the subject of the appeal to the Immigration Judge in 2005 and to which I have referred in paragraph 6 above. Miss Plimmer then submits that the application of Blake J's statement quoted in paragraph 13 above means that the 2007 human rights claim could not be certified but instead, it had to be, and indeed it should have been, considered by the Secretary of State as a "fresh claim". Ms Plimmer submits that the Secretary of State has failed to consider the 2007 human rights claim as a "fresh claim" under rule 353 with the consequence that the Secretary of State's decision under challenge in these proceedings has to be quashed.
17. Mr Tim Eicke, counsel for the Secretary of State, disagrees and he submits that the 2007 human rights claim, which was certified by the Secretary of State was indeed the first human rights claim made by the claimant with the consequence that it could be certified. His submission is that because of the definition section in the 2003 Act (which is section 113(1)), a "human rights claim" as defined by the 2003 Act has to be made to the Secretary of State. That means according to Mr. Eicke that Miss Plimmer is incorrect when she contends that the claim made in 2005 to the Immigration Judge was a "human rights claim", so he submits that the 2007 human rights claim was the first "human rights claim" made by the claimant and so it could properly be the subject of certification.
18. Ms Plimmer says that in response that even if contrary to her primary case, Mr. Eicke is correct, then the Secretary of State was not entitled in this case to certify because first the provisions in relation to an in-country right of appeal on human rights ground did not apply where a breach of article 8 arises in the United Kingdom rather than in the receiving country and second that in any event, the Secretary of State was not entitled to certify in the light of the particular facts of this case and of some recent decisions.
19. Mr Eicke disagrees with those contentions and he contends that the Secretary of State had jurisdiction to and was entitled to certify the 2007 human rights claim in these cases. Mr Eicke also denies that the submissions made by the claimant in the 2007 human rights claim amounted to a "fresh claim".
20. The issues that therefore arise on this application are:-

A) Was the 2007 human rights claim the first human rights claim made by the claimant? (Issue A) (See paragraphs 21 to 26 below);

B) Did the Secretary of State have jurisdiction to certify the 2007 human rights claim when the interference with article 8 rights would occur in the United Kingdom? (Issue B) (See paragraphs 27 to 40 below);

C) If so was the certification of the 2007 human rights claim appropriate on the facts? (Issue C) (See paragraphs 41 to 71 below); and

D) If the 2007 human rights claim was not the first "human rights claim" made by the claimant, has it to be considered as a "fresh claim"? It is correctly accepted and conceded by Mr. Eicke that if the 2007 human rights claim was not the first "human rights claim" made by the claimant, then the Secretary of State was obliged to consider whether it amounted to a "fresh claim", but she did not do so with the consequence that the certificate under challenge has to be quashed. In those circumstances, there is no need for me to say anything more about this issue.

III. Issue A. Was the 2007 human rights claim the first human rights claim made by the claimant?

21. As I have explained, Miss Plimmer contends that the 2007 human rights claim was the second human rights claim. In support of this submission, she referred to the history of this case starting with the Home Office's letter of 13 March 2005 explaining why the claimant had to be deported. That letter explained that the deportation of the claimant would not infringe the claimant's rights under article 8 of the ECHR and under the Human Rights Act 1988. The claimant duly appealed against that decision contending that the Secretary of State had failed to give adequate consideration to his article 8 rights.
22. According to Ms Plimmer, this appeal in 2005 constituted the first human rights claim made by the claimant with the result that the 2007 human rights claim was the second such claim. So she contends that the 2007 human rights claim could not be the subject of an in-country appeal with the result that it could not be certified. She contrasts the present case with one of the cases considered by Blake J in which there had not been a previous human rights or asylum claim. Mr Eicke correctly pointed out that this contention was not correct because it appears both claimants in the Etame case had made claims in the past (see paragraph 34 of the Etame judgment).
23. In response, Mr Eicke contends that the previous human rights claim relied upon by Ms Plimmer was not a "human rights" claim within the meaning given to it in the 2003 Act because it failed to comply with the statutory provision which is that it had to be "a claim made by a person to the Secretary of State", as these are the words defining the term "human rights claim" in the interpretation section (section 113 (1)) of the 2002 Act).
24. I consider Mr Eicke's submission to be correct because the only human rights claim made prior to the 2007 human rights claim was in the notice of appeal against the Secretary of State's decision in the letter of 13 March 2005. It is critically important that this claim was not made to the Secretary of State but instead it was made to the Asylum and Immigration Tribunal. Thus it follows that the 2007 human rights claim was the first human rights claim made by the claimant and so it was subject to the in-country appeal regime.
25. In reaching this conclusion, I have not overlooked two submissions made by Ms Plimmer. First, she submits that the conclusion advocated by Mr. Eicke and accepted by me that a human rights claim has to be made to the Secretary of State is "absurd" so that a purposive construction along the lines of her submission should be adopted. I am unable to accept that submission because there is nothing absurd or in any way strange about first human rights claims being subject to in-country appeals while subsequent human rights claims having to be "fresh claims" within the meaning of rule 353 of the Immigration Rules before they can be considered.
26. The second submission of Miss Plimmer which I have considered, but rejected, is that there is no adequate evidence to show that the claim of one of the claimants in the Etame case (Mr. Amirah) was in the words used in the definition section (with my emphasis added) "a claim made by a person to the Secretary of State at a place designated by the Secretary of State …". My task is to see if the 2005 appeal made by the claimant was a "human rights claim" within the definition in section 113 (1) of the 2002 Act. So it is not relevant as to whether either of the claimants in the Etame case fell within that definition.

IV. Issue B. Did the Secretary of State have jurisdiction to certify the 2007 human rights claim when the interference with article 8 rights would incur in the United Kingdom?

27. When Collins J gave the claimant permission to apply for Judicial Review on the present application, he wrote that:

"Although this point is not taken, it seems to me arguable that s94 (3) is not applicable to Article 8 claims. They do not depend on the situation in the receiving state (cf s.94(5)) which is the basis for inclusion on the list, but in an Article 8 case, such as this no allegation is made in relation to possible breaches of human rights in the country to which an individual is to be returned. (And see s7)".

28. Ms Plimmer contends that the Secretary of State had no power to certify this claim and to make the decision under challenge on this application. In order to understand the submissions, it is necessary to set out the provisions in section 94 of the 2002 Act in so far as they are relevant and which state that:

"(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).

(1A) A person may not bring an appeal against an immigration decision of a kind specified in section 82(2)(c), (d) or (e) in reliance on section 92(2) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) above is or are clearly unfounded.

(2) A person may not bring an appeal to which this section applies in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.

(3) If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded.

(4) Those States are— ... (n) Jamaica, ...

(5) The Secretary of State may by order add a State, or part of a State, to the list in subsection (4) if satisfied that—

(a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and (b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention. (5A) If the Secretary of State is satisfied that the statements in subsection (5) (a) and (b) are true of a State or part of State in relation to a description of person, an order under subsection (5) may add the State or part to the list in subsection (4) in respect of that description of person.…

(7) A person may not bring an appeal to which this section applies in reliance on section 92(4) if the Secretary of State certifies that— (a) it is proposed to remove the person to a country of which he is not a national or citizen, and (b) there is no reason to believe that the person's rights under the Human Rights Convention will be breached in that country.

(8) In determining whether a person in relation to whom a certificate has been issued under subsection (7) may be removed from the United Kingdom, the country specified in the certificate is to be regarded as— (a) a place where a person's life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion, and (b) a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention.".

29. Ms Plimmer contends that the Secretary of State had no jurisdiction to certify the human rights claim of the claimant because first no allegation is made in relation to possible breaches of human rights in the receiving state (namely Jamaica), which is the country to which the claimant is due to be removed and second that the certification provisions only apply where there would be breaches of human rights in the receiving state. Ms Plimmer points out that section 94 (5) provides that States may only be included in the section 94 (4) list where the Secretary of State is satisfied either (a) that there is in general no risk of persecution "in that country" or (b) removal to "that State" will not in general contravene the United Kingdom's obligations under the ECHR.
30. Her argument is that although the wording in (a) and (b) may be contrasted, the wording is nevertheless similar in so far as the assessment of the risk of either persecution or breach of the ECHR focuses upon what would take place in "that country" or "that State". Ms Plimmer points out that this approach is reinforced by the wording of section 94 (5) (b) and section 94 (7) (b) which both refer to a purported breach of the ECHR in "that State" and "that country".
31. I am unable to accept that submission for six overlapping reasons which individually and cumulatively lead me to that conclusion and which I will set out in no particular order of importance.
32. First, the certification provision, which is set out in section 94 (3), does not contain any provision specifying the place where the infringement of human rights has to arise. Therefore in the absence of any restrictions, it must have been the legislative intention that it should apply to all human rights appeals. I am fortified in coming to that conclusion because section 94 (1) provides that section 94 applies to an appeal in respect of "an asylum claim or a human rights claim" and there is no limitation either in that section or in the interpretation section of the Act, which is section 113. No principle of statutory construction has been put forward to show why there should be any limitation on the right to certify in section 94(3).
33. Second, the terminology in section 94 (3) refers to a "human rights claimant" but although that term is not defined in section 113, it is noteworthy that the term "human rights claim" is defined in this interpretation provision (with my underlining added) as meaning:

"…a claim made by a person to the Secretary of State.. that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998..as being incompatible with his Convention rights".

34. This shows that it is the removal which may constitute the "human rights claim" and in many cases this will be in the removing state rather than the receiving state because this is the place of residence of the remaining family members of the person to be removed. There is nothing whatsoever in this interpretation section which suggests that the term "human rights claimant" would have a different meaning or that it would only apply in respect of matters outside the United Kingdom. Indeed the wording suggests that there is no such limitation and that events in the United Kingdom are included in the term "human rights claim".
35. Third, if (as I believe to be the position) Parliament had intended that section 94 (3) was to apply to breaches both in the United Kingdom and abroad, I consider that it would have used the words which it did actually use and which do not include any limitation on where human rights are to be infringed.
36. Fourth, Miss Plimmers's submissions entail rewriting section 94(3) and adding new words so that it would have to state with the new words underlined "if the Secretary of State is satisfied that an asylum or human rights claimant has brought a human rights claim in respect of matters arising in the United Kingdom and is entitled to reside in a State listed in subsection (4), he shall certify the claim under subsection (2) unless ….". No principle of statutory construction or other factor has been put forward to support such construction and I reject it.
37. Fifth, the language used in section 94 (5) of the 2003 Act enables the Secretary of State to add countries to the list in section 94 (4) and therefore its role is to help to identify and to define the content and purpose of those provisions. It is very significant that section 94 (5) imposes two cumulative conditions for inclusion in the list of countries in section 94 (4) and they are (with my emphasis added) that:

"(a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part and

(b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention".

38. Therefore section 94 (5) (b) clearly specifies that the act of removal from the United Kingdom to the removing country is a fact which can, and does, trigger article 8 claims. So that shows that it is the consequences of removal in the United Kingdom which can be relevant.
39. Finally, the purpose of the certification process is to prevent parties with no realistic prospects of success from taking advantage of the in-country appeal system. This legislative intent would be undermined if the provision was only to apply to article 8 claims arising outside the jurisdiction and so claims of human rights infringements arsing within the jurisdiction would be exempt. This point has to be considered against the background that no cogent reason has been put forward to justify different treatment for article 8 claims arising within the United Kingdom from those arising outside the United Kingdom. Indeed many of the facts which give rise to article 8 claims (such as loss of family life by members of the family of the person about to be removed as I will explain in paragraphs 59 below) will inevitably arise with in the United Kingdom so I cannot understand why they should be excluded from the certification provisions.
40. For those reasons, I have concluded that the Secretary of State did have power to certify the claimant's claim even if the article 8 interference occurred in this country.

V. Issue C. Was the certification of the 2007 human rights claim appropriate on the facts?

(i) Introduction

41. The case for the claimant is that the Secretary of State erred in certifying as she made errors of law and that she did not apply the law correctly. The Secretary of State considers that her certification cannot be properly challenged in the light of the approach that should be adopted to both an application to revoke a deportation order and certification. To understand the submissions, it is necessary to turn to the circumstance in which a claim can be certified.

(ii) When can a claim be certified as "clearly unfound".

42. It is accepted by counsel that the appropriate test to be applied of whether a claim is "clearly unfounded" was initially explained by the Court of Appeal in R (Tolzlukaya) v Secretary of State for the Home Department [2006] EWCA Civ 379 at 43 when it was stated by Richards LJ giving the only reasoned judgment of the court that:

"There is no dispute about the test to be applied by the Secretary of State in determining whether the respondent's claim was "clearly unfounded" within section 93(2) (b) of the 2002 Act. In relation to the same statutory language in section 115 of the 2002 Act, it was held in R (L) v Secretary of State for the Home Department [2003] 1 WLR 1230 at paras 49 and 56-58 that a claim is clearly unfounded if it cannot on any legitimate view succeed; but if there is an "arguable case" or on at least one legitimate view of the facts the claim might succeed it does not qualify for certification. This is essentially the same as the test adopted in R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36, [2003] 1 AC 920 in relation to the materially identical expression "manifestly unfounded" in section 72(2)(a) of the Immigration and Asylum Act 1999. In Yogathas it was stated by Lord Bingham of Cornhill at para 14 that the Home Secretary is entitled to certify if, after reviewing the relevant material "he is reasonably and conscientiously satisfied that the allegation must clearly fail"; and by Lord Hope at para 34 that the question is "whether the allegation is so clearly without substance that the appeal would be bound to fail". See further, the decision of the Court of Appeal in R (Bagdanavicius) v Secretary of State for the Home Department [2003] EWCA Civ 1605, [2004] 1 WLR 1207, per Auld LJ at para 58.".

43. Later, Buxton LJ giving the judgment of the Court of Appeal in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, explained that:

"11.First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator [now an Immigration Judge], applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return…The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirements of anxious scrutiny? If the court cannot be satisfied that the answer to both questions is in the affirmative, it will have to grant an application for review of the Secretary of State' decision".

44. Of course, as the claimant is entitled to reside in a state listed in section 94(4) the provisions under section 94 (3) do not entail the Secretary of State certifying a claim where she is satisfied that it is "clearly unfounded" but rather it envisages her certifying a claim "unless satisfied that it is not clearly unfounded".
45. As a result of the decision and the approach of the Court of Appeal in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, the role of the court in reviewing a decision of the Secretary of State is a review based on public law principles rather than an appeal in the form of a full merits review. I agree with Mr. Eicke that the question for the court in a certification claim is therefore whether in reaching her decision the Secretary of State has failed to have regard to relevant considerations or has had regard to irrelevant considerations or has otherwise acted irrationally.
46. In this case, the issue relates to an appeal against a decision not to revoke the deportation order and I am prepared to accept Mr. Eicke's submission that the burden must be on the claimant to establish that it is appropriate to revoke the order. The approach to applications for the revocation of deportation orders is set out in paragraphs 390 and 391 of the Immigrations Rules which provide that:-

"390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:

i) The grounds on which the order was made;

ii) Any representations made in support of revocation;

iii) The interests of the community, including the maintenance of an effective immigration control;

iv) The interests of the applicant, including any compassionate circumstances.

391 In the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the court which made the recommendation or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order. However, save in the most exceptional circumstances, the Secretary of State will not revoke the order unless the person has been absent from the United Kingdom for a period of at least 3 years since it was made."

(iii) The claimant's case

47. The case for the claimant is that the Secretary of State failed to give adequate weight first to the interests of his children and his mother and second to the length of time in which the claimant had been in the United Kingdom. The Secretary of State's case is that these matters were adequately considered especially in the light of the decision of the immigration judge.
48. It is common ground between counsel first that the findings in the determination of the Immigration Judge should be regarded as the starting point by any subsequent immigration judge and second that the Secretary of State was obliged to take these findings into account when deciding whether to certify a claim as "clearly unfounded". Nevertheless, Miss Plimmer contends that there have been substantial developments in relevant aspects of the law and the decision of the Secretary of State under challenge is flawed. In consequence, she did not take into account considerations which have become of importance because of recent decisions.
49. On the first point relating to the interests of the claimant's family members, Miss Plimmer attaches great importance to two decisions of the House of Lords. The first one, Huang (supra) was published after the date of the decisions of the immigration judge but before the certification of the Secretary of State while the second decision (Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39 [2008] 3 WLR) was given after the decision of the Secretary of State which is under challenge.
50. Miss Plimmer also relied on a recent decision of the Grand Chamber in Strasbourg in Maslov v Austria - 1638/03 BAILII: [2008] ECHR 546 (23 June 2008) which was published after the Secretary of State had certified the claimant's human rights claim. It stresses the significance which the decision-maker should attach to the length of time in which the claimant had been in the deporting country, which is the United Kingdom.

(iii) The authorities on the interests of the claimant's family

51. In March 2007 which was after the decision of the Immigration Judge but before the Secretary of State made her decision under challenge on this application the House of Lords in Huang (supra) decided that the test for determining whether there would be an infringement of the article 8 rights of a person due to be removed was no longer whether the case was an exceptional case as had been stated by the Court of Appeal in Huang. The approach propounded in Huang in the House of Lord as explained by Lord Bingham (giving the opinion of the Appellate Committer) was to apply the test laid down in R( Razgar) v Secretary of State [2004] 2 AC 368 that the judgment on proportionality:

" 20….must always involve the striking of a fair balance between the rights or interests of the individual and groups and the interests of the community which is inherent in the whole of the convention. The severity and consequences of the interference would call for careful assessment at that stage".

52. Lord Bingham also explained in Huang that the application of this in an article 8 case was that:

"20 ..in an Article 8 case where the question [of proportionality] is reached the ultimate question for the appellate immigration authority is whether the refusal of leave to remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking account of all considerations where in favour of the refusal prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental rights protected by Article 8. If the answer to the question is in the affirmative, the refusal is unlawful and the authority must so decide".

53. The significance of this decision is that the Appellate Committee rejected the Court of Appeal's demanding test of exceptionality which was the applicable test when the immigration judge gave his decision (see paragraph 100 of his Determination). Thus the immigration judge approached the claimant's case differently from the way in which it would be dealt with after the House of Lords' decision in Huang (supra) although the Secretary of State stated that he had taken into account the House of Lords' decision in issuing her certificate (see paragraph 18 of the decision letter).
54. The relevance to the present application of the decision in the House of Lords is Huang meant that it became no longer permissible or possible to rely on the conclusions of the Immigration Judge on whether the claimant's article 8 rights would be infringed by his removal as it became easier to show that the removal of a failed asylum-seeker would infringe his or her article 8 rights. Nevertheless the findings of fact by the Immigration Judge on the nature and extent of the claimant's family life still remained important and valid when considering whether the certificate of the Secretary of State should be quashed.
55. The second development after the Immigration Judge had given his decision and indeed after the Secretary of State had sent her letter certifying the claim was the decision of the House of Lords in Beoku-Betts (supra). The critical question in that case was in determining whether the article 8 rights of a claimant would be infringed by his or her removal (with the letters [A] and [B] inserted by me for ease of reference):

"[A] Should the immigration appellate authorities take account of the impact of [the claimant's] proposed removal upon all those sharing family life with him or [B] only its impact upon him personally (taking account of the impact on other family members only indirectly i.e. only insofar as this would in turn have an effect upon him)?" [5] (per Lord Brown of Eaton-under-Heywood who gave the only reasoned opinion).

56. The Court of Appeal in Beoku-Betts [2005] EWCA Civ 828) had stated that the answer was option (B) (see especially paragraph [12]) but the House of Lords rejected that view and unanimously concluded that option (A) represented the law.
57. Miss Plimmer submits that certification of the Secretary of State is flawed as it was done upon the basis of the law as stated by the Court of Appeal i.e. option (B) rather than the proper position which is option (A) as declared by the House of Lords. She also relies on the statement of Lord Bingham in EB (Kosovo) v Secretary of State [2008] UKHL 41; [2008]3 WLR who explained (with my underlining added) that:

"12.Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires".

58. I agree with Mr Eicke that the mere fact that the law might now be regarded as different from that which was applicable at the time of the Secretary of State's letter does not of itself automatically mean that the decision of the Secretary of State must be quashed or that it was flawed. It is important in my view to focus upon the issue of whether these latest decisions show that the certification by the Secretary of State was flawed on public law grounds.

(v) Were the consequences for the claimant's children and wife of the claimant's removal to Jamaica properly considered by the Secretary of State before she issued her certificate which is under challenge?

59. The Secretary of State in her decision now under challenge dealt with the interests of relevant family members of the claimant (namely his five children and his mother) in this way:

"14. Your client has five children between the ages of 9 and 16. Although he does not live with them your client claims that he has a close relationship with them and plays a full and active role in their upbringing. The only evidence to substantiate this claim is the witness statements of your client and his mother. No information has been provided from any outside sources to suggest that he has played an active role in their upbringing. Furthermore, there is no evidence that your client contributes to his children's upbringing financially by way of child support payments.

15. Your client's mother claims to be heavily reliant on his help for attending medical appointments and with shopping and cleaning. She states that this help is particularly important because of her ill-health, she suffers from diabetes and sciatica. No medical evidence has been submitted to indicate to what extent these illnesses incapacitate Mrs Rainford. Nonetheless whatever the extent of her ill-health it is noted that she has eight other children in the United Kingdom as well as siblings and other close relatives. In the circumstances it cannot be said that there would be an absence of family support following your client's removal."

60. Miss Plimmer criticises these conclusions in the light of the findings of the Immigration Judge. His relevant conclusions were in respect of the position in 2005 that :

(a) the claimant was the partner of Ms Williams with whom he has had a relationship with since 1989 and together they have five children who now at the time of writing this judgment must be aged between about 11 and 18 years of age ;

(b) although the claimant did not live with Ms Williams or the five children "he does have extensive and frequent contact with them" (paragraph 73(g) of the determination);

(c) the claimant resides with his mother Beverly Rainford who suffers from diabetes but in the absence of further medical and other evidence the Immigration Judge was unable to make any specific findings to the extent to which the claimants mother is incapacitated by her diabetes but he did accept that the claimant provided her with general assistance in attending her medical appointments and in such matters as cleaning and shopping;

(d) the claimant had three other adult children who live in or around Birmingham with whom he remains in contact but since his release from imprisonment the claimant had not physically met any of his three adult children but he has remained in telephone contact with them;

(e) "giving the fact that [the claimant] has a partner here, and a number of children, and that his mother is here, I do think that it can properly be said that he has strong connections with the United Kingdom. This is, therefore a further factor which weighs in his favour" (paragraph 77 of the determination);

(f) "I do accept that there will be a significant disruption to the [claimant's] family if he were to be deported. I appreciate, naturally, that his partner would miss him and that this would impact adversely upon the children who aged (sic) between 7 and 14. There would also be an impact upon the [claimant]'s mother who relies on him for various general types of assistance to which I have already referred" (paragraph 82 of the determination); and

(g) "I have no difficulty at all in reaching the conclusion that the [claimant] has established both a family and a private life in the UK. .. Whilst I was not given information regarding the [claimant's] partner's financial situation it would seem, if she has five young children to support, which she has, then it would be very difficult to afford a family visit [to Jamaica]. I cannot reach any firm conclusion as to that however, as little information relevant to that was placed before me I do note that the [claimant's] mother has visited Jamaica in the past and it might be that she could do so again. However, these are, to my mind peripheral matters. The [claimant] would be separated from his family members and this will be a lengthy period which would be, at least, three years". (Paragraph 98 of the determination).

61. All those factors show that in this case the impact of deporting the claimant might well have a very substantial effect on the claimant's children and his mother especially as the Immigration Judge found that if the claimant were to be deported, then first there would "be a significant disruption to the [claimant's family]" and second that the claimant's "partner would miss him and that would impact adversely upon [their] children".
62. In my view, these are significant matters which in the light of the decision in Beoku-Betts (supra) merited serious consideration by the Secretary of State as part of her obligation in Lord Brown's words in that case was "to take account of the impact of [the claimant's] proposed removal upon all those sharing family life with him". The Secretary of State did not consider as a separate matter as she should have done the consequences for the members of the claimant's family sharing family life with him of his removal which was not surprising because she was not surprisingly working on the basis of the decision in the Court of Appeal which then represented the law and which had not then yet been reversed.
63. There are further reasons why I consider that in the light of the decision in Beoku -Betts, the decision of the Secretary of State to certify the 2007 human rights claim is flawed and that is because of the material set out in witness statements which were before the Secretary of State when she made the decision under challenge. This evidence has not been criticised or undermined in any cogent way by the Secretary of State.
64. In his witness statement dated 25 September 2007, the claimant explained that he was then detained for the purpose of removal from the United Kingdom and he said that:

(a) while he was in prison, it was not feasible to see his five children but he did "keep in contact with them every day at that time by telephone" and he "would see my three older children";

(b) after his release form prison, "I have seen my children every single day";

(c) his relationship with his five younger children was "very close" with them spending "a lot of time together". I add that the claimant's mother supports these assertions in a witness statement dated 25 September 2007;

(d) if he was deported to Jamaica, the family's financial circumstances are such that he would not see his partner or his eight children again; and

(e) he provides much support for his mother who is getting older and she has been diagnosed with diabetes and sciatica. The claimant explained that he did the shopping for his mother and that he took her to hospital appointments and other places to which she needed to be driven. Corroborative evidence was given by the claimant's mother in her witness statement. She explained what an important role the claimant played in her life and that nobody would be available to replicate his help if he were to be deported.

65. I accept that this evidence about the bond between the claimant and his children is not corroborated by any independent source outside the family. It is however surprising that the Secretary of State did not consider this evidence especially in relation to the impact of the claimant's proposed removal on Ms Williams, their children, his older children and his mother particularly in the light of the Immigration Judge's findings to which I have referred in paragraph 60 above about the claimant's relationship with all his children, his mother and Ms Williams and the frequency of his contact with them. This showed the serious adverse consequences for the claimant's children and partner in the United Kingdom if he were to be removed.
66. The claimant also enjoyed family life with his mother and this has been fortified by a witness statement made by the claimant's mother dated 25 September 2007 in which she explains her problems with diabetes and sciatica, which are supported by a medical report from Professor Melanie Davies. The claimant's mother explains how dependant she is on upon the claimant. Her evidence is that the claimant drives her to her hospital appointments, takes her shopping and drives her to her local community club. The claimant's mother explains how lonely and unsupported she would be if the claimant were to be removed to Jamaica.
67. As I have explained, the Secretary of State was obliged to have proper regard to relevant considerations. The approach advocated in Beoku-Betts (supra) required the Secretary of State and the Immigration Judges to have regard to the "impact of the proposed removal upon those sharing family life with [the claimant]". She did not do this in the light of the law at the time of certification because she did not consider what the impact of the claimant's removal would have had on those sharing family life with him who were his five younger children, his partner, his mother and his three elder children and on their ECHR rights.
68. It is settled law that a failure by a decision-maker to consider a relevant factor means that a decision may be set aside ( see for example R (Alconbury Development Limited) v Secretary of State for Environment etc [2003] 2 AC 295 [50] per Lord Slynn). In my view, there are serious errors of public law in the failure of the Secretary of State to have considered as is required in the light of the House of Lords' decision in Beoku-Betts (supra) the impact of the proposed removal of the claimant on Ms Williams, on their children, on his older children and on his mother.
69. These conclusions would be sufficient to require me to quash the Secretary of State's certificate but Miss Plimmer also relies on the failure of the Secretary of State to give adequate weight to the length of time which the claimant has spent in the United Kingdom. She contends that the Secretary of State was obliged to attach very great significance to the conclusion of the Grand Chamber in Strasbourg in Maslov v Austria - 1638/03 BAILII: [2008] ECHR 546 (23 June 2008) that:

"[75] In short, the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion"

70. The Secretary of State did refer to the fact that the claimant attached importance to the fact that he had been in the United Kingdom since 1976 when he was aged 11 years of age. There is, however, merit in Miss Plimmer's submission that the Secretary of State ought to have given it significantly greater weight as in the words of the judgment of the Grand Chamber "very serious reasons were required to justify [the claimant's expulsion]". The Secretary of State failed to regard this lengthy residence of the claimant in the United Kingdom and this provides an additional but a much less cogent reason why the certificate of the Secretary of State has to be quashed. Indeed if I had been in any doubt as to whether the certificate had to be quashed because of the failure of the Secretary of State to consider the family factors considered important by the House of Lords in Beoku-Betts (supra), then I would have quashed it because of the failure to approach the certificate as explained in Maslov (supra).
71. In reaching the conclusion that the Secretary of State's certificate should be quashed, I have not overlooked Mr Eicke's submission that the terms of section 94 (3) (which I have set out in paragraph 28 above) requires the Secretary of State to certify a claim such as the one made by the claimant in these proceedings "unless satisfied that it is not clearly unfounded". I accept this constitutes a high threshold for the claimant to meet in challenging the certificate but in the light of all the evidence I consider that that has been reached.

Conclusion

72. For the reasons which I have sought to explain I have concluded that the decision of the Secretary of State certifying the human rights claim must be quashed.
73. It is important to stress three further points, which are that:

a. I am not concluding that every certification decision of the Secretary of State made before the House of Lords' decision in Beoku-Betts must invariably be quashed. Indeed there will be many cases in which the decision in Beoku-Betts does not mean that the certification can be impugned;

b. the effect of my decision is not that the deportation order against the claimant is revoked but merely that the decision to certify the claimant's human rights claim must be considered again by the Secretary of State; and that

it may well be that having taking account of the recent decisions of the House of Lords and any representations made by the claimant, the Secretary of State might well be entitled to conclude that the human rights claim made by the claimant has to be certified.