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 WC2
		8 April 2009

1. MR JUSTICE BEATSON: The claimant is a citizen of Sierra Leone. The issue in these judicial review proceedings is whether the Secretary of State's decision contained in a letter dated 21 November 2007, and maintained in letters dated 17 January 2008 and 13 March 2009, to refuse to treat further representations made by the claimant as a fresh Article 8 claim was lawful. The proceedings were launched on 27 November 2007 shortly after directions were set for the claimant's removal to Sierra Leone, and he was detained on 21 November.
2. The grounds on which permission was sought relied on submissions made on his behalf in a letter dated 22 November 2007. The submissions include material which is said to support his claim to have been coerced to act as Deputy Director of the National Intelligence Service in Sierra Leone, in relation to his return to Sierra Leone from the United Kingdom in relation to the timing of his departure from Sierra Leone in 2003, and warrants issued in Sierra Leone for his arrest. Material supporting his Article 8 claims based on his family life with his adult son in the United Kingdom and with (what is described as a longstanding relationship of approximately three years' duration) Mrs Thompson was also submitted. At that stage he was said occasionally to stay overnight with Mrs Thompson, to visit her every day, and to take her children to school on four days of the week.
3. The relationship with Mrs Thompson and her children was first mentioned in the letter dated 22 November 2007. It was not mentioned in his previous representations made on 2 September 2004 and 15 February 2005 in support of a fresh claim.
4. Permission was refused on the papers by Sir George Newman on 17 April 2008. In refusing permission, Sir George Newman observed:

"This is a hopeless claim. So far as credibility is concerned, the immigration history is a catalogue of deceit, false identities and rejected claims. The Article 8 claim is in the circumstances hopeless."

He stated that any renewal of the application should not be a bar to removal absent further order.

5. The application was renewed to an oral hearing. On 30 June 2008 Mr Justice King granted permission only on the Article 8 point. Mrs Bassire-Dezfouli, who appeared on behalf of the claimant, made no submissions based on the claimant's relationship with his son. The case advanced on his behalf is now confined to the submissions based on his relationship with Mrs Thompson and her children.
6. I turn to the factual background. The claimant arrived in the United Kingdom on 7 December 1986. He was refused leave to enter and was removed two days later on 9 December. Within 12 months, on 5 December 1987, he arrived in the United KIngdom using the passport of another person. He was given leave to remain for six months. He overstayed. On 21 February 1991 he applied for asylum in that false name. Almost a year later, on 7 February 1992, he revealed his true identity. The Secretary of State rejected his claim to asylum on 30 June 1995. There was no appeal against that ruling. The following year, on 29 February 1996, the claimant voluntarily returned to Sierra Leone.
7. The claimant next arrived in the United Kingdom on 2 September 2003. He had entry clearance until 11 October 2003 as a visitor. He overstayed. On 27 October he made a claim for asylum, this time in his true identity. That claim was rejected by the Secretary of State on 20 December 2003. It was the subject of an appeal to an adjudicator who dismissed it on 7 May 2004. The adjudicator stated that the material before him led him -

"to believe that the appellant's claim is an utter fabrication. I do not find the appellant a credible witness at all. I find that he has fabricated his claim so as to obtain settlement rights."

The claim concerned the claimant's assertion that he had been made to provide petrol to the AFRC and to repair its vehicles, and concerned his serving as Deputy Director for the Sierra Leone National Intelligence Service which, as I have observed, he maintains that he was coerced to do.

8. Following the dismissal of his claim and once his appeal rights were exhausted, the claimant had no right to be in this country. It will be seen that that is an important factor in this case.
9. Further submissions in support of a fresh claim were made by Adap Solicitors on 21 September 2004. It is significant that those did not rely in any way on Article 8. The first reference to Article 8 was in additional submissions made on his behalf by the Central London Law Centre on 15 February 2005. The letter from the Law Centre stated:

"We are advised by [the claimant] that he was in the UK as an asylum seeker between 1987 and 1996 ..... We understand that the claimant decided to return to Sierra Leone voluntarily in 1996 because he was frustrated with the length of time that his asylum application was taking to resolve. His asylum application had been outstanding for more than 8 years at that point. John Cole Jnr however stayed behind in the UK. We understand that he was eventually granted ILR in the UK on the basis of his father's asylum application. It seems to us unfair and perverse that the main asylum applicant should now be refused status in the UK when his son was granted status as his dependant. The defendant appears to have been severely disadvantaged by the earlier Home Office delays in dealing with his case."

I break into the narrative to observe that this account is untrue.

10. By 1996 the asylum application had been dealt with and there had been no appeal. The asylum application was dealt with within four-and-a-half years from the time it was made and three-and-a-half years from the time the claimant revealed his true identity.
11. The letter from the Law Centre also made two other points. It stated the claimant had spent more than ten years of adult life in the United Kingdom, during which time he had built up considerable family and private life. It referred to his marriage and two sons born of that marriage in the United Kingdom. It also referred to two sons who were not adults and were living in Belgium.
12. The Secretary of State refused to treat those representations as a fresh claim in a letter dated 21 September 2007. She rejected the claim that John Cole Jnr had been granted ILR as a dependant. At the time of the claimant's asylum interview John Cole [Jnr] was already an adult and could not have been considered to be a dependant. The Secretary of State accordingly rejected that claim on the normal approach to family life between adult members of the family, and because no details whatsoever had been produced of the claimant's private life in the United Kingdom.
13. Prior to the decision of the Secretary of State, the claimant had apparently been in contact with Mr Stephen Pound MP, who represented the area in which he lived. Mr Pound made representations to the defendant. In a letter dated 9 September 2004 Mr Pound stated that he had met the claimant to discuss his immigration case, that Mr Cole had claimed asylum in September 2003 but had yet to receive a decision on his application. In fact he had made his asylum application in October 2003 and it had been rejected by the Secretary of State in December. There was an appeal pending but the position - at least as put in the MP's letter - was erroneous.
14. The next development was that removal directions were set on 13 November 2007. It may be that those were only served on the claimant when he was detained on 21 November. On that date the defendant's letter refusing to treat the further representations as a fresh claim was sent.
15. The following day, on 22 November, a further letter with submissions was made on the claimant's behalf by the Central London Law Centre. It was in this letter for the first time, and as a final point in the letter, that the law centre referred to the relationship with Mrs Thompson. It was stated the relationship had then been ongoing for approximately three years. The letter also states that the writer understands that Mrs Thompson is a British citizen but she is originally from Sierra Leone and she is a former asylum seeker. The letter states that Mrs Thompson advised the writer that she was given indefinite leave to remain in the United Kingdom about seven years previously, that she did not recall ever having been refused asylum, and that it is not clear on what basis she was granted leave to remain. I observe that at that stage it was not said she had been granted refugee status. What the letter states is that as an asylum seeker from Sierra Leone it would be unreasonable for her to have to return there to enjoy family life with the claimant.
16. The letter included a number of documents showing the link between the claimant and Mrs Thompson. Some were jointly addressed to them both. One was addressed to Mrs Thompson at the claimant's address; and one to the claimant at Mrs Thompson's address. These are documents which respectively refer to the successful opening of a joint bank account and another unsuccessful attempt to do so. The letter also refers to further evidence.
17. On 27 November these proceedings were launched. On 29 November the claimant was released from detention. It was only after his release from that detention that he lived at the same address as Mrs Thompson.
18. On 17 January 2008 the defendant wrote rejecting the Article 8 submissions. The letter refers to the significant paragraph 20 of the judgment in Huang & Kashmiri v Secretary of State for the Home Department [2007] UKHL 11. Applying the "sufficiently serious test" enunciated in that case, the defendant stated that it was considered that removal in the circumstances of the claimant's case was according to law and proportionate. The letter states that it was accepted that the claimant has established some degree of family life with Mrs Thompson and her children since 2004. It considered that she was able to accompany him to Sierra Leone, should she wish to do so, so family life could continue, but -

"alternatively if Mrs Thompson maintained that she would be at risk in Sierra Leone then your client can return to Sierra Leone and apply for entry clearance to return to the United Kingdom in accordance with the Immigration Rules."

I have indicated that permission was given in the middle of last year by Mr Justice King.

19. The only additional material provided on behalf of the claimant after the material sent by the law centre under cover of the letter dated 22 November 2007 were copies of Mrs Thompson's and her children's passports, evidence of their joint savings and life cover, some cards sent to the claimant from the family for birthdays and Father's Day, and photographs of the claimant and Mrs Thompson and her family on a number of occasions.
20. Following the grant of permission, the defendant reviewed the case. Mr Patel said that the letter of 13 March 2009 was the result of that review. Mrs Bassire-Dezfouli said there was a hearing in this case listed originally at about that time. Had that taken place, the letter would have been received very shortly beforehand or the day of the hearing. The letter reviewed the additional material submitted on behalf of the claimant, and listed the evidence that had been submitted to enable the Secretary of State to make a decision. It concluded in paragraph 20:

"The submitted evidence relates to three separate addresses. It is considered that if your client and his partner were in a subsisting family relationship they would live at the same address and not receive correspondence at three different addresses. As previously noted, your client did not live with Mrs Thompson prior to his release from detention in November 2007 and it is clear that all the correspondence which is jointly addressed to your client and Mrs Thompson pre-dates November 2007. The evidence submitted only demonstrates that your client and Mrs Thompson registered with organisations to receive documentation at the same address. It is concluded that the evidence submitted would not support the claim that your client and Mrs Thompson are in a subsisting family relationship but suggests that your client uses Mrs Thompson's address for correspondence purposes."

21. The letter also stated that the credibility of Mrs Thompson's evidence contained in a handwritten letter, dated 23 November 2007, addressed to Geraldine Cahill (over whose signature the letters from the law centre had been sent) indicated that her credibility was doubtful because what Mrs Thompson said in that letter was that the period since the claimant's detention was the longest period the children had not set eyes on him:

"What has happened to their Dad has caused them serious emotional anguish. Their lives are shattered, making excuses not to go to school. Since the incident their attendance at school is very poor."

22. The defendant said that this statement implied that the children's poor attendance at school was caused by the claimant's detention and absence. The Secretary of State said that, even if the claimant had a close emotional bond with the children, she considered that the children would not have a poor attendance record at school after being separated from him for two days, particularly as he did not live with her.
23. The letter also states that, while Mrs Thompson said the couple had plans to get engaged in September 2007, the claimant did not mention this while he was detained or produce evidence after his release. I refer to material produced after the letter dated 13 March 2009 later in this judgment. The letter of 13 March also stated that there was no evidence from health or education professionals to support Mrs Thompson's claim that the claimant supports her and her children. Paragraph 23 states that the claim that the claimant visits her every day between 7 am and 8 pm was unreliable bearing in mind the distance between their different addresses.
24. The letter stated that the claimant had not provided any evidence to show how he provides emotional and financial support to the children and Mrs Thompson, and he did not provide any evidence to confirm he had a relationship with the children. At that stage no birth certificate had been furnished. The letter refers to the children as "Mrs Thompson's alleged children". Mrs Bassire-Dezfouli criticised the defendant for this but it is the case that it was only very recently that copies of birth certificates were furnished.
25. The letter states that in the light of the adjudicator's adverse credibility findings, the claimant's fraudulent entry into the United Kingdom, and his failure to provide evidence to support his claim, the Secretary of State took the view that there was no subsisting family relationship between him and Mrs Thompson or between him and her two children. The letter also states that, insofar as there was a subsisting relationship between them, it was open to the claimant, once removed, to apply for entry clearance to resume the relationship.
26. The letter also referred to the decision of the House of Lords in Chikwamba v Secretary of State, and in particular to Lord Brown's comments at paragraph 40 that only comparatively rarely in family cases involving children should an Article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for an appellant to apply for leave from abroad. It stated that, notwithstanding that decision:

"The claimant's poor immigration history was such that it weighed heavily in the balance and rendered proportionate his removal even if family life with the children currently existed."

27. The Secretary of State concluded that there was no realistic prospect that an immigration judge would come to a different conclusion. And thus, applying the test in the Immigration Rules as interpreted in decisions of the Court of Appeal and this court, the claim was rejected as a fresh claim.
28. I first refer to the claimant's immigration history. The chronology shows that between December 1987 and September 2004 he fraudulently entered the United Kingdom using the passport of another. His 2003 asylum claim was dismissed as an utter fabrication. He appears to have given Mr Pound MP wrong information about the status of his asylum claim in September 2004. As against this, Mrs Bassire-Dezfouli points to the fact that he revealed his true identity in 1992, albeit this was 11½ months after making the fraudulent asylum claim. She also relies on the fact that he voluntarily departed from the United Kingdom in February 1996 after the change of government in Sierra Leone.
29. I turn to the legal framework. This is usefully set out in paragraphs 25 to 43 of the defendant's skeleton argument dated 2 April 2009. Those paragraphs are reproduced, as far as I can see, verbatim in paragraphs 26 to 44 of the claimant's skeleton argument dated 6 April 2009. Accordingly there is substantial, if not total, agreement as to the legal framework.
30. The starting point is paragraph 359 of the Immigration Rules. Submissions will amount to a fresh claim if they are significantly different from material that has previously been considered. They will only be significantly different if the content -

(1) has not already been considered; and

(2) taken together with the previously considered material, creates a realistic prospect of success notwithstanding its rejection.

31. This case concerns the second of those. It is clear that the material had not been considered by the adjudicator when making his determination. The law on this was comprehensively considered by the Court of Appeal in WM (DRC) v Secretary of State [2007] IAR 327. The court summarised the task of the Secretary of State as follows. First, to consider whether the new material was significantly different from that already submitted, on the basis of which the asylum claim failed.
32. Secondly, if the new material is significantly different, the Secretary of State must consider whether, if taken together with material previously considered, it creates a realistic prospect of success in a further asylum claim.
33. Lord Justice Buxton stated in paragraph 7 that this only imposes a modest test for an application to meet before it qualifies a fresh claim. The first stage is no more than that there be a realistic prospect of success before an immigration judge. The test is not one of certainty. In the context of asylum, an immigration judge only has to consider that there is a real risk of persecution on return.
34. Thirdly, the Secretary of State, like the court, has to make a decision informed by the anxious scrutiny of the material that is axiomatic in decisions of this sort. What Lord Justice Buxton said was said in the context of an asylum claim, and a fresh asylum claim. Here, the fresh claim is an Article 8 claim. In relation to the task of this court, the Court of Appeal in WM (DRC) confirmed earlier decisions which stated - in some cases without deciding - that the requirements of anxious scrutiny in these cases could take place in the context of judicial review limited to Wednesbury considerations. Accordingly, it is not for the court to take the decision whether or not the further submissions amounted to a primary claim. The court's jurisdiction is a reviewing jurisdiction and the court can only thus interfere on Wednesbury grounds.
35. Some of the submissions made on the claimant's behalf as to the position and the approach of the court, in effect, invited the court to act as a primary decision maker. It is absolutely clear that is not what is required.
36. As far as Article 8 is concerned, the basic principles are also agreed. They are contained in the decisions of the House of Lords in Razgar [2004] 2 AC 368, as explained in Huang & Kashmiri [2007] 2 AC 167.
37. The crucial question - given the lawfulness of the object of removal to maintain immigration control - is whether interference by removal is proportionate to that legitimate end? This involves striking a fair balance between the rights of the individual and the interests of the community.
38. I refer to two cases. The first is the very recent decision in Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420. The House of Lords held that it was insufficient to justify a person's removal as a proportionate interference with Article 8 right to family life solely on the basis that the person required entry clearance to return to the United Kingdom and should be removed to obtain it. Their Lordships said that the rationale for requiring a person to go back to his or her country of origin and claim entry clearance is to deter them from coming to the United Kingdom without entry clearance and to subject -

"those who do so to the very substantial disruption of their lives involving returning from abroad." (See Lord Brown paragraph 41)

At paragraph 42 Lord Brown stated that the policy was not in itself objectionable and that -

"sometimes it would be reasonable and proportionate to take that course."

39. Lord Brown cited the decision of Ekinci v Secretary of State for the Home Department as such a case because in that case the claimant's immigration history was appalling. The claimant in that cse was being required to travel no further than to Germany and to wait for no longer than a month for a decision. His Lordship stated that other, obviously relevant, considerations in this context are whether a claimant has arrived from a country illegally for good reason or for a bad reason. He stated that arrival to advance a genuine asylum claim would be good reason. Arrival illegally to enrol as a student would not be. His Lordship also stated that it was relevant how long the defendant had delayed in dealing with the case:

"In an Article 8 family life [case], the prospective length and degree of family disruption involving going abroad for entry clearance ..... will always be highly relevant. And there may be good reason to apply the policy if the entry clearance officer abroad is better placed than the immigration authorities here to investigate the claim, perhaps as to the genuineness of a marriage or a relationship claim between family members."

40. In a passage relied on and at the core of the claimant's argument Lord Brown stated (at paragraph 44) that he was far from suggesting that the Secretary of State should routinely apply his policy in all but exceptional cases. He said:

"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."

41. I also observe that the decisions of the Strasbourg court show that where family life was created, but at that time the persons involved were aware that the immigration status of one of them is precarious and the persistence of their family life within the host state is accordingly also precarious, it is only exceptionally that removal of a non-national family member would be a violation of Article 8: see Mitchell v United Kingdom, decision 24 November 1998; AJ v United Kingdom, decision 22 June 1999; and Benemar v Netherlands [2005] 41 EHRR SE4.
42. The claimant submits that the letters by the Secretary of State are flawed in law on a number of grounds. First, she did not request any evidence or seek clarification after Mr Justice King granted permission on 30 June. She simply sent a new refusal letter out shortly before the date that this case was originally listed raising points that could easily have been clarified earlier.
43. The second ground is that she did not take account of the further evidence provided under cover of a letter dated 17 March 2009.
44. The third ground is that the relationship with Mrs Thompson and her children did not exist at the time of the previous appeal. The evidence showed a strong family life and satisfied the test for a fresh claim and was significantly different to previous materials.
45. The fourth ground is that the reasoning in the Secretary of State's decision letter is Wednesbury unreasonable.
46. The fifth ground is that the Secretary of State did not consider or apply the test in Huang & Kashmiri. To this end, great reliance was placed on the status of Mrs Thompson as a refugee and reliance was also placed on the impact on the children and the claimant's care for them because Mrs Thompson is a student nurse and works in shifts.
47. The next ground upon which the decisions are challenged is that it is incorrect to link the previous credibility of the claimant to the present case because there was "a large number of evidence to prove his family life" (sic). That evidence includes the joint bank accounts, copies of birthday cards and Father's Day cards and Mrs Thompson's statements.
48. Finally, in the light of Chikwamba and what was said about removing a person only to enable entry clearance procedures to be followed, it is submitted that it is disproportionate to remove this claimant given the fact this was a family case involving children.
49. As far as the first and second submissions are concerned, there is no duty on the Secretary of State to investigate. The Secretary of State is under a duty to consider with anxious scrutiny the materials submitted in support of a claim. The submissions made by Mrs Bassire-Dezfouli came close to suggesting that the Secretary of State was under a duty to make investigations as opposed to assessing the material put before her. Thus it was said that the Secretary of State failed to investigate the difficulties in the relationship if the claimant was returned to Sierra Leone, that the Secretary of State failed to make investigations and get back to the claimant after the grant of permission. In relation to the comment in the most recent decision letter about the photocopies of photographs, the quality of which was said to be so poor that it was difficult to conclude that it was the claimant in the photographs, it was submitted this should have been taken up with the claimant but was not.
50. As far as not taking account of further evidence provided under cover of the letter dated 17 March, that letter was not in the court bundle. It was not - so Mr Patel informed the court - received by the defendant until 27 March. This was not contradicted or disputed by those representing the claimant. Accordingly it cannot be said that the Secretary of State's failure to take account of the material submitted after the decision, and at such a very late stage, and very soon before this hearing, rendered her decision unlawful. She first made her decision last year. This case has assumed the unfortunate characteristic of a number of these cases. Insufficient evidence is put in by a claimant. A decision is then made pointing to the insufficiency of the evidence. Some of the holes are then filled but this sometimes reveals other holes. When that happens additional material is put in by the claimant.
51. The Secretary of State properly reconsidered the claimant's position and scrutinised the material submitted in the light of Mr Justice King's decision. She then made a further decision. Had she not done so, that would have been open to criticism. But the carousel nature of the way the evidence on behalf of the claimant has been produced in this case is not something that can be then used to criticise the Secretary of State in relation to very late material.
52. As far as the submission of evidence is concerned, no material was submitted by the claimant after the Secretary of State's letter dated 17 January 2008. It appears that nothing was done to produce additional material until the receipt of the most recent letter from the Secretary of State. However the duty to reconsider the position after the grant of permission lies on both parties. While it may sometimes be inevitable in these cases for applications to become a rolling process, there must be an end to this at some point.
53. In effect, what the claimant seeks to do by the changes in the submissions made is retrospectively to make good the deficiencies in the material submitted to the Secretary of State. It is understandable that at the time the original representations were made on 22 November 2007, the day after the claimant was detained, the material was not complete. But much time has passed since then. No material was submitted between 26 November and the time the letter dated 17 March was received.
54. As far as the strength of the evidence submitted on behalf of the claimant is concerned, this is clearly a case involving the second limb of paragraph 353. The responses of the Secretary of State initially accepted some degree of family life. In the light of the re-evaluation of the evidence submitted following the grant of permission, the most recent response has drawn back from that.
55. The evidence that was before the Secretary of State before she wrote her letter dated 13 March is listed in that letter. She was in my judgment entitled to find that Mrs Thompson's evidence lacked credibility for the reasons set out in the letter to which I have referred. She was also entitled to conclude, as she did, in paragraph 28 of the letter - in the light of the history of applications by this claimant and what is said in Mrs Thompson's handwritten note - that it was "possible" that the cards had been completed to support Mrs Thompson's claim of a subsisting relationship between her and the claimant.
56. The particular criticisms of the letter, which went both to the submission that there was strong evidence and the submission that the decision of the reasoning of the Secretary of State was Wednesbury unreasonable, included that the Secretary of State did not place sufficient weight on the fact that the claimant had been bailed to a different address to the one at which Mrs Thompson lived. The Secretary of State was entitled to take into account that they lived in separate addresses. It was not said on behalf of the claimant that he would not have been granted bail to her address.
57. Secondly, it was said that no or insufficient account was taken of the fact that the claimant and Mrs Thompson had submitted evidence of joint bank accounts when assessing the significance of the separate addresses. The Secretary of State was clearly aware of this and lists the material in the evidence received. But the fact that they had those joint accounts does not detract from the fact that they were not living at the same address until after the claimant's release on 29 November.
58. It was accepted by Mrs Bassire-Dezfouli that the letter of 21 November provided scant evidence. She said this was because of pressure of time. But she criticised the reference to the absence of evidence from health professionals as assuming that there had been health problems and that there would have been such problems. The reference in the letter, however, simply gives an example of the type of evidence that was lacking. It also refers to the absence of evidence from educational professionals. There was no such evidence. That was only provided under cover of a letter dated 27 March, in a sense, in response to the points made by the defendant. No evidence was submitted between 26 November 2007 and 13 March 2009.
59. Mrs Bassire-Dezfouli also criticised the Secretary of State for relying on the fact that the claimant had not mentioned the children in his interview when he was detained. She submitted it was unreasonable for her to rely on this without knowing what questions he was asked. This is an example of a submission which comes close to treating this court as the primary decision maker in this matter.
60. Given the centrality of the children to the claim, as made now by the solicitors and in Mrs Thompson's handwritten statement, the Secretary of State was entitled to rely on the failure to mention it. The submission that the reasoning in the letter is Wednesbury unreasonable, is, for the reasons given in consideration of the previous ground, not sustainable.
61. As far as the criticism that the Secretary of State did not apply the test in Huang & Kashmiri, I have stated that the test and the vital paragraph of the speeches is given on pages 3 and 4 of the decision letter dated 17 January 2008. It is also referred to on page 3 of the letter dated 13 March 2009. The test set out in paragraph 20 in the decision in Huang, which was reproduced, was clearly considered. There was no error made as to the test.
62. Mrs Bassire-Dezfouli argued the case on the basis that Mrs Thompson had been given refugee status. This was, however, not accepted by the defendant and it is not what was said in the letter dated 22 November 2007 by the claimant's then representatives. In any event, the defendant did not rely in her decision on Mrs Thompson returning to Sierra Leone. She relied on - as an alternative - the claimant returning and seeking entry clearance.
63. This brings me to the decision based on Chikwamba. The claimant submitted that it was disproportionate to remove him in this case - a family case - where there were children just to apply for entry clearance. Mrs Bassire-Dezfouli, in particular, relied on the fact that the relationship burgeoned during the defendant's delay in dealing with the further submissions made following the rejection of his asylum claim.
64. The defendant relied on the provisions in the statements in the case that the policy can be applied and that account can be taken of a bad immigration record. It was submitted on behalf of the defendant that this put the claimant squarely within the policy. The defendant also relied on the fact that an entry clearance officer may be better placed to investigate a claim than the immigration authorities here, and submitted that the facts of Chikwamba were significantly different from this case.
65. I agree that the scenario considered in Chikwamba by their Lordships was very different to the present case. Lord Brown's statement that the Secretary of State should not routinely apply the policy of requiring entry clearance procedure to be gone through in family cases involving children, and should do so only comparatively rarely, was said in a particular context. In that case there was a genuine asylum claim by a Zimbabwean national, ie, by a woman with a good immigration record. Secondly, she married a Zimbabwean man who had been granted refugee status and thus - it was accepted - faced an insurmountable obstacle to return to Zimbabwe. The relationship had burgeoned in a two-year period when there were no removals to Zimbabwe. Their Lordships regarded her as in limbo at that stage. There were no doubts as to the nature of the relationship in that case: see Lord Scott at paragraph 5.
66. In those circumstances the claimant in that case had every prospect of succeeding in an application for entry clearance. Lord Brown said:

"No one apparently doubts that in the longer term this family will have to be allowed to live together here."

67. Finally in Chikwamba's case the claimant had a young daughter, who was born in the United Kingdom and was aged 4 at the time of the appeal. That young daughter would either have to be separated from her mother or to travel to what were described as harsh and unpalatable conditions in Zimbabwe simply to enforce the entry clearance procedures.
68. Although this case is a family case involving children, it is very different. First, and most importantly, there is the claimant's fraudulent immigration history. The purpose behind the policy, as identified by Lord Brown in his speech in Chikwamba, and to which I have referred, is particularly apposite in this case.
69. Secondly the limitations of the evidence submitted and the resulting doubts by the Secretary of State that the claimant was in a subsisting relationship with Mrs Thompson and her children - which doubts I have held are not Wednesbury unreasonable - distinguish this case from Chikwamba. In that case no one doubted that entry clearance would be given. The only reason for returning the claimant in that case was routine and perhaps rigid application of policy described by Lord Scott as elevating policy to dogma and something which Kafka would have enjoyed.
70. The children in this case are older than the child in Chikwamba and the claimant is not their biological father. The Secretary of State was entitled to take account of the latter fact and of the length of the relationship between Mrs Thompson and the claimant in considering the claimant's position and the proportionality question. I reject the submission that the defendant was not allowed to take into account that the children were not the claimant's natural children as a factor.
71. Finally there is the question of delay. In this case the asylum claim was dealt with in a two-month period after the claim was made and the appeal was within seven months. The fresh claim was made thereafter at a time when the claimant was in this country illegally. He was entitled to be in this country while his asylum claim was being processed but not thereafter.
72. EB Kosovo v Secretary of State [2008] 3 WLR 178, on which the claimant relies, is distinguishable. It was a case involving a five-year delay. It also involved a delay in dealing with the original claim so that the relationship was formed during a period when the claimant was lawfully in the country. In this case the claimant stayed in the United Kingdom without permission to do so after his appeal rights were exhausted and only then formed his relationship with Mrs Thompson. The fresh claim he then made puts him in a different category to the claimants considered in EB Kosovo.
73. For these reasons I have concluded that the Secretary of State was not Wednesbury unreasonable in concluding that the material submitted by the claimant would not create a realistic prospect of success. She considered the deceit employed by the claimant in entering or remaining in the United Kingdom, the utter fabrication of his original claim for asylum, his failure to provide proper evidence of the relationship and family life between him, Mrs Thompson and her children, and the problems in the credibility of the evidence and material submitted by his solicitors and from Mrs Thompson. Ultimately the most important factor in this case is the very bad immigration record of the claimant and the recognition in Chikwamba that in those cases removal to pursue entry clearance is proportionate.
74. This application is dismissed.

(In the absence of Mr Kovats who had been excused the following ensued)

75. MR JUSTICE BEATSON: There is counsel here now. We started with a defendant and we end up with a claimant. You are for the claimant, are you?
76. MRS BASSIRE-DEZFOULI: Yes.
77. MR JUSTICE BEATSON: When did you arrive?
78. MRS BASSIRE-DEZFOULI: Quarter-to-ten.
79. MR JUSTICE BEATSON: At quarter-to-ten. You have not filled in a form.
80. MRS BASSIRE-DEZFOULI: No.
81. MR JUSTICE BEATSON: There is no counsel for the defendant. Is there to be any application?
82. SOLICITOR FOR DEFENDANT: Not at this stage.
83. MR JUSTICE BEATSON: If any application is to be made it should be made - we are two days from Good Friday - by Monday week.
84. SOLICITOR FOR DEFENDANT: The 20th.
85. MR JUSTICE BEATSON: Yes. I am thinking about costs. It should be made in writing. I do not reserve it to myself. It should be served on the court, served on the claimant. The claimant should then have a week to respond to it and then it will be determined on the papers.
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