QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX |
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B e f o r e :
sitting as a Judge of the High Court
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CARD |
Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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Ms Mannion of counsel appeared on behalf of the Defendant.
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His Honour Judge Waksman QC:
"In view of the specialist care and surgical procedures Miss Knighton-Gordon continues to require she cannot reasonably be expect to relocate to Jamaica and equally, given that Miss Knighton-Gordon is dependent on her mother in respect of her personal care, mobility and emotionally it is unreasonable to expect Ms Knighton to relocate to Jamaica [see attached extract from Ms Knighton's statement];"
"As to the conclusions which it is suggested should be drawn in paragraph 2.4 of the grounds of appeal I find that the appellant's partner and her daughter cannot reasonably be expected to relocate to Jamaica, largely because of the appellant's partner's daughter's medical condition, the need for further procedures, and the support that the mother provides for her daughter both practically and emotionally. However, I do not believe that there is any reason why the appellant's partner and her daughter should not keep in contact with the appellant through visits to Jamaica (they have visited in the past), telephone calls and correspondence."
" … the exercise of his right to respect for his private and family life. The interference would have consequences of such gravity as potentially to engage the operation of Article 8. Clearly, the interference would be in accordance with the law. I find that the interference would be necessary in a democratic society in the interests of national security and public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or protection of the rights and freedoms of others."
"Taking into account all the factors which I have adopted from the panel determination, updating the position, and, insofar as they have not already been taken into account, adding the factors already referred to, I conclude that it would not be disproportionate to remove the appellant to Jamaica."
"The ground of appeal is that the deportation of Mr Card would interfere with his rights under Article 8, and indeed those of Miss Knighton. The facts relating to the Article 8 claim are really not in dispute. They are set out in paragraph 15 of the determination, and they are facts which led me to say that this was a sad case. Miss Knighton is obviously, from her submissions before me today, an active, intelligent, sympathetic lady. She has a daughter who has a congenital hip dislocation and a degenerative bone disease, and it is primarily that which means that her and her daughter's presence in this country really must continue; and the Immigration judge accepted that if the deportation took effect that would split the family, and it is the family which is the subject of Article 8. But he concluded that, although there was an interference with the Convention rights of Mr Card and Miss Knighton, nonetheless the deportation order must stand. "
"Whether I would have reached the same decision as the Immigration judge is not for me to say. I have a lot of sympathy with Miss Knighton. However, I do not feel that this is a decision that I can properly interfere with and therefore, unfortunately, I have to refuse permission."
At this point Mr Card's appeal rights were exhausted. In fact no further action was taken at that stage in relation to the decision to deport. He reported weekly in the usual way in accordance with bail conditions. But then on 2 June 2009 a decision was made to detain him. Removal directions were given on 4 June for a removal on 11 June. As will by now be clear, that removal has in fact been suspended. At that stage of course there had been no response to the further representations letter of 10 November. That came on 8 June. The deportation letter itself was only signed on 9 June and this application for judicial removal was issued on 10 June. The present position is that Mr Card has been released from detention subject to bail conditions.
"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material,
created a realistic prospect of success, notwithstanding its rejection."
"Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.
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, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. 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 requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."
"In determining an appeal under section 65 of the Immigration and Asylum Act 1999 (the 1999 Act) (now sections 82 and 84 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act)) against the Secretary of State's refusal of leave to remain on the ground that to remove the appellant would interfere disproportionately with his article 8 right to respect for his family life, should the immigration appellate authorities take account of the impact of his proposed removal upon all those sharing family life with him or only its impact upon him personally (taking account of the impact on other family members only indirectly ie. only insofar as this would in turn have an effect upon him)?"
"Whilst it is no doubt true that only infrequently will the present issue affect the outcome of an appeal, clearly on occasion it will and in any event that could provide no reason for maintaining the present narrow approach if it is wrong—indeed, quite the contrary."
And in paragraphs 42 and 43 he sets out the reasons why the narrower construction was indeed wrong and concludes in paragraph 44 that the wider construction had to be adopted.
"The Immigration Judge in this case clearly considered the Article 8 rights of the appellant. He did not know that he was supposed also to bring into the balance the Article 8 rights of the partner and of the children of the whole family. He did not ask himself, "What is going to be the effect on these children of not having their father?" He did not think he had to and he did not.
5. But we now know from this decision of the House of Lords that he ought to have done. Miss Busch submits that the result would be exactly the same and there is no point in sending it back because the Immigration Judge clearly describes the loving family and recites all the evidence which was put in. That is of course true, but what he did not do is to weigh the effect of that evidence as far as the children and the partner are concerned. It is not for us to do the weighing. It is for him. Therefore for these two reasons the only satisfactory way of proceeding with this case is to remit it so that it can be reconsidered."
"As can be seen from the above quotation your client's rights to respect [for] family and private life have already been considered by the Immigration Tribunal. Your current representations … raise nothing new but appear to be re-arguing what has already been considered."
"Representations also state that Ms Knighton's daughter is 19 years of age and now lives independently of her mother and your client.
In addition, the representations claim that your client continues to help with the care of Ms Knighton's daughter. When your client was serving his prison sentence, alternative care arrangements were made during his incarceration, because by his own actions your client made himself unavailable to care for Ms Knighton's daughter. Both Ms Knighton and her daughter have already had to manage without your client for a significant amount of time and there is no reason why these arrangements cannot continue.
Furthermore, Ms Knighton's daughter is an adult who is capable of living independently of her mother and your client. It is not accepted that she has such a degree of dependency upon your client that his removal would have such an impact on her life as to engage Article 8."
It is accepted for the purposes of this application that that represents sufficient engagement on the part of the defendant with the question of the daughter's Article 8 rights. What, however, is missing at this stage in the letter is any specific engagement on the part of the defendant with the Article 8 rights of Ms Knighton.
"Furthermore it would be open to your client's partner and step-daughter to accompany your client to Jamaica should they wish to do so. Although it is accepted that your client's partner and her daughter may not wish to follow your client to Jamaica, this does not in itself present a justification to abandon deportation action against your client. Although it has been acknowledged that your client's stepdaughter has some medical problems, there is no evidence to suggest that she, an adult who is living independently of your client, could not relocate abroad if she should wish to do so. The same could be said of your client's partner. Furthermore, there is no evidence to suggest that your client's partner and her daughter could not maintain contact with your client via visits to Jamaica and via modern forms of communication."
Reference is made at the bottom of page 9 to the fact that the human rights claim had been considered by the immigration tribunal of 30 July and upheld by the Court of Appeal on 20 May. On 25 July Mr Card had the opportunity to raise and did raise all Article 8 issues mentioned in the recent representations. Reference is then made to Burnton LJ's refusal of permission to appeal which dealt with the question of the object of deportation being a deterrence, and that was paragraph 9 of his judgment which I have already read.
"The UK Border Agency is of the opinion that the Immigration Judge's decision of 30 July 2007 was sound and that it comprehensively addressed of all the issues raised in your earlier submissions. Furthermore while it is accepted that case law may refine the way in which cases are viewed, it is not accepted that there has been such a radical shift so as to necessitate a further review of your client's Article 8 claims. The Immigration Judge accepted that your client had established family life in the UK but also found that the decision to deport him was proportionate. Therefore it is not considered that you have raised any issues which would require the Immigration Judge's decision of 30 July 2007 to be revised in any way."
"Furthermore there was no evidence to suggest that mother and daughter could not maintain contact with the client via visits to Jamaica and modern forms of communication."
I take that point, but it is clear from the paragraph as a whole that the principal point being made and relied upon by the Secretary of State was that mother and daughter could reasonably relocate in the first place. The significance of this error is that it ties that into what might have been concluded if a proper Beoku-Betts approach had been taken to Ms Knighton's position, ie the impact upon her. The impact upon her obviously changes enormously if either it was or was not reasonable for her to relocate, and reasonableness here no doubt also involves her existing family ties, ie beyond her daughter, which had been referred to in earlier decisions and which presumably remain as before.
"Therefore it is not considered that you have raised any issues which would require the Immigration Judge's decision of 30 July 2007 to be revised in any way."
But I do not regard the formulation of the question in that way as compliant with the decision of the Court of Appeal in WM. The question is not whether the new material "would require" (ie demand) a revision to the earlier decision, but whether, applying anxious scrutiny, there was a realistic prospect that an Immigration Judge would come to a different view bearing in mind that it is a modest test. Ms Mannion sought to persuade me that in essence that was what was being said at page 21 but I cannot at all be satisfied that it was. After all, in this particular case the defendant had had some eleven pages in which to state clearly the question. Moreover some six months had passed since the further representations were themselves made, so there was plenty of time for full consideration of that letter, which itself referred expressly to the decision in WM.
MS PLIMMER: My Lord, I am grateful. Just two small suggested amendments to your judgment.
HHJ WAKSMAN: Yes.
MS PLIMMER: The first is that when your Lordship refers to the first AIT decision, you refer to standard 395C analysis
HHJ WAKSMAN: Yes
MS PLIMMER: 395C is administrative removal, whereas deportation is 364
HHJ WAKSMAN: 364. Just a moment. Quite. Well, I will read that into the record
MS PLIMMER: My Lord, the second is very minor and that is: towards the end of the judgment where your Lordship makes reference to WM there is a mistake made in that you said House of Lords in WM.
HHJ WAKSMAN: (Inaudible). Thank you. Yes?
MS PLIMMER: My Lord, those are the only corrections that I have observed.
HHJ WAKSMAN: Yes.
MS MANNION: My Lord, The matter arising in respect of bail is that Mr Card was granted bail by this court last week. What it is is this: we don't seek to remove that bail of course, but I am instructed to ask that the conditions be made more stringent. I have put my learned friend on notice. There are two material effects. Do you have a copy of the bail conditions as currently?
HHJ WAKSMAN: Yes, just a moment. I have some bail conditions made on 15 June.
MS MANNION: Yes
HHJ WAKSMAN: There is a residence condition and then two modest sums by way of security and then reporting to the Chief Immigration Officer
MS MANNION: Yes. In respect of the first condition, the variation I would seek is to add to the end of the residence condition the words "and live and sleep at that house each night". I understand that's uncontentious.
MS PLIMMER: That's how it was before.
MS MANNION: It … I am grateful to the indication that that was how it was before. It doesn't appear on his Lordship's order of the …
MS PLIMMER: That is accepted.
HHJ WAKSMAN: Well perhaps for the avoidance of doubt the order today should reflect that.
MS MANNION: I would be very grateful if it did.
HHJ WAKSMAN: Yes.
MS MANNION: And finally it's the reporting. I would seek that that be increased to ideally a frequency of Mondays, Wednesdays and Fridays, but at least bi-weekly. The reasoning is because those who instruct me are fearful that Mr Card represents a flight risk. I say that knowing of course how much time your Lordship has given to the background of this case and I know you are well appraised of it, so I don't put it any higher than that but the concern is there and I would be grateful for slightly more contact.
HHJ WAKSMAN: Yes, and of course I don't think you made representations in relation to the first hearing.
MS MANNION: No representations were made at all on behalf of the Secretary of State on that occasion.
HHJ WAKSMAN: Well, what do you say about that, Ms Plimmer?
MS PLIMMER: My Lord, the claimant has been reporting once a week since March 2007. There has not been a single issue raised by the Secretary of State regarding any concerns as to that reporting. There have been no previous concerns raised in relation to flight risk. In my submission, the claimant's stay in the UK is entirely dependent upon his relationship with Ms Knighton, who he agrees to live and sleep with each night, and that the status quo in this case is sufficient to meet any concerns the Secretary of State has, the Secretary of State having not particularised why it is it is viewed that there is a slight risk now when there hasn't been for the last two and a bit years.
HHJ WAKSMAN: Thank you. Ms Mannion, is there any particular material for the court to look at?
MS MANNION: I am afraid there isn't. It's more that, matters having been brought to a head and Mr Card's recent spell in detention, the fact matters are moving on and it is clear what the Secretary of State's intention is to bring matters to a head
HHJ WAKSMAN: Yes, well, thank you for that but in the absence of any further material I am going to leave things as they are. Right.
MS PLIMMER: My Lord, if I can raise the matter of costs.
HHJ WAKSMAN: Yes.
MS PLIMMER: The claimant would ask for his costs. We note that HHJ Stewart QC made an order when he refused permission on the papers which we would like to address.
HHJ WAKSMAN: Yes, I saw something about that today. I think all that … I think that all he meant by that was: if you didn't put in an application for oral permission, in other words, the thing ended there, you would be liable to pay the costs that he ordered.
MS PLIMMER: I am afraid both myself and my instructing solicitor have read his observations a few times and we were a bit concerned that we were getting it wrong but I am grateful that you have been able to clarify that.
HHJ WAKSMAN: Well that is in essence what it is. That is a fairly standard order because if there is to be no renewal then that is the end of the matter and then there is no provision for costs unless the judge says something about it at the time but it is entirely conditional, so as far as I am concerned, unless anybody wants to say anything else, the costs are now largely ….
MS MANNION: My Lord?
HHJ WAKSMAN: Yes.
MS MANNION: I am unassisted by any instructions on the point but I certainly couldn't challenge your Lordships reading of the order.
HHJ WAKSMAN: Right. Well now where do we go from there?
MS PLIMMER: Well my Lord, I would have thought that we would obtain an order for our costs to be assessed as well as a detailed assessment of public costs for the costs that may have taken place prior to costs in this. It's generally always right, even if we get our costs we still require an LSE order.
HHJ WAKSMAN: Oh yes. Right. Well, first of all of course this is now a disposal of the entire application.
MS PLIMMER: My Lord, yes
HHJ WAKSMAN: So Ms Mannion, do you resist in principle the costs order as the losing party?
MS MANNION: I don't see that I can
HHJ WAKSMAN: Right, thank you. So you want that the claimant should have the costs of the application and then there is the LSE reference
MS PLIMMER: The LSE standard
HHJ WAKSMAN: A form of words which I can't now remember but … and that's the costs?
MS PLIMMER: The claimant is entitled to his publicly funded LSC costs to be assessed if the court agreed
HHJ WAKSMAN: Claimant … So, defendant to pay to the claimant his publicly funded costs to be assessed, what, by the LSC?
MS PLIMMER: No my Lord. What should happen is: you have the costs order, which is just that the defendant pays the claimant's costs of the application, and then there's a catch-all order, if you like, which is the LSC order, and that order should read that there be an assessment of the claimant's LSC costs.
HHJ WAKSMAN: A detailed assessment?
MS PLIMMER: Yes, a detailed assessment
HHJ WAKSMAN: … there be a detailed assessment of the claimant's LSC-funded costs … in the absence of agreement? If not agreed?
MS PLIMMER: If not.
HHJ WAKSMAN: Yes. Well, let's just – so, lets just do the order because the learned associate can print it out, can do it for you, it is not that complicated. So, the decision of -- I am dictating now so she can hear me – (1) the decision of the defendant dated 8 June 2009 whereby the claimant's fresh … fresh asylum, isn't it?
MS PLIMMER: Fresh human rights application
HHJ WAKSMAN: Human rights … whereby the claimant's fresh human rights claim was refused, is hereby quashed. (2) the defendant do pay to the claimant his publicly funded costs to be the subject of a detailed assessment of those LSC-funded costs, if not agreed. Does that make sense?
MS PLIMMER: My Lord, I wouldn't want to be over-fussy, but usually we have two separate orders as far as costs is concerned, and I am sure my learned friend will correct me, and what I would, I would have thought should take place is that the second matter should say the defendant do pay the claimant's costs, and then (3) there be detailed assessment of the claimant's LSC.
HHJ WAKSMAN: The defendant do pay … the defendant do pay the claimant's costs … the defendant do pay the claimant's costs of this application …
MS PLIMMER: Yes, my Lord.
HHJ WAKSMAN: … full stop. (3) There be a detailed assessment of the claimant's LSC-funded costs in the absence of agreement. Will that do?
MS PLIMMER: Yes, my Lord. I am most grateful
HHJ WAKSMAN: Right. Well, thank you both again very much for your assistance and in particular your -- in my view -- very helpful and sensible approach in getting this matter entirely dealt with today. Ms Plimmer, if you would wait around for just a few moments after I rise I will be able to give you back the bundle.
MS PLIMMER: My Lord, yes
HHJ WAKSMAN: And I rise now.