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
		20/03/2009

Lord Carlile of Berriew Q.C.:

1. The First Claimant, Janet Bailey [C1], is a national of Jamaica. The 6 other Claimants [C2-7] are her children. They were born between the 18^th July 1994 and the 9^th June 2003, therefore are aged between 14 and 5. This case is about C1's desire to remain in the United Kingdom with all her children. The hearing before me was their application for permission to apply for Judicial Review.
2. On the 23^rd January 1999 C1 arrived in the United Kingdom for the first time. She left the UK in August 1999 voluntarily with 3 children. She returned in December 2000 using the passport of a third party. Her youngest child, C7, was born here: all the others, C2-6, were born in Jamaica. C1 has had no lawful status to remain in the UK since 1999.
3. There have been many hearings, representations and decisions in their case. This Claim relates to a decision by the Defendant by cumulative letters respectively dated the 8^th November 2006 (rejecting further representations following earlier consideration), the 1^st August 2008, and the 3^rd March 2009.
4. In essence C1 contends on her own behalf and that of C2-7 that the Defendant erred in her rejection of C1's representations, serially received, as a fresh claim; that the Defendant has materially misdirected herself as to the applicable law and the nature/effect of the evidence; and that inadequate reasons have been given for the rejection. The Claimant contends that the Defendant's decision to continue to treat the Claimant's case as incapable of satisfying the requirements for establishment of a fresh claim under paragraph 353 Immigration Rules HC 395 is unlawful.
5. The Defendant contends that she has carefully and fully considered all the representations, has applied the law correctly, and has given adequate reasons for rejection founded on the law and a proper consideration of the evidence.
6. The rules relating to fresh claims are contained in paragraph 353 HC 395:

 "353. When a human rights or asylum claim has been refused 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.

This paragraph does not apply to claims made overseas".

 7. The Court of Appeal in WM v SSHD; SSHD v AR [2006] EWCA Civ 1495 set out the proper process and tests to be implemented and applied by the Minister and the Courts when determining the viability of a fresh claim.

7. The Court emphasised that the threshold for establishing a fresh claim was not high:

  "7. The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim.   First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. …."

8. Subsequently in the case of Nadesu, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 3105 the Court, citing from a decision of Mr Justice Collins in the unreported decision of Lutete related the test applicable to the determination of a fresh claim thus:

"17. In fact the test would appear to be whether the Secretary of State could reasonably take the view that the evidence which is produced will not be accepted. I emphasise 'will not be accepted', because if it might reasonably be accepted then it would be wrong for the Secretary of State to decide for herself that the evidence which she has before her which supports her view is to be preferred. It is not for her to take that decision, particularly where the matter is already before a tribunal. If in reality the fresh material, whether or not it was capable of being produced at an earlier stage, is such as might reasonably result in a different view being taken, then it must be regarded as a fresh claim and there should in due course, if the claim is rejected, be a right of appeal given".

9. The modest threshold applicable to fresh claims was confirmed recently by the House of Lords in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6.
10. In WM the Court identifies a two stage test in order to discern whether a sustainable fresh claim could be said to have been established:

"11. First … 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;  …   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, … the Secretary of State [must apply] the requirement of anxious scrutiny?".

11.  In Habibi v SSHD (1/4/97 Unreported) Sedley J (as he then was) formulated the test for sustainability of a fresh application as follows:

"… where there is evidence of a relevant and substantial change in circumstances, or where new evidence is advanced which could not reasonably have been advanced earlier, an obligation arises to entertain the newly made claim whatever the grounds for objection of the previous one, unless the new evidence

(a) is not intrinsically credible or

(b) is not capable, even if accepted, of producing a different outcome."

12.  The authorities justify the conclusion that adverse findings in relation to the credibility of a Claimant, though self-evidently an issue in the context of the overall assessment of the evidence, are not necessarily determinative. Objective evidence, which has included statements by various international organisations or even newspapers, may qualify or even 'trump' adverse credibility findings in the application of the test described above.
13. An important part of the present case relates to the claim that the Defendant's decision is contrary to her ECHR Article 8 family life right. Article 8 states:

"8(1) Everyone has the right to expect for his private and family life, his home and his correspondence".

8(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, 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 for the protection of the rights and freedoms of others".

14. In EB (Kosovo) v SSHD [2008] UKHL 41 Lord Bingham emphasised [paragraph 12] that an overly prescriptive approach was incompatible with the Article 8 assessment exercise, and that Article 8 is an important and fundamental human right worthy of genuine respect.
15. The House of Lords in Razgar v SSHD [2004] UKHL 27 stated that where Article 8 issues arise five questions fall to be answered in turn:

(i) Has private or family life been established?

(ii) Has there been an interference with the right to respect for such private or family life?

(iii) Is any such interference in accordance with the law?

(iv) Is any such interference necessary in a democratic society as being in the interests of one of the legitimate aims set out in Article 8's second paragraph? Immigration control is accepted as being such an aim, so absent a case of bad faith, it is difficult to see this question ever being answered in favour of an immigrant.

(v) Are the means chosen necessary in a democratic society, i.e. are they proportionate to the ends sought?

16. On the 1^st May 2003 C1's appeal against a removal direction, on her own behalf and that of C2-6, was determined by an Immigration Adjudicator. He made very adverse credibility findings, and was not satisfied that the family could not relocate to Jamaica. He held that she had close family there, and that there was no unlawful deficit to the children in having to live there. He referred to and considered Article 8. Since then C1 has fought the system attempting to relocate her and her family back to Jamaica, albeit by lawful delaying mechanisms including repeated requests for consideration of previous together with additional material as a cumulative 'fresh application'.
17. The Defendant asserts that at every new turn careful assessment of all material has been performed, with 'anxious scrutiny', and to the standard required.
18. Given that this is a permission application, and not determinative of the application for Judicial Review, my task is to determine whether in my judgment there is an arguable case that there is a fresh claim such as might produce a different outcome.
19. In his interesting 23 page skeleton argument the Claimants' counsel Mr David Jones raised several issues of law. If I am satisfied that any of them is sufficient to found the granting of permission, it is not necessary for me to deal with them all.
20. Orally during, and confirmed in writing immediately following the hearing on the 13^th March 2009, I was told that C1-7 now live in the home of Mr Omark Williams, who has been described as her partner. He is said to be the father of some of the children, a proposition not disputed during the hearing. Mr Williams has the indefinite leave to remain in the UK. It was agreed by both sides that this is a new piece of information as to the Claimant's residence which I should take into account.
21. The final decision letter of the 3^rd March 2009 included the following assertions:

(i) [paragraph 3] The London Borough of Redbridge, who had intervened in relation to the children, no longer felt the children were at risk nor needed a child protection plan.

(ii) [paragraph 8] No significantly different issues were raised therefore there was no fresh claim.

(iii) [paragraphs 7 & 9] No breach of Article 8.

Of course, this letter is to be read with the previous decision letters referred to above.

22. In relation to (i), it is in my judgment at least arguable that the Secretary of State misdirected herself seriously as to the effect of removal from the 'at risk' register and the need for a child protection plan, and therefore has not considered such evidence in the way required by Paragraph 353 of HC 395. If one takes fully into account the recent (from September 2008) children's services evidence [trial bundle pages 4-22], together with the January 2007 Independent Social Circumstances Report by Robert Nisbet [trial bundle pages 111-149], whether the children are formally 'at risk' or not, the continuing input of local children's services into the family remains considerable. C1 loves her children and seems to do her best with them, but she struggles and their integrity as a single family unit is much assisted by the services. It is arguably seriously mistaken to the point of irrational that the Article 8 family rights fail completely to take into account the part played by the children's services, which are not replicated, on any available evidence, in Jamaica.
23. In addition, although C1 has always been reticent to give information about her mother Mavis McDonald, who lives lawfully in the UK and nearby, and her mother's role in the family, it is significant and has been observed [see e.g. trial bundle page 123]. The Defendant appears to have given no or little weight to the grandmother's involvement, as opposed to the potential involvement of other family members in Jamaica of whom there is no evidence of any interest in C1-7 to date.
24. C1 has been even more reticent with the authorities about Mr Omark Williams. Nevertheless in my judgment the new information that the family has moved in with Mr Omark Williams needs to be set alongside other pre-existing material of his part. I refer in particular to trial bundle pages 13 and 21, 102 (in the report of January 2007 by a psychiatrist Dr Stein on C1), and 124: these are evidence of a perhaps somewhat inconsistent but nevertheless close paternal input into the family. I can find nowhere any real assessment of this factor by the Defendant.
25. It is at least arguable that there has been an irrational failure to take into account the full family circumstances; and that the necessary test was not applied with 'anxious scrutiny'. In addition, the current domestic residential situation, albeit catalysed by the ending of State financial support for the family, is arguably significant fresh material that should now be taken into account, and which might contribute to a realistic prospect of success.
26. Having reached the conclusions set out above, and for the reasons given, I grant permission to apply for Judicial Review. It is not necessary for me to determine other issues argued before me, which if pursued will be for the full hearing.