England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		18 October 2010

1. MR JUSTICE OUSELEY: The claimant is a Nigerian, who entered the United Kingdom in 1988 with a valid student visa. He made an application to remain as a student, which was eventually granted until May 1992. He also made an application for leave to remain on the grounds of marriage to a Miss Auguste, which was refused because the marriage appeared not to be subsisting. An appeal against the refusal was dismissed. The claimant absconded. He was found in 1996 when he committed a criminal offence at Lakeside shopping centre and he was removed to Nigeria in November 1996.
2. It is said by Mr Juliuson that he returned illegally to the United Kingdom in 1997. Whenever it was he returned, it is undoubtedly the case that he did so illegally. His presence in the United Kingdom did not come to light until 6 November 2009 when he applied for leave to remain with his family, consisting of a new, it is said, spouse, but more probably partner because there is no evidence of a divorce from his first wife, and his three children by this partner. The children are now 20, 19 and 16. The partner and the children appear all to be British nationals.
3. He sought discretionary leave to remain outside the rules, and discretionary leave to remain was refused in a letter of 20 August 2009, which was followed by a supplementary decision dated 9 March 2010. In effect, the debate about the lawfulness of what the Secretary of State has done focuses on the 9 March 2010 letter.
4. The decisions of the Secretary of State do not give rise to an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. The authorities also show that it is not unlawful for the Secretary of State to issue a decision letter refusing an application for leave to remain, which is not appealable under section 82, whilst not issuing a removal decision which would be appealable under section 82. There have been a number of cases at first instance which have established that position quite clearly, where the applicant was present unlawfully and the refusal of leave to remain does not alter the lawfulness of his being in the country. It may of course be otherwise where the consequence of a refusal of leave to remain means that somebody who was present lawfully ceases lawfully to be present, yet has a human rights claim which he wishes to pursue.
5. In this case, as the immigration history shows, the claimant has not had any leave to remain in this country since his return in 1997 (if that is when it was), and the refusal of leave to remain in the decisions to which I have referred has not altered his position one iota. He remains in the position in which for 12 years he was content to remain. The authorities which at first instance make it perfectly clear that the decision-making stages which would apply here is a lawful process are R(Suphachaikosol) v the Secretary of State for the Home Department [2010] EWHC 1817 (Admin) per Collins J; R(Da Costa) v the Secretary of State for the Home Department [2010] EWHC 2259 (Admin) per HHJ Pelling QC (sitting as a Deputy High Court Judge); R(Daley-Murdock) v the Secretary of State for the Home Department [2010] EWHC 1488 (Admin) per Wyn Williams J; and most recently, R(Mirza and others) v the Secretary of State for the Home Department [2010] EWHC 2002 (Admin), even where the claimant's lawful status changed with the Secretary of State's decision.
6. Accordingly, if and when the claimant is issued with a removal decision, he will be entitled to appeal against that and his arguments in relation to human rights will be dealt with on their merits through the statutory appeal process.
7. Mr Malik on behalf of the claimant, however, challenges the decisions refusing discretionary leave to remain on two bases. First, he submits that the decision to refuse leave to remain is itself an interference with his client's human rights, quite apart from what would happen on removal. In my judgment, that is an untenable proposition.
8. The affidavit evidence of the claimant speaks of the problems that would arise on removal and not otherwise. He is present illegally and there has been no change in his position vis-a-vis his family because of the refusal of discretionary leave to remain. His problems are entirely problems of his own making and choosing. The Secretary of State has done nothing except refuse to offer the claimant his preferred solution. That constitutes no interference at all with the claimant's human rights.
9. Mr Malik also submitted that the refusal of discretionary leave to remain meant that the claimant was unable to enjoy certain benefits: an entitlement to work; an entitlement to benefits; and an entitlement to make in consequence a further application for an extension of leave to remain. Those do not constitute an interference with his human rights. As I said, he remains in the position he chose to put himself in.
10. The second basis upon which it is said that the Secretary of State's decision is unlawful is that the Secretary of State has misinterpreted his policy in relation to the grant of discretionary leave to remain. The relevant policies are to be found in two documents read together.
11. Asylum Policy Instructions of 2003 refer to the existence of the power to grant discretionary leave, and simply says, so far as material, that discretionary leave may be granted "for a limited number of specific reasons ... [Discretionary leave] may be granted to an applicant who has an Article 8 claim ..." That clearly sets no criteria, but notes the existence of a power. It expresses no entitlement either.
12. The 2006 Immigration Directorate's instructions on the grant of leave outside the rules says this:

"The criteria to be met for a grant of discretionary leave are set out in the API on discretionary leave. The majority of grants of discretionary leave are likely to be made in protection cases. There are, however, a limited number of circumstances in which a non-protection case may qualify for a grant of discretionary leave, for example where removal would ... breach Article 8 of the ECHR (right to private and family life) and most likely to arise in marriage ... cases."

13. In my judgment, it is clear, as Mr Malik accepted, that there is no entitlement to discretionary leave to remain merely because an Article 8 claim has been made. The gravamen of Mr Malik's submission is that the Secretary of State, although he considered the question of whether removal would breach the claimant's and members of his family's Article 8 rights, did so in a way which meant that he either reached an irrational decision or reached a decision ignoring relevant factors or relying on irrelevant factors. Mr Malik rightly accepted that it is not for this court to substitute its view at this stage of whether removal would breach Article 8. It has neither the evidence or the fact-finding role, and before removal a decision will be made which is appealable on its merits pursuant to a statutory procedure. This court is not to be a premature and inadequate substitute for that process. Where the court is considering the lawfulness of the application by the Secretary of State of his own policy on discretionary leave, and his policy is to consider whether or not removal, which is not yet proposed, would breach Article 8, the question of whether that decision on leave is lawful depends only on the question of whether he has reached a reasonable view that removal would not breach Article 8. The testing of that on its merits would be for the appeal process.
14. As to rationality, I have been taken to a number of cases on differing facts, none of which persuade me that the decision of the Secretary of State is of itself Wednesbury unreasonable. It would be a very hard road to go. There are three children, who are, I am assuming, British citizens. They are aged, as I have said, 20, 19 and 16. The problems that the family might face were the father to be removed is a matter of some concern, but their existence does not show that removal is inevitably going to breach the claimant's Article 8 rights or those of his family.
15. It is said that the Secretary of State has wrongly taken into account or wrongly given weight to the immigration history. I have been referred to two cases in which there had been breaches of immigration control, but that factor had not been referred to as a significant matter. The two cases are VW(Uganda) v the Secretary of State for the Home Department [2009] EWCA Civ 5 and AB(Jamaica) v the Secretary of State for the Home Department [2007] EWCA Civ 1302. Although in each case there had been a breach of immigration control, but not a very significant one by comparison at least with that here, Mr Malik is right in pointing out that that breach does not appear to have weighed with the court in reaching its decisions. But he is entirely wrong to cite those cases as authority for the proposition that the immigration history and history of breaches of immigration control is an irrelevant factor or a factor that really is a makeweight. The significance of the immigration history will vary depending upon the nature and length of the breach or breaches, but it is the enforcement of immigration control which is at the heart of most of the considerations which go into the balance under Article 8(2).
16. Of course there are cases in which despite significant breaches removal was not proportionate in a family case, but as a matter of principle, the submission that the history of breaches of immigration control are irrelevant even on the scale indulged in here is simply misconceived.
17. I have been shown a decision of Beatson J in WJ(China) v the Secretary of State for the Home Department [2010] EWHC 776 in which that point is expressly made at paragraph 47, where the judge said that the Secretary of State was entitled to take into account the claimant's appalling immigration history. I also accept that the decision in EB(Kosovo) v the Secretary for the Home Department [2008] UKHL 41 expressly endorses the fact that the courts will take into account those factors which it weigh with the Strasbourg Court, and it is quite clear from decisions such as Omoregie v Norway (App No 265/07, 31 October 2008) that breaches of immigration control are very relevant to the decision: in particular, the fact that the relationship may have been commenced and pursued at a time when one of the parties was present illegally, and more so where both knew of it, so that at best it could be said that both knew that the presence of one was precarious. That is treated as an important consideration. As is perfectly clear, in my judgment, there is none of the asserted conflict between the jurisprudence of the United Kingdom and Strasbourg, and the factor to which the Secretary of State gave weight was a factor to which, in principle, he was entitled to give weight.
18. It is next said that the Secretary of State has ignored the settled family, or contemplated a route which would require the settled family to be broken up or to remove itself to Nigeria. The Secretary of State contemplates those, but his decision that one might go as required, the others might stay, the others might join the removed father, or that they might have relationships over a distance is not one that can be regarded as dealing in an unlawful manner with the consequences of separation. It is not the case that the claimant is bound to be entitled to force his choice of residence upon the United Kingdom as the price of the partner not being forced to join him somewhere else.
19. Mr Malik also submits that it is for the Secretary of State to prove that it is reasonable for the other family members to go to Nigeria in the event of removal. That is a submission which, in its full breadth, I cannot accept.
20. It is for those who have the means and knowledge to put forward their case as to why, on any particular aspect, removal would be unreasonable. The claimant and his family know their personal circumstances better than the Secretary of State. The Secretary of State may be better placed to find out such matters as Nigerian Immigration Control. But I reject the submission that it is for the Secretary of State to produce all the evidence and for a claimant simply to remain silent.
21. All in all, the decision is not an irrational one. The Secretary of State has applied her mind to the relevant factors. It is of course plain that there is some substance to the Article 8 claim because of the family, children and length of time involved, but whether it succeeds or not is a matter on which the Secretary of State will have to take a view initially in making any removal decision, and then she will have to decide whether to certify it, which might be risky, or she will have to issue an appealable decision, in which case the merits will be decided by a Tribunal on appeal. But there is nothing unlawful in the decision which the Secretary of State has reached, when its public law status is properly understood.
22. For those reasons this claim is dismissed.
23. MR BANNER: My Lord, thank you very much indeed for that. I do have an application for costs. There is no statement of costs. I simply ask for costs to be assessed if not agreed. I do not understand my learned friend's client to be legally aided.
24. MR MALIK: My Lord, I cannot realistically object to this application. I have an application for permission to appeal.
25. MR JUSTICE OUSELEY: Just before we do that, I will just make the order in relation to costs.
26. MR BANNER: I am grateful, my Lord.
27. MR JUSTICE OUSELEY: There will be an order for costs in favour of the Secretary of State, not to be enforced without leave of the court.
28. MR BANNER: I thought that my learned friend's clients were not legally aided.
29. MR JUSTICE OUSELEY: I am sorry, I thought you were.
30. MR MALIK: No, my Lord, I cannot realistically defend.
31. MR JUSTICE OUSELEY: There will be an order for the payment of costs by the claimant to the Secretary of State.
32. MR BANNER: Thank you.
33. MR MALIK: My Lord, I have a permission application, simply on the Mirza point. Given that there was some substance in the Article 8 claim, the Secretary of State should have issued an appealable immigration decision.
34. MR JUSTICE OUSELEY: Is Mirza itself being appealed?
35. MR MALIK: Yes, we now have permission to appeal, which was granted by Maurice Kay LJ last week.
36. MR JUSTICE OUSELEY: Do you want to say anything about leave to appeal?
37. MR BANNER: No, my Lord. It is a matter for you. In my submission, even if Mirza were allowed, this claim would still fail on the merits in any event.
38. MR JUSTICE OUSELEY: I just wonder whether permission to appeal is necessary. I understand you want to take the Mirza point, and I am going to assume for present purposes that that is an arguable point. If Mirza goes against you in the Court of Appeal, that is the end of the matter. If Mirza is decided in your favour and the decision here by the Secretary of State is wrong, do you need my decision quashed for the Secretary of State to be under an obligation to issue a fresh decision? Would you not simply write to the Secretary of State and say, "Please give me discretionary leave to remain", and the Secretary of State would then say, "Here is a refusal plus a removal".
39. MR MALIK: My Lord, we will in those circumstances seek a mandatory order requiring the Secretary of State either to grant discretionary leave or to make a decision to remove.
40. MR JUSTICE OUSELEY: It seems to me that, in reality, if Mirza goes your way and against the Secretary of State, the Secretary of State is going to have a whole host of cases in which he is going to have to respond. You do not actually need to take this one further in order to get the benefit of a favourable decision from the Court of Appeal.
41. MR MALIK: My Lord, this case is different in a sense from the Mirza group as it solely relies on Article 8. Mirza and others, their Article 8 claims were determined by the Tribunal and were rejected on Article 8 grounds. In this matter we have a live Article 8 claim.
42. MR JUSTICE OUSELEY: Why is that different? If you win Mirza, have you not a fortiori won this? The case had been determined which way in Mirza? Had it been determined adversely on Article 8?
43. MR MALIK: Yes.
44. MR JUSTICE OUSELEY: But if you win in Mirza, are you not even further ahead? Or are you saying that you could lose Mirza but win this one because there is an unresolved claim?
45. MR MALIK: Yes, my Lord, I would respectfully submit that, given that there is an unresolved claim and the fact that the underlying legislative scheme has prevented viewing the person's status as uncertain and undetermined, that this is something which is different from Mirza, and it will assist the Court of Appeal to determine the issue that was raised in Mirza in this context as well.
46. MR JUSTICE OUSELEY: The Article 8 claim has been rejected. If you win Mirza, you are bound to win this.
47. MR MALIK: Yes, my Lord.
48. MR JUSTICE OUSELEY: I cannot see how you could avoid doing that. If you lose Mirza, on what basis do you say you could win this?
49. MR MALIK: We cannot, I accept that.
50. MR JUSTICE OUSELEY: If Mr Banner has any submissions I would be assisted. I am not looking, as it were, to make life difficult for you, Mr Malik, but I simply do not want to grant permission to appeal simply because it is a case that raises a similar issue, otherwise the Court of Appeal would be inundated. But if the position is that the result of Mirza determines this case, I can see no advantage in the Court of Appeal being burdened, because the Secretary of State is just going to have to respond.
51. MR BANNER: My Lord, that is right, with respect. The other point I draw to your Lordship's attention is that, whereas the issue in Mirza is whether the decision challenged is the refusal to set removal directions at the same time as leave to remain, the decision under challenge here as formulated is simply the refusal of further leave to remain. So it is not the same decisions under challenge, and so naturally the logical way to proceed in the event that the appeal in Mirza did itself succeed would be for my learned friend's client to write to the Secretary of State and obtain a decision on whether or not removal directions should be set, because at this stage they have not actually obtained that decision. They have not made representations to that effect, which is a further reason why it would be sensible in this case -- or would not assist in this case to go to the Court of Appeal or be joined with Mirza.
52. MR MALIK: My Lord, the argument in Mirza is this: that the Secretary of State is under a legal obligation to make a decision to remove at the same time as refusing a variation application. So it is not a question about making representations to the Secretary of State, the argument is that the Secretary of State is obliged to do so.
53. MR JUSTICE OUSELEY: Yes, but that is really my point. If the Secretary of State is obliged to do so and you win, he is going to be obliged, if you ask for discretionary leave to remain, to issue a removal direction if he refuses, is he not?
54. MR MALIK: Yes. Mirza is different in the sense that he applied for leave to remain in the United Kingdom before expiry of his valid leave. That was basically an application for a variation of the leave which was refused. He appealed. The appeal was unsuccessful. He then went to the Court of Appeal. The Court of Appeal said you should issue judicial review proceedings, and we now have Mirza. So he is actually covered by section 3C of the 1971 Act. So he was present in the United Kingdom lawfully at the time of making the application and he is still in the United Kingdom lawfully. This case is different in the sense that he is an illegal entrant and he is residing here unlawfully.
55. MR JUSTICE OUSELEY: I am going to refuse leave on this basis: at present I cannot see that this case, on the question of whether the Secretary of State was obliged to issue a removal or an appealable decision, could be decided differently from the way Mirza is decided, whichever way Mirza is decided. So if you win in Mirza, the Secretary of State will have to reconsider how he handles this and a whole host of other cases in terms of issuing an appealable decision. If you lose Mirza, I cannot see a basis upon which you would win. So it seems to me that the grant of permission to appeal would in reality be pointless. But if I have missed some point, you will no doubt be able to explain it to the Court of Appeal and they can then make up their own minds as to whether they think it would be a useful addition to their stock of decisions to judge. I do not think they will gain anything from my judgment in relation to it; it is simply the underlying fact because I have not dealt with the issue because, quite rightly, you reserved your position.