England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham B4 6DS
		26th March 2010

MR JUSTICE BEATSON:

1. This application for judicial review comes before the court pursuant to the permission granted by Wyn Williams J on 23 July 2009 at an oral hearing. The claimant is a national of South Africa born on 19 September 1971. He is 28 years old. He challenges the defendant's decision dated 29 January 2009 to certify his human rights claim as clearly unfounded pursuant to section 94 of the Nationality, Immigration and Asylum Act 2000. He also seeks to challenge the decision made by the defendant on 12 March 2009 after proceedings were launched in which the decision to certify the claim was maintained. Some of the evidence before me consists of statements filed after the decision on 12 March and, strictly speaking, they are not relevant to assess the lawfulness of the decisions made before that date.
2. As Carnwath LJ stated in R (YH) v SSHD [2010] EWCA Civ 116 at [21], the issue must be judged on the material available to the Secretary of State. However, I ascertained during the course of the hearing that Mr Farrer, who appeared on behalf of the Secretary of State, was content for the court to look at the three letters, all undated, from individuals two of whom say they are cousins of the claimant, and a third who says he is his nephew. Accordingly, I do so, although I emphasise that I do not consider that the material in these documents has affected the outcome of this case. It was particularly unfortunate that the claimant's solicitors omitted all the statements filed in May 2009 which were before Wyn Williams J at the oral hearing in July from the bundle.
3. The history of the matter is that the claimant arrived in the United Kingdom on 5 September 2000. He is a South African citizen. Accordingly, he did not require entry clearance and he was granted six months' leave as a visitor. In 2001, an application was made by him to remain as a student. The application is dated 2 March 2001, within his six-month leave period, when he had enrolled in the Xtra Tuition College in Finsbury Park, but it appears not to have been made until 19 July that year. The defendant rejected that application, because it was made out of time. The rejection letter was sent to the address on the application. This was the same address later provided by the claimant when he asked for his passport to be returned. The rejection letter was, however, returned with the marking on the envelope "never lived here".
4. The chronology is then blank from the date of the refusal until the request for the passport by the claimant, made on 13 September 2001. On 31 January 2005, his then solicitors asked about the application. The defendant asked for further information on 28 February 2005. On 26 January 2007 the claimant made a further application to remain on discretionary grounds. The 2005 enquiry related to the application to remain as a student. The 2007 application was for discretionary leave. The letter accompanying the application referred to the claimant as being a highly skilled and professional butcher, supporting himself, with no criminal record. On the form FLR(O) that he filled in, he ticked the "no" box in response to the question as to whether a relative or a friend regularly gave him money. He stated that he earned £1,000 a month.
5. The application was acknowledged on 13 February 2007. By that date, it appears (from a death certificate in a newspaper) the uncle who had been his closest family member in South Africa died. There was no response to the two applications until the beginning of 2009, when the claimant was encountered working at a halal butcher's shop above which he lived. On that day, both his applications were refused. He was served with an IS151A. Removal directions were set on the following day, 27 January. On 28 January, the claimant made a human rights application based on his family life with his nephew and three cousins, and their family. That claim was refused on 29 January, the next day.
6. The claimant's newly-instructed solicitors had faxed the defendant, stating that they had only been instructed and were endeavouring to get a full set of the relevant papers, stating that in the at least seven years the claimant had been living in the UK, he had built up a private and family life which was protected by Article 8, and which had not been considered. The letter states:

"Full and proper submissions in relation to Article 8 cannot be made until we get the full file of papers and have had an opportunity to take instructions from the client and other evidence relating to his life in the UK over the past seven years. This will take some time."

On 29 January a further fax was sent asserting an entitlement to remain in the UK under the Human Rights Act, asking for him to be moved so that they could take instructions.

7. Although the solicitors had asked for time, on the next day (30 January), no reply having been given to their request, the first decision letter was issued. This letter sets out the position, and considers the Article 8 claim. It states that no evidence had been submitted to support the claim and that the defendant did not accept that removal would interfere with family life. The letter asked the question for a second time, and answered it in the same way. It then set out the legal framework, treated the two faxes as representations and rejected them, and certified the claim.
8. Mr Jafferji, who appeared on behalf of the claimant today, accepted that, in the light of the material in front of the Secretary of State, it was difficult to say that he was not entitled to certify the claim, save for one point. That was that this decision was made 24 hours after a request was made by the claimant's solicitors for time to put the claim together. This was three days after he was detained, and two days after they were instructed. While the defendant relies on the absence of any reliance by the claimant on family and private life in the 2007 application, this letter standing alone does not show anxious scrutiny. Not only were the solicitors not given time, however short, to provide the evidence, but it appears that the claimant was not interviewed. It is true that it is for a claimant to put before the Secretary of State the evidence upon which his Article 8 claim rests, but it appears that the decision was taken in this case without the anxious scrutiny, at least in respect of certification, which the Court of Appeal set out as a requirement in the classic case WM (DRC) [2006] EWCA Civ 1495 (Buxton LJ).
9. Thereafter there were further representations on behalf of the claimant. After the refusal letter from the defendant dated 30 January, representations with 33 witness statements were served on 2 February. Those witness statements are skeletal in that they are simply from a number of people who identify themselves with passports or other documents as friends of the claimant, whom they have known for a few years, of varying lengths, and in some cases saying that he was treated as a family member. On 5 February the claimant launched these proceedings, and on 10 February he was released.
10. On 12 March, the defendant made a further decision, which is set out in a detailed letter, now considering the material that was before him. Paragraph 5 of the letter refers to the certification in the earlier letter, and to the refusal of the submissions, and to the further submissions made on 30 January and 2 February. It sets out the relevant authorities, ZT (Kosovo) v SSHD [2009] UKHL 6, WM (DRC) and SSHD v AR (Afghanistan) [2006] EWCA Civ 1495; [2007] Imm AR 337, and focuses on the question of whether the witness statements show a family life. Paragraph 12 of the letter refers to the case of Kugathas v SSHD [2002] EWCA Civ 31, in which the court discussed the question of a family life between an adult child and his surviving parents or other siblings.
11. I will return to Kugathas. The letter notes that a family life is not established between such people unless something more exists than normal emotional ties. It states that such ties might exist if there was dependency one way or the other, and that the letters and witness statements to which I have referred provided no evidence to demonstrate that the claimant is dependent on his relations beyond the normal emotional ties. The defendant's letter considers whether there is private life and in paragraphs 14 to 15 considers the proportionality of removing the claimant. In paragraph 14, it is stated that it was considered that the claimant could re-establish a private life in South Africa, the country where he had spent the majority of his life. He is an educated man aged 37 years with experience in a trade and it would not be unreasonable for him to re-adjust to life in South Africa. The letter also states that the claimant could maintain the private life established in the United Kingdom through communication available to him and that the case did not therefore fall within the circumstances set out in Huang v SSHD [2007] UKHL 11, in which removal would be disproportionate. The letter also refers to the judgments in Chikwamba v SSHD [2008] UKHL 40, Beoku-Betts [2008] UKHL 39 and EB (Kosovo) [2008] UKHL 41. It considers the effect of delay and concludes that the delay here in dealing with a student request was due to the claimant's failure to notify the defendant of a change of address and the time taken to chase up the application.
12. Paragraphs 20 and 21 contain the decision. The section on proportionality concluded that removal was proportionate to the wider interests of maintaining effective immigration control. It was concluded that consideration of paragraph 395C of the Immigration Rules did not provide reasons to depart from the consideration as contained in the decision letter of 29 January 2009, although the letter refers to a decision letter of 26 January. That appears to be an error. I set out the two crucial paragraphs:

"20. For the reasons set out above, it is considered that there is no realistic prospect that the submissions will, when taken together with all the previously considered material, lead an immigration judge to decide that your client should be allowed to stay in the United Kingdom, and accordingly it does not amount to a fresh claim under paragraph 353. The further submissions have been given anxious scrutiny, having given proper weight to issues such as credibility and the timing of the submissions and considered all the evidence in the round.

21. Accordingly, I am not prepared to reverse the decision of 29 February 2009. As I have declined to reverse the previous decision and have determined that the submissions on behalf of your client do not amount to a fresh claim, your client is not entitled to an in-country right of appeal."

13. I am concerned in this application only with the lawfulness of the certification. Mr Jafferji accepts that the Secretary of State's decision on the Article 8 issue is one that might be open to him, as is his decision on proportionality, but submits that the question is whether no Immigration Judge could, properly directing himself, disagree. He relied on the judgment of Buxton LJ in WM (DRC)'s case, where at paragraph 7 his Lordship stated that:

"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, 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."

14. In YH, Carnwath LJ reviewed the development of the jurisprudence since the WM decision. At paragraph 15, he referred to the judge in that case, quoting the passage I have quoted from Buxton LJ's judgment. He stated that the concept of a hypothetical judge deciding an appeal can be a helpful decision insofar as it makes clear that the Secretary of State is acting simply as the gatekeeper to a process leading to a possible appeal, and it emphasises the objectivity which that requires. He also stated that that was not a legal formula; but the Secretary of State is standing in his or her own shoes in deciding the threshold question. As far as the approach of the court is concerned, Carnwath LJ referred to Sedley LJ's statement in SSHD v QY (China) [2009] EWCA Civ 680 that because of the essentially forensic character of the judgment the Secretary of State has to make, the court is generally as well placed as the Home Secretary, and so no issues of primary fact can ordinarily gauge the rationality of a certification decision by deciding whether it was right or wrong. There are references to the appropriateness of questions where there are issues of primary fact being decided by the tribunal.
15. At this stage, I refer to the material that was submitted after 12 March. Mr Ahmed Mamaniat states that has known the claimant since childhood, and that he lives above the place where Mr Mamaniat works. He appears to be the owner of the halal butcher shop where the claimant was found. For understandable reasons, in the light of immigration law, there is no mention of the employment in this letter or his earlier one. There is also no mention in this letter that he is a cousin of the claimant, as the claimant states in his statement. This statement adds little to the earlier ones. There is a letter from Mr Aspakbhai Tai, who says that the claimant is his uncle and he has known him since childhood; that he rings him on a daily basis; the claimant has his meals with him and his family; and that since "now" (that is, since his detention on 26 January 2009) he has supported him financially. The claimant in his statement dated 19 May refers to spending a lot of time with Mr Tai and his family, living within five minutes' walk of Sulman Sonjay (?) another cousin, and spending a great deal of time with them.
16. Although the earlier evidence submitted in support of this claim, together with the solicitors' covering letter of 2 February, was formulaic, the consideration of the human rights claim on 29 January, a day after it was made, without giving the solicitors an opportunity to provide evidence and producing the situation in which the solicitors have reacted to the decision by scrambling around and finding evidence, does not show anxious scrutiny. For that reason alone, I consider that the certification decision was flawed. Was it saved by the new decision made on 12 March? By that time, the defendant had more material. I do not, however, consider that, in the defendant's approach to certification, he observed the procedure which was set out by Buxton LJ in WM. Bearing in mind the qualification expressed by Carnwath LJ in YH, I would not expect a formulaic incantation of what the hypothetical judge would do, but there is no real consideration in this letter or the earlier letter of the difference between a decision that was open to the Secretary of State and a decision which was one which no-one else could lawfully disagree with.
17. For those reasons, I grant this application. The matter must be remitted; the certification decision is set aside; and the claimant is entitled to have consideration given to whether his case should be heard before the tribunal in this country.
18. Before parting from this case, I note that this is, as Mr Jafferji said at the outset of the hearing, not a typical case of the sort with which this court is regularly concerned. It is not the case of a repeat Article 8 claim or an attempt to reformulate and respond to points made by the defendant when rejecting it. This claim was first made on 28 January and it was first rejected on 29 January. It was no doubt made urgently because of the exigencies of the situation of the claimant, having been encountered working and being detained. It may well be that a tribunal hearing the evidence will conclude that this case is not one which meets the stringent test set out in Kugathas: see in particular Sedley LJ at [25] and Arden LJ at [17] and [19]. But the circumstances are such that it is right for this to come before a tribunal which can make findings of fact. Thank you, both of you.

MR JAFFERJI: My Lord, I am very grateful. I make an application for the claimant's costs.

MR JUSTICE BEATSON: Mr Farrer, you cannot resist that, can you?

MR FARRER: My Lord, no.

MR JUSTICE BEATSON: No. Any other applications?

MR JAFFERJI: My Lord, the costs have changed in their nature, in that at the outset the claimant was represented by a firm of solicitors acting privately, privately funded, and now represented by a legally aided firm of solicitors. I do not think that makes a difference. It might make a difference to the rates that are sought, but I do not think it makes a difference to the order for costs.

MR JUSTICE BEATSON: I do not think it makes a difference to the order. It may make a difference to the assessment and I am not going to assess them. Nobody has handed me an assessment. So what I am going to say is costs to be assessed if not agreed, and I will give you both liberty to apply if there is some technical issue. I am just very aware that the costs regimes have changed recently with the abolition of the Legal Services Commission, so I give you both liberty to apply by close of play next Tuesday if there is any variation in that order that you would like.

MR JAFFERJI: I am grateful.

MR JUSTICE BEATSON: Good. Thank you very much.

MR JAFFERJI: My Lord, my learned friend and I were unclear as to what the final order was. The request in the claimant's claim was simply for the defendant's decision to be set aside. But your Lordship made --

MR JUSTICE BEATSON: That is what I meant. If he is going to make another certification decision, then he can do it, but it may well be that the way to deal with this -- it is for the defendant to do. I am a reviewing jurisdiction. I was not ordering that the matter be heard by a -- was that the ambiguity?

MR JAFFERJI: That was the ambiguity, my Lord.

MR JUSTICE BEATSON: That is the consequence of an extempore oral judgment.

MR JAFFERJI: Yes.

MR JUSTICE BEATSON: I was with you, but not that far.

MR JAFFERJI: I am very grateful, my Lord.

MR JUSTICE BEATSON: Are there any other problems?

MR JAFFERJI: No, I do not think so. So since it is set aside, he can reconsider it.

MR JUSTICE BEATSON: Yes, so we will draw up the order, and I will perfect it, and then you will get it.

MR JAFFERJI: Thank you, my Lord.