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
		27th April 2012

1. JUDGE WAKSMAN: This is a claim for judicial review brought by the claimant, Miss Persad, who is a South African national born on 10th October 1986, in respect of challenges principally to a decision letter of the Secretary of State on 12th October 2011 whereby she certified the claimant's asylum and human rights and Article 8 claims as being clearly unfounded. There is a second, but much more subsidiary, challenge to a further letter responding to further representations which is dated 21st October 2011.
2. I deal first with the procedural history of this case. Permission to apply for judicial review was initially refused by the Deputy High Court Judge, Ms Simler QC, on 22nd November 2011, stating that the order was no bar to removal without further order and the case was considered to be totally without merit. As a result of removal directions, the claimant applied for a stay on removal in the usual way. On 13th December 2011, Wyn Williams J refused that application and said that he agreed with the views of the deputy judge. He stated that the grounds for renewal were long on principle but very short on demonstrating that the deputy judge had misapplied those principles to the facts of the case. He considered it most unlikely that the renewed application for permission would succeed and he therefore would not grant a stay.
3. As a result of that, the claimant sought permission from the Court of Appeal to appeal to that court against the refusal of the stay of removal. That application was considered and refused by Rafferty LJ. She said that she had read the decisions of the deputy judge and Wyn Williams J and she could "see no flaw in the reasoning which led to the initial refusal and like him, I read no persuasive application of fact to principle which would lead me to stay your departure".
4. As a result, and there being no bar to removal, Miss Persad was duly removed on 14th November 2011. However, those acting for her renewed her application for permission and permission was granted by a different Deputy High Court judge, Roger Henderson QC, who ordered expedition of the claim. It is that claim that now comes before me.
5. The grounds for renewal said little more than the original grounds, but today I have been helpfully provided by Mr Turner, who appears on behalf of the claimant, with a copy of the skeleton argument which he relied upon, unsuccessfully as it turned out, in the application for permission to appeal.
6. I should add that there has been no witness statement either from Miss Persad or from her partner, who is the focus of the present challenge, either originally or subsequently before me, so I am confined to a relatively limited set of materials in considering this claim.
7. Before looking at the grounds of challenge, it is necessary to say something about the chronology of events since the claimant's arrival in this country, when she was about 19, on 22nd January 2006. At that point she came in on a working holiday visa. She then met, or apparently met, Mr Sadiq, who was holding temporary leave until January 2007. That leave was subsequently extended on a Tier 1 migrant basis until 10th June 2013. That remains his position, so as matters stand his leave is limited to that date. She started a relationship with him and on 16th August 2006 she converted to Islam. On 9th January 2008 she applied for leave outside the rules, asking for some additional time to arrange her safe return to South Africa because her family had reacted adversely to her conversion to Islam. She was granted leave to remain until 29th July on an exceptional basis, with it being made clear to her that further extensions were very unlikely and she was expected to leave before the expiry of her leave. On 26th July she applied unsuccessfully for leave to stay as a student, rejected because she used the wrong form. On 16th September 2008 she once again applied, and on 17th December her second application for leave as a student was rejected. There were no rights of appeal in relation to that and she was without leave and an overstayer from that date. The Secretary of State declined to change that decision on 6th December 2009 and advised that if the claimant's true position was that she feared returning to South Africa, she should make an asylum claim. On 3rd February 2009 she made a further application form for further leave which included representations on asylum. That application was rejected on 17th March because she had never been granted leave following refusal of an asylum application, and she was told that asylum applications had to be made in person rather than by post.
8. At that point everything went quiet. However, on 27th May 2011, a little over two years later, the claimant was encountered working illegally at the Chelsea Flower Show. She was served with enforcement papers as an overstayer and at that point claimed asylum. On 17th June 2011 her representatives sent further submissions to the Secretary of State. On 12th October 2011 the Secretary of State refused that claim by the first of the decision letters before me and certified all aspects of the claim as being clearly unfounded. Then, as I indicated, there were some further submissions rejected by a further letter of 21st October 2011, and then this judicial claim was made and I have dealt with its procedural history.
9. At this point it is relevant to say something further in relation to the chronology, and what did not happen, because of the significance attached to it in the present ground of challenge. This is the whole question of the ability of the dependant of a partner to obtain leave to stay with him for the length of the partner's leave in the UK. All of that is dealt with in paragraph 319C of the Immigration Rules. There is the potential for the dependant of a partner already in the UK to obtain leave to join him, but certain requirements must be satisfied. First of all, the applicant must not fall for refusal under the general grounds for refusal. Those general grounds are set out in paragraph 320. Paragraph 320(7B) indicates that one of the general grounds for refusal is overstaying, and the second is breaching a condition attached to his leave. In fact, if one examines the position of this claimant, she would face difficulties in making an application under 319C because of those two general grounds of refusal. But quite apart from that, there is the further requirement of maintenance. Under subparagraph (g) there must be a sufficient level of funds available to the applicant, as set out in Appendix E.
10. The fact is that at no point during her time in the UK, either when she had leave, which was until July 2008, or even when she did not, did this claimant make that application for leave to remain with her partner, Mr Sadiq. Leaving aside problems with overstaying and breach of condition which would apply once her temporary leave expired, Mr Turner concedes that there is no evidence before me, not even now, as to any satisfaction of the requirement for maintenance. On that ground alone it was simply not possible for the claimant to make an application under 319C. I shall explain the relevance of that position hereafter.
11. I turn therefore to the two decision letters. As I indicated, they were dealing with what was at the time an application for leave to remain both on asylum and humanitarian grounds under Article 3 and also under Article 8 family and private life grounds. Mr Turner before me wisely took the view that on any view the Secretary of State's determination that the asylum claim was clearly unfounded was not open to challenge. It therefore follows that Mr Turner's challenge to the certificate is concerned solely with the Article 8 claim, but it does have to be remembered that when the Secretary of State was writing the letter there are many aspects of the facts which came earlier in the letter dealing with her identity and her ability to go back to South Africa and so on.
12. I should read first of all the salient paragraphs of the letter now under challenge, but before I do that I should remind myself of the law, and there is really nothing between counsel about that. The majority of the House of Lords in ZT (Kosovo) v SSHD [2008] UKHL 9 indicated what the approach should be of a judge in my position hearing that application to challenge. There is no need to go back to ZT (Kosovo) because the Court of Appeal, in the case of R(A) v SSHD [2012] EWCA Civ 23 has helpfully summarised that approach should be, and Mr Turner did not suggest it was wrong, nor could he have done. It says this at paragraph 45:

"The current state of the law dealing with certificates that a claim is clearly unfounded is now reasonably well established after a series of decisions. First of all, the court's role in such a case is to apply normal judicial review principles, though with the addition of 'anxious scrutiny' to the Secretary of State's decision to certify, rather than substituting its own view as to whether it is clearly unfounded [reference is then made to the salient paragraphs of ZT Kosovo] ... This approach however will rarely produce a different result from the court arriving at its own view on the issue, at least where the primary facts are not in dispute ... The test is whether the Secretary of State's decision to certify was irrational, but if the court concludes that a claim is not clearly unfounded it is hard to think of the circumstances where the court would regard the decision as a rational one."

13. So in effect I approach this by asking whether I consider that the claim is not clearly unfounded.
14. That is the law that deals with the approach of the court to such challenges, and one then needs to look back at what the "clearly unfounded" consideration exercise entails. I have been referred here to paragraph 57 of the Court of Appeal decision in the case of ZL & VK [2003] EWCA Civ 25:

"... the decision maker will -

i) consider the factual substance and detail of the claim

ii) consider how it stands with the known background data

iii)consider whether in the round it is capable of belief

iv) if not, consider whether some of it is capable of belief

v) consider whether, if eventually believed in whole or in part, it is capable of coming within the convention.

If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not."

I accordingly direct myself in those terms.

15. Paragraph 46 is the beginning of the consideration of the Article 8 claim. Paragraph 47 recites that the claimant claims to have been in a relationship with Mr Sadiq since February 2006. She had provided some evidence of her cohabitation from 2007 and it was accepted she had been in a cohabiting relationship since August 2007. Then paragraph 48 says this:

"However, Mr Sadiq is not settled in the UK. He has temporary leave until 10 June 2013. At the time you claim to have entered into a relationship with him, in February 2006, he had temporary leave to remain until January 2007 and you had temporary leave until January 2008. It is considered that you entered into the relationship knowing that you were both in the UK temporarily and that neither of you had any reasonable expectation that you would be able to remain in the UK for longer than the time permitted by your visas at that time."

16. A preliminary point was taken by Mr Turner because of the use of the words "you claim to have entered into a relationship with him, in February 2006", as if there was some doubt about it in the sense that the Secretary of State was not proceeding on that basis. In my judgment, there is nothing in that point. That is referring to what she said the position was, and it is plain to me from the terms of paragraphs 47 and 48, properly read, that the Secretary of State was content to proceed upon that basis. Otherwise, for example, there would be no need to enter into an analysis as to what his leave position was as at February 2006 and what her leave position was later.
17. Continuing then with the chronology within the letter, paragraph 49 cites that Mr Sadiq obtained a temporary extension until January 2008 and a further one until January 2010 and then continues:

"Your leave expired in January 2008 and you applied for a short temporary extension in order to arrange your return to South Africa. Leave was granted until July 2008 but it was made clear to you that this was being granted exceptionally outside the rules, that any further extensions on the same basis would be very unlikely and that you were expected to leave on or before the expiry date. Instead, you subsequently made two applications for student leave, the first of which was rejected and the second of which was refused. As of January 2009 you had no leave to remain in the UK and were told that you were required to leave. You failed to do so. Not only that but you obtained illegal work in the UK, in the full knowledge that you had no legal basis of stay in the UK and no entitlement to work here."

In paragraph 50 the letter says:

"It is considered that you entered into the relationship with Mr Sadiq knowing that you were both in the UK temporarily. As of January 2009, you had no legal basis to stay in the UK but continued to remain here unlawfully. You also obtained work illegally. In fact, you only came to the attention of UK immigration officials when they encountered you working illegally..."

In paragraph 51:

"In the light of your immigration history, it is considered that any interference caused by your removal as regards your relationship with your partner is proportionate. You knew that you both had temporary status when you embarked on the relationship. You then blatantly disregarded immigration control by failing to leave at the end of your temporary stay and prolonged your unlawful stay by obtaining illegal work here. Mr Sadiq is here temporarily and you have no leave at all. It is not accepted that there would be a disproportionate interference to your family life caused by your removal to South Africa."

18. Now, pausing there, Mr Turner's principal ground of challenge as to why the Secretary of State could not properly have concluded that the Article 8 claim was unfounded, and as to why I cannot safely conclude that the Article 8 claim was clearly unfounded, was put before me on this basis, at least initially. What he said was that all of this entirely ignored the fact that the claimant had a right to remain here as Mr Sadiq's dependant at least until June 2013 and that the Secretary of State simply failed to consider that factor, and it could have made all the difference.
19. In my judgment, that is an impossible contention for the following reasons. First of all, it is not true that she had an entitlement to remain here. She had an entitlement to apply for it, and had she applied for it before her leave expired she may have been in a position to obtain it if the maintenance requirement can be satisfied; but she did not do so, and there is no evidence even before me now that she can do so. Secondly, it must be remembered what the context was of the Secretary of State's decision. The context was a generalised claim for leave to remain effectively on joint asylum, humanitarian and Article 8 grounds, and the Secretary of State was entitled to consider the matter on that basis. Had the claimant put the basis far more narrowly, a different position might have been obtained. But for my part I cannot see how it can begin to be arguable that this Secretary of State should have speculated about a condition for limited leave to remain until 2013 which on the face of it could not be satisfied at the time he should have speculated about it simply because it might in some way affect the decision. That seems to me to put an absurd burden on the Secretary of State and I cannot see how that can affect the certificate.
20. That, in short, is the answer to the principal ground that has been advanced by Mr Turner before me, but the conclusions that I reach about that have implications for other challenges that he made. For example, he said that there was no proper consideration of the decision in R(Chikwamba) v SSHD [2008] UKHL 40, which was concerned with when it would be disproportionate to send someone back to their home country simply in order to apply for entry clearance there. He also referred me to the case of R(Hayat) v SSHD [2010] UKUT 0444. I cannot see how either of those cases are relevant to the position here. In the case of Chikwamba there was no breach of the Immigration Rules and the relevant claimants in Chikwamba and Hayat were not overstayers or in breach of condition of leave to remain. In the case of Chikwamba there was an asylum seeker seeking temporary admission and the husband here had refugee status and it was accepted that the claimant could meet all the Immigration Rules requirements to stay here, save for one procedural requirement regarding the application for prior entry clearance. The whole point was whether it was proportionate with regard to Article 8 points to send her back to the home country simply in order to make that application. That is an entirely different context from this one, where at the relevant time there was no entitlement under the Immigration Rules.
21. In reply, Mr Turner moved away somewhat from his original 319C argument and said, "Well, instead, if in fact she had no right under 319C, then the Secretary of State should consider the overall Article 8 position". That is precisely what the Secretary of State did, in my judgment.
22. I was also referred to a tribunal decision called CP in May 2006, where the application had been made under the wrong Immigration Rules provisions but on the evidence the applicant would have satisfied the requirements under the right one. The tribunal there said that it would be open on an appeal, if the evidence established the right to stay under a different provision, to allow the appeal on that basis, and then it dealt with some other positions where there could be a partial allowing of the appeal. That seems to me to have nothing to do with this case. This is not a case where an application has been made on one basis but the evidence shows that it would be obtainable on another basis, for the reasons which I have outlined.
23. Mr Turner said there was a route to her staying here. If the route is paragraph 319, but at the moment there is no evidence that she could satisfy it.
24. Mr Turner made some subsidiary points about the fact that Miss Persad was a Hindu originally and converted to Islam and that she does not have the support of the family and that her father was angry with her, although certainly by the time of the second letter it was said that she stated that she needed time simply for things to cool down before she can face her family. What was said here was that there was some failure to consider, for example, whether her partner could go back to South Africa with her or whether she could go to Pakistan with him and whether that would be reasonable or not. Mr Turner says that that matter was not properly considered, but the context has to be remembered. There was no positive case put forward about the unreasonableness of that relocation either then -- and this is somewhat surprising if it was a real point -- or even now, in evidence put before me from either the claimant or from her partner. Having regard to the entire terms of the letter where the original different religions of the parties are noted, I cannot see that there is anything there which means that the claim cannot be considered as clearly unfounded.
25. The core point here that was being made by the Secretary of State, and is plainly right once one puts to one side, as I do, the 319C point, is that the basis of the relationship when it started was precarious and both sides were perfectly well aware of that. That is set out in detail in paragraphs 48 to 50, as I have recited. The case of Rodrigues makes it plain that that is a proper consideration.
26. For all those reasons, in my judgment, that human rights claim under Article 8 was indeed clearly unfounded. The Secretary of State so found and the Secretary of State was not acting irrationally in doing otherwise because I agree with her conclusion.
27. One then turns to the second letter and that is responding to some further submissions, largely making the same points as before and asking the Secretary of State to reconsider. They are letters of 14th and 20th October 2011. I agree with Miss Chan that, strictly speaking, the correct approach to be taken by the Secretary of State when dealing with such further representations after there has been a certification is to regard those as a fresh claim and apply the fresh claim test and to see whether it was satisfied.
28. I do not think anything turns on the nature of the response here, whether it is regarded as a fresh claim or simply to reconsider the matter. The truth is that there was not really very much so far as new material is concerned; but still, there is a very detailed response to it. On the second page it mentions that she wanted time for things to cool down before she goes back. At the bottom of the second page it said that consideration was given properly to the humanitarian point, which is no longer before me. It is said that all of that had been properly suggested. It noted that her relationship with her Muslim partner, Mr Sadiq, since 2006 had been given careful consideration and referred back to paragraphs 47 to 58 in relation to that. It said that the Article 8 points had been correctly dealt with. It took the point that it was said that Mr Sadiq wanted to remain here permanently and that he wanted to marry Miss Persad, but, as before, noted that she was here temporarily and his present leave does not guarantee that he will be allowed to remain here permanently, and that indeed is the position. There was consideration specifically of the Beoku-Betts and the point was made that Mr Sadiq could join Miss Persad in South Africa or they could continue a relationship in Pakistan if they wished. As I indicated, there is nothing wrong with that approach when it has not been suggested that this could not happen, and in any event I am principally concerned with the certification. So nothing turns on that point.
29. Towards the bottom of page 4 there is an expression which says that "Even if we accepted that your client enjoyed a family life here, which we do not", and then it proceeds. It is absolutely plain from the first decision letter and the overall contents of the second letter that the Secretary of State was proceeding on the basis of the essential facts of the relationship as described by the claimant, so I do not regard that expression there as making any kind of a difference.
30. To the extent that the second decision letter matters at all, I do not consider that there is any error of law or any error of approach in the Secretary of State in dealing with those further representations.
31. I should add that Mr Turner also made a submission in relation to the first letter that the elements of the Razgar test were spelled out at paragraph 52, but only in relation to the private life claim. There is nothing in that. Paragraphs 46 to 51 make plain that the Secretary of State applied the Razgar approach to the family life claim as well.
32. It follows for all of those reasons that this claim must be dismissed.
33. MISS CHAN: The Secretary of State would wish to ask for her costs of this judicial review, in the ordinary way that costs follow the event.
34. JUDGE WAKSMAN: Yes. What do you wish to say about that, Mr Turner?
35. MR TURNER: Nothing, my Lord.
36. MISS CHAN: Subject to detailed assessment, if not agreed.
37. JUDGE WAKSMAN: The order is as follows:

(1) Claim for judicial review dismissed;

(2) The claimant shall pay the defendant's costs of the application, to be the subject of a detailed assessment in any event.

38. MISS CHAN: I am grateful. Thank you very much.
39. MR TURNER: Thank you.
40. JUDGE WAKSMAN: Thank you both very much indeed for your helpful submissions.