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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> P, R (On the Application Of) v Upper Tribunal [2012] EWHC 4384 (Admin) (21 November 2012)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/4384.html
Cite as: [2012] EWHC 4384 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
(Sitting as a Deputy High Court Judge)
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| THE QUEEN ON THE APPLICATION OF P | Claimant | |
| v | ||
| UPPER TRIBUNAL | Defendant |
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(Official Shorthand Writers to the Court)
Miss E Dehon (instructed by Upper Tribunal) appeared on behalf of the Defendant
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- THE DEPUTY JUDGE: Mr Nathan is making a Cart application for permission to apply for judicial review on behalf of the first and second claimants. The first claimant is a 14-year-old child who is and has always been resident in Vietnam and the second claimant is the first claimant's natural mother who, through a long history of misfortune, has been separated from her son for many years but she has obtained indefinite leave to remain in this country with her younger son and her now husband. He is the stepfather of the first claimant and the natural father of the second claimant's child who is still living in Vietnam. I would like to acknowledge the presence in court today of both the second claimant and her younger son.
- The particular application that I am concerned with, to move backwards from the trigger application, is a refusal by the Upper Tribunal to grant permission to appeal a decision of the First-tier Tribunal. These decisions were taken over 2 years ago but nothing turns on the delay which is explained by totally extraneous matters, including a long period of delay waiting for the Cart decision itself from the Supreme Court.
- The First-tier Tribunal was concerned with an appeal from an entry clearance officer in Vietnam who had refused the application of the first claimant - obviously made with the approval and no doubt either directly or indirectly at the instigation of the second claimant - for permission to enter this country for the purpose of being reunited with, particularly, his mother and also his half brother and stepfather.
- The case is made more complicated by the fact that the first claimant would have had or could possibly have had a much more clear cut and certain right for entry under the family reunion policy had the second claimant's original asylum application been decided in her favour when she first arrived in this country some years previously. Evidently, for reasons that of course have not had to be dealt with in court, the second claimant had been subjected to imprisonment in Vietnam and on release left the country and arrived in this country and claimed asylum. The application was clearly regarded as a genuine application because she was granted entry for the purpose of enabling that application to be dealt with. Regrettably, through no fault of hers and as a result of the well known very serious delays that bedevilled the immigration and the asylum system in the early 2000s, her application for asylum was not addressed for over 5 years and when she came to be granted her asylum interview, it became clear to the officer, and quite properly, he or she concluded that the long delay that had occurred was such that she was entitled to be granted indefinite leave to remain without the need for her to conclude her asylum application. That was clearly a very understandable and correct decision on the basis of the discretion that had to be exercised at that time but it did have the effect, as it can now be seen, that the first claimant, her natural son, was unable to take advantage of the family reunion policy which would, subject obviously to an overriding discretion in exceptional circumstances, have entitled him, if he wished, to come to the United Kingdom and be reunited with his mother. Because she has indefinite leave to remain but not as an asylum grantee, the first claimant has to apply under the relevant paragraphs of the Immigration Rules that deal with a child being granted entry permission with his natural mother which is more a stringent test. As must be clear from all of this, the test applied by the entry clearance officer was to refuse the application, a refusal that was maintained by the First-tier Tribunal.
- But there are, as I see it, a number of significantly unsatisfactory features of the process through the entry clearance officer's determination to the First-tier Tribunal appeal to the First-tier Tribunal application for permission refusal to the Upper-tier Tribunal application for permission and the subsequent refusal of that application.
- Not necessarily in a logical or natural order, I draw attention not to the full range of potentially unsatisfactory features but certainly to some of the significant features that appear to me to be very unsatisfactory. The first that I draw attention to is the application or non-application of a test that takes account of the primary interests of the first claimant. A test which is now enshrined in the statutory provisions that operate in this field as in all other fields involving children, which comes about through section 55 of the relevant Act and the more recent Supreme Court decision which gives effect to and explains the effect of that section.
- This case is such that when the entry clearance officer was determining the application in the first place, section 55 was not in force. I am referring, I should have said, to the ZH Tanzania decision and to section 55 of the BCIA. Not only was the first claimant's best interests not considered at all, but also no consideration was given to the right to a private and family life of both the first and the second claimants. Before the First-tier Tribunal, the judge held that because section 55 was not in force when the entry clearance officer's decision was made, he or she was not concerned with that section either. That seems to me to be a clear error of law, of potentially considerable significance, because it meant that the immigration judge did not have regard to the welfare of the first claimant even though, as is now clear, a decision maker at any stage in the process, irrespective of whether or not at an earlier stage in the process the best interests and welfare of both the first claimant child and his UK-based step-brother have been taken account of, has his or her separate duty to take account of them, if only by allowing an appeal and ordering a further consideration by the appropriate lower tier, although that is not necessarily the only way that the immigration judge could have paid regard to at the best interests of the child.
- There is nothing in the two refusal decisions that followed that that shows that this point was properly considered and it is not sufficient, as I see it, even though this was a reason given by the First-tier Tribunal decision, that the best interests were in effect give taken account of in the Article 8 consideration that the First-tier Tribunal did provide.
- The difficulty with that - and this is the second difficulty of the case - is that the reasons provided by the First-tier Tribunal in dealing with both claimants' right to a family life are very short and I do not think I do injustice to them in describing them as "thin". If the best interests of the first claimant were properly taken account of, the reasons that show that that was the case are not provided. At best, there is a lack of appropriate reasons on this crucial issue in the case, and at worst they highlight the failure to give any or any proper consideration to the right to a family life of both claimants.
- A further ground that causes real concern is as to the view that the First-tier Tribunal judge took that there was no evidence of any contact between the claimants in the years after the second claimant had arrived in this country and the First-tier Tribunal judge also appears to have concluded that there is no evidence that the first claimant had any particular wish to rejoin his mother, even though his mother was now living permanently on the other side of the world. The basis for the findings for that there had been no contact between the two do not on the face of them make good reading because they do not appear to take account of evidence of contact that was evidently provided to the Tribunal nor do they provide any clear reason for rejecting that evidence despite the evidence being in written form. It may not be very lengthy evidence but there is certainly clear evidence that the first claimant had expressed the view, relatively recently, that he could not understand why he was not allowed to go and live with his mother. If that is not to be taken account of, it would at the very least need to be explained why not.
- There are therefore a number of very serious causes for concern. As I remarked in the course of the very helpful and succinct but cogent submissions of counsel on behalf of the Secretary of State, one cannot think of many decisions with a more serious impact on the lives of the two claimants than a decision which caused, certainly for the rest of his childhood and teenage years a permanent rupture of family life and any meaningful mother/son relationship than a decision of the kind that was taken in this case.
- Both on the grounds that I do regard this a rare case where things had apparently gone seriously wrong, and also as being a case which falls within a further potential category of Cart cases, namely one where there has been an error of law that has potentially had very serious consequences for the applicants for permission. On both those grounds, I grant permission for the claimants to apply for judicial review. So, there are still a number of substantial hurdles that the claimants must overcome but they have at least succeeded in what may be described as the first act of this ongoing saga.
- MR NATHAN: Your Lordship expressed concerns about the time this case has taken. I have had regard to a calendar and by my reckoning the Secretary of State would be obliged to file her detailed grounds by -- sorry I should say the Upper Tribunal would be obliged to file its detailed grounds.
- THE DEPUTY JUDGE: Before we get on to the procedure, I have taken the view, rightly or wrongly, that I should ordinarily -- of course, I do not do this every day of the week, grant permission in a Cart case, and my opportunity to for doing so in the future it appears will be much more severely constrained. On the occasions I have granted permission, it seems to me that it is incumbent on me to ensure there is enshrined in the order either in full or by reference to another document readily available to the parties in the court the issues that give rise to the grant of permission to be considered in conformity with what Ouseley J has directed in that decision we have discussed already.
- MR NATHAN: My Lords there ought to be relatively good note of that decision which could be agreed between the parties.
- THE DEPUTY JUDGE: It will also be transcribed and provided. If the parties are satisfied with that, and I will have the opportunity of correcting any editorial errors in the transcript, then I will simply leave it at that and the parties can make do, then I grant permission.
- MR NATHAN: I am grateful. I would, as I say, ask if the matter is to be --
- THE DEPUTY JUDGE: How long for -- normally 21 days.
- MR NATHAN: It is normally 35 days.
- THE DEPUTY JUDGE: 35-days.
- MR NATHAN: And the 35 days falls on Boxing Day. I appreciate it is somewhat harsh on those on the Upper Tribunal and the Secretary of State but it is even harsher that the ongoing delays. I wonder if a direction might be made for the Secretary of State or the Upper Tribunal.
- THE DEPUTY JUDGE: I do not think I need go to that limit. What you want to do is join the queue for the hearing. So long as you are not delayed in the hearing date by procedural steps being taken I do not imagine you are that concerned as to whether the Secretary of State has 35 or approximately 33 days to the serve full grounds.
- MR NATHAN: Your Lordship is entirely correct perhaps all I need to ask for a expedited hearing.
- THE DEPUTY JUDGE: What would be the not before, realistic not before date?
- MR NATHAN: Realistically I would --
- THE DEPUTY JUDGE: I suppose you are just asking for expedition and leave it to the listing process to accommodate you.
- MR NATHAN: Yes my Lord. But perhaps in fairness to the Secretary of State and everybody in order to the prepare it adequately, a listing --
- THE DEPUTY JUDGE: Beginning of next term would be the earliest.
- MR NATHAN: I am not sure what date that is.
- THE DEPUTY JUDGE: The first day I think is the, would it be Tuesday 15 January? I will direct expedition with a not before date of 15 January 2013. A 1 day hearing, the usual directions for bundles, skeletons and authorities and I will not mark this as only fit for a High Court judge; in other words, it is fit for any judge of this court, and I do not give any special directions as to venue. I think that deals with the matter.
- MR NATHAN: I am grateful my Lord.