England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		18 November 2013

1. JUDGE BIRD: This is an application for judicial review. It is the final hearing, permission having been initially refused on paper but then granted on 29 July 2013 by HHJ Raynor QC.
2. The decision in respect of which judicial review is sought is one which has developed over time. Mr Nicholson, who appears on behalf of the claimant, reminds me that in the circumstances it is open to the court to take a pragmatic view and appreciate that the Secretary of State in cases like this will take into account factors as they arise.
3. Such an approach leads, it seems to me, to a certain informality in the way in which the application for judicial review must proceed; not least of all because the grounds first set out in the claim form necessarily require to be considered in a much broader manner. This application has proceeded in a relatively informal way but I am satisfied that both sides have had every opportunity to put their points.
4. The factual background against which the matter comes to court is set out in the skeleton arguments and amended grounds that I have seen. In short, the claimant made an application for asylum based upon a real fear of the consequences of his returning to Bangladesh, after having lived in this country for more than 18 years. That application was commenced by claim form on 21 December 2012, following the Secretary of State's refusal and certification of the claim as being totally without merit, or clearly unfounded, on 3 October 2012.
5. Following the filing of an acknowledgment of service, on 26 March 2013, the parties entered into a consent agreement. The terms were approved by the court. The recital to the form of consent agreement provides as follows:

"Upon the Secretary of State having agreed to reconsider her decision of 3 October 2012, in the light of NF (Article New Rules Nigeria) 2012 UKUT 00393 (IAC) and to issue her reconsidered decision within 31 days from the date of this consent order, the following is ordered by consent."

The proceedings were stayed.

6. The Secretary of State's decision, hot on the heels of that consent order, was published on 27 March. There was a supplementary decision letter of 10 September 2013, it seems to me that all of those letters must be read together.
7. Whilst it is right to say that the last of the decision letters does not of itself contain a certification that the claimant's human rights argument is one which is clearly unfounded, nonetheless it is clear from the earlier letters that the claim was certified.
8. In brief terms the claimant's Article 8 argument is that in removing him to Bangladesh the Secretary of State would be unreasonably interfering with his Article 8 rights. He rightly draws attention also to the need to consider under Section 55 of the relevant Act the rights of his daughter, who was just under 7 years old; and who is, I am told, established in this country having been born here and being presently educated in primary school here.
9. The claimant and his wife are, I understand, separated. I was told that the claimant, as a responsible and I have no doubt caring and loving father, has regular contact with his daughter.
10. His wife made a separate application for asylum. That application was determined by the Secretary of State and the decision communicated to her in a letter dated 16 August 2009. That letter refuses the claimant's wife claim for asylum and I am told that no appeal or other process making complaint as to the decision or its process has been lodged.
11. The claimant's wife's appeal rights are therefore properly considered to be exhausted. That does not mean of course that there is no possibility of complaint. It is possible at the very least to make an application to the relevant court or tribunal for permission to appeal out of time.
12. Nonetheless in my judgment, as was submitted by the Secretary of State, it is of vital importance that I deal with the application in front of me on the facts as they presently stand.
13. I am told that the claimant's wife has made no move to make any application for permission to appeal out of time and no further steps have been taken by her.
14. She may have decided to refrain from taking such steps for one of a number of reasons. It would be wrong in principle in my judgment for me to proceed with this application on any basis other than that the claimant's wife's rights having been exhausted; although to make it clear, I accept that there are circumstances in which that may not be the case.
15. That assumption has had an important part to play in these proceedings. That is because as the Secretary of State put it: the child's rights which are central to the claimant's Section 55 and Article 8 elements are tied with those of the claimant's wife. The claimant's wife, I was told, included the daughter as a dependant within her claim.
16. It therefore follows that as the wife's rights of appeal have been exhausted and as she stands liable, subject to issues of timing to be removed from this country, so her daughter will be removed with her.
17. It is important, therefore, that when I take into account the Secretary of State's dealing with the claimant's application for asylum that I bear that factor in mind. Mr Nicholson, who appears on behalf of the claimant submits that the Secretary of State's decision to certify the claimant's human rights and/or asylum claim as clearly unfounded is irrational. He puts the case on this basis: if the matter were to come before a hypothetical tribunal at some point in the future it simply cannot be said that that hypothetical tribunal would dismiss the claimant's claim as being wholly unfounded.
18. I was referred in some detail at paragraphs 19 to 23 in the detailed ground of defence and skeleton argument helpfully submitted by the Secretary of State, to the test which the Secretary of State applies in determining whether to certify a claim under section 94.2. The test is properly summarised at paragraph 23 of that document in a quotation from the case of R v SSHD ex parte (Thangarasa) [2002] UKHL 36, where Lord Bingham states:

"No matter what the volume of material submitted or

the sophistication of the argument deployed to support the allegation, the Home

Secretary is entitled to certify if, after reviewing this material, he is reasonably and

conscientiously satisfied that the allegation must clearly fail."

19. Lord Hutton, at paragraph 74, said this the essential question on judicial review is whether the Secretary of State had adequately considered and resolved the issue whether the applicant's claim that his human rights have been breached is manifestly unfounded.
20. The test, although slightly nuanced, it seems to me, is the same. I must be satisfied that the Secretary of State has properly and conscientiously considered whether or not the allegation must fail by taking into account the appropriate factual and other matters.
21. It seems to me when read together, and particularly when one looks at the letter of 10 September 2013, and bearing in mind the present position of the claimant's wife that the Secretary of State has indeed reasonably and conscientiously; having taken into account all relevant materials, come to the conclusion that this claim is one which is apt for certification. Indeed, in my judgment it would be difficult for the Secretary of State to come to any other conclusion.
22. When faced with this consideration the Secretary of State would necessarily in my judgment need to consider, as I have, the claimant's wife and daughter will be leaving the country. I have emphasised that that is not necessarily the case, but to take into account any other set of circumstances would be to engage in speculation where that would be itself an unsafe way in which to go about making a decision.
23. Once satisfied that the claimant's wife and daughter would be leaving the country it is difficult in my judgment to conclude that the claimant's right to assert a breach of his Article 8 rights (in so far as they concern private and family life); and his reliance on the Section 55 rights (whether they strictly lie with his daughter or with him)is one which in my judgment would clearly fail.
24. On behalf of the claimant, Mr Nicholson reminds me that in addition to family life, the tribunal may well consider the extent to which his private life would be interfered with. In my judgment the Secretary of State has properly taken into account and reasonably and conscientiously come to the conclusion on the evidence that she had that a claim to some breach of private life also is manifestly unfounded. It is in my judgment, as Mr Karim on behalf of the Secretary of State submitted, clear that the Secretary of State has taken into account in particular the length of time that the claimant has lived in this country.
25. On behalf of the claimant, it was submitted that if the claimant were to make an application for leave to remain that such an application would be likely to succeed, given his period of residence of more than 8 years.
26. It seems to me that the answer to that is this: as Mr Karim submits, even if that is the case, the Secretary of State has properly taken into account length of residence; and above and beyond that point, whilst it may not be in these circumstances a complete answer, it seems to me that the Secretary of State is entitled to make a decision on a claim for asylum as a claim for asylum.
27. The Secretary of State has taken proper account of the human rights and other claims of the claimant. The Secretary of State is not in my judgment required to recast any application, making it into a wholly different application, in the instant case, for leave to remain.
28. I canvassed with the parties during the course of the hearing what would happen if, after my decision was handed down, the claimant's wife lodged out of time an application for permission to appeal, or an appeal.
29. It seems to me that it may well be open to the claimant's wife (and possibly even the claimant) to take steps after this judgment which may encourage the Secretary of State, to a different view.
30. However, I am satisfied against the background that I have set out that this application for judicial review in the light of the decision letters to which I have referred it is one which must be dismissed, and I so dismiss it.
31. MR KARIM: My Lord, I am grateful. In those circumstances, the order that I seek is --
32. JUDGE BIRD: -- I am sorry?
33. MR KARIM: The order I seek is first of all --
34. JUDGE BIRD: -- the claim is dismissed, yes.
35. MR KARIM: In respect of the costs I am not entirely sure that the claimant is making a defence[indistinct?] so we would seek the -- normally assessed to public funds.
36. MR NICHOLSON: My Lord, I suppose that will be the third order. The second order will be that the claimant do pay the defendant's costs.
37. MR KARIM: Which I cannot --
38. MR NICHOLSON: No, and third of all, the claimant's costs are subject to legal assessment.
39. JUDGE BIRD: Yes. In relation to the second order, do I need to specify that such order is not to be enforced without leave of the court?
40. MR NICHOLSON: Yes.
41. MR KARIM: Yes, my Lord.
42. MR NICHOLSON: That is it, the claim has been in receipt of a legal funding certificate from the Legal Aid. The only reason I mention it, is that is on the claim form, that is itself -- that there is --
43. JUDGE BIRD: Yes, I may have misunderstood. I thought it was confirmed that the claimant was in receipt --
44. MR NICHOLSON: -- I understand he is in receipt of the public funds but we are protected by the way that --
45. JUDGE BIRD: Yes, very well. Well, I think it right to make that order in those terms. Is there anything else?
46. MR NICHOLSON: No, my Lord.
47. JUDGE BIRD: Is there anything else that needs to be raised?
48. MR KARIM: No.
49. JUDGE BIRD: Could I thank you both for your submissions, informal as they may have been.