QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Judge of the High Court)
| THE QUEEN
on the application of
|- and -
|SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Mr J Jolliffe (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 25 & 26 March 2014
Crown Copyright ©
HIS HONOUR JUDGE SYCAMORE :
"1 Permission to amend Claimant's grounds within 14 days to impugn the decision (if any) taken on 18.03.11 on the ground of misdirection in law and on the ground that the decision was otherwise unreasonable.
2 Permission be granted to claimant to proceed with a claim for judicial review …."
"I have reviewed this and it is considered that we will not be able to remove this case before the end of 31st March 2011. Moreover, the case does not qualify for a grant of leave under paragraph 395 of the Immigration Rules".
It cannot on any view be said to be a decision. Similarly, the letter of 20 September 2012, in respect of which permission was not granted, is not in any event, on any view a decision letter. It was a reply to a pre-action protocol letter from the claimant's solicitors.
"77 …. Leaving aside the factual questions concerning the Claimants' identity documentation and removability, none of them came to the UK lawfully or compelled by any threat of persecution …. I cannot accept that the mere fact that their removal cannot currently be enforced, changes the balance so that such a decision amounts to a disproportionate interference of such rights under Article 8 as they may establish …. The Defendant continues to hold the rational view that voluntary departure is still possible in each of these cases and accordingly, any state of limbo that they find themselves in is self-induced".
i) The defendant failed to consider the length of the claimant's residence in the United Kingdom and the extent to which its length and the defendant's conduct in mishandling the case led to failures to report by the claimant or other matters said to be adverse to the claimant.
ii) The defendant failed to consider the claimant's ties, or lack of ties, to China or the internal note of 18 March 2011 stating that the claimant could not be removed.
iii) The defendant concluded that the clamant had no basis of stay without considering the prospect of removal or considering previous delay and should have treated the claim as a fresh claim.
"no general policy or practice has been identified or established by the claimants to the effect that persons whose removal from the UK cannot be enforced, should, for this reason alone, be granted leave. It is not difficult to see why this should be the case. A policy entitling a person to leave to remain merely because no current enforced removal is possible, would undermine UK immigration law and policy, and would create perverse incentives to obstruct removal, rewarding those who failed to comply with their obligations as compared to those who ensure such compliance. Moreover, in the same way as immigration law and policy may change, so too the practical situation in relation to enforcing removal may change or fluctuate over time so that any current difficulties cannot be regarded as perpetual".
Thus, even if the claimant was correct in his assertion and was incapable of being removed that of itself would not give rise to any entitlement to a grant of leave.
Paragraph (1) "…. It is accepted that, during the 13 years in which you have lived in the UK you may have established some form of private life …."
Paragraph (5) "…. You have been present in the UK for 13 years it is accepted that you may have established a private life in the UK".
And finally in the conclusion (page 5) " …. Regard has been had to your length of residence in the United Kingdom. It is noted that you have resided here for a period of 13 years, however the entirety of this period was while you had no right to be in the country after your asylum claim was refused in February 2002 and your appeal rights were exhausted in October 2002".
353 When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C) of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
i) had not already been considered; and
ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas".
The principles set out in the leading authority on rule 353 are well known WM (DRC) v the Secretary of State for the Home Department  EWCA Civ 1495, Buxton LJ at paragraph 6 :
"6 There was broad agreement as to the Secretary of State's task under rule 353. He has to consider the material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353 (i) according to whether the content of the material has already been considered. If the material is not "significantly different" the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim ….".
Given that the claimant produced no new evidence I fail to see how it can be said that there was new material which the defendant had failed to consider under the first test set out in WM.
"23.12.04 subject was interviewed by the Chinese officials on 23.12.04 …. A further travel document interview was conducted on 03.07.06 …. Subject was interviewed by the Chinese officials on 18.07.06. Record sheet 17.03.14 ….. 29.04.09 … I conducted an update of circumstances interview and a CHNETD application (I obtained a copy of his 2006 CHNETD from RGDU for comparison) …. A/HM who authorised the subject's temporary release to an address of his choice …. as he had complied with his CHNETD interview and is not removable at present. Record sheet completed 17.03.14 date 05.02.10 … the interview was fully completed ….".
The records also disclose that at various times the claimant was subject to reporting requirements and, whilst there were some occasions over the years when the claimant failed to report, generally the records suggest that the claimant had maintained contact with the defendant and complied with reporting requirements over a number of years. Significantly no absconder action was ever taken by the defendant. Over a period of years there were four recorded instances of failures to report by the claimant. The last failure appears to have been on 7 August 2008. The reporting requirement varied over the period 2006 to 2013 from daily reporting to weekly reporting and to 12 weekly reporting.
"…. You have only reported sporadically throughout your residence at times, at times becoming aggressive towards staff in the reporting centre. In addition you have frustrated various attempts at removal by providing information which cannot be corroborated" and
".… You have frustrated any removal attempts made by providing information which could not be corroborated. You have also failed to report consistently, only reporting to your local immigration officer sporadically despite having a regular appointment".
"…. It is considered that the length of residence that you have accumulated is illegal and is as a result of your sporadic reporting and failure to comply with the documentation procedure ….".
No detail is provided in the letter as to the basis upon which the defendant reached those conclusions.