England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 April 2014

HIS HONOUR JUDGE SYCAMORE :

1. These proceedings were issued as long ago as 27 September 2012. The claimant is a national of China who, it is said, arrived in the United Kingdom in November 2000. He claimed asylum. That application was refused. His appeal against that refusal was heard on 12 August 2002 and refused on 20 August 2002. The claimant became appeals right exhausted on 2 October 2002. Since that time he has continued to live in the United Kingdom and has not made any further representations as to his immigration status.
2. In 2004 the claimant was cautioned for shop lifting and for carrying a sharply pointed blade. Between 2004 and 2010 a number of unsuccessful attempts were made to obtain emergency travel documentation for him to return to China.
3. These proceedings, by which the claimant challenged the defendant's failure to make a decision on his case in accordance with the "Legacy Policy", were issued on 27 September 2012. Permission was refused on the papers on 23 October 2012 by Robin Purchas QC (sitting as a Deputy High Court Judge). On a renewed application on 25 February 2013 John Howell QC (sitting as a Deputy High Court Judge) granted permission in these terms:

"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 …."

4. There was a difference of opinion between counsel before me as to whether permission extended also to a letter from the defendant of 20 September 2012. Although there was correspondence from the claimant's solicitors to the court requesting an amendment to the court order to include reference to that letter in addition to the decision (if any) of 18 March 2011 no such amendment was ever made. I have formed the view that the order as sealed represents the extent of the permission granted on 25 February 2012. In any event, as I will explain, it is clear that the internal note of 18 March 2011, for that is what it was, is no more than that. It reads:

"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.

5. The landscape had changed significantly by the time the matter was listed for hearing before me, as the defendant had taken a decision contained in a letter of 20 November 2013. Both parties agreed that it was this decision that the court should now consider, so to that extent the earlier matters have become largely academic. The defendant concluded in the decision letter that the claimant had no basis to stay in the United Kingdom. The Article 8 application was considered in accordance with Appendix FM of the Immigration Rules.
6. It was common ground that the claimant had not submitted any additional material to the defendant to support his application. Since the claimant became appeal rights exhausted in October 2002 he had spent over 10 years in the United Kingdom but this fact cannot, in my judgement, be said to be new material. In any event that stay was "self induced", see Hamzeh and others v SSHD [2013] EWHC 4113 (Admin) per Simler J at paragraph 77:

"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".

7. In so far as it is necessary I have formed the view that the only "decision" which could form the basis of a public law challenge is that of the 20 November 2013. I have already observed that the note of 18 March 2011 is no more than an internal file note. In so far as the letter of 20 September 2012 is concerned it was, as I have indicated, by way of reply to the pre-action protocol letter of 11 September 2012 from the claimant's solicitors. A careful reading of the letter makes clear that it is an account of what had happened in the past and it does not contain any new decision. Indeed the letter specifically draws attention to the facility for the claimant to make further submissions. As I have already observed the claimant did not avail himself of that facility.
8. The papers before me included a re-amended statement of grounds. No application for permission to amend had been filed before the hearing commenced. By those grounds the claimant sought to challenge the decision letter of 20 November 2013 (the only decision in the light of my observations). In the event the claimant's solicitors filed an application during the morning of 25 March 2014 and, absent any objection by the defendant, I granted the application to amend. I treated the hearing as a "rolled up" hearing. I am satisfied that an arguable case is disclosed and I grant permission.
9. In essence the claimant's challenge to the decision letter of 20 November 2013 was formulated in the amended grounds in this way.

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.

10. At the hearing the grounds were further developed in the light of very late disclosure by the defendant, on 24 March 2014, the afternoon preceding the hearing, of a large number of pages of material, including case record sheets. The defendant explained that IT problems were the reason for the late disclosure. Notwithstanding objections by the defendant I decided that it was appropriate to allow the claimant to develop his case in the light of that late disclosure and to hear further submissions. These essentially, in my view, went to the issue as to whether there were material errors on the part of the defendant in the decision letter in the light of the information which was then available to the defendant, as disclosed in the records provided to the claimant's solicitors on 24 March 2014. It is in that respect, as I will explain presently, that in my judgement there is merit in the claimant's application.
11. I deal first with the grounds as originally formulated, none of which in my judgement succeed.
12. First, notwithstanding the content of the note of 18 March 2011, it is not the case that the evidence supports the view that the claimant could not be removed. The file note says no more than that the claimant could not be removed within two weeks of 18 March 2011. There had been a number of attempts to obtain an emergency travel document. The question of removability was considered by Simler J in Hamzeh at paragraph 50:

"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.

13. As to the length of residence a careful reading of the decision letter makes it abundantly clear that the defendant did take it into account as can be seen from:

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".

14. As I have previously observed, notwithstanding the indication in the letter of 20 September 2012 that it was open to the claimant to submit further evidence he did not do so. In particular he did not submit any evidence regarding his ties, or lack of ties to China. It cannot be said that these were matters which the claimant put before the defendant which were not properly considered.
15. The claimant also claims that the defendant should have treated his claim as a fresh human rights claim with a right of appeal against that decision. The law in relation to fresh claims is well known and is stated at rule 353 of the Immigration Rules.

"Fresh Claims

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 [2006] 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.

16. This takes me to the further submissions arising from the material disclosed on the 24 March 2014 and its relevance to the question as to whether there was a material error on the part of the defendant. What is apparent from the documents disclosed is that over the past 10 years the defendant has repeatedly attempted to arrange an emergency travel document to remove the claimant to China and that that application has been repeatedly rejected by the Chinese Embassy. It is also apparent that in that process the claimant has been co-operative and has provided the details requested in the process of seeking to obtain an emergency travel document. I will not go through a detailed analysis of the record sheets but, for example:

"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.

17. With the exception of an occasion on 5 February 2010 when it was recorded that the claimant became annoyed with questions which were put to him and began to shout but thereafter calmed himself and another occasion when the officer reported that the claimant was rude to him and had raised his voice to him in the reporting centre there is nothing to suggest that the claimant was aggressive towards reporting centre staff.
18. Conversely in the decision letter a rather different account emerges. For example, notwithstanding the recorded history of reporting it is said:

"…. 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".

And finally

"…. 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.

19. In my judgement that inconsistency suggests that in concluding as she did the defendant took into account matters which were essentially not supported by the documentary evidence available to her and as such made a material error. I do not say that it necessarily follows that the decision would have been different had the defendant not made those material errors but the cumulative effect of them is such as to lead me to the conclusion that the defendant should reach a fresh decision taking into account the correct version of the history of co-operation, reporting and conduct at the reporting centres. In those circumstances, on the basis of material error, I conclude that it is appropriate to quash the decision of the 20 November 2013 and to direct that the defendant should make a fresh decision exercising her own discretion and correcting any error which may have arisen from her taking into account matters which were not supported by the documented history as disclosed to the claimant's solicitors on 24 March 2014.
20. I therefore grant this application for judicial review. I propose to deal with consequential matters, including costs, by written submissions from the parties.