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
		3 July 2015

MR JUSTICE HAMBLEN:

Introduction

1. On 25 October 2013, the defendant made a deportation order in respect of the claimant. On 14 November 2013, the claimant was detained when he reported to the UKBA.
2. On 15 November 2013, the defendant served the deportation order on the claimant. On 27 November 2013, the claimant submitted a letter setting out the reasons why he should not be deported and also submitted a pre-action protocol letter.
3. On 29 November 2013, the defendant refused the claimant's application to have his deportation order revoked and certified it as clearly unfounded, thereby granting him an out of country right of appeal.
4. On 6 December 2013, the claimant issued a claim for judicial review seeking to challenge the certification decision made on 29 December 2013 and the lawfulness of his detention.
5. On 17 February 2014, the claimant made further written submissions to the defendant. On 21 February 2014, Phillips J refused to grant the claimant permission to apply for judicial review on the papers.
6. On 10 April 2014, the claimant made further written submissions to the defendant. On 8th May 2014, he was granted bail with reporting and tagging restrictions.
7. On 3 June 2014, the defendant rejected the claimant's latest submissions and refused to accept that they constituted a fresh asylum and/or human rights claim.
8. On 14 May 2015, amended grounds of judicial review were filed on behalf of the claimant which challenged the refusal to accept the April submissions as being a fresh claim and also maintained the arguments in support of the original application.
9. This is, therefore, a case in which there has been considerable delay but it would appear that the court considered and dealt with that question at the time that it gave directions for the present hearing of the outstanding applications.

The claimant's immigration history

10. The claimant has a long and involved immigration history.
11. He claims to have arrived in the United Kingdom in December 2003 using a false French passport.
12. On 10 January 2015, he was convicted of theft under the name Monsanto Sumbu Moto and sentenced to 14 hours' Community Service.
13. On 24 March 2005, he was arrested for attempted fraud, under the same name. He was fingerprinted and was found to have the alias Kuectche Moumbe.
14. On 11 May 2005, he was convicted of three counts of forging a document which was other than a prescription for a scheduled drug. He was sentenced to 17 months' imprisonment. He did not appeal against his conviction or sentence.
15. On 20 May 2005, he was convicted under the name of Monsanto Sumbu Moto for possessing an insurance document with intent to deceive. He received a £70 fine and was sentenced to one day in a detention centre.
16. On 1 December 2005, the defendant made directions to remove the claimant from the United Kingdom in the name of Alain Meboe.
17. On 6 December 2005, he applied for asylum in the name of Alain Antoine Kuectche Moumbe and the defendant cancelled the removal directions. On 4 January 2006, the defendant refused the claimant's asylum claim.
18. On 15 February 2006, the claimant's representatives submitted a birth certificate which showed his true identity as being Jude Okilo Onykwere, a male national of Cameroon, with a date of birth of 7 November 1975.
19. On 4 May 2006, the claimant was notified of a refusal of his asylum claim. He appealed against that in June 2006. On 14 June 2006, the immigration Tribunal found that the claimant had not been served with 4 January 2006 asylum decision and the defendant decided to reconsider that claim.
20. In January 2008, a fingerprint check was carried out which confirmed the claimant was the same person as Monsanto Sumbu Moto and Alain Antoine Meboe.
21. On 2 November 2008, the claimant's son was born to his British partner.
22. On 26 November 2010, he was notified that he was liable to be deported. On 22 December 2010, he submitted a completed questionnaire with supporting evidence that challenged his proposed deportation.
23. On 23 November 2011, he attended an asylum interview. On 8 March 2012, he was served with a joint asylum refusal and deportation decision dated 1 March 2012. On 23 October 2012, the claimant's appeal against his deportation decision was dismissed.
24. He had appealed on the basis that the deportation decision breached his rights under Articles 2, 3 and 8 ECHR. The First-tier Tribunal concluded amongst other things that the claimant lacked credibility. His asylum claim had immediately followed the decision to deport him and he had used a false name. His actions were at odds with those of a genuine asylum seeker.
25. Whilst the Tribunal accepted that the claimant had some sort of relationship with British wife, it found there was very little evidence about the strength of their relationship and not even an assertion by the claimant that he had paternal feelings towards his son.
26. The Tribunal concluded that it was the proximity of the appeal hearing which had prompted the claimant to increase his involvement in the life of his wife and son, rather than any long term commitment to the family unit.
27. On 12 December 2012, the claimant exhausted his appeal rights having applied unsuccessfully for permission to appeal to both First-tier and Upper Tribunals.
28. On 10 July, he submitted an application for further leave to remain. That was rejected on 2 December 2013, as it was said he had not provided passport photographs with his application.
29. On 24 October 2013, the defendant informed the claimant that he had in fact submitted the photographs, and advised him if he submitted a new application it would be valid from the date of his rejected application, but he did not submit a new application. Then, as already recorded, on 25 October 2013, the deportation order was made.

The Issues

30. The issues which arise may be summarised as being whether the defendant's certification of the claimant's asylum and human rights application as clearly unfounded under section 941 of the Nationality Immigration and Asylum Act 2002, as recorded on 29 November 2013 and maintained in her decision of 3 June 2014, was lawful, and whether the defendant's decision the claimant's representations made on 10 April 2014 were incapable of being a fresh claim was lawful.
31. In addition, there is an issue as to the lawfulness of the claimant's detention from 15 November 2013 until 7 May 2014.

Relevant principles

32. In relation to the two main issues, the relevant principles may be summarised as set out below.
33. In considering the issue of the lawfulness of the defendant's certification of the asylum and immigration claims as clearly unfounded, the relevant test is whether the claim is in fact clearly unfounded in accordance with the guidance provided in the decision of ZL [2003] EWCA Civ 25.
34. In that case, Lord Phillips MR, giving the judgment of the court, expressed the test in the following terms:

i. "58. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded."

35. In considering the issue of whether the defendant wrongly refused to accept representations amounting to a fresh claim the relevant test is as set out in paragraph 153 of the Immigration Rules, namely:

i. "The submissions would 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 has not already been considered and taken together with the previously considered material created a realistic prospect of success and not withstanding its rejection."

36. Those principles have been considered a number in a number of decisions, in particular in the decision of the Court of Appeal in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495.
37. In that case, the court rejected the submission that it should follow the approach taken in the certification cases of coming to its own view on the strength of the asylum claim. It was held that:

i. "18. In borderline cases, particularly where there is doubt about the underlying facts, it would be entirely possible for a court to think that the case was arguable, but accept nonetheless that it was open to the Secretary of State, having asked himself the right question and applied anxious scrutiny to that question, to think otherwise; or at least that the Secretary of State would not be irrational if he then thought otherwise. "

38. In AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535 the Court of Appeal held that the question which the Secretary of State must ask himself is:

i. "23. Whether an Independent Tribunal might come down in favour of the applicant's asylum or human rights claim or consider be the new material together with the new material previously considered."

39. The correctness of the approach adopted in the WM(supra) decision has been confirmed by the Court of Appeal in MN (Tanzania), R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 193.

The lawfulness of the Defendant's decisions

40. I propose to consider this issue by reference to the headings used in the defendant's letter of 3 June 2014, namely:

1) Consideration under paragraph 399(a)

1) Consideration under paragraph 399(b)

2) Consideration in the paragraph 399(A)

3) Exceptional circumstances

1) Consideration under paragraph 399(a)

41. Paragraph 399(a) of the Immigration Rules specifies the criteria which must be satisfied in order for a parental relationship with the child to outweigh the public interest in deportation in line with Article 8 of the ECHR.
42. The criteria reflect the duty in section 55 of the Borders, Citizenship and Immigration Act (2009) to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, as interpreted in particular recent case law, in particular ZH Tanzania(supra).
43. In considering this issue the defendant had regard in particular to the criteria in paragraph 399(a) as set out in paragraph 47 of her 3 June 2014 letter. It is there accepted that the claimant's son is a British citizen and that it would be unreasonable to expect him to leave the United Kingdom as he is British and has lived here all his life.
44. However, under (d), it was said that it was considered that there was another family member able to care for him in the United Kingdom, namely his mother, and that the claimant could remain in contact with his son via modern channels of communication such as email, telephone, or letter, or his son could visit the claimant in Cameroon if he should choose to do so. A similar conclusion was expressed in relation to the position of his stepdaughter, Jessica, who was 17 years old at the time.
45. This approach is criticised by the claimant. In particular, it is said that the defendant had insufficient regard to the impact of the father's removal on his child, in particular in the light of the further evidence which has been submitted, which bears out what is said to be the bond between the claimant and his son and also the effect on his son of the absence of his father.
46. It is also stressed that that further evidence is not evidence from the claimant, but it is third party evidence, including evidence from the defendant's school and medical evidence.
47. In this regard, reliance is placed on the Upper Tribunal's decision in Ogundimu (Article 8 - new rules) Nigeria [2013] UKUT 60 (IAC) in which it was pointed out that it may be questioned whether it is in the child's best interest to lose the support of a parent with whom he has a strong bond simply because someone else can be found to care for them.
48. It is also stressed that shortly after the decision was made in this case, the criteria under 399(a) were changed and it is now relevant to consider whether:

i. "It would be unduly harsh for a child to remain in the United Kingdom without the person who is to be deported."

49. The essential point made by the claimant is that the defendant here has had insufficient regard to these considerations in her original decision of certification and in her fresh submission decision.
50. Having carefully considered the arguments on both sides in relation to this matter, I am satisfied that there are arguable grounds under this heading.

2) Consideration under paragraph 399(b)

51. In relation to paragraph 399(b), consideration needs to be given to whether the claimant has a genuine subsisting relationship with a spouse or partner which outweighs the public interest in deportation.
52. In this regard, the defendant has had regard to the claimant's marriage to a British national. It is accepted that the claimant has a genuine subsisting relationship with her, but reference is made to the Tribunal's findings about the nature of that relationship and about the lack of evidence relating to its strength.
53. The Tribunal found, for example, there is very little evidence concerning the strength of their relationship. Whatever relationship they have would have been established when the appellant's own status was decidedly precarious and that he did not marry until May 2012, some weeks after the appellant's appeal and immediately before the original date set for the appeal. In relation to the married life, it was found that neither the appellant nor his wife have given much information at all.
54. Having considered various matters, the defendant concluded that there were no insurmountable obstacles to family life with his partner being able to continue outside the United Kingdom. Reference was made to modern means of communication and to the possibility of his wife joining the claimant, should she so choose, with the children.
55. In my judgment, having considered carefully the reasons given in the original decision letter and in the fresh submission letter on 3 June 2014, I am satisfied that the decision reached in relation to both certification and fresh removal is a rational decision which had regard to all relevant considerations and that there are no arguable grounds of challenge.
56. (3) Consideration under paragraph 399(A)
57. This defines the criteria which must be satisfied before an individual's private life outweighs the public interest in deportation.
58. In line with Article 8, the defendant has had regard to those criteria. It was observed that the claimant had not been in the United Kingdom continuously for at least 20 years. It was observed that the claimant still had ties to Cameroon. He had resided there until he was 28 years old. He had spent his youth and formative years there and there was evidence he had a sister and a daughter there, although there was later evidence that the daughter had moved to Belgium.
59. Again, I am satisfied that the defendant has had regard to all relevant matters and has not had acted irrationally in relation to either certification or her fresh submission decision under this heading.
60. (4) Exceptional circumstances
61. In the letter of 3 June 2014, there are various different aspects of the claimed exceptional circumstances which are carefully and fully considered.
62. First, the defendant considered the assertion made on behalf of the claimant that he would be at risk of being tortured or killed upon his return to Cameroon and the medico-legal reports prepared by Dr Steen.
63. The defendant referred in some detail to the findings made by the immigration judge, which included the following:

i. "The core of the appellant's account as to events in Cameroon is rejected in its entirety. Whilst his nationality is accepted and the name and date of birth he is currently using seem marginally more likely than the various alternatives used in the past, no way can it placed upon any of these other assertions.

ii. "Having made the findings above, it is considered the appellant has not established to the required standard that he has on any evidential basis argued that he would face on return to Cameroon a real risk of persecution as a result of political opinion. The background evidence does not suggest that the general situation is such that someone in the appellant's position would generally be at risk."

64. The defendant observed that there was evidence from the medical foundation which was said to support the claimant's case in this regard which had been rejected by the Tribunal; that the evidence of Dr Steen, appeared to be further evidence the same effect; that in those circumstances there was no material new evidence in relation to this matter; that the findings of the immigration judge were of considerable importance in this regard, and that, in all the circumstances, it was not considered that the claimant's claim that he would fear torture amount to exceptional circumstance. I can see no arguable error in relation to the defendant's approach and conclusion on that issue.
65. Secondly, the defendant considered the evidence in the medico-legal report that the claimant had been prescribed the medication citalopram for depression, zopiclone to help him sleep, and codeine as a painkiller.
66. The defendant observed that it was considered that the claimant can seek treatment for depression in Cameroon and reference was made to the facilities there available. Again, I can see no arguable error in the defendant's approach or conclusion in relation to that issue.
67. Thirdly, the defendant referred to statement in the medico-legal report that it was believed that the claimant was at low risk of self harm and at low to medium risk of suicide. This issue was considered by reference to three stages; when the claimant informed the decision to remove him; when the claimant is physically removed, and after he has arrived in Cameroon.
68. Careful consideration was given in relation to the evidence relevant to all three of those stages and the conclusion which was reached, having had regard to all the evidence, was that the claimant's mental health and risk of suicide could and would be effectively minimised and that the client's circumstances did not obtain attain the level of severity necessary to meet the high Article 3 threshold. Again, I can see no error in her approach or her conclusion in relation to that issue.
69. Fourthly, consideration was given to whether the claimant's removal to Cameroon would breach his rights under Article 8 in relation to mental health problems. The relevant authorities were referred to and the evidence which had been put before the defendant was addressed.
70. The conclusion was reached that there was no sufficient evidence of mental health problems which would involve a breach of rights under Article 8. In this connection, specific regard was had to the further evidence relating to the claimant's wife and also his son. Again, I am satisfied that the defendant has approached this issue appropriately and that there is no arguable error in either her approach or her conclusion.
71. For all those reasons and also those set out in some detail in the amended summary grounds of defence, I reject all the grounds for challenge of the defendant's decisions, save for that under paragraph 399(a) relating to the claimant's relationship with his son and also his stepdaughter (although the main focus of the application relates to his son).
72. The lawfulness of the detention
73. Turning to consider the detention claim, the relevant principles are set out in the decision of R(I) Hardial Singh v Governor of Durham Prison [1983] EWHC 1 and are conveniently summarised in the judgment of Lord Dyson in Lumba(WL) v Secretary of State for the Home Department [2011] UKSC 12 as follows:

i. "46.(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

ii. (ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

iii. (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;

iv. (iv) The Secretary of State should act with reasonable diligence and expedition to effect removal."

74. The claimant contends that his detention was unlawful under criteria 2 and 3, that the latter breach was aggravated by the defendant's alleged failure to act in accordance with criteria 4, that the detention was maintained without a proper weighing of the implications of removal on the best interests of the claimant's children, and was unreasonable when properly considered in the context of the absconding and offending risk which the claimant represented.
75. This issue was addressed in the defendant's grounds of resistance to the original application where it was observed that the detention did not take place at a time of an outstanding application for leave, because, although the defendant had accepted that the relevant photographs had been provided and had said that any new application would be treated as having been made from the date of the original application, no further application had been made. It followed that there was no outstanding application at the time of detention.
76. It was also pointed out that, although it was asserted that the claimant was at low risk of absconding, in the detention review carried out on 8 January 2014 it was noted that he was:

i. "Failing to co-operate with the travel document process and has recently sought judicial review to further obstruct the removal process and his previous detention review of 12 December 2013 he was assessed as a 'medium risk of absconding as there are no barriers to his removal and he failed to report for a period of 4 months in 2006 to 2007'."

77. These matters were considered by the single judge at the time of his decision and his conclusion was that:

i. "Given the claimant's history of offending, use of alias and poor immigration record, and given that his deportation as been delayed solely by reason of this application, his detention pending his deportation is lawful and justified."

78. Thereafter, the claimant was released on 8 May 2014. In my judgment, for the reasons given by the defendant and by the single judge there is no arguable case here of unlawful detention.

Conclusion

79. It follows there that the application is granted in relation to that single ground but is otherwise refused.

MR JONES: My Lord, I have no applications to make at this stage but in relation to costs --

MR JUSTICE HAMBLEN: -- we need to make some directions, do we not?

MR JONES: I think that would be helpful.

MR JUSTICE HAMBLEN: Now, so you want to serve additional grounds?

MISS REEVES: Yes, my Lord.

MR JUSTICE HAMBLEN: What time period do you want for that?

MISS REEVES: My Lord, I am afraid I have been instructed somewhat late in the day.

MR JUSTICE HAMBLEN: Yes.

MISS REEVES: So I have not been able to take instructions, despite seeking them this morning. I wonder if I might have 5 minutes now to try and get hold of those instructing me on that point and also if there is any application in relation to cost?

MR JUSTICE HAMBLEN: All right.

MISS REEVES: I do not know if you would oblige me 5 minutes?

MR JUSTICE HAMBLEN: Yes, all right. You are confident you can get a response in even 5 minutes?

MISS REEVES: Well, I have been leaving messages all morning, so I am hoping that they will have reached those instructing me by now.

MR JONES: There are standard directions that is apply, and we do not object if my learned friend sought to modify those directions in due course.

MR JUSTICE HAMBLEN: Could you perhaps seek to agree them between you?

MR JONES: Why do we not do that.

MR JUSTICE HAMBLEN: Just follow the standard directions and agree a timetable and then make sure they are incorporated in the appropriate order. You will need to define the question in relation to which permission has been given.

Is there something that you want to say about costs at this stage?

MR JONES: I think costs should be reserved at this stage.

MR JUSTICE HAMBLEN: Reserved, I think probably right, so that is probably enough guidance.

MISS REEVES: I am grateful.

MR JONES: Thank you, my Lord.

MR JUSTICE HAMBLEN: Between you can sort that out.