Secretary of State for the Home Department v Omar [2009] EWCA Civ 383

[2009] EWCA Civ 383Case No C5/2008/2189
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
Immigration Judge Coleman
IA/07255/2006
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 7 May 2009
Before
LORD JUSTICE MOSESLORD JUSTICE HUGHESLORD JUSTICE SULLIVAN
Between
The Secretary of State for the Home DepartmentAppellantOsman OmarRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Alan Payne (instructed by The Treasury Solicitors) for AppellantMr Alasdair Mackenzie (instructed by The Immigration Advisory Service) for RespondentHearing Hearing date: 31 st March, 2009
Judgment
[1]This is an attempt to appeal by the Secretary of State against a second reconsideration by the AIT. The appeal is mounted pursuant to permission granted by Senior Immigration Judge Storey on 9 November 2007. That SIJ Storey had granted permission to appeal escaped the notice of those responsible for ensuring that the appellant’s notice was filed at the Court of Appeal. Once the error was observed it was filed on 1 September 2008. Thus the Secretary of State needs permission to extend the time for service of the notice of appeal. Following the favourable decision of SIJ Storey it might be thought that she had substantial grounds for such an extension. The history of this case may suggest otherwise.[2]Since the end of June 2006 the Secretary of State has attempted to deport Mr Osman Omar on the grounds that it is conducive to the public good to make a deportation order against him, pursuant to s.3(5)(a), the Immigration Act 1971. Mr Omar is a national of Cameroon. It is thought that he entered the United Kingdom clandestinely in March 2004 using a false identity. He had, so he said, a proper Cameroon passport which he had used for travel as far as France. He never sought to regularise his presence in the United Kingdom but remained unlawfully and undetected until he was arrested in March 2005 on a charge of kidnapping. On 19 October 2005 he was served with the Secretary of State’s decision to remove him. On 10 March 2006 he was sentenced to 22 months’ imprisonment for kidnapping. On 11 July 2006 he was served with notice of the decision to make a deportation order. I should observe at this stage that no reasons were given either then or subsequently other than that in the light of the conviction the Secretary of State deemed it conducive to the public good to make a deportation order.[3]Mr Omar appealed. The AIT, Immigration Judge Elliman, and a non-legal member, in a decision promulgated on 13 December 2006, allowed Mr Omar’s appeal on the grounds that in the light of the factors identified in § 364 of HC 395 (Statement of Changes in Immigration Rules) the Secretary of State should have exercised his discretion differently and that compassionate circumstances outweighed the perceived public interest. The Secretary of State appealed and on 14 May 2007 Immigration Judge Davey decided that there was an error of law in the determination and the matter should be reconsidered. On reconsideration, in a determination promulgated on 18 September 2007, Immigration Judge Coleman determined, now for a second time, that Mr Omar’s appeal should be allowed under the Immigration Rules and further that it should be allowed pursuant to Art. 8 of the European Convention on Human Rights.[4]Again, the Secretary of State appealed and on 9 September 2007 SIJ Storey, as I have already indicated, granted the Secretary of State’s application for permission to appeal on three grounds, to which I shall return later. There followed a period of delay during which the fact that SIJ Storey had granted permission to appeal and the fact that that permission had been recorded on what is described as the UK Border Agency “systems” were not noticed until August 2008. Then the pace of the Secretary of State’s efforts to protect the public good quickened.[5]The principles governing an extension of time for filing the notice of appeal were considered by this court in BR(Iran) v SSHD [2007] EWCA Civ 198. I should emphasise that that case concerned a failure to file a notice of appeal in time on the part of legal advisers for an applicant for refugee status. The rule in issue was the same rule as applied to the filing of a notice of appeal on behalf of the Secretary of State. By § 21.7(3) of CPR PD 52, in relation to appeals from the AIT:
“The appellant’s notice must be filed at the Court of Appeal within 14 days after the appellant is served with written notice of the decision of the tribunal to grant or refuse permission to appeal.”
[6]In BR (Iran) the court expressed concern as to the application of CPR r 3.9, a checklist formulated in the context of orthodox private litigation (see § 21). The court bore in mind two important features of an appeal from the AIT on behalf of one seeking asylum. Firstly, the normal rule that responsibility for delay due to inaction by the lawyer should be attributed to the client may not be applicable in asylum cases. It would be of no consolation to the person seeking refugee status to be told that once removed he may sue his solicitor (see § 18). Secondly, even though a senior immigration judge had ruled there was a point of law potentially favourable to a claimant, were an extension to be refused the claimant could find himself back in the country where he fears persecution. In those circumstances, the court adopted the following principles:
“i) There should be a presumption that where the AIT has granted permission to appeal to this court the appeal ought to be heard. (ii) If a procedural fault causes this court to have to consider whether the appeal should proceed, the presumption may be displaced if it can be shown that the decision of the SIJ was plainly wrong, in the sense that it is clear that failure to pursue the appeal would not lead to the United Kingdom being in breach of its international obligations. The court on a preliminary application, such as the present, will have to make that assessment without actually hearing the appeal, but, as the present case shows, the enquiry is likely to come close to being in substance an appeal rather than just an application. (iii) Length of delay, when caused by legal representatives, should not be relevant. (iv) Where delay has been caused by the applicant the court is likely to look carefully at the light that that sheds on the credibility of the assertion that the application has a good claim for international protection. At the same time, the court will remind itself that if after that scrutiny such a claim is established, then the claimant is indeed entitled to international protection despite the domestic court’s disapproval of his conduct or his way of promoting his case that necessarily follows from the decision of this court in Danian v SSHD [2000] Imm AR 96.”
[7]The Secretary of State contends that the same principles apply. There is a presumption that this court should hear the appeal since a senior immigration judge has already taken the view that the decision of IJ Coleman discloses an error of law.[8]In order to assess the strength of that submission it is necessary to contrast the position of one seeking refugee status and that of the Secretary of State. The court adopted as a matter of principle the proposition that length of delay, when caused by legal representatives, should not be relevant. But that principle can have no application in relation to the Secretary of State. The rationale for not visiting upon a claimant the errors of his legal representatives has no application in relation to the Secretary of State, represented as she is by lawyers of the highest skill, experience and integrity. Moreover, the consequences of delay in a case such as this can hardly be equated to the risk that if a claimant for asylum is removed without consideration of the merits of his claim he may be persecuted on return. If there has been a delay in pursuing the Secretary of State’s application the consequences will be less serious, should the appeal not be considered on the merits. Moreover, it seems to me that the Secretary of State is under an obligation to see that she sets an example in the speedy conclusion of appeals. She must take the final responsibility for delays within those departments responsible for ensuring fair and effective immigration control. Effective immigration control requires a stringent approach to delays caused by those responsible for that control.[9]This leads me to features of the appeal which do require application of the principles in BR. Under the second principle the court considers whether a refusal to extend time may lead to a breach of the United Kingdom’s international obligations. It may, in the case of a claimant’s appeal, take the view that there is no real prospect of success, and thus the United Kingdom is unlikely to have been in breach of its international obligations. In the case of an appeal by the Secretary of State, if the merits are not considered, it is difficult to see how the consequence would be a breach of the UK’s international obligations. But the fourth principle may also be applicable. It requires the court to consider the impact of delay on the merits of the appeal. It is inherent in the instant appeal that the Secretary of State believes that the continued presence of the applicant is harmful to the public good. In the context of a previous conviction for a serious offence, the Secretary of State has taken the view that it is necessary to deport the convicted person not only because his continued presence presents a risk to the safety of others within the United Kingdom, but also as a deterrence to others without a right of abode who may be tempted to commit criminal offences (see in particular May LJ in N (Kenya) v SSHD [2004] EWCA Civ 1094 at § 64-65).[10]The length of delay and the failure to pursue the appeal may well indicate there is no pressing need to protect the public and to deter others, by making an example of the respondent in the particular case. Whilst mistakes can occur in any system, if those who had the conduct of the particular case were so fearful of the consequences to the public interest flowing from the two decisions in favour of Mr Omar, one might have thought some earlier enquiry would have been made as to what had happened to the application to appeal. The Secretary of State cannot have it both ways. If, as she forcefully contends, it remained in the public interest to remove Mr Omar, despite two favourable decisions by the AIT, that concern is undermined by a failure to take the action which, apparently, the Secretary of State believed was necessary to protect the public interest.[11]There is a further factor which the court ought to take into account in the case of a delay of which the Secretary of State has been guilty. The AIT has taken the view that the personal circumstances of this applicant outweighed the public interest in his removal. Whether such a decision was right or wrong in law, this court ought not to ignore the effect upon the respondent and his family who have twice succeeded in their appeal but even now, some three years later, remain at risk of removal. Their situation demands expedition, not a year’s delay.[12]What then of the presumption to which BR referred as the first principle? I am content to assume, since nothing seems to me to turn upon it, that the presumption should apply equally in the case of appeal by the Secretary of State as in relation to that of a claimant to refugee status. But the presumption, which arises from the fact that a senior immigration judge, experienced in this branch of the law, has detected an error of law, may, in some cases, be easily displaced. In the instant case, SIJ Storey gave three reasons for granting permission to appeal. The first was what he described as:- “…a glaring error in the immigration judge’s approach to the art. 8 balancing exercise. Contrary to the guidance given in Mahmood [2000] EWCA Civ, she wholly failed to consider whether there was a viable option of entry clearance. She appeared to think that having decided it is not reasonable to expect the wife and family to resettle in Cameroon with the appellant, that was the end of the issue of insurmountable obstacles. In the case of a person subject to deportation, immediate access to entry clearance was not guaranteed, but arguably that does not defeat the viability of the option. Likely outcome is not, in any event, relevant: see SB (Bangladesh) [2007] EWCA Civ 28.”[13]There are a number of objections to this ground. Firstly, it was not a ground advanced on behalf of the Secretary of State. It was not a ground which found any place in the delayed notice of appeal or in the skeleton argument before this court. It was raised for the first time in oral argument by Mr Payne, on behalf the Secretary of State. In my judgment it is far too late to raise it as a ground of appeal now. Secondly, the point identified by SIJ Storey no longer represents the law. The law in relation to entry clearance in a situation such as this has now been explained by the House of Lords in Chikwamba v SSHD [2008] UKHL 40. Since the point was not contained in the Secretary of State’s grounds of appeal it is unnecessary to develop this aspect of the case other than to say that it is strongly arguable that Chikwamba is in Mr Omar’s favour. Mr Omar will not be able to apply for entry clearance until the deportation order is revoked in accordance with paragraphs 390 and 391 of HC 395. Even if the conviction is capable of being spent under the Rehabilitation of Offenders Act 1974, ten years must elapse since the making of the deportation order. That SIJ Storey thought that the entry clearance point was powerfully in the Secretary of State’s favour undermines the rationale for the presumption identified in BR (Iran).[14]The second ground on which SIJ Storey gave permission is also not a ground pursued by the Secretary of State. That second ground raised the question whether IJ Coleman was:- “…legally entitled to find that it was not reasonable to expect the wife and family to accompany the appellant to Cameroon, albeit accepting in the same breath that there was ‘no evidence…to show that there are insuperable obstacles to this.’ The ‘insurmountable obstacles’ test is one which is routinely applied by the Strasbourg Court in Art. 8 expulsion cases and was endorsed in Mahmood .” That needs qualification. The correct test is that identified by Lord Bingham in EB (Kosovo) [2008] UKHL 41 at § 12 and by this court in VW (Uganda) v SSHD [2009] EWCA Civ 5 at § 19.[15]In those circumstances the presumption that time will be extended because a senior immigration judge has identified arguable areas of law with a real prospect of success is gravely undermined. Two of the grounds leading to that conclusion call for modification. The third ground of appeal was part of the more extensive challenges by the Secretary of State to the decision of IJ Coleman. Since it was pursued, I shall turn to consideration of the previous decisions, favourable to Mr Omar, which the Secretary of State seeks to overturn.[16]In order to appreciate the challenges to the decision of IJ Coleman in their proper context it is necessary to return to the first favourable decision of the AIT chaired by IJ Elliman dated 13 December 2006. It is necessary to do so, in part, because it was argued on behalf of Mr Omar that there was no error of law; IJ Davey, accordingly, should not have ordered reconsideration. I note that it was accepted by the Secretary of State that this was the first opportunity which Mr Omar had to challenge the identification of an error of law. Once reconsideration had been ordered the second decision was final only after, at stage 2, IJ Coleman’s fresh decision to allow the appeal had been reached (see in particular R (Wani) v SSHD [2005] EWHC 2815 (Admin) (§ 14)). Since the point was not in issue it is unnecessary to consider it further.[17]The Secretary of State’s challenge to the first determination of 13 December 2006 focussed on two features of that decision. Firstly, the AIT concluded that whilst the offence of kidnapping was serious, Mr Omar had neither initiated nor had been directly involved in the capture of the victim. This view appears to have been based upon a misapprehension as to the reasons for what the Tribunal described as a significantly shorter sentence than that which the co-defendant was ordered to serve. As Mr Payne contended, that might have been attributable to Mr Omar’s plea of guilt, even though it was only on the third of the four days of the trial. But the Tribunal is hardly to be blamed for its account of Mr Omar’s participation in the absence of any reasons given by the Secretary of State for her decision and without the benefit of the sentencing remarks of the trial judge. Indeed, for reasons that never became apparent, this court was never shown the judge’s sentencing remarks, even though they appear to have been available at the time of the reconsideration before IJ Coleman.[18]Of greater force was the challenge to the finding that, apart from the one offence, the appellant was of good character. That was true in the technical sense familiar in a criminal jurisdiction but hardly reflected Mr Omar’s character in an immigration context. Although the Tribunal referred to the fact that Mr Omar had used a false identify card to enter the United Kingdom, notwithstanding that he possessed a proper Cameroon passport, it, apparently, did not think that it undermined his good character in relation to the relevant factors contained within paragraph 364. The Tribunal was required to consider his character and personal history for the purpose of undertaking the balancing exercise required in that paragraph. Paragraph 364 of HC 395 (Statement of Changes in Immigration Rules) at the relevant time provided that:- “In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation which is consistent and fair as between one person and another… Before a decision to deport is reached the Secretary of State will take into account all relevant factors known to him including:(i) age;(ii) length of residence in the United Kingdom;(iii) strength of connections with the United Kingdom;(iv) personal history, including character, conduct and employment record;(v) domestic circumstances;(vi) previous criminal record and the nature of any offence of which the person has been convicted;(vii) compassionate circumstances;(viii) any representations received on the person’s behalf.”[19]The Tribunal came to the conclusion that in the light of his previous good character and the part he played in the offence of kidnapping that:
“…any risk of re-offending is minimal if not non-existent.”
[20]The Secretary of State and IJ Davey took the view that such a conclusion paid insufficient regard to the Secretary of State’s own view as to where the public interest lay and seemed to regard the risk of re-offending as a determinative feature. On the contrary, as this court explained in N (Kenya) v SSHD [2004] EWCA Civ 1094 (see §§ 54 and 64), it was incumbent upon the Tribunal to take account of the Secretary of State’s own view. Secondly, the risk of re-offending is only a factor in the balance but is not overriding. Where serious offences have been committed the decision of the Secretary of State should act as a deterrent in relation to foreign nationals who commit offences in this country (see §§ 59, 64 and 65 in the judgment of May LJ).[21]In my judgement, IJ Davey was correct to identify errors of law and order reconsideration.[22]IJ Coleman set out the errors of law found by IJ Davey in full. She noted the Secretary of State’s submissions that Mr Omar had committed a serious crime and “blatantly disregarded immigration law for over a year”. But the main focus of the determination, and the ground of appeal on which the Secretary of State relied, concerned medical evidence. IJ Coleman recorded that whilst awaiting his trial Mr Omar had fallen seriously ill in prison. She records that he was found to have hydrocephalus and that an external ventricular drain was inserted. His condition deteriorated and a left ventricle peritonal shunt was inserted in June 2005. She notes that the shunt remains inserted and that a presumptive diagnosis of lymphocytic meningitis caused by tuberculosis was made in June 2005. He was put on an anti-tuberculosis drug for one year. A report from a neurosurgeon indicated that there was a blockage in July of 2005. She then notes:- “Other than the fact that the appellant appears to have to return to the clinic to see Dr Sturman on a yearly basis there is no evidence of continuing treatment specifically for the shunt.”[23]IJ Coleman identifies the medicine which the appellant produced and describes Mr Omar’s own evidence of his medical condition and of the purposes for which he said he was taking four different types of drug. There was no other up-to-date medical evidence. This was in part due to the fact that IJ Coleman refused an adjournment for the purposes of obtaining up-to-date medical evidence. In considering the compassionate circumstances to be set against his criminal offending IJ Coleman said:- “29. In looking at the factors to be taken into account under paragraph 364, there are really only two issues that bear weight. The first is his connections and family life in the United Kingdom. … 30. The second factor of importance which deals with the compassionate circumstances is the appellant’s ill health.”[24]IJ Coleman acknowledged that she was at a disadvantage because of the lack of up-to-date medical evidence. She rejected Mr Omar’s claim that the medicines he was taking were for meningitis and tuberculosis. She found that the disadvantage she suffered was “not helped” by the appellant’s tendency to exaggerate his illness. But despite that disadvantage she concluded that one of the drugs, Tregretol, related to what she described as neurological problems. She then referred to the report from Dr Sturman dated January 2005 which referred to partial nerve palsy. She also noted a more recent report dated 9 August 2006 which referred to problems with a blocked shunt in future. She then continued:- “31. What can be gleaned from his evidence is that the appellant still has a surgical apparatus installed and that that apparatus needs regular checking and could be subject to complications and blockage. If there is a blockage it appears from previous reports that further invasive treatment could be necessary. It also indicated that he is left with some permanent nerve damage which needs treatment. Further, it is clear that he needs regular follow-ups.”[25]She then referred to the availability of medical treatment in Cameroon on the basis of a COIS report dated October 2006 and concluded that medical care was substandard, that it was unlikely that Mr Omar “could obtain sophisticated treatment for neurological problems and regular follow-ups needed by the presence of the shunt”. She concluded:- “Had the appellant’s case been based merely on his length of time in the United Kingdom, his connection with his family and his blood pressure problems, I would have had no difficulty in saying that the public interest and revulsion against the serious crime he committed were weightier than those factors and would make deportation proper in these circumstances. However the appellant also suffers from the very serious ill effects of a very serious illness caught in the United Kingdom whilst he was in prison for which it seems he is unlikely to receive sufficiently sophisticated treatment in Cameroon so as not to put his life at risk. When the risk to his own life, health and physical well-being are added to this balancing exercise it tips the balance in his favour, particularly when I also take into account the low risk of his re-offending…”[26]In relation to Art. 8 she said:- “It has been accepted that the appellant has proved that he has family life in the United Kingdom. I have found that there are no insuperable obstacles to his immediate family returning with him to the Cameroon but in practice it would be unreasonable to expect the wife to do so, and the family would break down if he were returned. I have further found that the appellant’s long-term effects of his previous illness are such that his moral and physical integrity would be compromised if he were returned to the Cameroon.”[27]Mr Payne, on behalf of the Secretary of State, criticises IJ Coleman for reaching a conclusion as to Mr Omar’s medical condition without any independent evidence to support it. The evidence was out of date and it was Mr Omar’s own fault that there was no such up-to-date evidence. He had launched his appeal before IJ Coleman without such evidence despite the fact that IJ Davey had specifically stated that medical evidence would have to be brought up-to-date in relation to his health. Moreover, there had been a pre-hearing review on 28 June 2007 at which no reference to the need to obtain medical reports had been made. It was no doubt for that reason that IJ Coleman had refused an adjournment.[28]Mr Mackenzie, on behalf of Mr Omar, made no attempt to resist the criticisms of IJ Coleman’s conclusions as to the medical evidence. He was right to adopt that approach since the conclusions depended upon the evidence of Mr Omar himself who was found to be unreliable and the immigration judge’s own conclusions as to the need for one of the drugs, unsupported by any expert evidence at all. But Mr Mackenzie contended that the findings as to the medical condition and needs of Mr Omar were only one aspect of the conclusion that Mr Omar ought not to be deported. His present family life which would be broken by his deportation to Cameroon was an equally important factor.[29]I shall not resolve the issue whether the challenges in law to IJ Coleman’s conclusion are justified. I confine myself to the observation that there are strong grounds for arguing that IJ Coleman erred in law. But that observation merely serves to emphasise the impact of the delay on a conclusion that the public interest requires this man’s deportation.[30]As I have endeavoured to explain, the Secretary of State’s essential motive in persisting to deport this man was to protect the public from the damage his continued presence in the United Kingdom would inflict upon the public interest. If it is wrong to conclude that his compassionate circumstances outweigh the impact of his serious crime then effective control and effective protection of the public interest require efficient and speedy action. On the contrary, so little concerned were those who had the conduct of the appeal that they did not notice that a favourable decision from SIJ Storey had been received; they do not appear to have made any enquiry as to how their appeal against IJ Coleman’s decision had fared. Whilst such an error is, no doubt, in part attributable to pressure of work on the system, that does not explain why the official who decided to appeal the decision of IJ Coleman made no enquiry as to the progress of the application for permission to appeal. I assume, since appeals by the Secretary of State are not an automatic response to failure, that the official thought an application to appeal was necessary to safeguard the public interest. The delay, attributable to ignorance that the application to appeal had been successful, contradicts the concern of the Secretary of State. It seems to me to undermine the very reason why it was decided, on two occasions, to challenge the conclusions of the AIT.[31]Moreover, as I have already indicated, the delay has an impact on an individual appellant and his family who contend that they will be driven apart and that his health will suffer should he be deported. They have succeeded twice and yet have faced further delay and uncertainty by reason of the error on the part of those responsible for maintaining an effective system of immigration control.[32]I return to the question whether an extension should be granted. In my view, it should not. Whilst I am prepared to accept that the same principles identified in BR should apply in a case where the Secretary of State has been guilty of delay, the application of those principles leads me to the conclusion that no extension should be granted. The presumption to which the Court of Appeal referred in BR has little force in a case where only one out of the three grounds upon which permission was given is pursued. Further, the fact of the delay has a direct bearing upon the merits of the appeal the Secretary of State seeks to pursue. Her avowed attempt to protect the public interest is seriously undermined by a delay of nearly one year in pursuing the appeal which she considers necessary to safeguard that interest. In those circumstances I would refuse an extension of time in which to serve the notice of appeal and dismiss the application. Counsel accept there is no warrant for the anonymity in which these proceedings have hitherto been cloaked.

Cited in 1 later judgment