Utshudiema, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 464 (Admin)

Case No CO/2673/2002[2003] EWHC 464 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 26 February 2003
Strand
London WC2
B E F O R E:
MR JUSTICE MCCOMBE
Between
THE QUEEN ON THE APPLICATION OF JEAN SHANGU UTSHUDIEMAClaimant-v-
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR I J KUMI (instructed by M ABEY & CO, London NW2 3JG) appeared for CLAIMANTMISS L GIOVANNETTI (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©
[1]MR JUSTICE MCCOMBE: I have before me an application for judicial review brought by a Mr Jean Shungu Utshudiema against a decision of the Secretary of State for the Home Department not to follow a recommendation made by an adjudicator who considered a statutory appeal brought by the claimant alleging potential persecution within the meaning of the Refugee Convention.[2]The factual background is as follows. The claimant is a national of the Democratic Republic of Congo, formally Zaire, who apparently arrived in the United Kingdom on 3 July 2000, claiming asylum very shortly thereafter. On 1 November 2000 the Secretary of State refused the claim to asylum and the claimant exercised his right of appeal to an adjudicator. On 24 November 2000 or thereabouts the claimant's brother was apparently granted exceptional leave to remain in the United Kingdom for a period of four years.[3]The claimant's appeal to the adjudicator was heard on 28 March 2001 and, by a determination promulgated on 30 March 2001, the adjudicator dismissed the appeal but made a recommendation that the Secretary of State should consider granting to the claimant exceptional leave to remain on similar terms and conditions to his brother. The summary of the adjudicator's reasons for deciding and stating as she did are set out in paragraphs 15-19 of the determination, which read as follows:
"15. The lack of credibility regarding the central issues in this claim have caused me to doubt the truthfulness of the appellant. In any event, the substantial lack of credibility in the claim for asylum leads to me conclude that large parts of the claim is entirely fabricated. 16. The appellant has not met the standard of proof required that establishes he has a well founded fear of persecution due to an imputed political opinion associated with the MPR. The appellant's testimony on this matter is not credible. 17. The appeal is dismissed. 18. However, given the fact that the Secretary of State does not dispute the mixed ethnicity of the appellant and the decision of the Home Office afforded to Dannhy Utshudiema Omba, the appellant's brother, consideration for exceptional leave to remain must also be available to the appellant. 19. I strongly recommend that the same terms and conditions to remain in the UK be given to the appellant as to his brother."
[4]The claimant took up that suggestion of the adjudicator and asked the Secretary of State to consider whether to apply his discretion to grant exceptional leave to remain. The Secretary of State communicated his decision to the claimant not to act upon the recommendation by letter dated 6 March 2002 and he declined to grant exceptional leave to remain.[5]The position was and is that the Secretary of State has a policy dealing with such recommendations. The policy is in fact reasonably well known and is in the following terms:
"The Secretary of State is not bound to accept a recommendation made when an appeal is dismissed or withdrawn. Such recommendations should be acted upon only where the determination and/or the recommendation discloses clear exceptional compassionate circumstances which have not previously been considered and would warrant the exercise of the Secretary of State's discretion outside the Immigration Rules."
The Secretary of State decided that the mere grant of exceptional leave to remain to a sibling, absent any evidence of dependency or other extraneous circumstances, was not a reason to think that there were exceptional compassionate circumstances for applying that policy. It is submitted there can be no criticism as a matter of law of that decision.[6]The claimant brought these proceedings for judicial review on 6 July 2002, some three to four months after the decision had been communicated, and leave was granted by Sir Richard Tucker on 24 July 2002, who questioned the decision of the Secretary of State in the light of the brother's position. Following that grant of leave, the Secretary of State has again reconsidered the matter and has restated his view that there are no clear exceptional compassionate circumstances applying in this case, but has indicated (and has repeated through Miss Giovannetti of counsel this morning) that he is willing to entertain any application that the claimant may wish to make to be granted some special status in the light of any potential breaches of the Human Rights Act. Miss Giovannetti submits that that would engage substantially the same criteria as would apply on an asylum appeal, on the facts of this case, and accordingly there is no prejudice to the claimant in any event.[7]It seems to me that the Secretary of State's submissions in this case are entirely correct. The recommendation of the adjudicator was precisely that. It is a recommendation and it is in no way binding. The Secretary of State has a clear and rational policy for dealing with recommendations of this type. There was no material before him to indicate the existence of any exceptional or compassionate circumstances. The mere grant of exceptional leave to remain to some other person, be it a sibling, another relation or indeed a stranger, cannot of itself constitute a reason for exercising the policy that Secretary of State has in these circumstances. If there were dependency or something of that nature then the situation might have been different, but it is impossible to criticise the Secretary of State's decision, based as it was on the absence of any demonstrated compassionate circumstances on the facts of this case.[8]Secondly, the Secretary of State has indicated clearly that he is willing to entertain any further submissions that the claimant may wish to make to him with regard to the matters complained of in respect of any potential breaches of his human rights. That would generate a right of appeal if an unsatisfactory decision was made as far as the claimant was concerned, and the avenue of appeal to an adjudicator would exist. As it seems to me, the adjudicator would not be bound by the factual decision of the earlier adjudicator, although, of course, it would have some weight on questions of cross-examination and the like whether the points taken by the adjudicator on the last occasion were or were not correct. However, the avenue is open. It has not been so far taken, but to my mind that is another reason why this claim for judicial review must fail.[9]In my view, the grounds in no way satisfy me that the Secretary of State has erred in law and this application for judicial review must be dismissed.[10]Are there any consequential matters arising from that?[11]MISS GIOVANNETTI: My Lord, could I just draw your Lordship's attention in respect of the last section of your Lordship's judgment, in terms of adjudicators being bound by previous findings of fact. I think what your Lordship said does accurately reflect the IAT position at the moment. But there is a decision absolutely on point on Devaseelan at the start of the determination, saying what approach in a human rights appeal the adjudicator should use towards the first appeal. I think it uses phraseology something like "very slow to depart from findings of fact, such as credibility--- "

MR JUSTICE MCCOMBE: But are not technically bound.

[13]MISS GIOVANETTI: No. But I would be perfectly happy to send your Lordship a copy to compare with the transcript when it comes through, simply so that it accurately reflects the IAT's stance.[14]MR JUSTICE MCCOMBE: I think probably I had better not alter the transcript, because the case was not referred to me, and in so far as I have not properly taken it into account today.[15]MISS GIOVANNETTI: I do not think is any great difference between the two. I was just trying to help your Lordship.[16]MR JUSTICE MCCOMBE: I did not want to give any impression that there would not be some weight in the previous findings, but I think the position is that there is not a factual estoppel on the second asylum appeal. That is the way I see it.[17]MISS GIOVANETTI: That is my recollection, yes.

MR JUSTICE MCCOMBE: I am grateful.

[19]MISS GIOVANNETTI: I think the claimant is legally aided, in which case my Lord has an application for our costs.

MR JUSTICE MCCOMBE: To be assessed?

[21]MISS GIOVANETTI: Yes, please.

MR JUSTICE MCCOMBE: Mr Kumi, what do you say about costs?

[23]MR KUMI: My Lord, it follows as day follows night, but I would submit that it should not be enforced without the leave of the court. This person is not in any gainful employment.

MR JUSTICE MCCOMBE: That does not affect the discretion of granting costs, does it?

[25]MR KUMI: No, my Lord.[26]MR JUSTICE MCCOMBE: I will make an order for the claimant to pay the Secretary of State's costs, to be assessed in due course.