Ali, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 899 (Admin)

Case No CO/1641/2002[2003] EWHC 899 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 2 April 2003
Strand
London WC2
B E F O R E:
MR JUSTICE GOLDRING
Between
THE QUEEN ON THE APPLICATION OF TASAWAR ALIClaimant-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 ARTHUR BLAKE (instructed by The Malik Partnership, Bradford, BD1 3RQ) appeared for CLAIMANTMR JONATHAN MOFFETT (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 GOLDRING: The claimant seeks to challenge the decision of the Secretary of State of 14 October 2002 refusing him leave to remain in the United Kingdom as a work permit holder. As will become clear, the case has a somewhat chequered history. The approach of the defendant has not been consistent. The factual background[2]It is a little unusual.[3]The claimant entered the United Kingdom on 28 June 1996. He was admitted as a spouse of a British citizen. As was stamped on his passport, leave was for 12 months only. In April 1997 the claimant and his wife left the United Kingdom for a pilgrimage to Saudi Arabia for four weeks. The claimant's leave to remain expired on 28 June 1997. He remained in the United Kingdom. He did not seek to regularise the position. In February 1998 he and his wife together bought a house in Bradford. They lived there until they separated. That was in December 2000, according to the claimant.[4]Throughout the time the claimant was in the United Kingdom, he was in work. He was very successful. His employer was Mumtaz Food Industries. It is a restaurant company and sells food to supermarkets. The claimant started working as a kitchen assistant. He is now the head chef. He specialises in new recipes for products for supermarkets. He is plainly highly skilled.[5]On their separation, the claimant's wife informed the Home Office that the claimant was an overstayer. He was arrested on either 13 or 14 December 2000. He was detained for some time. He was ultimately released.[6]On the face of it, the claimant, when with his wife, would have had little difficulty in regularising his immigration status. He was married to a United Kingdom citizen, settled and in excellent employment. There are two conflicting accounts as to why he did not.[7]In his statement of 30 December 2002, which was considered by the Secretary of State, he says this:
"I lived with my wife and we bought our own home in 1998 where we both resided until I got arrested and detained by the immigration authorities in December 2000. Up until this period we had a relatively good marriage. There were arguments like in any other normal marriage but we generally got on with each other. As I am unable to read or write English my wife advised me in or around 1998 that my immigration status had been regularised. I took this for granted and did not question her nor did I ask to see my passport as all of my personal documents were always kept by my wife. "
During the end of November 2000 my wife and me had a big argument as I had evidence that she was seeing other men. We had a major row and she stopped speaking to me. It was only after I got arrested on 13 December 2000 was I informed by the immigration authorities that I was an overstayer and my status had not been regularised."[8]The claimant's wife also made a statement. It is undated. There is some indication it was taken in December 2000. The circumstances in which it was taken are not clear. Her account is to this effect:
"We have lived together as man and wife from June 1996 until March this year (2000) although we have always had arguments and ups and downs."
She goes into the detail of one particular argument. I need not for present purposes. She says this:
"I am aware that my husband's permission to stay in this country ended/expired on 28 June 1997 but since we were always having arguments I told him that I was not prepared to support any application he might make to stay permanently in the UK as my husband. That is still my view and I do not wish to sponsor any application."
She does not state when this conversation was said to have taken place.[9]In a subsequent statement, not considered by the Secretary of State, the claimant slightly changed his account. It does not seem to be necessary for present purposes to go into that.[10]In short there are two accounts: he says he was told and believed the position had been regularised; she says he knew it had not. Events after the claimant's arrest[11]The claimant applied for permission to stay on the basis of his marriage. He also sought leave to remain for the purposes of work permit employment. On 14 April 2001 his solicitors wrote to the Department of Education and Employment. Among other things, they said:
"[The claimant] is an Indian National and initially entered the UK on 28 June 1996 as a spouse of a UK citizen and was granted leave to enter until the 28 June 1997. Unfortunately [he] was misled into believing ... that his immigration status had been regularised. The marriage has now broken down recently and [he] has now no immigration status in the UK."
They enclosed a letter from the general manager of his employers and stated:
"We have requested that the recruitment search be waived in this instance, as finding a replacement for [the claimant] would be extremely difficult, having been employed for five years and having developed some of the key recipes."
[12]The Department of Education and Employment responded positively. It said this on 28 April 2001:
" ... we do not issue work permits when [persons such as the claimant] are already in the UK. Instead we make a recommendation to the Immigration and Nationality Directorate at the Home Office. We have considered the application and have notified the Home Office that we are prepared to approve this employment for 60 months. The Home Office will now decide whether they will give permission for [the claimant] to remain in the UK to take this employment and will write to you with their decision."
[13]In letters of 4 November 2001 and 14 January 2002 the defendant refused the claimant's application to stay. On 14 October 2002 the defendant accepted that the previous approaches reflected in those refusal letters had been flawed. A fresh basis of refusal was set out. It is only that refusal letter which is impugned in the present proceedings. It is not therefore necessary to go into the detail of the earlier refusals. In that letter, the Secretary of State said this:
"The Secretary of State does not accept that [the claimant] was unaware that he had overstayed his permitted leave to enter the United Kingdom as his permitted leave was clearly notified to him in his passport on arrival."
It then sets out a little more background:
"As an overstayer [the claimant] does not qualify for leave to remain under the immigration rules since he did not enter the United Kingdom in possession of a work permit as required by the immigration rules. His case has now been considered under the Home Office policy relevant at the time of these decisions to refuse your client leave to remain on the basis of work permit employment. That policy stated that switching to work permit employment would be granted provided that: 1. Work Permits UK have approved the employment application [in this case they have]; 2. There is no adverse immigration history (for example overstaying but any adverse factors should be considered on their merits)[the issue in this case]; 3. The applicant is not a student sponsored by his/her government or an international organisation [the claimant is not]; 4. There are no overriding security implications [there are not]. The letter goes on to say: "
In the particular circumstances of [the claimant's] case it has been decided that as an overstayer who had been served with administrative removal notices under Section 10 of the Immigration and Asylum Act 1999, that his subsequent successful application for a work permit should not avail him. In reaching this decision the Secretary of State has taken full account of the representations made out on [the claimant's] behalf, including those by his employer. Whilst his employment record is to his credit, his work as for Mumtaz Food Industries is not considered to be a sufficiently compelling compassionate factor to justify allowing him to remain in the United Kingdom." Accordingly, the application he made was refused.[14]The letter is not as clear or as detailed as it might have been. The finding, effectively, was that the claimant had an adverse immigration history and that a consideration of the merit of the adverse factors did not avail the claimant. The only reference to knowledge of overstaying is in the context of the stamps on the passport.[15]The basis of the decision was amplified in detailed grounds of resistance to this application for judicial review. At paragraph 9 it states ( subparagraph (1)) that the claimant had an adverse immigration history. In subparagraph (2) the particular factors which were taken into account are set out. Mr Moffett, on behalf of the defendant, has now indicated that not great reliance is placed upon a number of these features:
"(a) The claimant had on two occasions stated on his application form for leave to enter the United Kingdom that he had been educated to 6th Standard in India."
As I understand it, that is not a matter now pursued. "(b) The conditions of entry had been notified to him in writing in his passport both on his initial entry to the United Kingdom on 28 June 1996, and when he returned to the United Kingdom after a month's absence on 26 July 1997. (c) The Claimant was (even on his own account) aware of the requirement to regularise his stay in the United Kingdom after 12 months. Having previously made two applications in writing for leave to enter (albeit that they were completed on his behalf and he was required only to sign each of them), he was likely to have been aware that he was required to make a further application in writing which would require his signature. (d) No such application had been made. (e) In her statement to the Immigration Service, the Claimant's wife had stated: 'I am aware that my husband's permission to stay in this country ended/expired on 28 June 1997, but since we were always having arguments I told him I was not prepared to support any application he might make to say permanently in the UK as my husband.'" Implicit in 2(b) to 2(d) of those grounds is a rejection by the Secretary of State of the claimant's contention that he was illiterate and misled by his wife. Implicit in (e) is an acceptance by the Secretary of State of the account of the wife, and a rejection of the claimant's account. Was the Secretary of State entitled to reject the claimant's account and was he entitled to accept, in preference to it, the claimant's wife's account? Mr Blake's submissions[16]Mr Blake, on behalf of the claimant, submits the decision was flawed for several reasons.[17](1) He submits the Secretary of State was not entitled to conclude the claimant had an adverse history. Adverse connotes moral turpitude; here there was none. The claimant was illiterate and misled. In those circumstances, it cannot properly be said that his history was adverse.[18]Without deciding the point, I am sceptical as to whether Mr Blake is right. It seems to me it is sufficient to amount to an adverse immigration history if the application on its face is that of an overstayer, as this plainly was. However, whether that is right or not does not matter on the facts of this case, for any adverse factors have to be considered on their merits. Here, that means the reason for overstaying has to be considered. If that reason involves no moral turpitude, then any proper consideration of merit would result in the Secretary of State ignoring such an adverse immigration history.[19](2) The real issue in this case is whether the Secretary of State was entitled to reject the claimant's account and accept the wife's. Mr Blake submits he was not on the basis of the limited information then before him for several reasons. Moreover, before doing so, submits Mr Blake, very careful analysis of a number of different features was required. There was also nothing, he submits, in the refusal letter which suggested such a careful analysis was carried out.[20]Mr Blake submits that the wife's account, on its face, is not satisfactory. First, the statement is undated. Second, the circumstances in which it was taken are quite unclear. Third, it is not clear when she is supposed to have told the claimant that she would not support any application he might make. Fourth, the wife is not an independent witness in these circumstances. She plainly has animosity against the claimant and wants him removed.[21]Mr Blake also submits that, on its face, the account is improbable. The claimant and his wife lived together for some four and a half years. In 1998, having been on pilgrimage, they bought a house together. It seems improbable the claimant would contemplate doing such a thing, if his wife was telling him she would not support any application he might make: that he was effectively in the United Kingdom and in the house at her sufferance.[22]On the other hand, he submits, set against that account is the claimant's. He is a man of excellent character who has worked well and persistently, and who set out the position, on the face of it, frankly when applying for the work permit, which was granted.[23]Mr Blake submits that there is nothing to suggest that the competing factors were considered or considered in sufficient detail. The letter simply states that:
"The Secretary of State does not accept that [the claimant] was unaware he had overstayed his permitted leave to enter ... as his permitted leave was clearly notified to him in his passport on arrival."
Mr Moffett's submissions[24]Mr Moffett, on behalf of the Secretary of State, puts his submission on the merits shortly. There were two conflicting accounts which, he submits, were considered. It was a matter for the Secretary of State to decide which account to accept. He accepted that the claimant's wife's account was deficient, in that it failed to say when she first said that she would not be prepared to support the application. He suggested that "it looks like" she was saying that in 1997. As I have indicated, Mr Moffett, although referring to the matters set out in his skeleton, indicated, so far as other aspects were concerned, that he did not place great reliance upon them. My conclusion[25]In my view, the Secretary of State's letter of 14 October 2002 fails to engage, on its face, with the unusual features of this case. There is nothing thereafter to suggest that they have been sufficiently and properly considered. The wife's account appears to have been accepted at face value. The criticisms made by Mr Blake, in my view, do have some force.[26]For some four and a half years the claimant and his wife lived together in the United Kingdom. There is nothing to contradict what he says: he understood or spoke no English, whereas she plainly did. The statement of the wife, on its face, is not satisfactory. Its date is unknown. The circumstances in which it was taken are not clear. It does not reliably indicate when she told the claimant she would not support his application. The suggestion that that was probably in 1997 is mere speculation. That seems to me improbable, given that in 1998 the claimant and his wife together bought a house.[27]Had the claimant applied when living with his wife and working in the admirable way he was, he would, I anticipate, have had little difficulty in staying.[28]When he applied for the work permit he, on the face of it, explained the position frankly.[29]It seems to me in the face of the evidence which was then before him, the Secretary of State was not entitled without more to reject the claimant's account and accept his wife's. A careful balancing exercise was required. As I have indicated, the absence of any proper justification for the decision in the decision letter suggests that the various features were not engaged in the way they should have been.[30]In short, I have concluded that, on the evidence before him, the Secretary of State was not entitled to reach the decision he did in this rather unusual case.[31]Of course, dependent upon reconsideration on sufficient and proper evidence, the Secretary of State may reach exactly the same decision. Whether, given the claimant's outstanding work record and contribution to the wellbeing of the community at large, he thinks that worthwhile is a matter, of course, entirely for him.[32]In the circumstances, this application for judicial review is granted.[33]MR BLAKE: I am most grateful to your Lordship. My Lord, the claimant is in receipt of legal assistance. I think that on the last occasion --

MR JUSTICE GOLDRING: I find that a little surprising, Mr Blake.

[35]MR BLAKE: My Lord, yes. The position was that initially his application came before the court and was rejected on the papers. He therefore financed a renewed application from his own pocket, which came before Jackson J. That was then granted and legal funding was then granted to him to pursue this application.[36]My Lord, on the hearing before Sullivan J, in the light of the conduct of the defendants and the way in which they changed their tack, if we can put it that way, he awarded that there should be costs to the plaintiff up until the date of the application before him, and, thereafter, costs in the cause. I presume that a detailed assessment would be --

MR JUSTICE GOLDRING: Well, he is clearly entitled to his costs.

[38]MR BLAKE: I am very grateful. My Lord, the only other thing is that I hope, although your Lordship has made those remarks, there may be some indication coming from the Crown in respect of what will happen next to --[39]MR MOFFETT: My Lord, it is simply the precise order that your Lordship is going to make. Given your Lordship's remarks, if I could suggest that the order should be that the decision of 14 October be quashed, and that the matter simply be remitted to the Secretary of State to be reconsidered.

MR JUSTICE GOLDRING: Exactly.

[41]MR MOFFETT: I am grateful, my Lord.[42]MR JUSTICE GOLDRING: Thank you very much for your help, Mr Moffett. Thank you Mr Blake.

Cited in 2 later judgments