Doka, R (on the application of) v Secretary of State for the Home Department [2004] EWHC 3072 (Admin)

Case No CO/6180/2003[2004] EWHC 3072 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 16 December 2004
Strand
London WC2
B E F O R E:
MR JUSTICE LINDSAY
Between
THE QUEEN ON THE APPLICATION OF KHADIJA DOKAClaimant-v-
Between
IMMIGRATION APPEAL TRIBUNALDefendantSECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Party
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 M SOORJOO (instructed by Elder Rahimi Solicitors) appeared for CLAIMANTMR J AUBURN (instructed by the Treasury Solicitor) appeared for INTERESTED PARTY for The DEFENDANT was not represented and did not appear
J U D G M E N T
[1]MR JUSTICE LINDSAY: I have before me an application for judicial review of an IAT decision of 4th September 2003 whereby the IAT decided not to give permission to appeal against the Adjudicator's dismissal, in particular, of some human rights claims that were advanced by the claimant Khadija Doka. Today Mrs Doka appears before me by Mr Soorjoo and the respondent, the Immigration Appeal Tribunal, by Mr Auburn.[2]It is necessary to give something of the background to the case. Mrs Doka was born in the Sudan on 1st January 1945, so she is just a few days short of her 65th birthday. She has two children in the United Kingdom, a son and a daughter. She lives with the daughter and the daughter has five children, Mrs Doka's grandchildren, and they all live together. I think I am right in saying that the daughter is either divorced or separated from her husband, so that there is a unit there, rather overladen with females, but there it is: one daughter, one grandmother, five grandchildren.[3]Mrs Doka also has two stepchildren in the United Kingdom, she has one son in Canada and she has another four children whose whereabouts are unknown but, of those four, two are daughters whom she last saw when she left the Sudan. She left the Sudan in 1998. There is no immediate contact with the son in Canada. There is contact with the stepchildren in the United Kingdom and there is contact, quite frequent, with the son in the United Kingdom. That gives some picture of the present family state of Mrs Doka.[4]She arrived in the United Kingdom on 9th June 2002. At that point she had lived apart from the son who is in the United Kingdom for some 9 years and apart from the daughter who is in the United Kingdom for some 15 years, and there had not been any recent regular contact, but since she has arrived here, as I say, she has lived with the daughter and had frequent contact with the son and contact, perhaps less frequent, with the stepchildren.[5]The children in the United Kingdom, and I think also the stepchildren in the United Kingdom, have come here as refugees and have successfully sought asylum. In doing so, no doubt, part of their case was that they could not safely be returned to the Sudan. That was, I apprehend, because the father or stepfather had been involved in politics in the Sudan in such a way that the family, so to speak, was branded, and it may be that some few or more of the children had also been engaged in politics in the Sudan. At all events the position is, I think I must take it, that if the United Kingdom son or the United Kingdom daughter was returned to Sudan there would be some real risk of danger to them, and that no doubt played a part in the decision that they could stay in this country.[6]I mentioned that Mrs Doka arrived in the United Kingdom on 9th June 2002. She arrived on a visitor's visa for three months. She did not come from the Sudan. She came from Kenya where she had been living for a while, with her husband at first and then after his death. There was quite a gap between her arrival in this country as a visitor and her applying for asylum. She did not apply for that until 18th November 2002, claiming fear of persecution were she to be returned to the Sudan.[7]On 17th January the Home Office refused her asylum and refused also her human rights claims which were framed under Article 3 and Article 8. On 9th May 2003 the Adjudicator, after a hearing, dismissed Mrs Doka's appeals. She then sought leave to appeal to the IAT and then, on 4th September 2003, came the decision which is sought judicially to be reviewed: the IAT refused leave to appeal to the IAT.[8]The reasons for the IAT's decision are quite shortly put. I think I need look at only one paragraph, namely paragraph 3, and it says this:
"Ground one of the Grounds of Appeal challenges the Adjudicator's approach to the assessment of risk on return and Ground two alleges potential breach of Article three of the European Convention. Ground three challenges the Adjudicator's conclusion that return would not breach Article 8. In my judgment the Grounds lack merit. The Adjudicator's conclusions as to the asylum claim and breach of Article 3 were clearly open to her on the evidence and are fully and properly reasoned. Her decision in relation to Article 8 is consistent with the evidence and authority. There is nothing in the Grounds to cause me to regard the determination as unsafe."
[9]On 10th March 2004, on the paper application, Hooper J refused leave. Mrs Doka then orally renewed the application and on 21st April 2004 Moses J gave leave, but only as to Articles 3 and 8. The asylum side of things does not concern me because they fell away at that stage. Moses J raised a question as to whether, if Mrs Doka was returned to the Sudan, she could be financially supported by her children in this country sending her money. It was a question which had not been addressed in the evidence in any detail at that stage.[10]On 1st September 2004 a witness statement or some form of evidence was put in by Michelle Forster on the defendant's behalf as to the ability to open a bank account in the Sudan and transfer funds to it from this country. On 2nd September 2004 the SSHD issued a fresh adverse decision letter, adhering to its decision of 17th January 2003. On 19th October there was an expert's report from Mr Oshan as to the banking issue; whether one could open a bank account in Sudan and how and so on. Then there has been recent evidence on 26th October, both by the claimant and by the claimant's daughter, Phoebe (the United Kingdom daughter with whom she lives). And for what it is worth, on 28th October 2004 the SSHD indicated a change of practice. It would seem that as a matter of practice before then it had not been the practice to return people aged 65 or over to their other countries, and on that date the practice was declared to change so that each individual case would be looked at individually on its own particular merits, without any preference or leaning or onus one way or another.[11]That, I hope, gives some picture of the case before me, and Mr Soorjoo argues both under Article 3 and Article 8. He points out that at this stage he does not have to say that, if leave were to be given after all to appeal, the appeal would be successful. He does not have to point to any certainty of success, but merely has to show that if there were to be leave to appeal one could not say there was no prospect whatsoever of success, and that there was indeed a real and not a fanciful prospect of success.[12]As to that, Article 3 I do regard as an area in which Mrs Doka's case is far from strong. To remind oneself about what Article 3 actually says, it is very short:
"No-one shall be subjected to torture or to inhuman or degrading treatment or punishment."
[13]There is no question here of torture. There is no question of punishment. The only question is whether, if Mrs Doka was to be returned to the Sudan, that would involve inflicting on her inhuman or degrading treatment.[14]I will not set out all the cases I have been taken to by Mr Auburn but none of them is a case where all that would be inflicted on the person returned would be extreme poverty and the possibility of the destitution that might accompany that. There are in the cases, at frequent intervals, indications that Article 3 does have a high threshold, especially where what is being complained of is not something inflicted by either the state in which the person finds him or herself or the state to which they would be removed.[15]In Bensaid there is reference to there being a high threshold. That is a decision of the European Court of Human Rights in 2001. In N, a case here in the Court of Appeal in 2003, it was said that in cases of the kind I am concerned with, where there is nothing complained of in the United Kingdom but only what would be the alleged consequence on return, the case had to be exceptional, indeed extreme. In Razgar the case was of an extreme kind, one might have thought, in the sense that the complainant said that, such was his mental state, he would kill himself if he was removed, and yet he was removed. There was also in Ullah a passage that suggested at paragraph 24 that a very strong case was needed where Article 3 was the Article relied upon.[16]No case that I have seen, as I mentioned, is merely one in which, whereas there would be provision of welfare here, there would be no provision of welfare in the receiving state. However, even with that in mind, there is, as it seems to me, something to be said for Mr Soorjoo's complaint that the Adjudicator did not address Article 3 on the correct basis of fact.[17]In paragraph 48 of the Adjudicator's decision it was referred to that she had two daughters probably still in the Sudan. That I do not regard, although it has been a subject of complaint, as being a justified complaint. The daughters were last seen in the Sudan when Mrs Doka left for Kenya. There is no evidence that they have left the Sudan. I think it is fair to say that probably they are still there. It is, though, Mrs Doka's case that she does not know where they are and it could well be that even if the daughters are still in the Sudan either they cannot be found, or even if they could be found, they would be quite unable to make any provision for Mrs Doka's welfare. There is no evidence that Mrs Doka would have any provision for her welfare were she to return. But even supposing there is no ability on her part to complain about the Adjudicator's finding that the daughters are probably still in the Sudan, the conclusion of the Adjudicator went on:
"I find that if the children are prepared to support her in this country [and that must be a reference to the children and possibly the stepchildren in this country] they will no doubt be prepared to do so in Sudan. She lived in Kenya for 4 years after her husband's death. There is no reason for me to find that she would be destitute if returned. I have not been told she suffers any particular health problems."
[18]The difficulty there is that, even assuming that the Adjudicator is right and the children -- by which I mean the children in the United Kingdom and even the stepchildren in the United Kingdom -- are prepared to send her funds, were she to be in the Sudan, there is no evidence that that could actually take place in practical mechanical terms. This brings up the question of the opening of a bank account. Michelle Forster has usefully gone into the subject on behalf of the Home Office and she says, after contacting HSBC Bank's International Direct Banking Section, this:
"'In response to your questions, I can confirm that we do not have a HSBC branch in Sudan, however if a HSBC International customer required that we send a telegraphic transfer of funds to a bank account in that country, there are no restrictions held at present, therefore as long as we received full bank details, namely, name and address of bank, beneficiary account name and account number, we would be able to remit the payment, however this would only be possible if the beneficiary held a bank account.'. "
Additional telephone enquiries have been made with HSBC, which confirmed that an illiterate person could open a bank account."[19]It does not purport to be a statement by HSBC that an illiterate person could open a bank account with a Sudanese bank, and indeed one would perhaps have doubts about whether HSBC would be in a position to know how one opened an account with a Sudanese bank. I can only take paragraph 4, that last passage, to be referring to the ability of an illiterate person to open a bank account with HSBC, but that is not a relevant issue. So it is far from clear from Miss Forster's evidence that Mrs Doka could open a bank account in the Sudan.[20]As to that, Mr Oshan gives expert evidence and he says at one paragraph, relative to opening a bank account in the Sudan:
"The bank must obtain the identity of the account holder from the official identity documents (ID card, Passport, etc) including the full name."
[21]He also says:
"A recommendation from a bank that the customer had previous dealings with or from persons who are very well known to the bank (two of them at least) and who are of good standing must accompany the request to open an account."
[22]At 6 he says:
"Any request for opening an account shall not be processed if the account holder uses a stamp or thumb-stamping."
[23]The evidence no doubt needs further investigation, but at the moment there is no indication that Mrs Doka has an ID card or passport that would be recognised by a Sudanese bank. She has, or had on coming into this country, a travel document provided by the Kenyan authorities and, stamped on it, a visa allowing her to come into the country; but I am told by Mr Soorjoo on instructions that she does not have a Sudanese passport and certainly there is no evidence that she does.[24]So her ability under that heading to be able to satisfy a Sudanese bank is in doubt. Whether she can produce recommendations from others, again one might reasonably doubt. She has been out of Sudan for a good many years and it looks as if she has never had a bank account there herself before. As to stamp or thumb-stamping, she is an illiterate. So I have real doubts as to whether she could open a bank account in the Sudan, or indeed someone could open it for her. There is no evidence of that either.[25]So one gets to a position in which although, as the Adjudicator said, her children in this country would no doubt be prepared to send her money, there is no evidence that anything could be done in a practical way in the Sudan to receive it. If the only way of transmitting it is by bank account to bank account, on balance I would have to hold that at the moment it is not shown that she could open a bank account.[26]It follows from that, it seems to me, that when the Adjudicator said "There is no reason for me to find that she would be destitute if returned", that was a conclusion that was based on facts which were not proved and, in effect, represent a improper jump of reasoning from the evidence that her children were prepared to support her, which was shown in evidence, to a wrong conclusion that mechanically the support could take place.[27]So although I have grave doubts about whether Mrs Doka can possibly come up to and clear the high threshold required in Article 3, I think there is some justice in Mr Soorjoo's argument that the conclusion arrived at by the Adjudicator was one that made an improper jump of reasoning on the facts, and to that extent was in error of law, and to that extent justifies leave to appeal.[28]Throughout the case I have felt that the Article 8 case was a deal stronger than the Article 3. It seems to me that it can strongly be argued that her centre of gravity -- if that is the right term -- in terms of family life, is very much now and even, as at 4th September 2003, was in this country. She is living with a daughter; she has a son not far away who visits; she has five grandchildren under the same roof; she has two stepchildren; and they are all here.[29]Respect for family life, the subject matter of Article 8, seems to me to be powerfully arguable in her favour because, as Mr Soorjoo says, to extract her from this family household and send her back to the Sudan is, so far as one can judge from the evidence, the end of any family life for her. She would not only be torn away from children, grandchildren and stepchildren in this country, there is no suggestion that she will know where to find her other children who are probably, in the way that I have earlier described, still in the Sudan.[30]The IAT's dealing with the point, as I mentioned in relation to Article 8, was dealt with in one sentence:
"Her decision in relation to Article 8 is consistent with the evidence and authority."
[31]But I do think that it is highly arguable that it is not. The Boughanemi case shows that mere time gaps in contact between child and parent are not themselves sufficient to indicate that the normal family tie has been broken. The link between child and parent is contemplated as so strong that time alone does not displace it, and in any case here there would be, I apprehend, reason for the gap in contact.[32]I cannot assume that there are no sufficient family ties between Mrs Doka, her daughter in the United Kingdom, her son in the United Kingdom and the grandchildren; nor even, though naturally perhaps a little more remote, with her two stepchildren in the United Kingdom. Moreover, the family ties with the four children who are in the Sudan no doubt exist, in the sense that they are still her children and she is still their parent, but whether it is a relationship which can be enjoyed is impossible to know at the moment because she does not know their whereabouts and presumably they do not know hers. So I think the position has to be that authority suggests that a family tie does still exist.[33]As to Article 8 resisting the transfer of Mrs Doka back to the Sudan and the consequential breaking of the tie in physical terms, I am referred to Mahmood v SSHD [2001] UKHRR 307 and the passage from Lord Phillips MR at paragraph 55 where he says this:
"I have drawn the following conclusions as to the approach of the Commission and the European Court of Human Rights to the potential conflicts between the respect for family life and the enforcement of immigration controls."
[34]Then he sets out a number of features, number 3 of which is this:
"Removal or exclusion of one family member from a state where other members of the family are lawfully resident will not necessarily infringe Art 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family."
[35]Applying that to this case, are there insurmountable obstacles to the two children in the United Kingdom, the five grandchildren in the United Kingdom and the two stepchildren in the United Kingdom returning or being returned, or at any rate going, one way or another, to live in the Sudan. There are insurmountable obstacles in the sense that the reason why the children in the United Kingdom, and possibly the stepchildren, were permitted to stay in the United Kingdom in the first place was because of a real risk of danger to them for political and kindred reasons were they to go back to the Sudan. It seems to me that a case can be made, under that passage of Mahmood that I have read, that to send Mrs Doka back is not consistent with authority under Article 8, and it seems to me that that is an arguable case.[36]Again, to take up Mr Soorjoo's point, I am not at this stage concerned with whether, if leave to appeal is given, such an argument will necessarily succeed, but whether it is fairly arguable. In my view, for the reasons I have given, Mrs Doka's case, both under Article 8 and Article 3, is such that I ought to quash the refusal of leave of 1st September 2003. Whether I leave it at that and allow her to apply afresh for leave, with this judgment as some form of fair wind behind her, or grant leave, is not a matter that I have been addressed on.[37]Mr Soorjoo, what is the usual practice when this happens? Does one go on to grant leave or does one instead let it be done afresh by application to the IAT?[38]MR SOORJOO: What will happen, my Lord, is that when the Tribunal receives a copy of my Lord's judgment it will grant permission and the matter will proceed.

MR JUSTICE LINDSAY: So it is for them to do that, not for me.

[40]MR SOORJOO: Indeed, it is for them. That is the practice. It is, of course, open for the applicant through her solicitors to make an application to the Secretary of State in the light of my Lord's judgment at the same time.

MR JUSTICE LINDSAY: Yes.

[42]MR SOORJOO: So that, in other words, simply quashing the decision would be sufficient.[43]MR JUSTICE LINDSAY: Yes. Do I need to do anything else?[44]MR SOORJOO: I have two applications, my Lord. The claimant is publicly funded, so my first application is for a detailed assessment and a copy of the certificates.[45]MR JUSTICE LINDSAY: That cannot be resisted. I will order a detailed assessment.[46]MR SOORJOO: I am grateful. The second application, my Lord, is for the costs to be paid so they can be reimbursed to the Legal Services Commission.

MR JUSTICE LINDSAY: What do you say about that, Mr Auburn?

[48]MR AUBURN: My Lord, I do not think I can resist that.

MR JUSTICE LINDSAY: I will make that order too.

[50]MR SOORJOO: I am very grateful, my Lord.