Ajanaku, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 2514 (Admin)

Case No CO/5487/2003[2005] EWHC 2514 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 28th October 2005
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF ABOLORE AJANAKUClaimant-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 O JIBOWU (instructed by Albert and Co Solicitors, 64 Willoughby Lane, London N17 0SP) appeared for CLAIMANTMR ADAM ROBB (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE SULLIVAN: When this application for Judicial Review was filed on 17th October 2003, it challenged what was said to be a refusal or failure on the part of the defendant to apply his policy in respect of the granting of discretionary leave to remain in this country to the claimant. The decision letters under challenge were dated 13th and 16th October 2003.[2]Since permission to apply for Judicial Review was granted in December 2003, things have moved on and the claim has been somewhat overtaken by events. The defendant, in a decision letter dated 12th February 2004, considered both a claim under Article 8 of the European Convention on Human Rights and an application for discretionary leave from the claimant. Both claims were rejected. The reason why it has taken this application so long to come on for hearing was that the claimant appealed, as she was entitled to do, against the refusal of her claim under Article 8 to an adjudicator. The Adjudicator dismissed her appeal in a determination that was promulgated on 26th April 2005, concluding that her removal from this country would not be disproportionate under Article 8. There was an application for reconsideration to the Tribunal, which was refused by a senior immigration judge in a decision dated 16th June 2005 and there was no further application to this court for reconsideration.[3]In his determination, the Adjudicator said that: "The issue of whether the appellant should have been granted [Exceptional Leave to Remain] is not a matter for me. It is a matter of policy for the Respondent. I cannot be invited to 'judicially review' that policy decision. This much both advocates agreed at the outset of the hearing".[4]In his skeleton argument on behalf of the defendant, Mr Robb submitted that, bearing in the mind the statutory framework, which it is unnecessary to cite for the purposes of this judgment, the Adjudicator would have had jurisdiction to consider whether the claimant was entitled to benefit from the discretionary leave policy. Had the Adjudicator considered that matter, then any further challenge by way of Judicial Review would normally be rejected as an abuse of process. However, he accepted that, for the purposes of this case, it would not be an abuse of process for the claimant to challenge the lawfulness of that aspect of the defendant's decision with which the Adjudicator had not dealt by agreement with the Advocate representing the Secretary of State at the hearing.[5]However, he submitted, and I agree, that it would be an abuse of process for this court to, in effect, revisit the Article 8 arguments which had been considered and resolved by the Adjudicator. Having had the opportunity to ventilate her Article 8 case through the appeal process, if there was any error of law in the Adjudicator's approach then that error should have been put to the senior immigration judge and if, in turn, he erred in law, then the High Court could and should have been invited to reconsider the matter. Given the availability of the statutory appeal process, I am in no doubt that it would be an abuse of process to allow the claimant to revive in these proceedings the Article 8 arguments which she advanced before the Adjudicator.[6]The question is, therefore: what was the basis of her claim for granting discretionary leave to remain in this country, apart from her arguments under Article 8? It matters not what label is attached to the arguments, the important question is to look at their substance and for the court not to re-examine matters that are, in substance, a repetition of the arguments under Article 8.[7]On behalf of the claimant, Mr Jibowu accepted that there were essentially two aspects to the application for discretionary leave: first, the Article 8 arguments and, secondly, the issue of unfairness. That second limb of the argument arises in these circumstances. The claimant was born on 17th May 1981. She arrived in the United Kingdom from Nigeria when she was a little over 16 years old on, or about, 8th September 1997. She claimed asylum on 8th September 1997. Her asylum claim was not determined by the Secretary of State until 24th April 2001. The claim was refused. The claimant appealed. The appeal was dismissed in her absence but there was no further attempt to challenge the refusal of her asylum claim.[8]The unfairness alleged is this: at the time the claimant made her asylum application, the defendant had a policy for dealing with unaccompanied minors who claimed asylum. The policy, so far as is relevant, is in these terms:
"3.3 Consideration of Applications "
Applications involving unaccompanied children should be handled sensitively and cautiously at all stages ... it will rarely be acceptable to hold an application for an unaccompanied child without any action being taken on it for longer than 6-months... 3.5 Reception arrangements and return policy "Ministers have agreed that no uncomfortable child would be removed from the United Kingdom unless we are satisfied that adequate reception and care arrangements are in place in the country to which he/she is to be removed... "If the asylum application is to be refused and it is impossible to make satisfactory reception arrangements for an applicant who is still under 18, the presumption should generally be to grant exceptional leave to enter or remain." The precise policy has varied over the years, but it suffices to say, for present purposes, that, having initially been granted exceptional leave in those circumstances, all other things being equal, a minor could expect a further period of exceptional leave to remain and then, in due course, again, all other things being equal, indefinite leave to remain.[9]Mr Jibowu submits that the claimant was unfairly deprived of the benefit of that policy because of the defendant's delays in determining her application. By the time the application was determined, she was an adult and it is therefore accepted that she could not benefit from the policy. He points to paragraph 3.3 of the policy and the proposition that actions should normally be taken within 3 months in respect of an application for asylum involving an unaccompanied child.[10]The application of the policy is explained in a witness statement of Ms Dutton, who was at the time the responsible policy officer within the Home Office. She says this in her witness statement:
"The policy was to treat applications from minors as a matter of priority and to take initial action on a case within six months of the date of the application. 'Initial action' would be sending out the written enquiry to the applicant because minors were not interviewed. A final decision could take between one and two years from that initial action. This was due to the volume of cases being dealt with at the time, the need to undertake written enquiries and to contact British posts abroad to attempt to locate parents or relatives of those unaccompanied children. I do not know what if any enquiries were carried out in relation to the Claimant. I note that in paragraph 9 of his determination the Adjudicator referred to the fact that the Claimant had uncles in Nigeria who had looked after her previously. It may be that suitable reception arrangements could have been made, however, I am unable to say whether this would have happened or not. It would have depended upon what enquiries the SSHD was able to make and the responses to those enquiries. "
In the interests of fairness, the policy applied by the SSHD was that applications were queued in date order and dealt with in that order unless there was a strong compassionate reason to consider an application out of turn. I have not been able to determine whether the Claimant's application was dealt with in accordance with that policy because I have not been able to consider the Claimant's file."[11]Miss Dutton also gave information about the volume of applications, in respect of unaccompanied minors, that had to be dealt with by the Home Office. She said this:
"From my experience, I can state that it would not be unusual for the Secretary of State to take between 18 months and three years to decide an application from an unaccompanied minor made in 1997. "
There was an unprecedented upsurge in the number of unaccompanied minors seeking asylum; (1) 1997 - 1,102; (2) 1998 - 3,037; (3) 1999 - 3,349; (4) 2000 - 2,735..." She adds: "The time taken to decide asylum applications decided in the following years took, on average, the following times to decide; (1) 1997 - 22 months; (2) 1998 - 17 months; (3) 1999 - 35 months; (4) 2000 - 18 months...[12]Mr Jibowu points out that the "initial action" in this case, that is to say, the sending out of the written enquiry to the applicant, did not take place within six months of her application but some 18 months later on 18th March 1999. On that day, a letter asking a number of questions was sent to her solicitors. The bundle contains the claimant's replies to those question but, unfortunately, the replies are not dated and it has not been proved possible to locate the covering letter. Thus we do not know whether there was any, and if so what, delay in responding to the questions that were asked on 18th March 1999. This is relevant because the policy related to applicants who were unaccompanied minors as at the date their asylum application was determined. The claimant ceased to be a minor when she became 18 years old on 17th May 1999. So she could possibly have benefited from the unaccompanied minors policy between 8th September 1997 and 16th May 1999.[13]Bearing in mind the information contained in Ms Dutton's witness statement, I am not persuaded that any delay between those two dates can be said to be so egregious as to amount to unfairness and/or to unlawfulness. It is to be noted that there is no suggestion that the claimant or those representing her were chasing the Secretary of State for a decision following her application on 8th September 1997. Had they done so, and had the alleged unfairness, as a result of the delay, been challenged at the time, then the court could have considered what remedy, for example by way of mandatory order directing an early response, might have been appropriate. But no application was made at the relevant time and it seems to me that it is far too late in 2003 to complain of delays that are said to have taken place between late 1997 and May 1999 if no complaint was made at the time.[14]Mr Jibowu referred me to a number of authorities where the court was prepared to hold that there has been such unfairness as to amount to an abuse of power. He referred, in particular, to the case of Shala v Secretary of State for the Home Department [2003] EWCA (IV) 233 and to the case of Rashid v Secretary of State for the Home Department [2005] EWCA Civ 744. In my judgment, those cases are clearly distinguishable from the facts of the present case. In the Shala case there was no dispute that, had the appellant's application been dealt with promptly, he would have been able to make an in-country marriage application. Thus it was unfair that, as a result of the Home Office's delays, he was compelled to make his marriage application from out of the country. It was on that narrow ground, specifically directed to the facts of that case, that the decision was based. Again, the decision in Rashid was very much fact sensitive. In summary, there was a policy which would have entitled the appellant to claim refugee status had it been applied to him at the time his application was determined. For some reason the policy was not applied to the appellant when it should have been. This was subsequently discovered. In addition, there was another case which was identical in all material respects where, upon discovery of the failure to apply the relevant policy, a different approach had been taken by the Home Office, which had led to the other appellants being granted refugee status. Thus it was that

the judge at first instance said, in paragraph 65 of his judgment:

"It will be clear from what I have already said that I take the view that the combination of (a) the unwarranted and unjustified failure on the part of the Secretary of State to apply his policy to the claimant at the time of his original asylum application when, had it been so applied, he would have been granted refugee status, and (b) the differentiation in treatment and consequent outcome accorded to Mr M and Mr A as compared to the claimant, and (c) the intervening moral detriment occasioned to the claimant, do, when all the factors are taken together, evince such a degree of unfairness as to amount to a misuse of power and to require the court's intervention."
[15]The facts of that case are very far from the facts of the present case. There is, in my judgment, no question of a misuse of power here. The correct policy was applied to the claimant's application at the time when it was determined. The sole complaint is that a different policy would have been applied if the application had been determined earlier, but there is no satisfactory evidence to support the proposition that the claimant's application should have been determined before she attained the age of 18.[16]There are further difficulties in the claimant's path even if that proposition was to be accepted. It will be recalled that the policy was not simply to give an unaccompanied minor, whose asylum application was rejected, exceptional leave to remain. Part of the reason for the delays was the fact that the policy required not merely the determination of the unaccompanied minor's asylum application but, if the determination was adverse, the making of enquiries to see whether or not adequate reception and care arrangements were in place in the country to which the unaccompanied minor would be returned. Those enquiries necessarily took time. What is important to note in the present case is that there is nothing to indicate that, had enquiries been made in respect of the claimant before 16th May 1999. The answers would have resulted in a conclusion that adequate reception and care arrangements would not be in place for her reception in Nigeria, so that she should therefore be granted exceptional leave to remain. The policy therefore is conditional in the way that the policies in issue in the Shala and Rashid cases were not.[17]For these reasons, I am satisfied that there is no error of law in the decision letter of 12th February 2004 in so far as it deals with the delay issue. As I have said, in so far as it deals with the Article 8 aspect of the case, that was the subject of an appeal to the Adjudicator and it would be an abuse of process for this court to consider it further. Insofar as there is any remaining element in the application for discretionary leave, it is only the issue of delay and that was dealt with in the letter of 12th February 2004. In particular, the letter said that the Shala case should be distinguished. I respectfully agree with that conclusion.[18]For these reasons, even though one must have sympathy with the claimant, there was no error of law in the decision to refuse her discretionary leave, and her application must be dismissed.[19]Public funding, is there any question of that? No? Thank you both.