Nakalanzi, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 639 (Admin)

Case No CO/4131/2004[2005] EWHC 639 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 7th April 2005
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF JULIET NAKALANZIClaimant-v-
Between
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)
MS C OMIDEYI (instructed by JM Amin & Co) appeared for CLAIMANTMS K GALLAFENT (instructed by Treasury Solicitors) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is an application for judicial review of removal directions dated 20th August 2004, requiring the claimant to be removed to Uganda.[2]The background is as follows. The claimant claimed asylum on 28th April 2003. In her asylum claim as presented to the adjudicator she claimed that she had arrived in the United Kingdom on 4th April 2003 and that she had fled Uganda because of an incident on 22nd March 2003 when government soldiers forced their way into her home and killed her parents, brother and sisters. The adjudicator concluded that the claimant was not a credible witness, but she noted in paragraph 41 of her determination that the claimant claimed to have arrived in the United Kingdom in April 2003 and had lived with her aunt since that time:
"At the end of June 2003, she found that she was pregnant and is due to give birth in October of this year."
Unsurprisingly, on the basis of that material, the adjudicator concluded that the claimant had not established a family life in the United Kingdom, had only been here for a matter of months, had not established any ties, and therefore rejected her Article 8 claim.[3]There was an appeal to the Tribunal on limited grounds. At a hearing on 23rd April 2004 the solicitor representing the claimant told the Tribunal that the claimant was no longer living with her aunt, but she lived only one and a half miles away:
"As at the date of the hearing before the Adjudicator, the Appellant was pregnant. Her baby son was born subsequently, in October 2003. Mr Trent [the claimant's solicitor] informed us that his instructions were that her aunt 'gives her support'"
. On the basis of that material, the Tribunal rejected the Article 8 claim, saying that although the claimant had clearly enjoyed family life with her aunt, removal would not interfere with that family life:
"Even if she has a close relationship with her aunt, we do not accept that the relationship is such that it qualifies for protection under Article 8(1). She is not living with her aunt. The mere fact that her aunt gives her support does not mean that there is a level of dependency beyond normal ties"
. In fact, the claimant's baby son, Dias, was born on 17th September 2003.[4]The removal directions were challenged in this application for judicial review, which was lodged on 24th August 2004, upon the basis that the claimant had made a fresh claim to the effect that her Article 8 rights would be breached were she to be returned to Uganda because she had established a family life with a Mr Kironde.[5]It is unnecessary for present purposes to trace the manner in which that claim has been advanced in correspondence from the claimant's then solicitors and in various documents produced by them. Suffice to say for present purposes that the claimant's Article 8 claim is now based upon the proposition that she did not arrive in the United Kingdom on 4th April 2003, but on 3rd January 2003, and that very shortly thereafter she became pregnant by Mr Kironde -- I say "very shortly thereafter" because it will be remembered that her baby was born on 17th September 2003. The claim is now put upon the basis that at some stage the claimant and Mr Kironde began to live together and on 22nd August 2004 they were joined by Mr Kironde's daughter, now aged four years old. Mr Kironde's daughter had been living with her mother in Uganda but, sadly, her mother died in June 2004. Since Mr Kironde's daughter has arrived in the United Kingdom the claimant has, in effect, been acting as a replacement mother for her, taking her backwards and forwards from school for example. That is the nature of the family relationship which the claimant contends would be interfered with were she and her baby son Dias to be removed to Uganda.[6]As further representations have been placed before the defendant by the claimant's solicitors, so further decision letters have been written. The most recent letter is dated 28th February 2005. That letter takes issue with a number of matters, including the question whether Mr Kironde is indeed the father of Dias. It also makes the point that the new claim conflicts with the claim as presented to the adjudicator and the Immigration Appeal Tribunal. It further makes the point that until the defendant responded to the application for judicial review, the alleged relationship with Mr Kironde had not been mentioned. The letter contends:
"... taking your client's case at its highest and even if the relationship is genuine and subsisting, which is not accepted, the decision to refuse your client's claim under Article 8 is maintained because she is not entitled to remain in the United Kingdom as she has not obtained the necessary entry clearance and is a failed asylum seeker. There is nothing exceptional in her case to justify waiving that requirement. It is considered that even if your client may have established a private life during her time in the United Kingdom, it is considered that any interference can be justified in the circumstances of her case. The State has the right to control the entry of non-nationals into its territory, and Article 8 does not mean that an individual can choose where he/she wishes to enjoy his/her private life. For all these reasons, any interference with your client's family and/or private life is necessary and proportionate to the wider interests of the maintenance of an effective immigration policy."
The letter goes on to make this point:
"The interference to your client's right to respect for family life would be temporary and would only be for the duration of the time it would take for her to obtain entry clearance. Without prejudice enquiries were made with the British High Commission in Kampala who indicated that such an application would normally take 6 to 8 weeks and depending on the level of complexity it may take longer. Any hardship that your client might experience or indeed Mr Kironde and his daughter would be for a minimal amount of time until she obtained entry clearance. It is considered that to allow your client to remain here and circumvent the need for entry clearance would benefit her against those who comply with the law. In conclusion, it is still considered that it would be proportionate to require your client to return to Uganda to seek entry clearance as the partner or spouse of a person present and settled in the United Kingdom."
[7]The Court of Appeal has very recently given clear guidance as to the proper approach to the question of proportionality under Article 8(2) in Huang & others v The Secretary of State for the Home Department [2005] EWCA Civ 105, judgment dated 1st March. Having conducted an extensive review of all the relevant authorities, Laws LJ, giving the judgment of the court, said this in paragraph 59:
"... The true position in our judgment is that the [Human Rights Act] and s.65(1) require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules. 60. In such a case the adjudicator is not ignoring or overriding the Rules. On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament's approval. That is why he is only entitled on Article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional. This, not Wednesbury or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator. It is not a question of his deferring to the Secretary of State's judgment of proportionality in the individual case. The adjudicator's decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham's words in Razgar, which we have already cited: 'Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis'."
[8]The question is therefore whether it can be said that there is any prospect of an adjudicator regarding this case as "truly exceptional".[9]At the outset of the hearing Ms Omideyi applied for an adjournment on behalf of the claimant on the basis that the claimant had only recently instructed new solicitors and that Ms Omideyi wished to take further instructions on a number of detailed matters raised in the defendant's decision letters. I refused an adjournment upon the basis that there had, since proceedings for judicial review had been commenced in August 2004, been ample time for the claimant to place all the material that she wished to put in front of the defendant before the court. For completeness, it should be noted that the hearing of the application for permission to apply for judicial review was adjourned on 3rd November 2004 and, when permission was granted on 20th December 2004, the claimant was ordered to file further evidence by 5th January 2005. So, as I say, the claimant has had ample time to produce whatever evidence she might wish to place before the court.[10]Nevertheless, bearing in mind Ms Omideyi's difficulties, it seems to me that it would be fair to consider the issue of proportionality putting the claimant's case as high as it could reasonably be put, setting aside, for the moment, the doubts expressed by the defendant.[11]It follows that the family life that is to be interfered with is, on this basis, firstly, that Mr Kironde is indeed the father of the claimant's child and, secondly, that he fathered that child very soon after the claimant arrived in January 2003 and that their son was born on 17th September 2003. As to when they began to live together, there is a witness statement from the claimant's aunt dated 16th September 2004 that states that the claimant arrived in the United Kingdom on 4th April 2003 "and lived with me until September 2003". It also states that since her arrival in the United Kingdom the claimant had been provided with care and support by her aunt. It is difficult to know what weight to place upon this statutory declaration since the proposition that the claimant arrived in the United Kingdom on 4th April 2003 is now acknowledged to be untrue. However, making all assumptions in favour of the claimant and assuming that the remainder of her aunt's statutory declaration is true, the claimant was living with her aunt until at least September 2003, and indeed was being provided with care and support by her aunt as late as September 2004.[12]I have read the relevant passages from the decision of the Immigration Appeal Tribunal. It will be recalled that the hearing was on 23rd April 2004 and at that hearing there was no mention of Mr Kironde being the father of the claimant's child, or even any suggestion that she knew who the father was; much less any suggestion that she was enjoying any family life together with Mr Kironde and her baby son. However, a letter from the claimant's solicitors contends that when the claimant was arrested on 17th August 2004 she was sharing a bed with Mr Kironde in circumstances which suggested that at least by that date they were living together. It is true that the letter states that they do not live together, but it is possible that there was a degree of confusion because statements from Mr Kironde and the claimant dated 10th January 2005 explain that they live at Mr Kironde's address for some of the week and at the claimant's address for the remaining part of the week. It is possible that that explains the fact that on the birth certificate of Dias two different addresses are given for the father and mother respectively. Again, making assumptions -- and I emphasise "assumptions" -- in favour of the claimant, I am prepared to proceed upon the basis that from some time after April 2004 and by around August 2004 she and Mr Kironde were living together, sometimes at her address and sometimes at his. As I have mentioned, on 22nd August 2004 they were joined by Mr Kironde's now four year old daughter who came to the United Kingdom from Uganda when her mother died.[13]That is the family life that is being interfered with. Can it arguably be said that this case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in this claimant's favour notwithstanding the fact that she cannot succeed under the Rules?[14]The Court of Appeal has gone out of its way to make it plain that a case must be truly exceptional because the balance, in proportionality terms, is generally struck by the Rules. Realistically, Ms Omideyi does not suggest that there is any way in which the claimant can qualify under the Rules; she is simply seeking the exercise of a discretion outside the Rules.[15]It seems to me that, in considering the question of proportionality, the claimant's immigration history is relevant, even though it is not determinative. Unfortunately for her, the claimant cannot have it both ways. Upon the basis that I am prepared to make assumptions in her favour for the purpose of considering the Article 8 claim and proceed upon the basis that she arrived in this country in January 2003 and almost immediately became pregnant, it automatically follows that her account of the events of 22nd March 2003 that led to her fleeing from Uganda is a complete fabrication. I do not accept Ms Omideyi's submission that the alteration of the date of arrival simply puts back the date of the claimed events in Uganda: a very precise date was given before the adjudicator, and indeed that wholly false story was adhered to before the Immigration Appeal Tribunal.[16]Again, if I accept the claimant's Article 8 claim as it is now put forward, it follows that although she knew that Mr Kironde was the father of her child and that the baby had been born on 17th September 2003, there was no mention about there being any sort of family relationship with Mr Kironde many months later in April 2004 when the Article 8 case was being presented before the Tribunal.[17]It follows that at best the claimant can claim a relatively brief period of family life with Mr Kironde from perhaps August 2004. It has to be borne in mind that this family life was entered into at a time when it must have been appreciated by both the claimant and Mr Kironde that the claimant's immigration status was precarious, to say the least: her appeal had been rejected by the adjudicator and her appeal from the adjudicator had been rejected by the Immigration Appeal Tribunal.[18]In these circumstances, it is impossible to see how it could be said that her removal to Uganda would be disproportionate bearing in mind the wider interests of the maintenance of an effective immigration policy. Plainly, she will go to Uganda with Dias. It has to be acknowledged that, upon the basis that Mr Kironde is Dias' father, Dias will be separated for some time from his father, but the fact that Mr Kironde was Dias' father was not thought sufficiently significant to mention to the Immigration Appeal Tribunal in April 2004, and it does not appear that the claimant and Mr Kironde began to live together until nearly a year after the birth of Dias.[19]Ms Omideyi submitted that the defendant was wrong in proceeding upon the basis that the interference with family life would simply be temporary and only for the duration of the time it would take the claimant to obtain entry clearance from Kampala. She submitted that in reality the period was likely to be longer because(a) it might be considered that the claimant's immigration history was a bar to entry and(b) Mr Kironde might be unable to work if he had to leave work to look after his four year old daughter. For the sake of completeness, I should mention that another older adopted daughter has been granted entry clearance to come to the United Kingdom and on the claimant's evidence will be arriving in the United Kingdom soon, so Mr Kironde will then have two daughters to look after.[20]The short answer to those submissions is that if, for any reason, the claimant is not able to fulfil the requirements of entry clearance, then she should certainly not be able to benefit from her own wrong. That is precisely the consideration which is relevant in terms of maintaining an effective immigration policy. It would be entirely contrary to that objective if those who were not able to meet entry clearance requirements should be able to say:
"I should not be returned to my country of origin precisely because I will not be able to make an application from there to come back to the United Kingdom"
. That effectively would enable queue-jumpers to benefit from their own wrong, precisely the matter which is of concern in policy terms to the defendant and which he is entitled to take into account.[21]In general terms, so far as Mr Kironde's ability to support the claimant is concerned, I have already mentioned the fact that there is a statement from the claimant's aunt that suggests that she was providing care and support at least as at September 2004. The further information provided to the defendant includes a considerable amount of information about Mr Kironde's extended family, who, it is said, have welcomed the claimant and treat her as part of that extended family. Again, without wishing in any way to pre-empt what the entry clearance officer might decide, the support that might be provided by an extended family would be a relevant factor in deciding whether or not entry clearance should be granted.[22]The short point is this. The claimant should not be able to pray in aid the fact that she would not be able to obtain entry clearance because she could not comply with the requirements of the Rules.[23]For all of these reasons, I am satisfied, making every assumption in favour of the claimant -- and I do emphasise they are assumptions -- that there is no arguable basis on which an adjudicator could possibly conclude that the claimant's removal was disproportionate under Article 8(2). In these circumstances it follows that this application must be refused.24. MS GALLAFENT: I do not have any further applications, thank you.25. MS OMIDEYI: I am grateful, your Lordship.26. Just to say that the references to the aunt were September 04, that she was maintaining or supporting her until September 2004 should be 2003. I believe that was what the statement said because the statement was before the IAT in April 2004.27. MR JUSTICE SULLIVAN: It is another of the mysteries of this case that on page 106 I have a statement dated 16th September 2004, that comes under cover of a letter dated 24th September 2004, page 92:
"We enclose herein (1) the statutory declaration of the claimant's aunt..."
. So I think it is 2004. 28. MS OMIDEYI: Yes, your Lordship, it is 2004. I was referring to the statements by the aunt to the Tribunal, but that is a totally different document. 29. MR JUSTICE SULLIVAN: Yes. I was referring to another document. Anyway, we are both right. 30. MS OMIDEYI: I do apologise. 31. MR JUSTICE SULLIVAN: That is all right. 32. Anything else? Legal aid taxation. 33. MS OMIDEYI: Yes, your Lordship. If I have it, yes please. 34. MR JUSTICE SULLIVAN: There is no certificate. 35. MS OMIDEYI: Because it was an emergency certificate that was granted. 36. MR JUSTICE SULLIVAN: You can have seven days to put in a certificate. If you put in a certificate in seven days you can have a detailed assessment for Community Legal Services Funding purposes. I think that is the best I can do for you. 37. MS OMIDEYI: Yes, your Lordship. I am grateful.