McDower v Secretary of State for the Home Department [2007] EWHC 272 (Admin)

[2007] EWHC 272 (Admin)Case No CO/8886/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 20th February 2007
Before
MR JUSTICE KEITH
Between
Marsha Ann Marie McDowerClaimantSecretary of State for the Home DepartmentDefendant(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Mark Tempest (instructed by NatAdo, Solicitors) for ClaimantMr Alan Payne (instructed by the Treasury Solicitor) for DefendantHearing Hearing date: 13 February 2007
Judgment
[1]The claimant comes from Jamaica. She is 30 years old. She arrived in the UK on 25 August 1999, and was granted permission to enter the UK as a visitor for 6 months. On 24 February 2000 (the day before her permission to remain in the UK was due to expire), she applied for permission to remain in the UK as a student. It subsequently transpired that the college which she claimed to be a student at had no knowledge of her, and another college which she claimed to have enrolled at did not meet the requirements of a bona fide college. It was described by an adjudicator as being “no more than a sham to help its clients to avoid immigration controls in the UK. It functioned in miniscule accommodation with limited staff both in terms of numbers and suitable qualifications.” Accordingly, on 7 March 2001, her application for permission to remain in the UK as a student was refused.[2]An appeal against that refusal was lodged by the claimant’s representatives. Neither they nor the claimant attended the hearing of the appeal, which took place on 20 November 2001. Despite that, the adjudicator considered the appeal on its merits. He dismissed the appeal on 19 December 2001, noting that the claimant had suppressed the fact that before coming to the UK she had embarked on a course of business studies, and concluding that she had had no intention of leaving the UK when her permission to remain here as a visitor expired.[3]The claimant says that she did not know that an appeal had been lodged on her behalf. Indeed, she claims that she was never notified that she had the right to appeal. Whether that is right or not, she must have known that her permission to remain in the UK had expired, and she would have realised at some time that she was remaining in the UK unlawfully.[4]On 6 March 2005, the claimant was arrested for “overstaying”. The following day she applied for permission to remain in the UK on the grounds that she was the unmarried partner of a British citizen, and that her removal to Jamaica would(a) subject her to degrading treatment and therefore infringe Art. 3 of the European Convention on Human Rights (“the ECHR”), and(b) interfere with her right to respect for her family life protected by Art. 8 of the ECHR. The claimant was released from detention on 11 March 2005. By a letter dated April 2005 (the exact date was not specified) the Secretary of State refused the claimant’s application for permission to remain in the UK, one of his reasons being that he was not persuaded that she and the man she claimed was her partner were living in a genuine and subsisting relationship. In addition, he declined to set aside the removal directions, taking the view that even if she enjoyed a family life in the UK, the need to maintain an effective system of immigration control justified any interference with that right. He also certified the case under section 96(1) of the Nationality, Immigration and Asylum Act 2002 (“the Act”). The effect of that certificate was that the claimant could not appeal to the Asylum and Immigration Tribunal against the decision. However, this letter, although addressed to the claimant’s representatives, was not sent at the time. There is no evidence before the court as to why that was.[5]In the meantime, the claimant applied on 28 October 2005 for a certificate for approval of marriage. No decision was made in respect of that application until 20 October 2006, when the claimant was detained with a view to returning her to Jamaica on 25 October 2006. On that day, she was served with the April 2005 letter, as well as a letter refusing her application for a certificate of approval for marriage. That prompted her to issue a claim for judicial review, in which she challenged the Secretary of State’s decision to certify her case under section 96(1) and to set directions for her removal to Jamaica.[6]The claim was considered by Collins J without a hearing. He directed that the question whether the claimant should be granted permission to proceed with her claim should be decided at an oral hearing. He was concerned whether the Secretary of State’s conclusion about the nature of her relationship with the man who she claimed was her partner was flawed. He was also concerned about the delay in enforcing her removal from the UK, during which time any relationship with her partner would have become firmer and she would have put down roots. This is the court’s judgment following that hearing. The only reason for not giving judgment at the time was that due to a power cut in the Royal Courts of Justice, the Administrative Court Office had not been able to get the papers to me before the hearing, and I had not read them.[7]The appeal to the adjudicator was an appeal under section 82(1) of the Act. Section 96(1) of the Act provides:
“An appeal under section 82(1) against an immigration decision (‘the new decision’) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies (a) that the person was notified of a right of appeal under that section against another immigration decision (‘the old decision’) (whether or not an appeal was brought and whether or not any appeal brought has been determined), (b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.”
It was contended by Mr Mark Tempest for the claimant that none of the three conditions for the issue of a certificate were present. As for the first, the documents show that the claimant’s representatives were informed that her application to remain in the UK as a student had been refused, and that she was entitled to appeal from that decision. However, in a recent witness statement, the claimant said:
“I did not know that I had a right of appeal and I was not advised that I could appeal against that decision.”
The claimant has filed no evidence from her representatives relating to whether they informed her of her right of appeal, and issues arise, of course, as to whether notification of a right of appeal to a person’s representative amounts to sufficient notification for the purpose of section 96(1). But I proceed on the assumption, favourable to the claimant, that it is arguable that (a) she was not notified of her right of appeal and that (b) notification of her right of appeal to her representatives did not amount to notification to her. Accordingly, without having to consider whether it is arguable that the two other conditions in section 96(1) were not satisfied, I proceed on the assumption that it is arguable that the Secretary of State did not have the power to issue a certificate under section 96(1). (a) that the person was notified of a right of appeal under that section against another immigration decision (‘the old decision’) (whether or not an appeal was brought and whether or not any appeal brought has been determined), (b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and (c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.”[8]But that is by no means the end of the matter. If the Secretary of State was wrong to issue the certificate, the consequence is that the claimant has the right to appeal against(a) the refusal to grant her permission to remain in the UK as the unmarried partner of a British citizen and(b) the setting of removal directions which would infringe her right to respect for her family life under Art. 8. (The argument that her removal would subject her to degrading treatment contrary to Art. 3 is no longer pursued). However, if an appeal on both of these grounds is bound to fail, the setting aside of the certificate would be an exercise in futility because it would not be capable of achieving what the claimant wants it to achieve.[9]Permission to remain in the UK as the unmarried partner of a British citizen is governed by rule 295D of the Immigration Rules. One of the requirements to be met is that the applicant for permission has not remained in the UK in breach of the immigration laws. The claimant plainly cannot meet that requirement. Any appeal on ground(a) is therefore bound to fail. As for ground (b), let it be assumed in the claimant’s favour that her relationship with her partner is a long-standing, genuine and subsisting one, so that her removal from the UK would amount to an interference with her right to respect for her family life. Her problem would be to persuade an immigration judge that there are truly exceptional circumstances which would make her removal from the UK disproportionate to the legitimate purpose of maintaining an effective system of immigration control. The only feature of her case which Mr Tempest could point to was the delay on the part of the Secretary of State (a) between 19 December 2001 (when the adjudicator dismissed her appeal) and 6 March 2005 (when she was arrested for “overstaying”) and(b) between April 2005 (when he refused her application for permission to remain in the UK as the unmarried partner of a British citizen) and 20 October 2006 (when that refusal was brought to her attention) in enforcing her removal from the UK.[10]I do not think there is any chance of this delay being regarded by an immigration judge as making the claimant’s case truly exceptional. It is not as if the delay deprived her of any legitimate expectation she had about how her application would be handled. And as was said by the Asylum and Immigration Tribunal in MM (Serbia and Montenegro) [2005] UKAIT 00163 at para.

(h) :

“Delay will rarely, if ever, appear gross enough [to make the case truly exceptional] unless, as in Akaeke, there is evidence to show it was not acquiesced in by the appellant. A claimant is not entitled to sit back and enjoy whatever this country has to offer, relying on no more than the administrative incompetence of its authorities, amazing as this may sometimes be. Evidence of some formal pressure on the Home Office (either by way of solicitors’ (or other representatives’) letters (as in Akaeke), intervention by an MP (as here), or personal appearance at the Home Office, resulting in an attendance note recorded on the file by an official) is likely to be required to show that an appellant has not acquiesced in delay.”
[11]It follows that any appeal to the immigration judge against the decisions made by the Secretary of State notified to the claimant on 20 October 2006 is bound to fail. For that reason, even if the Secretary of State was wrong to issue the certificate, the application for permission to proceed with the claim for judicial review must be refused.[12]As I said at the conclusion of the hearing, I do not want to put anyone to the expense of having to attend court when this judgment is handed down, and I leave it to the parties to see if they can agree costs. But if the parties cannot agree an appropriate order for costs within 14 days of the handing down of this judgment, they should refer the issue to me, and I will decide the appropriate order to make without a hearing on the basis of any representations which are made. If the claimant wishes to apply for permission to appeal, her solicitors should notify my clerk of that within 7 days of the handing down of this judgment, and I will consider that question as well without a hearing.