M, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 1206 (Admin)

Case No CO/3716/2008[2008] EWHC 1206 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 15th May 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE PLENDER
Between
THE QUEEN ON THE APPLICATION OF Z MClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr R de Mello (instructed by Messrs C Turner Solicitors) appeared for ClaimantMs S Broadfoot (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE PLENDER: This is a renewed application for permission to apply for judicial review of the Secretary of State's letter of 7th April 2008 stating that directions had been made for the applicant's removal to Afghanistan.[2]The application was refused on the papers by Wilkie J on 22nd April 2008 with the following words:
"When the claim was made there was no response to the fresh representations. The SSHD has now responded by the letter of 20/04/2008. There is no arguable case that the decision not to treat these fresh representations as a fresh asylum claim is arguably unlawful. The original asylum claim was rejected by the Immigration Judge as lacking in credibility and based on fabrications. The Article 8 claim does not come close to establishing any real prospect of succeeding before an Immigration Judge given the authorities and the circumstances in which he came to marry and have a child. Renewal to be no bar to removal."
Notwithstanding the firm wording of Wilkie J, I have come to the conclusion that this is an appropriate case to grant permission so that the matter may be heard by the court.[3]The essential facts are as follows. The applicant is an Afghan national who arrived in the United Kingdom clandestinely on 8th March 2002. He claimed asylum. That claim was refused on 6th August 2004. He appealed. On 31st December 2004 that appeal was dismissed. On 14th July 2006, the applicant underwent an Islamic marriage in the United Kingdom to Zeenat Yusuf Gulab, a British citizen. A child of the marriage was born on 10th July 2007. On 7th April 2008 the applicant made a fresh claim on the grounds of marriage. The Secretary of State refused that application.[4]The Secretary of State reasoned that the asylum claim was not a new claim because the immigration judge had held that the applicant was not credible and that the documents submitted in support of the original application were false and he was not sought in Afghanistan (as he maintained) in connection with the death of Commander Boostan.[5]In order to determine whether there is a fresh claim, I have to apply paragraph 353 of House of Commons paper 395. This provides:
"Where a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision-maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submission will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) has not already been considered; and (i) taken together with the previously considered material, created a realistic prospect of success, notwithstanding the rejection."
[6]In argument before me today, Ms Broadfoot for the Home Office has concentrated on the second, rather than the first, of those two limbs. The marriage and the birth of the child are factors which give rise to consideration significantly different from the material which has previously been considered. The question is whether, taken together with the previous considered material, it creates a realistic prospect of success.[7]The applicant now maintains that he would leave the United Kingdom voluntarily and would like to travel with his wife to a European Union country (that is Ireland), where she would exercise her Community rights. She does not have an offer of employment in Ireland. She has not yet travelled to Ireland. What is presented to me is an aspiration.[8]Mr de Mello for the applicant has advanced three arguments. He placed principal emphasis upon the third of them, but as I was more inclined to find the first and the second arguable, I shall deal with the third first in order to dismiss it. Mr de Mello's principal point was that travel between Afghanistan and Pakistan is extremely difficult. Since there are no facilities in Kabul in Afghanistan for the issuance of entry clearances by the British mission there, the applicant would need to travel to Pakistan were he to renew his application to enter as the spouse of a British citizen. My attention has been drawn, in rather graphic witness statements, to the dangers now, as for centuries, in crossing the pass between Afghanistan and Pakistan. Some of these dangers have existed at least since Kipling's time: I refer, for example, to the danger of mountain guerillas. Others have intensified recently, although they have existed for a long while, particularly banditry and disorder, but my attention had been drawn to an operational guideline note of 20th April 2007 which refers to means of crossing the border without exposure to these risks, in particular scheduled flights by Pakistan International Airways and regular flights by the United Nations itself from Kabul to Islamabad. I am not, therefore, persuaded by the danger, such that it is, of travelling between Kabul and Islamabad.[9]However, Mr de Mello takes two more technical points. The first is that the applicant has stated that he wishes to leave voluntarily and has received a communication from the Home Secretary stating that, if he were to do so, he would benefit from the concession announced by Lord Bassam in the House of Lords on 17th March 2008, Col 88. By that concession, Lord Bassam announced that the government will not apply the provisions of the new paragraph 32(7B) of the Immigration Rules to anyone currently in the United Kingdom who leaves the country voluntarily between 1st October 2008. But, as Lord Bassam went on to say:
"We cannot withdraw the Immigration Rules in order to make the change ... The change will therefore take effect as a time-limited concession outside the rules."
It is said by Mr de Mello that his client does not benefit from the statement made by Lord Bassam and that his client has not yet received sufficient assurance from the Home Secretary that, if he travels to Islamabad in order to apply for entry clearance, he will then be re-admitted. I accept that on the face of the concession Mr de Mello's point is at least arguable. The applicant is not necessarily a person who will be leaving the United Kingdom voluntarily before 1st October 2008, being a person who is already subject to a requirement to leave and proposals for his return.[10]Mr de Mello takes another point, which has, if I may say so, more evident force at this stage on the case law than on the merits and that is that his wife, as a British citizen, is a Community national wishing to go to Ireland. He refers me to a case pending before the Court of Justice, referred by the Irish courts, called Metock v Ikeng, in which the question asked is whether the Irish authorities are bound to issue a residence permit to an EU national married to a non EU national. If that question was answered affirmatively, then, on the premise of that, Mr M's wife would travel to Ireland, the Irish authorities would be bound to issue to her a residence document, the effect of which would be to entitle her husband to remain there for the period to which he is entitled to remain as a matter of community law. They could then return to the United Kingdom, making use of the principle of reverse discrimination first established in the case of Surinder Singh. There have been recent developments of the European Court on this issue recently. I have myself drawn counsel's attention to the case of Baumbast and Mr de Mello has referred me to the case of Akrich and of Chen.[11]While it is by no means to be assumed that a person, not being a Community national, can invoke against the authorities of one member state, such as the United Kingdom, obligations to facilitate his travel or to refrain from impeding his travel to another member state, such as Ireland, I do not regard the point as so obviously untenable as to be unworthy of the grant of permission. For these reasons which are lengthier than I would have chosen but probably not lengthier than necessary to encompass all the points made to me, permission is granted.[12]MR DE MELLO: My Lord, may I ask for the transcript to be released, simply in order that, when it comes to preparing the case, the court knows your Lordship's views?[13]MR JUSTICE PLENDER: Yes, the transcript will be released and I hope that it will be of some assistance, notwithstanding, Mr de Mello, that I am conscious of having said that I did not like your best point.[14]MR DE MELLO: Well, it started with the third point. Had I know it was your Lordship first point.