Khan, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 1367 (Admin)

Case No CO/1616/2007[2008] EWHC 1367 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 4th June 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE SEDLEY
Between
THE QUEEN ON THE APPLICATION OF KHANClaimantv
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)
Miss S Akinbolu (instructed by Thompson & Co) appeared for ClaimantMr D Manknell (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T

LORD JUSTICE SEDLEY:

The

[1]claimant's wife and children were granted indefinite leave to remain as refugees by a decision of the Immigration Appeal Tribunal in April 1999. On a date which he has put at June 1999, but which the Home Office has never been able to verify, the claimant entered the United Kingdom and claimed first asylum and then leave to remain as the spouse of a person with indefinite leave to remain. He has remained here ever since in circumstances to which I shall come.[2]Permission to make this application for judicial review was granted by Collins J in these terms:
"If the claimant's family have been granted refugee status, the Refugee Convention should give a right to him to be allowed to remain and it would arguably be disproportionate to remove him . . . It is unfortunate that there is no acknowledgment of service. I must accordingly grant permission, but if the statements made in paragraph 2 of the grounds are inaccurate, the defendant may apply to set aside permission notwithstanding the rules on the basis of abuse of process."
[3]The grounds to which Collins J refers begin as follows:
"(1) The appellant is a national of Pakistan. He entered the UK and requested to be recognised as a refugee on 29th October 1999."
There follows in the remainder of that paragraph a history of the application, concluding with the adverse decision of the IAT, to which again I will come. The grounds then continue:
"(2) The applicant's wife and three children were in the UK before the applicant himself arrived and were granted refugee status on appeal."
The grounds also assert at paragraph 15, in relation to the suggestion that if he is removed the claimant can always apply for entry clearance to return:
"Additionally, it is unlikely that the applicant would be granted entry clearance to rejoin his family as the applicant is the main financial provider and his wife would be unable to show that she could support the applicant without recourse to public funds . . . "
[4]Nobody reading these grounds would suppose, and it is evident that Collins J did not suspect, not only that the claimant's case is that he is not working at all but that his immigration history included the following. He first entered the United Kingdom in September 1971 and less than a year later was arrested for overstaying and working illegally, for which he was given a short prison sentence and was recommended for deportation. He was deported later in 1972 but in 1975 the deportation order was revoked. A decade after that, in 1985, he married his present wife, Farzana Shabbir. In 1993 he entered the United Kingdom and was arrested for heroin smuggling. He was convicted in the spring of the next year of conspiracy to supply the drug and sentenced to 8 years' imprisonment. Upon his release in September 1997 he was deported. That deportation order remains in being.[5]In April 1998 the claimant's wife, with her children, entered on six months' leave as a visitor. In the course of that visit she claimed asylum and, although it was refused by the Home Office, it was granted on appeal by the IAT. That decision was promulgated in April 1999. By October 1999 the claimant was back in this country. He asserts that it was in June 1999 that he re-entered, and it may well have been; but whenever it was, it was an unlawful entry in defiance of the deportation order which was still in being. He claimed asylum initially but thereafter leave to remain as a spouse.[6]Not long after he made the second claim he was arrested at his wife's home for having entered in breach of the deportation order. Since then, remarkably, by dint of a succession of applications he has managed to remain in this country. A refusal letter denying his claim to remain as a spouse was not sent until February 2002. He appealed against that decision, basing his claim on Article 8 of the Convention and in April 2003 an Adjudicator, Mr Dineen, allowed his appeal, taking a different view of the merits from that taken by the Home Office.[7]The Home Office secured permission to appeal, and in October 2003 a Tribunal chaired by Mr Culver allowed its appeal, holding at the conclusion of the determination (at paragraph 16) as follows:
"We take the view that the decision to require the appellant to return to Pakistan and make his application in the normal way rather than to allow him to jump the queue through his clandestine entry was one well within the discretion of the Secretary of State and strikes a fair balance between the requirement of respect for family life under Article 8 of the ECHR and the appellant's need to maintain an orderly immigration policy."
[8]An application by the claimant to appeal to the Court of Appeal failed. The decision therefore became final, for better or for worse, that he had no Article 8 right to remain; and from that point onwards, in late 2003, he could and should have been removed. However, he was not, and I will come in a moment to some of what was transacted subsequently on his behalf with the Home Office.[9]The history that I have recounted was not known to Collins J. One reason why it was obscured was that the bundle submitted in support of the claim contained neither the Home Office's letter of refusal of 21st February 2002 which set out the less attractive aspects of the history, nor the Adjudicator's decision in the claimant's favour which does much the same, nor the IAT's reversal of it, which again summarised the history, and each of which would have clarified the matters that remained unaddressed.[10]So, contrary to the impression given by the grounds submitted on his behalf, first, the claimant's presence here is, and has since his arrival in or before June 1999 been, in defiance of a still extant deportation order. Second, his return and his application to remain here as the spouse of a refugee came hard upon the heels of his wife's securing indefinite leave to remain in proceedings in which she had asserted that the claimant had deserted her, creating more than a whiff at least of opportunism and possibly of collusion. Third, the claimant's contention that any application for entry clearance will now founder on his wife's inability to support him since he is the breadwinner is incompatible with his assertion that he is not working since he has no permission to do so.[11]In this light, it seems to me that the picture painted by the grounds of the claimant simply arriving in the United Kingdom in mid-1999 and seeking permission to join his wife who, with their children, had shortly before been granted political asylum here involves such a suppression of the truth as to amount to a falsehood. In so finding, I am not for the present allocating blame between the claimant and his lawyers, save in order to exonerate Miss Akinbolu who has represented him today and has come late into the case. She has conducted the claimant's case with candour and skill.[12]The Home Office, by Mr Manknell, having given notice of its intention to do so, seeks to set aside the grant of permission pursuant to the liberty given by Collins J. I am not deciding, since I do not need to decide, whether Collins J would have granted permission had he known the true facts as he would have done had the Home Office filed its acknowledgment of service, though I very much doubt whether he would. What I do hold is that there has been a want of candour and of disclosure of material documents and facts sufficient by itself to vitiate the grant of permission. As put in Mr Fordham's Judicial Review Handbook, paragraph 10.3:
"Judicial review claimants have always been under an important duty to make full and frank disclosure to the court of all material facts and any procedural hurdles (eg, ouster, alternative remedy, delay) . . . Claimant candour remains a necessary virtue, both at the outset and in alerting the court as to any key development as the case proceeds."
The counterpart is of course a duty on defendants which is at least as high.[13]CPR 54.13 will in the ordinary way bar any application to set aside a grant of permission to proceed, and the inherent jurisdiction of the court will not be exercised on an application made by a defendant which, like the Home Office in the present case, has failed to enter an acknowledgment of service setting out its grounds of resistance. But where the grant of permission is itself conditional, as Collins J made this grant, the door remains open to such an application. If this were not so, I would treat the present hearing as the final determination of the claimant's application for judicial review but on the same grounds deny him, in the exercise of my discretion, any relief.[14]I am nevertheless sharply aware that more people than the claimant are affected by this case. His wife and children are in court and face the prospect of great distress if the claimant is not permitted to remain here with them. I am going therefore to indicate my conclusions on the substantive issues which Miss Akinbolu has developed in a skilful skeleton argument and in her oral submissions in support.[15]She submits that the two letters written on 21st July and 30th August 2006 amount to a fresh claim. The first of these letters contains a short statement that the claimant has been here for more than six years and his family for much longer. It continues:
"We would therefore request that his application may be considered outside of the Immigration Rules and [under] Article 8 of ECHR and he be granted leave to remain in the UK."
The letter of 30th August 2006 contains these paragraphs:
"We submit that the circumstances are such that the appellant and his family have established a private and a family life within Article 8 (ECHR). The Secretary of State would be aware that our client made an asylum application on 29th October 1999 after his wife and children had been granted refugee status. Although our applications have been in conjunction with the right of leave to remain under the announcement of the provision of October 2003 which was subsequently refused. We submit that our client would be able to establish a private and family life under Article 8 of ECHR. In the circumstances, we request that if the Secretary of State is not able to exercise discretion in favour of our client, then our client may be granted leave to appeal before an Immigration Judge at the AIT."
[16]It can be seen at once that these letters are written more in hope than in expectation, since they are entirely unspecific as to why the claim should be reopened. Miss Akinbolu, however, seeks to make up this distance by going on to submit, picking up as she does so Collins J's principal ground for being prepared to grant permission, that the Home Office has failed to apply Immigration Rules 352A and 352B governing the admission of spouses of refugees.[17]As to the latter, Mr Manknell submits that it is a wholly new point of which he had no notice before Miss Akinbolu's new skeleton argument arrived. It is nowhere adumbrated in the correspondence. Miss Akinbolu says it was made clear throughout that the claimant was the spouse of a refugee and the Home Office's duty was to apply its own rules about such spouses. There is force in this, but she faces the difficulty that the Rule requires entry clearance certificates for spouses who are seeking leave to enter. The claimant as a deportee would probably not have obtained an entry clearance certificate, and he cannot possibly be in a better position by having evaded the need for it by entering the country unlawfully. The kind of spouse the rule probably has in mind is one who, though not himself or herself entitled to asylum, has entered the country along with the refugee spouse.[18]The Article 8 claim itself cannot possibly succeed in this court. The first decision-maker is the Home Office. If its decision is adverse, recourse lies to what is now the AIT. It is typically in a case where, for example, Home Office inertia has let so much time go by that removal would now amount to an abuse of power (which is manifestly not this case despite the delays) that this court might entertain a direct application for judicial review on, among others, Article 8 grounds. But here, as we have seen, different views have been taken of the merits by the Home Office and an Adjudicator, each legitimately reached on balance.[19]Miss Akinbolu therefore falls back on the submission that what the Home Office now has before it is a fresh claim which, if the Home Office itself is not to allow it, should at least be rejected as such and thereby accord a right of appeal. But while a good deal of water has undoubtedly been allowed to flow under the bridges, enabling the claimant to consolidate his claim to an uninterrupted family life, it is in every material respect the same claim as before. The new letters of application -- and I have not referred to the most recent of them -- are as unspecific as the Home Office reply initially was to them.[20]Where Miss Akinbolu has a point which I do find troubling, however, is that the disposal of the Article 8 claim by the IAT in 2003 was based upon the decision in Edore that the Adjudicator was limited to deciding whether the Home Office had acted rationally and lawfully in rejecting the claim. That approach, says Miss Akinbolu, is now superseded (see Huang [2007] UKHL 11 at paragraph 11) so that the AIT would be required to respect, absent any error of law, the Adjudicator's decision in favour of the claimant under Article 8. To this she adds the accumulation of recent evidence about the medical and psychological stresses on the claimant's wife which his removal would be bound to exacerbate.[21]She also draws my attention to the Home Office's instructions to immigration officers, which show that revocation of deportation orders for serious crimes may be considered if at least ten years have gone by, as they now have since the second deportation order was made against the claimant. I say nothing about the possible merits of any such approach to the Home Office, nor am I in a position to decide whether, and if so when, a change in jurisprudence may create or contribute to the establishment of a fresh claim. These are issues which have not so far been advanced. They form part of the innovative submissions which Miss Akinbolu now seeks to make. But this court is not a court of first instance for a trial of such issues. In matters of judicial review it is a court of last resort. In my judgment, the claimant has inappropriately sought to use it as a court of first instance, and fatally has done so by suppressing material aspects of the truth about his case. For reasons which I have dealt with relatively briefly, it is not a case which in my judgment was going to succeed; but, for the more fundamental reasons which I have also explained, it is not a case which I am prepared to entertain.[22]The court's order will accordingly be that pursuant to the liberty to apply included by Collins J in the grant of permission to proceed, permission be set aside.[23]Are there any applications?[24]MR MANKNELL: My Lord, the Secretary of State does apply for its costs.

LORD JUSTICE SEDLEY: The Secretary of State has brought much of this upon herself by not responding at the time when she might have knocked the whole application out on paper.

[26]MR MANKNELL: My Lord, there is some force to that.

LORD JUSTICE SEDLEY: That is very good of you, Mr Manknell. I think there is rather a lot of force in it.

[28]MR MANKNELL: My Lord, all I would say is that of course the defendant not filing the acknowledgment of service is regrettable and may have saved some time, but at the same time the material that you referred was not provided by the claimant or his legal advisors --

LORD JUSTICE SEDLEY: But, Mr Manknell, your case has been that if Collins J had only known what I now know he would never have granted permission. You very candidly admitted that it was your client's fault that he did not know what he should have known. We would not have got to this hearing if you are right.

[30]MR MANKNELL: If you would just give me one moment. My Lord, just one other point. At the end of your judgment you referred to your saying nothing about the merits of such an application to the Home Office should it be made. Could I just ask for clarification, so far as the court is concerned, that unless and until such an application is received there is no bar to this claimant's removal.

LORD JUSTICE SEDLEY: I am making no rulings about any such thing. We have enough trouble with things that have already happened. Dealing with things that have not yet happened is not our business as a rule. Do you have any applications, Miss Akinbolu?

[32]MISS AKINBOLU: No, my Lord.

LORD JUSTICE SEDLEY: Well, I assume that you are content that there is no order for costs.

[34]MISS AKINBOLU: Your Lordship, yes.

LORD JUSTICE SEDLEY: I am afraid I think that is the right result, Mr Manknell, notwithstanding your success. There will be no order for the costs of this hearing. So far as the prior costs are concerned, again, your only costs would have been the costs of the acknowledgment of service which came too late.

[36]MR MANKNELL: Yes, my Lord.

LORD JUSTICE SEDLEY: So I think the right order is no order for costs throughout.

Cited in 1 later judgment