Livingstone, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2211 (Admin)

Case No CO/8435/2006[2008] EWHC 2211 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 4 April 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
THE QUEEN ON THE APPLICATION OF LIVINGSTONEClaimantv
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)
Dr Kathryn Cronin and Mr Shibley appeared as amici curiaeMr R Kellar (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE CRANSTON: This is a renewed application for permission to apply for judicial review. It was considered on the papers by Mr Justice Paul Walker.[2]The claimant in this case has been assisted by Dr Kathryn Cronin and Mr Omar Shibley because of difficulties with obtaining legal representation. They have put the case today, even though they are acting as amici to the court, in a powerful and effective way on behalf of the claimant. Mr Livingstone should be pleased that counsel of such quality have been able to put his case so cogently to the court.[3]I should also say at the outset that the claim I am considering relates only to the decision of the Secretary of State for the Home Department, recorded in her letter of 29 October 2007, and not in relation to other matters which are dealt with in the very detailed bundles before the court today.[4]In brief, let me outline the claimant's story. He comes from a wealthy and prominent family in one of the river delta states of Nigeria. He arrived here in 2004 on a visitor's visa. He made an application in early 2005, before that visa expired, for further leave to remain as a student. That application was subsequently refused. He then became an overstayer. He had obtained a false National Insurance card, and he was arrested at some point in August 2005. At that point he claimed asylum.[5]The claim came before the Asylum and Immigration Tribunal. In early 2006 the tribunal rejected the claimant's case. I should briefly outline the findings of the immigration judge in that decision. The immigration judge accepted that the claimant's elder brother, Tams Gbodo, was a political adviser to an active and prominent politician called Colums Ogasa in the claimant's home state. He accepted that both the claimant's brother and Mr Ogasa were murdered by men who were wearing military uniforms and travelled in a military vehicle. He accepted that there was a campaign led by Captain Gbodo against the killers. He also found that the appellant was not engaged in any of this political agitation.[6]The immigration judge, in considering the claim for asylum, found that there were some clouds over the credibility of the claimant. In particular he took into account the fact that the claimant is educated, and has clear abilities. This led him to draw certain conclusions about the claimant's ability to make an asylum claim at an earlier point. He also made findings in relation to the campaign by the Gbodo family in Nigeria in relation to their expectation that some justice might be obtained through the process of political agitation there. In particular he made findings about the political situation in the claimant's home state in Nigeria. He said:
"There is ample evidence from press reports that the killers are said to be agents for the same opponents in the corrupt mafia connected with the then governor seeking to control the state. I accept all these parts of the appellant's evidence and claim."
[7]However the immigration judge went on to make the finding to which I have alluded, that there was no independent evidence to support the appellant's assertion that he had taken over the mantle of assuming responsibility for the public agitation seeking justice in relation to the murder of his brother and the prominent politician for whom his brother worked.[8]In particular at paragraph 46 of the reasons the immigration judge said that the appellant was not mentioned in newspaper reports and commentaries about the killings. He was not mentioned in letters and petitions submitted to institutions in Nigeria on behalf of the family and that evidence suggested that he had no active part in the campaign. The immigration judge rejected the case that the claimant was making before him as to the fear which he was said to have if he were to be returned to Nigeria.[9]Subsequent to that determination, the claimant applied to a senior immigration judge and that application was refused in early February 2006. A claim to this court under Section 103A of the 2002 Act was somehow lost either by this court or by the tribunal. Eventually it was disposed of by Mr Justice Jackson in October 2007. The claimant then issued judicial review proceedings. They were refused on the papers in 2006. The current proceedings were subsequently issued. Mr Justice Paul Walker rejected the claim and also said that it was abusive because it sought to re-argue matters which had been previously determined.[10]At that point the claimant made further representations in relation to a number of matters, in part, because he was now a father. He had started a relationship with a citizen of this country. She had given birth to a boy in November 2006. I return to that in a moment.[11]The claim came on before Mr Justice Stanley Burnton in August 2007. Suffice to say that the proceedings were adjourned at that point so that the claimant could submit further materials, it is fair to say not only in relation to the Article 8 claim but more generally.[12]The issue before me today is whether the Secretary of State has properly handled the matter of the "fresh claim" raised by these further materials which the claimant submitted. In her letter of 29 October 2007 she addressed a not inconsiderable number of issues which the claimant had raised, a number of which are not relevant today. In relation to the asylum and any Article 3 claim because of the danger to the claimant were he to be returned to Nigeria, she relies at paragraph 15 on the finding of the immigration judge. At paragraph 16 she goes on to say that having regard to the previous findings and the circumstances of the claimant's case, it was not considered that he had demonstrated a well founded fear of persecution or that he would suffer treatment contrary to Article 3 if returned to Nigeria.[13]In relation to the Article 8 claim, in particular the fact that he had had a son, there is a lengthy consideration by the Secretary of State in her letter. At paragraph 19 she considers the case at its highest - "Consideration has been given to your case in the eventuality you were to be granted access rights to Riley." She goes on to consider the application of the principles with which this court is familiar. She said that notwithstanding the existence of a family or private life, in her view there was not a sufficiently compelling reason to make an exception to the normal practice. In other words, it would not be disproportionate for the claimant to have to return to Nigeria.[14]As to the fresh claim, Dr Cronin referred me to paragraph 353 of the Immigration Rules. Whether further submissions constitute a fresh claim on asylum or human rights grounds is not a matter for this court but a matter for the Secretary of State. The decision can of course be challenged, as it is being today, by way of judicial review. But it can be judicially reviewed only on Wednesbury unreasonable grounds.[15]However Dr Cronin took me to the well known case of WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495. She pointed out that my task, in reviewing the decision of the Secretary of State, was to ask whether she had asked the right question, the right question being whether there was a realistic prospect of an immigration judge, applying the rule of anxious scrutiny, thinking that the applicant would be exposed to a real risk of persecution on return or, in the case of an Article 8 claim, that returning him would result in his Article 8 rights being unlawfully infringed. She had to address these questions with anxious scrutiny. The issue for me was whether the Secretary of State's view was irrational in her conclusion that the further submissions which were made to her, taken together with the previously considered material, did not create a realistic prospect of the claimant succeeding before an immigration judge. I must approach the matter with anxious scrutiny.[16]Dr Cronin took me to some additional documents. First, there is the correspondence involving the Metropolitan Police. The claimant had written to the Metropolitan Police on 10 November 2005, subsequent to his asylum claim, requesting an audience with Sir Ian Blair. In response to that request, on 28 November 2005, a detective inspector at the Metropolitan Police Special Operations wrote in reply that the information supplied was insufficient to establish how the murders in Nigeria would come under the jurisdiction of the police in this country and asked for further clarification.[17]The claimant wrote further and, as a result, the Metropolitan Police on 24 February 2006 replied, thanking the claimant for the letter about the murders of his brother and the prominent politician Colums Ogasa, and said that it - " ..... would not appear to give grounds that the Metropolitan Police has jurisdiction in this case ..... However I am forwarding the correspondence to an officer who has background knowledge of one of the individuals that you mention in your letter and the situation in Nigeria."[18]In addition to those letters, there is a letter on letter-head entitled "The Gbodo Family". That letter, dated 19 December 2005, signed by Captain Gbodo, states in paragraph 7 that the author of the letter was the elder brother of the late Chief Stima Gbodo - in other words, the brother of the claimant. It refers to the fact that the claimant in this case is the brains or the image of the real Stima Gbodo and his authority is always observed. In addition, at paragraph 2 there is mention that after the murder of 14 September 2004 the claimant took days off his job to support and convene "our family meeting at my nephew's house in Onago." In addition, Dr Cronin also took me to certain media reports about the former governor, the political opponent of the Gbodo family. She also took me to a letter from barristers and solicitors in Nigeria - Longuna & Co - and, coupled with media reports, invited me to draw the inference that the opponents of the Gbodo family, the persons who had been responsible for the murders, were now in high places in Nigeria.[19]On the basis of those documents Dr Cronin submitted that it was wrong to say there was no fresh claim. She said that the letters to the Metropolitan Police can be taken to show that the claimant was involved in the family campaign for justice. She submitted that the fresh evidence met the modest test which Lord Justice Buxton referred to in WM. She said that there was a realistic prospect of success. She said that the fresh evidence fell to be judged by reference to the important positive findings of credibility, and also risk, made by the immigration judge. She said that because this evidence had not been considered by the Secretary of State then I could find that the decision was Wednesbury unreasonable.[20]Applying anxious scrutiny to these matters, it seems to me that that additional evidence does not go to the issue of risk. The letters to the Metropolitan Police Commissioner got nowhere. In particular they do not relate to any campaign in which the claimant was said to be involved in Nigeria. Apparently the letters were not considered by the Secretary of State. But it seems to me that, even in the light of WM, unless additional evidence has relevance to the issue then the Secretary of State's decision cannot be said to be flawed if she has not considered it.[21]In my view, to take a different view of additional evidence would mean that hypothetically a claimant could constantly produce additional evidence that was not relevant to the issue and then say that, because the Secretary of State had not considered it, her decision was flawed.[22]Let me turn to the Article 8 aspect of the case. I start with the claimant's son and the family and private life claims which potentially arise. Dr Cronin took me to letters involving the solicitors acting for the claimant in family proceedings. She took me to forms that had been submitted. She referred me to photographs in the bundle showing contact between the claimant and his son. In particular she took me to an especially persuasive document by CAFCASS which reported that contact between the claimant and his son was positive, that the parties - in other words, the claimant and the mother of his son - were co-operating, and that it was more than likely that there would be a way forward found in terms of contact and an order of the court for contact between the claimant and his son. She pointed out that a hearing was listed for May 2008 when the matter would be considered by the county court.[23]Notwithstanding all this, the Secretary of State was, and is, entitled to say that it would not be disproportionate in terms of Article 8 for the claimant to have to return to Nigeria. Even if access were to be granted then the claimant would be entitled to apply for entry clearance to see his son. There was no obstacle to the claimant's son, possibly accompanied by the mother, going to Nigeria to see him were the claimant not to gain entry clearance to this country. In any event, given that the claimant had been unlawfully in the United Kingdom for some considerable time, he would have known at the time of the relationship that his immigration status was precarious.[24]I can find no fault in the way the Secretary of State has handled that particular aspect and adopt the same view myself.[25]Dr Cronin has raised the Article 6 aspect of these family proceedings. She has submitted that the defendant is in the process of making a claim for contact. She took me to the decision of MS Ivory Coast v Secretary of State for the Home Department [2007] EWCA Civ 133. She said that it would be unsatisfactory because the Secretary of State had given no proper consideration to the claimant's status pending the resolution of these proceedings. She had taken me earlier to documents demonstrating that these were genuine family proceedings and were likely to bear fruit in terms of contact between the claimant and his son. She submitted that for the most successful outcome in those proceedings it was necessary for the claimant to be in the United Kingdom.[26]Again, however, I reject the submission. The proceedings can continue in the absence of the claimant. It is possible - at least theoretically - for the claimant to make an application for temporary admission for the purposes of seeing these proceedings to completion. In that event, I do not find that the Secretary of State's approach to the matter is Wednesbury unreasonable. In any event there is no reason why the claimant cannot conduct the proceedings from Nigeria, using modern forms of communication, and through London solicitors.[27]Finally there is the issue of the civil claim. Dr Cronin took me to the fact that the claimant had been prosecuted for assault on the police but had been acquitted. She also took me to Quaquah [1999] EWHC (Admin) 100 which, she said, demonstrated that where a claim is being made against the Secretary of State for the Home Department and the Secretary of State for the Home Department is in the process of removing a claimant then that was an additional reason for the Secretary of State to take the view that there would be a breach of Article 6 to remove a claimant such as Mr Livingstone.[28]In my view, however, the claimant will not be deprived of a reasonable opportunity of proceeding with his civil claim. He can instruct solicitors, as he has done in the past. As Mr Kellar pointed out in his skeleton argument, there are adequate communication facilities with Nigeria and there is also a possibility of a video link with the county court where this matter might be heard.[29]That being the case, I refuse permission.[30]MR KELLAR: I do make an application for costs, not of my attendance but in relation to the acknowledgement of service. I have a summary schedule which shows the total costs incurred in defending this case to be in the region of £5,677. I do not seek to recover those costs but I do seek some sort of token contribution towards them, the costs of the acknowledgement of service. I seek assessment of £500 representing that.

MR JUSTICE CRANSTON: It is very difficult to resist that.

[32]DR CRONIN: I am not sure as amicus I can address you on that.[33]MR JUSTICE CRANSTON: You heard what Mr Kellar said. The costs - because of all these different claims - are something like £5,000. He is prepared to make an application for £500. In terms of whether they can actually get the money is a different issue. I think it is very difficult to say no.[34]THE CLAIMANT: It is very reasonable. I have a contention that I may wish to appeal against your decision. Until that has been fully determined, will there be proposition, an issue whilst the application is still pending?

MR JUSTICE CRANSTON: Mr Kellar?

[36]MR KELLAR: It would not be desirable, in my submission, to stay the costs order to leave it pending.[37]MR JUSTICE CRANSTON: I have to make the order, but as you indicated you can appeal my decision. I want to thank Dr Cronin and Mr Shibley for their assistance to the court.[38]THE CLAIMANT: May I seek permission to appeal your decision?[39]MR JUSTICE CRANSTON: Yes. I am not going to give it, but you can appeal. Dr Cronin will help you outside the court.