Mensah, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2702 (Admin)

[2008] EWHC 2702 (Admin)Case No CO/3485/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 13th August 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE OUSELEY
Between
THE QUEEN ON THE APPLICATION OF MENSAHClaimantv
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Palantype 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 J Walsh (instructed by Messrs Liberty & Co) appeared for ClaimantMr M Barnes (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE OUSELEY: This is a renewed application for permission to apply for judicial review, following the refusal on paper by Hodge J. The claimant is a national of Ghana who in June 2006 applied for indefinite leave to remain on the basis of the length of her residence in the United Kingdom, along with the length of time her second child (the eldest one being in Ghana still) had lived in the United Kingdom, 7 years. The application was refused in a decision dated 16th January 2008, which is the decision under challenge.[2]The effect of the decision, if upheld, will be that the claimant and her husband and their second and third children would be removed from the United Kingdom as a family unit. The husband has no right to be in the United Kingdom. He also is a Ghanaian citizen. The youngest child is no more than about a year old.[3]The Secretary of State's decision is challenged first in relation to her decision on the 7-year-child's residence policy, DP 5/96. The first contention is that the Secretary of State has not applied the correct test and has applied a test too unfavourable to the claimant. The Secretary of State said that:
"23. The general presumption is that we will not usually enforce removal of a family where there is a child who was born in the United Kingdom and has lived here continuously for 7 years or more ... However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the child's residence here, for example where the parents have a poor immigration history or have deliberately delayed consideration of their case."
There are then six factors in particular to be taken into consideration.[4]It is plain from the decision that the policy was in fact considered. The view was taken that the claimant did not meet the requirements of this concession. The Secretary of State went through the various considerations. It is to be noted that she concluded not merely that the claimant had an a poor immigration history, but that it warranted particular attention. The claimant claimed to have entered the United Kingdom in 1995. However, she only claimed asylum in March 2001 following her arrest on suspicion of being an illegal entrant, whereupon she was served with an enforcement notice. She then failed to leave the United Kingdom after that enforcement notice. She did not turn up for her asylum appeal, which was dismissed in March 2003. In reality, when a removal notice was served on 16th March 2004, she went to ground and was notified as an absconder after immigration checks at her residence and with the local authority revealed no trace of her whereabouts.[5]Despite what the claimant swears to be true in her witness statement for these proceedings, namely that she has never attempted to evade removal, the Secretary of State's conclusion that she deliberately sought to evade detection to delay removal from the United Kingdom is undoubtedly accurate and what the claimant says is unquestionably untrue.[6]Further consideration was given to the length of residence. The Secretary of State put some weight on the fact that the enforcement notice was issued in 2001, by which time she had acquired 5 years and 6 months' residence. She also noted, as is the case, that the child upon whom reliance was placed for these purposes was 7 years old, so he had accrued the minimum necessary for consideration of the policy, but that when he was conceived no parent had leave to remain. She concluded that the child would not be caused extreme hardship or health risk in Ghana and came to the conclusion to which I have already referred.[7]The contention is that the Secretary of State has misinterpreted her policy. Reliance for this purpose is placed on the judgment of the Court of Appeal in NF (Ghana) v Secretary of State for the Home Department [2008] EWCA Civ 906. The Court of Appeal conducted an elaborate examination of the background to and variations to the policy DP 5/96. The policy as it has to be read is that which the Court of Appeal set out in paragraphs 26 and 29 of the judgment.[8]Paragraph 29 contains the language found in the decision letter. Paragraph 26 introduces a qualification to that policy, as the Court of Appeal concluded, when the period of 10 years was reduced to 7 years. In paragraph 26 it said that it was not the practice to pursue enforcement action, save in very exceptional circumstances, against people who have children under the age of 18, who had spent 10 years or more in this country, save in very exceptional circumstances. That was changed to 7 years, but also now saying that in future enforced removal or deportation would not normally be appropriate where a minor child of the family has been living here for 7 years. The difference between "will not normally be appropriate" in paragraph 26 of the 24th February 1999 statement and the general presumption of "not normally proceeding" as set out in paragraph 29 is not large. The combination of the policy in paragraph 26 and the policy in paragraph 29 needs to be understood, when reading the Court of Appeal's conclusion in paragraph 39, and saying that the Tribunal should start from the position (and hence obviously the Secretary of State) that it is only in exceptional circumstances that ILR will not be given, but the circumstances have to be considered to see if the case is an exceptional one.[9]Although the circumstances referred to by the Secretary of State do not use that precise language and are couched more in the language which is to be found in the written Parliamentary answer of Mr O'Brien dealing with the new policy and in the policy modification statement as described in paragraph 29 of the judgment, and does not use the language of "exception", which is how the Court of Appeal interpreted those paragraphs, in reality the Secretary of State has considered whether this was an exceptional case or not. It is plain from the particular circumstances that the Secretary of State did consider that this was an exceptional case. Indeed, it would be very difficult to imagine, even were the matter to be reconsidered against different but substantially the same phraseology that a different conclusion would be arrived at in relation to somebody who went to ground only to pop up when the child had managed to get to 7 years' residence, in circumstances where no parent had leave to remain, in which the mother was clearly preventing herself being removed and would simply be taking advantage of her own absconding in order to rely later upon the children's policy.[10]There is one curiosity in the letter, which is that the Secretary of State concluded that sometime before September 2004 the claimant had left the United Kingdom, but had returned in September 2004 using her own passport as a Canadian national, had been refused leave to enter and was removed from the United Kingdom in October 2004, only to return at an unknown date by an unknown method. The claimant is insistent that she never left the United Kingdom. There is some basis for the Secretary of State's conclusion and there is some contrary evidence from the claimant.[11]Although if that were an important part of the Secretary of State's application of the policy the factual basis of it might have to be examined, it is a reasonable conclusion on the material before her. But more importantly it is not an important part of the reasoning in the decision. The primary basis is the poor immigration history, deliberately going to ground to evade removal, coupled with the absence of any other important beneficial points to the claimant. The Canada excursion is noted but not given particular weight in the decision.[12]I do not consider that Mr Walsh's points give an arguable prospect of success in quashing the Secretary of State's decision in relation to the policy.[13]He also submits that the Secretary of State erred in dealing with the fresh human rights claim. Here it is said that the Secretary of State did not apply the right test to a fresh claim. I reject that. It is perfectly clear from paragraph 31 that she did.[14]It is then said that the Secretary of State has adopted the Court of Appeal Huang "exceptionality" test in paragraphs 35 and 36, but not the appropriate approach as determined by the House of Lords. First of all, it is clear that she has not applied it in the manner which can be objectionable - that is to say, setting a very high hurdle for someone to cross - and the language which has been used is a perfectly reasonable reflection of the intention of the House of Lords. As the Court of Appeal itself has made clear, it would not expect there to be many cases in which the House of Lords' test would lead to a different result if applied to these cases. In my judgment, this is not a case in which that argument has any prospects.[15]The primary point that Mr Walsh makes in relation to Article 8 is that the policy weight to the position of a child with 7 years' residence is important to proportionality. Hence, now that the child is 8 years old, whereas in 2003, at the previous decision, he was only four, there is a significant change and that significant change gives a realistic prospect of success under Article 8.[16]In my judgment, there is no basis here for an arguable fresh claim. Although there has been the passage of 4 years, the circumstances, where essentially the whole family can return to Ghana, do not show any prospects of success with the background set out. I do not consider that an immigration judge would hold removal disproportionate.[17]Anyone considering the impact on proportionality of the child now being over seven, such as to bring forward consideration of the policy, would have to recognise all the factors telling against the application of that policy. Where the policy has been concluded not to be applicable because of those other circumstances, it is difficult to see, when reaching his own judgment as to proportionality, that an immigration judge could be persuaded that the policy weighting to 7 years itself should be given greater weight than those considerations telling against the application of that policy in this case.[18]So one way or another, it does not appear to me arguable that the fact that the child is now over seven as opposed to under seven, with the policy implications which that has, could give rise to an arguable case that there was now a claim which could succeed. It would not be for the Tribunal to decide whether the policy applied. It would be for the Tribunal to decide whether the Secretary of State's decision was one to which she was entitled to come on the policy itself, unless it found facts rather different from those which she had concluded, in which the case the matter would again be for the Secretary of State's consideration. The policy weighting would not persuade an immigration judge differently on proportionality.[19]For those reasons, and notwithstanding Mr Walsh's arguments, I do not regard this case as having a reasonable prospect of success.[20]Thank you, Mr Walsh.[21]MR WALSH: I am obliged, my Lord.

MR JUSTICE OUSELEY: Thank you, Mr Barnes.