Olum, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 407 (Admin)

[2008] EWHC 407 (Admin)Case No CO/4653/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 15 February 2008
Strand
London WC2A 2LL
B e f o r e:
MICHAEL SUPPERSTONE QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF OLUMClaimantv
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 G Denholm (instructed by Blavo & Co) appeared for ClaimantMr D Manknell (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]DEPUTY HIGH COURT JUDGE: This is a renewed application for permission to apply for judicial review. The claimant challenges the defendant's decision of 1 June 2007 to refuse to treat his further representations of 4 April 2007 as a fresh human rights claim. He also challenges the defendant's decision of 24 May 2007 to remove the claimant from the United Kingdom. This decision was issued following the exhaustion of the claimant's appeal rights against the decision to make a deportation order.[2]The principal application before me today relates to the first of those two matters.[3]The claimant is a citizen of Uganda, born on 28 August 1982. He entered the United Kingdom in 1990 with his aunt and uncle. His immigration status at that time was unclear. Some years later in 1996, after he had been removed from his aunt and uncle's care and put into a foster home, he was granted indefinite leave to remain.[4]The defendant decided it was conducive to the public good to make a deportation order against the claimant pursuant to Section 3 (5) (a) of the Immigration Act 1971, as explained in the Reasons for Deportation letter served on the claimant on 1 August 2006. In that letter the defendant said:
"In the light of your conviction for the offences of damaging property and causing grievous bodily harm with intent to do grievous bodily harm ..... " - pausing there, I am told by Mr Denholm, who appears on behalf of the claimant, that that was factually incorrect and that it was a conviction for a Section 20 offence not a Section 18 offence, and a 14-month term of imprisonment to be served concurrently - he was sentenced to a three-month term of imprisonment with a 14-month term of imprisonment to be served concurrently, "
The Secretary of State regards as particularly serious those offences involving violence, sex, arson and drugs. Also taken into account is the sentencing court's view of the seriousness of the offence, as reflected in the sentence imposed, the result of any appeal from that sentence as well as the effect of that type of crime in the wider community ..... ..... It is noted that you are 23 years of age, in good health and single with no children. You have been resident in the United Kingdom for 16 years. ..... Although you have been resident in the United Kingdom for a number of years, you spent your formative years in Uganda. In view of this it is not considered unreasonable to expect you to be able to re-adjust to life in Uganda. It is concluded that in light of the seriousness of your criminal offence your removal from the United Kingdom is necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals."[5]The claimant exercised his appeal rights. On 4 December 2006 the Asylum and Immigration Tribunal heard his appeal against the decision to make a deportation order. The claimant also made a claim under the European Convention on Human Rights which was considered at the appeal hearing.[6]In a decision promulgated on 12 December 2006 the appeal was dismissed on human rights grounds, and the decision to make a deportation order was found to be in accordance with the law and immigration rules.[7]The claimant sought a re-consideration of this decision which was refused on 8 January 2007. He applied then for a High Court review which was refused on 22 March 2007. It was noted in that decision that the claimant's lengthy grounds lacked substance. On 4 April 2007 the claimant submitted further representations in respect of his human rights application. The defendant responded on 9 May 2007 wherein it was noted that the claimant's Article 8 rights had been thoroughly considered at each stage of the process. The claimant made further representations on 25 May, again seeking that the proportionality test set out in the recent House of Lords' decision in Huang be applied. The defendant responded on 1 June 2007. In that letter she noted that the points raised, namely a claim under Article 8, had been considered before and therefore it did not amount to a fresh human rights claim for the purposes of paragraph 353 of the Immigration Rules. The Secretary of State was not prepared to reverse the previous decisions.[8]The defendant also - on 19 July 2007 - issued a further letter to be read in conjunction with her decision of 1 June 2007. It was noted that - "We have now considered your client's Article 8 claim further in the light of the findings of the House of Lords in Huang ..... which substituted a proportionality test for the test previously applied by the Court of Appeal." The defendant concluded that - " ..... any interference with [the claimant's] private life is necessary and proportionate to the wider interests of the maintenance of an effective immigration policy."[9]The issue on this application is whether the revised test in Huang creates for the claimant a realistic prospect of success before an immigration judge. I have been referred by both counsel to the decision of the Court of Appeal in AG (Eritrea) of 31 July 2007. Mr Manknell, on behalf of the Secretary of State, accepts in the present case that there is interference with the claimant's private life under Article 8. The question is whether such interference is proportionate to the legitimate public end sought to be achieved. In Huang, Lord Bingham, delivering a single opinion on behalf of the appellate committee, said at paragraph 20:
"In an Article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality."
[10]In AG (Eritrea),

Lord Justice Sedley, citing that passage, continued at paragraph 25:

"The effect of their Lordships' decision ..... in Huang has thus not been to introduce a new interpretation of Article 8 but to clarify and reiterate a well understood one. While its practical effect is likely to be that removal is only exceptionally found to be disproportionate, it sets no formal test of exceptionality and raises no hurdles beyond those contained in the Article itself."
[11]I have been referred to paragraphs 29, 30 and 37 in the judgment of Lord Justice Sedley. At paragraph 30 he referred to the judgment of Lord Justice Buxton, who adopted the passage from the judgment of Lord Justice Carnwath in Mukarkar v Home Secretary, in which he said:
" ..... In normal circumstances interference with family life would be justified by the requirements of immigration control. However it is recognised that a different approach may be justified in 'a small minority of exceptional cases identifiable only on a case by case basis' (per Lord Bingham, Razgar). The House of Lords has declined to lay down a more precise legal test. Accordingly, whether a particular case falls within that limited category is a question of judgment for the tribunal of fact and normally raises no issue of law."

Lord Justice Sedley said:

"We respectfully adopt and follow this reasoning."
At paragraph 37

Lord Justice Sedley said:

" ..... there will be many cases in which it can properly be said by an appellate tribunal that on no view of the facts could removal be disproportionate. In such cases (of which PO (Nigeria) ..... is an instance), even if the AIT has applied the wrong test, permission to appeal to this court is unlikely to be granted."
Mr Manknell submits that those words apply in particular to the present case when one comes to consider the findings of the Asylum and Immigration Tribunal.[12]Those findings start at paragraph 58 of the decision of the tribunal. At paragraph 70 the tribunal deals with paragraph 364 of the Immigration Rules. At paragraph 58 the tribunal said:
"58 We must undertake a balancing exercise, having regard to the various factors set out in that paragraph as it was before 20 July 2006."
I will not read the whole of that paragraph 70, but it is clear from paragraphs 70 and 71 that the tribunal adopted a balancing exercise looking at all the material facts.[13]At paragraph 72 the tribunal dealt with Article 8 of the Human Rights Convention separately. It noted that Article 8 is engaged in the context of the appellant's private life. His removal would have consequences in relation to it which may properly be described as grave. His removal in consequence of the respondent's decision would be lawful and in pursuit of a legitimate aim of prevention of disorder or crime. The tribunal said:
"In the light of the evidence before us, we find the respondent's decision was a proportionate, one in relation to that aim."
[14]The tribunal went on to consider Mr Denholm's detailed and carefully prepared skeleton argument, disagreeing with his submission that the appellant's removal would destroy his private life and finding that he may re-establish his private life in all essential respects, including friendships, associations, contact with his family and employment in Uganda. The tribunal said:
"We have considered carefully Mr Denholm's submissions regarding the length of time the appellant has spent in the United Kingdom, as against the length of his residence in Uganda and have taken into account the recent decision of the European Court of Human Rights in Üner ..... The length of his residence in the United Kingdom must be weighed with all the evidence before us."
Then the tribunal said this:
"In relation to the immigration rules, we have found the balance struck by the Secretary of State to be the correct one. In relation to Article 8, we find that the appellant has not shown that there are truly exceptional features in his case which compel a finding in his favour that the respondent's decision was a disproportionate response. On the contrary, we find the decision to make a deportation order was, in this case, a proportionate response."
[15]Mr Denholm submits that one cannot hive off the legal test from the conclusions that the tribunal came to in the way that Mr Manknell attempted to do in his submissions. However in my judgment it is very significant that the tribunal concluded that they found that the decision to make a deportation order was, on the facts of the present case, a proportionate response.[16]In my judgment, applying the revised test in Huang to the facts of the present case, there is no realistic prospect of the claimant succeeding before an immigration judge. The application is accordingly refused.[17]MR MANKNELL: There is an application for costs of the acknowledgement of service in the sum of £400.[18]DEPUTY HIGH COURT JUDGE: That is limited to the costs of preparation of the acknowledgement of service and no additional costs are claimed in relation to today's attendance.[19]MR MANKNELL: That is right.[20]MR DENHOLM: I respectfully submit that the appropriate order in the present case should be no order, but there is little I can say to resist that application.[21]DEPUTY HIGH COURT JUDGE: Did I see reference in the order refusing permission on the papers to the judge saying the costs would be academic?[22]MR DENHOLM: Yes, I apologise.[23]DEPUTY HIGH COURT JUDGE: This would be an application to review that decision which Mr Manknell is perfectly entitled to make, but nevertheless there was an order made below in respect of the same costs claim.[24]MR DENHOLM: Indeed.[25]MR MANKNELL: You are quite right about that.[26]DEPUTY HIGH COURT JUDGE: It does not follow from that that you should not succeed, Mr Manknell, and indeed - not that it is entirely relevant - in a previous case today I recall that there was success on the review application although costs had been refused below. My order is no order as to costs.[27]MR DENHOLM: I am grateful. There is one other matter. As I understand the rules, I cannot make an application to your Lordship for permission to appeal.[28]DEPUTY HIGH COURT JUDGE: I think that is right.[29]MR DENHOLM: Obviously we will be considering the appellant's position in due course. I would ask for an expedited transcript so that we can properly consider the detail of your judgment in the next seven days.[30]DEPUTY HIGH COURT JUDGE: I will order expedition.[31]MR DENHOLM: I am grateful.