Khan, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 600 (Admin)

Case No CO/1876/2006[2008] EWHC 600 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 29 February 2008
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE MOLE QC
(Sitting as a Deputy High Court Judge)
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)
Mr Bruce Tattersall (instructed by Dean Manson) appeared for ClaimantMr James Strachan (instructed by Treasury Solicitor) appeared for Defendant
Judgment
[1]DEPUTY HIGH COURT JUDGE: This is an application by Shazia Sarwat Zahid Khan, brought against the Secretary of State for the Home Department, for judicial review of a decision dated 28 February 2006 in which the Secretary of State refused Mrs Khan's asylum application and certified under Section 96 (2) of the Nationality Immigration and Asylum Act that no appeal against her decision might be brought. Permission was refused on the papers by Mr Justice Sullivan on 19 June 2006, but subsequently granted on a renewal by Mr Justice Silber after an oral hearing. Permission was granted on 4 September 2006 on the limited ground which I shall now recite:
"Permission be granted on the issue whether the defendant can issue a certificate under Section 96 (2) of the Nationality and Immigration Act 2002 when the effect of it is to ignore responses to Section 120 notices which are made outside the ten-day period."
I shall have a little more to say about it in a moment.[2]First I shall return to the facts in order to understand the point for which permission has been granted. On 25 October 2004 the claimant arrived in the United Kingdom at Manchester Airport with her husband and two children. There has been some question about what occurred when they arrived.[3]A statement was served on 22 February, but a few days ago. It sounds to me as if perhaps it was not necessary but it has called forth a response, the witness statement of Nafisa Gopinathan, which exhibits for the first time the notes of the officers who dealt with the Khan family on that day. I will not read those notes out but they record briefly that the family arrived from Lahore at shortly after midday. Mrs Khan approached the desk, saying the family wished to claim asylum. She needed an Urdu interpreter although she spoke some English, and her husband appeared to speak good English. They explained in outline why it was that they wanted to claim asylum. An Urdu interpreter was contacted and attended. The baggage was searched and revealed that, sensibly, the Khan family had brought every record that it might be necessary to bring if they were going to re-establish their life in this country. The note says that both the passenger (that is Mr Khan) and his wife were "screened" to level 1 with the aid of interpreter Mrs P Bradshaw, which means that they were interviewed and their interview was recorded.[4]The defendant says that they were each issued with what is known as a one-stop notice. That is a notice under Section 120 of the Nationality Immigration and Asylum Act 2002. There are copies in the bundle of notices in the names of Mr Khan and Mrs Khan, who is named on the notice that is said to be addressed to her as Shazia Sarwat Zahid. These notices are dated 25 October and signed by an immigration officer. The address on them is "UK Immigration Service, Level 4, Terminal 1, Manchester Airport".[5]Because of the doubt - indeed challenge - by Mr Tattersall, on behalf of claimant, to the proposition that this notice was actually served on Mrs Khan, I should say that the notice which I have just referred to and will refer to again was part of additional grounds which were served on 29 June 2005 expressly on behalf of Mrs Khan. They included a copy of the notice and a copy of a statement of additional grounds. It seems to me that even if there were any doubt, given what I have recited of the procedures at Manchester Airport, that Mrs Khan had been served with the one-stop notice, there can be no doubt at all that the notice was effectively delivered to her legal advisers who had a copy of it which they were eventually able to send in support of the additional grounds, although I do not need to make a finding about that because I think both parties agree it makes little difference. It seems to me that the Secretary of State was perfectly justified in saying, as he did in his letter of 28 February, that the Section 120 notice had been served upon Mrs Khan.[6]I should say a bit about the notice because it is an important document. These notices are broadly in one form. They are headed in capitals at the top "One-stop Warning". After matters briefly identifying the person on whom the notice is served, it goes on to state:
"You must now make a formal statement about any reasons why you think you should be allowed to stay in the United Kingdom. This includes why you wish to stay here, and any grounds why you should not be removed or required to leave."
It continues at the next paragraph:
"The statement should be either - • made on the form STATEMENT OF ADDITIONAL GROUNDS (IS 76) and returned to the address at the top of this page to reach us within the next ..... working days, or ..... "
I need not bother about the "or", other than to note that that also specifies no printed period but has dots to allow a period to be inserted. The document continues:
"You do not have to repeat any reasons you have already given but if you do have any more reasons you must now disclose them. If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application was refused."
There is comment at the bottom that the requirement to state reasons is made under the provision I have cited.[7]The form of this notice is central, it seems to me, to the issue that I have to decide today.[8]What then happened was that the claimant's husband Mr Khan made an asylum claim, and that was duly considered. His claim reached the Asylum and Immigration Tribunal on 12 April 2005. The determination was on 22 April when the immigration judge considered his argument. That was essentially based upon the fact that he and his family were members of the Ahmadi religion, were the subject of persecution in the Islamic Republic of Pakistan and, indeed, to a degree, in Malaysia to where they had removed, and that his reason for wishing to stay in this country was that the persecution would be continued and would intensify to such a degree that it would be quite wrong to require him to go back to Pakistan again. He gave evidence as to this. He was cross-examined about it.[9]I should note that the immigration judge reached the conclusion that Mr Khan was not credible on certain important points. He set out his reasons for arriving at that conclusion. These were matters of judgment and interpretation for him. Nonetheless he said, notwithstanding his conclusion as to the credibility of Mr Khan, he still considered whether or not he should be returned on the basis of him being of the Ahmadi faith. He also considered the position of his daughter. He had made earlier a number of references to the fact of the persecution being not confined to Mr Khan but also to his wife and, indeed, to a degree, to the rest of his family. The conclusion the immigration judge eventually reached was that he dismissed the appeal on both asylum grounds and human rights grounds.[10]There was an application for reconsideration which was determined by a senior immigration judge on 24 May 2005. (The decision is signed by the judge 10 May 2005. The promulgation may have been 24 May 2005.) The point is that the judge held that there was nothing to indicate that there had been any error of law in the immigration judge's decision or anything to show that there would be a real possibility that the tribunal would decide the appeal differently on re-consideration. He pointed out that it is not acceptable to seek to reserve the right to put in further grounds of appeal at some future date.[11]The husband's grounds were thus exhausted as of about 24 May.[12]In June the claimant Mrs Khan submitted a statement of additional grounds "for me and my husband". That is the document I have already referred to in passing to which I will now return. There was an undated covering letter that does not matter. The additional grounds were dated 26 June 2005. They included a one-stop warning. They set out a number of additional grounds. I will not repeat them here. They were in seven brief paragraphs, the meat of which is that her husband's asylum application was based principally on religious conflict between Sunni Muslims and Ahmadis; they were both in fear of their lives and those of their children, and were deeply fearful they would be treated inhumanely if they were returned to Pakistan. I observe that it did not add anything at all that applied particularly to Mrs Khan and not her husband nor anything that had not in general terms been considered by the immigration judge. I do not know what happened to that statement. It does not seem to have been treated as a formal claim nor does it seem to have been formally dismissed at that stage.[13]The next step seems to have been that on 7th February removal directions were set and served on the claimant and her husband. By a letter dated the same day - "urgent by fax" it is headed - a new firm of solicitors, said that they acted for Mrs Khan in her immigration matter, advanced an application for asylum in her own right due to her fear of persecution on the grounds of being an Ahmadi Muslim and made the point that she belonged to a high profile Ahmadi family whose close family members had already been known for preaching and proselytising and whose own history made her more likely to be a target for persecution. The letter set out the history and some detail. It also enclosed a much fuller statement from Mrs Khan. It gave considerably more detail about what she said was the persecution that she had suffered over a considerable length of time in her youth in Pakistan as a result of her Ahmadi family connection. That document was dated 2 February.[14]That further document was dealt with by the Secretary of State on 28 February 2006. The Secretary of State formally refused the asylum application. The letter referred to the letter I have just mentioned dated 7 April 2006. In the third paragraph it went on to say:
"We note that your client wishes to claim asylum in the United Kingdom in her own right despite previously being a dependant of her husband's asylum application that was refused and the 'one-stop' appeal against that decision dismissed by an independent immigration judge on 22 April 2005. We note too that your client blames her previous representatives for failing to forward her own asylum application to the Home Office for consideration. Even if the claim of poor representation in the past is true, these were your client's chosen representatives and the Home Office cannot be expected to make allowances for such circumstances. Notwithstanding the aforementioned, we have nevertheless considered your submissions and taken account of the statement of truth signed by your client on 2 February 2006. In so doing, we consider without exception that all of the issues raised could and should have been mentioned in the statement of additional grounds (IS 76) issued to your client on 25 October 2004. Furthermore and in any event, we are satisfied that removing your client to Pakistan will not place her at risk of treatment contrary to either Convention [and the Convention is listed]."
It continues:
"In view of the above this asylum application is hereby refused. In accordance with Section 96 (2) of the Nationality Immigration and Asylum Act 2002 (as mended), the Secretary of State hereby certifies that - (a) on 24 October 2004 your client received a notice under Section 120 of the Nationality Immigration and Asylum Act 2002 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision. (b) the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement in response to that notice, and (c) in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice. The effect of this certificate is that an appeal under Section 82 (1) against this immigration decision ('the new decision') may not be brought."
[15]It concluded that the removal directions would proceed as arranged. The removal directions did not proceed as arranged, as is evident. I have already briefly outlined the bringing of this judicial review claim. It is not necessary for me to say more about the procedure than I have.[16]Mr Tattersall, for the claimant, concentrates on the decision letter of 28 February. He relies upon the negligence, as he puts it, and no doubt puts it with some justification, of the previous legal representatives of Mrs Khan who failed to advance a separate claim on her behalf, when they should have done or in any sensible time scale thereafter, and failed to provide the sort of documents that would have been relevant for her to make out her own claim. He says that the Secretary of State, in effect, too readily brushed aside her claim that she had been poorly represented.[17]Mr Tattersall has drawn my attention to the case of R (On the application of R) v Secretary of State for the Home Department [2005] EWHC 520 (Admin), which is a decision of Mr Justice Hughes. I fully appreciate, as does Mr Tattersall, that this is not a case that is on the same provisions as the one that I have to consider. It is a fresh claim case. He particularly draws my attention to paragraph 31 in which Mr Justice Hughes made the very commonsensical observation that he was far from saying in that case that the negligence of legal representatives was not a point that could be relevant and ought to be considered by the Secretary of State. He said:
"It may be that if a case were to arise of compelling or even conclusive fresh material, which plainly proves incontrovertibly the merits of an asylum claim, but which material was not put before the immigration decision makers on a previous application through sheer negligence of legal representatives, for which the claimant himself bore no responsibility, the Secretary of State might wish to treat an application based on that fresh compelling or conclusive material as a fresh claim."
[18]Mr Justice Hughes therefore refused to hold that the paragraph in consideration in that case prevented the Secretary of State from doing that and, indeed, said he was a long way from so holding. Although this is not the reason for his decision, it seems to me to be not only highly persuasive it seems to be a helpful glimpse of the obvious.[19]Exactly the same would apply to the Home Office and the Secretary of State making a decision in any case.[20]I comment that if the final statement of the third paragraph of the letter of 28 February was to be taken as a general rule, namely that the Home Office could never be expected to make allowance for the failures of chosen representatives, one would have no hesitation in saying that was going much too far. But in my judgment, and I do not think that Mr Tattersall was arguing for the contrary, the statement that is made in that letter must be read in the whole context. When it is read in context it is obvious that the Home Office is not setting out a general rule or saying anything that indicates that it regards itself as being bound by some unwritten policy to that effect. It is a statement as to the approach that they are taking in the circumstances of Mrs Khan's application. I say immediately that it is an approach that seems to me to be justified in those circumstances.[21]Mr Tattersall particularly focuses, as he is bound to do, on the rather limited ground that is the basis for permission to pursue his claim for judicial review. He says that overall the Secretary of State's decision ends up being irrational and disproportionate. His submission is that the first question is whether the Secretary of State has a discretion to allow representations that come outside the time limit specified in the Section 120 notice, the ten-day period in this case. The second question is - and perhaps, as he said, the most important one in this case - whether or not it was irrational and disproportionate of the Secretary of State not to exercise his discretion in favour of Mrs Khan, particularly in the light of the solicitors' handling of the case and also bearing strongly in mind the merits of the particular points that Mrs Khan makes about her own background as opposed to that of her husband generally.[22]The point whether she actually received the Section 120 notice is perhaps of less significance or relevance. What can be said about it however is that however it had been received, and even if it had been served upon her, the likelihood is that it was not looked at by anybody, including Mrs Khan, who gave it the attention that it deserved.[23]Mr Tattersall said that the Secretary of State is in danger of taking an over-rigid view about his duties under Section 96 (2), and that the point that is certified by Mr Justice Silber is effectively addressed to the danger that the Secretary of State is being trapped by the provisions of Section 96 (2) into ignoring responses to notices which are made outside the ten-day period or whatever period of days is set out in the notice when he should not do so.[24]To this, Mr Strachan's response is that the question that is posed by Mr Justice Silber can only have one answer if Section 96 (2) and Section 120 are to have their evident statutory purpose which is encapsulated in the nickname (if that is the right way of describing it) "one-stop" notice. Mr Strachan says that, in effect, it would completely cease to be a one-stop notice, it would be as many stops as the passengers chose to make, and the length of time between stops would be completely indeterminate as well. In other words, the purpose of the statute could be completely defeated and the provisions would be impossible to operate if the requirement was open-ended, and that, he says, is what the effect of the argument that the claimant is putting forward would be.[25]Mr Strachan says that nothing in the statute precludes the power of the Secretary of State to require reasons to be advanced within a specified period. And if the purpose of Section 120 is to be achieved that must happen, and there must be a limit, otherwise the procedure becomes pointless. On the other hand, he makes it plain that the Secretary of State does not argue that the provisions preclude her from considering reasons that are submitted out of time if she thinks it proper to do so. He points out that in this case in the decision letter of 28 February the Secretary of State did exactly that.[26]I will come straight to my view of Section 120 and Section 96 (2).[27]I start with Section 120. The heading of this section is Requirement to state Additional Grounds for Application. Section 120 (1) says:
"(1) This section applies to a person if - (a) he has made an application to enter or remain in the United Kingdom, or (b) an immigration decision within the meaning of Section 82 has been taken or may be taken in respect of him. (2) The Secretary of State or an immigration officer may by notice in writing require the person to state - (a) his reasons for wishing to enter or remain in the United Kingdom, (b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and (c) any grounds on which he should not be removed from or required to leave the United Kingdom."
I do not think that sub-section (3) particularly matters at this stage, but I will remark, since it relates to something said in Section 96, that it says the statement need not repeat reasons or grounds set out in an earlier application.[28]Section 96 (2) has a different purpose. Section 96 (2) - and this should not be lost sight of - restricts the ability to appeal against an immigration decision. It states this:
"An appeal under Section 82 (1) against an immigration decision ('the new decision') in respect of a person may not be brought if the Secretary of State or an immigration officer certifies - (a) that the person received a notice under Section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision, (b) that the new decision relates to anapplication or claim which relies on a matter which should have been but has not been raised in the statement made in response to that notice, and (c) that in the opinion of the Secretary of State or the immigration officer there is no satisfactory reason for that matter not having been raised in the statement made in response to that notice."
[29]I stress again - before I move to what I understand to be the meaning of those provisions - that Section 96 (2) relates to the ability to bring an appeal against an immigration decision. It could not be read, and does not apply, to the immigration decision itself. And that is not, properly, how the Secretary of State uses it in the letter of 28 February 2006.[30]As for those provisions, I note that there is no express power to impose any time limit of any sort in either section. Equally there is no prohibition of the imposition of a time limit in either section. It seems to me clear that the statutory purpose is to enable the Secretary of State to be provided, at an early stage, with a fresh and comprehensive statement of the would-be asylum seeker's reasons for wishing to stay in the country, in the United Kingdom. Such a requirement, it seems to me, would be pointless and the whole process would be unworkable if the person upon whom the requirement was served could take as long as that person wanted to mull over his reasons and then could spend months or even years drafting them. It seems to me that nothing in the Act prevents the Secretary of State imposing a time limit that would be reasonable in all the circumstances. Indeed unless he does so, I do not see how the ability to serve a requirement in order to obtain a clear and comprehensive set of reasons at an early stage could possibly be achieved.[31]In my view the form of notice that was served upon the Khan family is plainly lawful. A gap is left for the time within which the requirement is to be satisfied. That is eminently sensible, leaving the matter capable of being adjusted according to the circumstances.[32]In the case of the Khan family, it seems to me that a ten-day requirement which mirrors the appeal requirement is also perfectly reasonable and perfectly lawful. Of course, it could be longer but there are quite pressing reasons for these sorts of matters to be set down quickly and transmitted at the earliest stage.[33]So far as the issue is concerned, the answer is that section 120 may certainly impose a time limit. Whether or not the time limit in the particular circumstances is a fair and proper one is something that will depend upon those circumstances. I am far from saying that any time limit that is imposed will be reasonable. And Mr Strachan has very fairly acknowledged that of course one can conceive of circumstances in which the time limit is quite unreasonably short. Such an imposition of a time limit would be challengeable; I have no doubt about it. But this time limit in this case is perfectly reasonable and perfectly lawful.[34]Section 96 (2) then refers back to the Section 120 notice. What the certificate under Section 96 (2) means, of course, is that late responses that are not accepted because they are too late may mean that there is no appeal against the immigration decision because the Secretary of State certifies to the matters that are set out in Section 96 (2), which is what happened in this case. That does not mean that the responses that the Secretary of State receives, if he receives responses after the time limit, must be ignored. He certainly is not precluded from considering them. Indeed he should give his mind to whether or not there is any good reason why late responses should be considered. For example, if they are a day or two late with some explanation why, and they are powerful reasons, there might be an overwhelming argument that no reasonable Secretary of State could rule them out of account because they had come in late.[35]However having made that plain - because it seems to me that the use of the word "ignore", in the way that the issue has been defined, suggests that some such question may have been in the mind of Mr Justice Silber in setting the issue of law - the answer must be that it is a matter of discretion for the Secretary of State as to whether, and to what degree, she takes into account late responses in making the immigration decision. She also has a further discretion when she turns to Section 96 (2) as to whether or not she applies the section and certifies in a way that means there will be no further appeal. Both those matters are matters of discretion.[36]When one turns to the exercise of the discretion as set out in the letter of 28th February, it is impossible to say that it was exercised in a way that is either irrational or disproportionate, even if that were the issue in respect of which leave had been granted, which it does not seem to me that it is. The Secretary of State, despite the lateness and despite the problems with the chosen representatives, considered the submissions. The Secretary of State thought the issues could have been mentioned in the earlier statement of grounds. That is a decision that is entirely open to the Secretary of State in all the circumstances.[37]The Secretary of State then, to see whether or not there could be any appeal from her decision, turned to the provisions of Section 96 (2). The Secretary of State recited that Mrs Khan had received a notice under Section 120 of the Nationality Immigration and Asylum Act 2002. That was a view that was entirely open to her and was probably the right one. She recited that the new decision related to an application or claim that relied on a matter that should have been but had not been raised in a statement made in response to that notice. That seems to me to be again entirely a matter for her and completely within the range of responses that she could properly make.[38]Finally she expressed the opinion that there was no satisfactory reason for that matter not having been raised in the statement made in response to that notice. It is impossible, it seems to me, to say that that was not a decision to which she could properly come. The effect of that was that her certificate that an appeal may not be brought is completely beyond challenge.[39]For those reasons this application for judicial review is dismissed.[40]MR STRACHAN: In those circumstances I would ask formally for an order in those terms. There was previously an order preventing removal by way of an interim order by Mr Justice MacKay. My reading of that is that it lapses on the determination of this claim.[41]DEPUTY HIGH COURT JUDGE: That is how they are usually drafted. I do not remember the drafting of this one.[42]MR STRACHAN: I have checked that. I want to be clear that my understanding is that I do not need formally to seek an order from your Lordship altering that order, but that it simply lapses on your determination.[43]DEPUTY HIGH COURT JUDGE: Yes.[44]MR STRACHAN: I also ask for an order that the claimant pay the defendant's costs. There is not a summary schedule so I do not ask you summarily to assess the costs. I would invite your Lordship to make an order that the defendant's costs be paid by the claimant to be subject to detailed assessment if not agreed.[45]MR TATTERSALL: My Lord, I am a little concerned about the application for costs, the reason for that being that this case came here on a general point about which you have given very useful advice. In a sense it is a test case because this is an area that has not been approached before by way of judicial review or by way of any other hearing. That is one of the reasons why my friend and I have hardly quoted any other cases other than R today. In those circumstances it is very much a case where you have set down some very useful guidelines. I think that to ask for costs as well perhaps is a little unfair with all consideration. If your Lordship is going to consider costs perhaps you would only consider them up to the point where the defence was settled rather than to today's hearing.[46]DEPUTY HIGH COURT JUDGE: Mr Tattersall, I think the fair order is that you should pay the defendant's costs and there will be a detailed assessment if the costs are not agreed.

Cited in 1 later judgment