Enagbonma, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 3624 (Admin)

Case No CO/6015/2009[2009] EWHC 3624 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 27th November 2009
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE INGLIS
(Sitting as a Deputy Judge of the High Court)
Between
THE QUEEN ON THE APPLICATION OF ENAGBONMAClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
for The Claimant did not appear and was not representedMr C Thomann (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: I am considering two renewed applications for judicial review together because they are made by husband and wife. First by Mrs Pauline Enagbonma, and second, by her husband, Charles Henry Enagbonma. I will deal with the factual history of each case but it is on her case that the decision will focus.[2]Pauline Enagbonma is a national of Zimbabwe. She entered the United Kingdom on 11th May 2002 on a 6 month Visitor Visa and later had a student Visa from 3rd July 2002 to 31st March 2003. On 6th August 2004 she married her husband, Charles Enagbonma, who is a Nigerian national, who by that time had exhausted his appeal rights and who was an absconder from temporary release from administrative detention. His claim also falls for consideration today.[3]On 23rd August 2004 Mrs Enagbonma claimed asylum and that was refused on 16th August 2005. In April 2006 she was convicted of offences of dishonesty and of perverting the course of justice. On 31st May 2006 her appeal against refusal of asylum and her other protection was dismissed but she was granted reconsideration on 16th February 2008. On reconsideration, immigration Judge White dismissed her appeal, that is her asylum and human rights claims and on 31st March 2008 her rights were exhausted. She and her husband now have three children: Jeffrey (born in 2004); Jeremy (2006) and an infant (born in 2008). On 27th February 2009 further submissions were made on her behalf for a fresh claim for asylum. To put those submissions in context, because this is a case where rule 353 is in play, it is convenient to consider the basis upon which her appeal to the Tribunal was dismissed on 16th February 2008. Firstly, as an albino she claimed that she would suffer persecution including rape, if she returned to Zimbabwe, a danger particularly said to be arising out of a common belief amongst people in Zimbabwe that having connection with an albino woman cures or alleviates the effects of HIV. The case based on albinism was considered in full by the immigration judge and rejected by him. Although the claims have been repeated, it seems to me absolutely nothing new has been produced. Secondly, a risk as put forward on the basis of her political opinions and religion were rejected and it was found that there was no degree of likelihood of persecution on return and therefore no Article 3 or humanitarian protection claim.[4]Her Article 8 claim, she by that time having two young children and I think expecting a third, was also considered. Her husband was at the time of that decision unlawfully at large in this country. The immigration judge found that they had proceeded with the marriage well aware of their lack of status in the United Kingdom. There was a problem of which countries Zimbabwe or Nigeria the family should return to if it is to be kept together and the possibility was in the immigration judge's mind that there would be a separation of the family, with the children going to Zimbabwe or to Nigeria and the mother, in the latter event having gone to Zimbabwe would be in a reasonable position to join the rest of the family in Nigeria. Therefore it was a case where temporary separation in order to reunite the family in one or other country was considered by the immigration judge and there was a degree of uncertainty. He made reference to Razgar and Huang and answered all five Razgar questions in the affirmative and so concluded removal would not be in breach of Article 8 even though there was uncertainty of the mechanics by which and indeed the country in which the family would be reunited if a period of separation was to be contemplated. But nonetheless the Article 8 claim with that uncertainty in mind was dismissed.[5]On 27th February 2009 further grounds were put forward to the Secretary of State on Mrs Enagbonma's behalf by the Immigration Advisory Service. Firstly, a new claim for asylum and protection on the basis that her life would be at risk if she was returned to Zimbabwe by reference to the country guidance case in RM Returnees Zimbabwe [2008] UKAIT 83. In particular the claimant would be unable to demonstrate loyalty to the Mugabe regime which would be required of her having been in the United Kingdom for several years and being a failed asylum seeker. The albino point was again raised but that had already been considered and dismissed.[6]On 1st May 2009 the Secretary of State refused her claim for asylum and protection. RN was acknowledged but material was produced including country of origin material, indicating that the position had changed since the circumstances of indiscriminate violence described in RN and that the post poll violence starting in March 2008 had subsided. Most active MDC members continued to face problems but non politically active people were not generally at risk of politically motivated mistreatment whilst the thrust of the material considered by the Secretary of State. Since the summer of 2008, attacks on people who did not demonstrate loyalty had not been repeated.[7]As to Article 8, the Asylum and Immigration Tribunal had in this claimant's case said that there was no breach of Article 8 and nothing had changed since in the material circumstances. In any event, the expectation of the Secretary of State is that the family can go to Nigeria and there will be an intention to move them there directly as a family unit. Therefore, no fresh claim and no further right of appeal to the Asylum and Immigration Tribunal.[8]The claim form is in respect of judicial review of that decision, these proceedings being begun on 21st July 2009. The albino point is again raised but it is plainly hopeless. There is an allegation of serious danger if returned to Nigeria, the husband being said to have some problem with Ogoni people but, as I have indicated, he himself does not pursue a case for protection if he were to be returned to Nigeria. So it is difficult to see that the wife could do so in his name.[9]Thirdly, the length of time in the United Kingdom with family, an Article 8 claim including that the children will be stigmatised in foreign countries and persecution because of her non membership of Zanu-PF and so a fresh asylum claim should be allowed.[10]Before the acknowledgement of service was filed further representations were made on 22nd June 2009, supported by a deposition from Mr Amica Aruba, a Nigerian lawyer of Lagos, and a further document from the claimant of 30th June 2009. That prompted a further decision letter from the Secretary of State of 17th October, indicating that the albino question had previously been considered. There was no basis asserted for discrimination in Nigeria. Article 8: there was no evidence that she herself could not go to Nigeria and it is the intention to relocate the family unit to that country. As to Zimbabwe, the 1st May decision was repeated because the situation had changed since the country guidance case and it is not shown that the position of the Secretary of State was wrong, that had been taken up in the spring and indeed a short period in Zimbabwe, if that had to come about, which was not the Secretary of State's intention would be not in breach of the obligation to protect or the human rights obligation. Further representations were made on the claimant's behalf on 9th November 2009, repeating the earlier ones, asylum and human rights claims based on RN and Article 8 and the UN Convention on the rights of the child. That prompted a further refusal letter earlier this week on 24th November 2009.[11]As far RN and protection are concerned in Zimbabwe, it was said, as is the case, that no new material had been produced since 1st May and there was no real new material on Article 8 since the immigration judge's decision and the family unit could be maintained in Nigeria.[12]It is convenient to deal with the factual history of Mr Enagbonma's case. He arrived in the United Kingdom at Gatwick on 18th March 2003, using a false passport. He applied for asylum in the name of "Charles Ogbigo" of Senegal. On 28th April 2003 that application was refused. On 10th September 2003 the appeal was dismissed by the Immigration Tribunal and on 13th November 2003, a further appeal to the Immigration Appeal Tribunal, at least an application for permission to appeal, was dismissed.[13]Mr Enagbonma was in detention but he was granted temporary release on 24th March 2004 and absconded and having absconded, as I have indicated, he later that year married his wife. On 28th December 2004, after an arrest for theft, his identity was established. On 21st June 2006, before the Bolton Justices, he was convicted of motoring offences but on the following day he was stopped by the Garda trying to enter the Republic of Ireland in possession of a Nigerian passport bearing a forged stamp indicating that he had indefinite leave to remain.[14]On 20th June 2006 he was released on conditions with which he failed to comply. On 6th January 2008 there was an attempt to detain him at his home address but he fled through the back door. On 17th April 2008, at the Crown Court at Bolton, he was convicted of offences including false identity documents and sentenced to 12 months' imprisonment and a recommendation for deportation was made and subsequently the deportation order which he is now seeking not to have implemented was also made. He appealed against that deportation order and the Asylum and Immigration Tribunal dismissed his appeal on 5th January 2009. By that time, on 27th December 2008, he had submitted a new asylum claim on the basis of his supposed homosexuality but later withdrew that claim. He has been in administrative detention since the end of the 12-month sentence late in 2008.[15]On 12th June 2009 the deportation order was repeated and there was a certificate under section 96. On 15th June 2009, these present proceedings were begun by Mr Enagbonma, the basis being his family was waiting an asylum decision. This is aimed at avoiding his imminent removal. The Secretary of State said (in a letter of 21st May) that he would not be deported until his wife's asylum claim was determined and he asserted that the relevance of his family ties were not taken into account and the effect on the family of his removal was not taken into account by reference to approach of the court in Beoku-Betts.[16]The acknowledgement of service and summary grounds of defence say that the wife's claim has been refused, as indeed it had and is under consideration by this court today (at least the refusal is). On 5th January the Article 8 claim had been fully considered in Mr Enagbonma's case and removal was in any event proportionate given the history and maintaining effective immigration control and the prevention of crime. No new material had been produced since the Tribunal's decision and the assertion was nonetheless made, although it had been previously considered that it would not be disproportionate if the family was temporarily separated in one of the two countries before coming together again in Nigeria.[17]On 27th July Mitting J refused permission to apply for judicial review. He was not prepared to accept that the Secretary of State had agreed that no removal should take place pending the outcome of the wife's claim but he said that on the substance of the matter that the Article 8 rights of the claimant and his family had been comprehensively considered by the AIT panel which dismissed his appeal against the notice of intention to deport. Nothing new has been advanced that might give rise to a fresh claim under paragraph 353. The claim therefore is unarguable and renewal of the application should not be a bar to removal.[18]In the summer Mr Enagbonma launched a further application for judicial review (C0/472/2009). Collins J refused permission on the papers on 1st October 2009, in trenchant terms saying:
"The claimant is thoroughly dishonest but has chosen to disregard or breach the immigration laws of this country. Judging by the immigration judge's decision on 31st May 2006 his wife is also dishonest. He has failed to draw attention to the dismissal of his appeal against a decision to deport him. He has lied to JCWI. The acknowledgement of service proves that his claim is without merit."
He indicates the failure of that application, which was not subsequently renewed in trenchant terms.[19]In April 2009 Mr Enagbonma had expressly renounced for himself the pursuit of a case under Article 3 or 4 humanitarian protection or as a refugee and simply attached his claim to that of his wife for Article 8 protection. So his claim falls to be considered on that basis.[20]I return now to the position of the first claimant, the wife. Dealing with it in reverse order the Article 8 claim that she puts forward does not involve, in my judgment, arguably new material that would oblige the Secretary of State to treat her claim as a new Article 8 claim. There are circumstances which can be envisaged in which the actual proposals for removal might engage Article 8 in the way that has not been specifically considered. For example, if she were being required to leave the country in circumstances where there was demonstrably no real expectation that the family was going to be reunited or where the family simply could not be kept together even with short-term separation, but the fact that this is a lady with a young family and she has some years now de facto to be settled in this country, were all things that were considered as part of the background to the tribunal decision relevant to her in February 2008. Indeed, the possible uncertainty of the circumstances in which removal could be effected was also in the contemplation of the immigration judge. Nothing has changed to alter that picture and to provide new material, which together with the material before the immigration judge should on anxious consideration give rise to the decision of the Secretary of State to treat her position as a new Article 8 application. There are, as I say, circumstances which it is not difficult to envisage that might give rise to a new claim when the actual arrangements are made known. But in those circumstances are for the future and the Article 8 claim seems to me to have been determined in a way which the Secretary of State can regard it as remaining determined. The same must go for the husband's Article 8 claim. He has made oral submissions to me today, some of them going beyond what is in the application itself but as to Article 8, he says that the material has now been provided that indicates that the family is unlikely to be reassembled in Nigeria and certainly could not be in Zimbabwe. I do not take the Secretary of State's view of the material from the lawyer from Lagos as being an untenable view but in any event the precise arrangements have not yet been proposed. When they are, no doubt advice will be given about whether a new claim arises in the light of the particular arrangements. Mr Thomann has accepted in submissions today that actually arranging for this family's removal and the actual arrangements to be reached are not without difficulty but on the basis of the information provided the Article 8 claim of the mother and a fortiori of the father whose Article 8 case was considered only in a decision promulgated in January 2009, is one which the Secretary of State, in my judgment, is not obliged to consider as a new claim.[21]That leaves the more difficult position of the mother's claim to protection against removal to Zimbabwe. The decision of the immigration judge on the authorities that then existed is quite clear, namely that having considered the current evidence about the situation in Zimbabwe and the wife's own evidence about it which did not include any history of oppression directed to her, or any history of involvement in opposition to the regime, the finding was that it was not shown that she required protection from removal to Zimbabwe. The material that tells the other ways, the decision of RM which is a country guidance case and it is said on the basis of that, someone returning from the United Kingdom, even with no political affiliations or no history of opposition to the regime would be likely to face oppression from which protection ought to be granted under Article 3 and under humanitarian protection.[22]I have considered that. The Secretary of State considers country of origin material in the spring of 2009 and later on behalf of the wife further contrary material has been produced. The state of affairs when the country guidance case was decided was that the circumstances of Zimbabwe were in a state of flux as no doubt they usually are. The events of 2008 involved the election in spring and a great deal of indiscriminate violence. What is said that the Secretary of State was entitled to take into account the current evidence when the decision was made in May and indeed the objective evidence now. The country guidance case plainly as at the autumn of 2008, expanded the categories of people particularly at risk identified in the previous decision and in the light of the indiscriminate violence that had taken place in 2008 concluded that it was not simply someone who had any opposition connection or thought to have who would be at risk but someone who was unable to positively demonstrate loyalty to the regime and particularly, as one aspect of it, someone coming from abroad who had been in the United Kingdom for a long time and who was a failed asylum seeker. I have considered that. The case is, of course, a country guidance case and has to be taken into account and departed from only for good reason that must be evidence based but, in the end, the question of all these cases is the actual risk to the individual concerned. The situation in Zimbabwe will fluctuate from time to time. I do not think that either in the information that the Secretary of State considered in the spring of this year or in the information some of it later, that is being filed on behalf of the claimant herself, the overall picture when considered was such that the Secretary of State was obliged to take the view that starting with the decision of the immigration judge the country guidance decision and the other material from this year, obliged the Secretary of State to treat the matter as a fresh claim and determine it accordingly. Of course the rule 353 threshold is not a high one. There has to be careful consideration, anxious scrutiny of the material but there is no reason to think that in the various refusal letters there has been anything less than that and I have come to the conclusion that the Secretary of State was not unjustified in taking the position that was taken at overall there was not material that would lead an immigration judge, be likely to lead an immigration judge, together with the original material, to the view that she herself was at risk of harm that ought to attract protection under human rights articles or humanitarian protection.[23]In those circumstances the application for judicial review for the wife and in so far as at least in theory consists for the husband, the application for permission to apply for judicial review is dismissed.[24]I reiterate before leaving the case that in a case where it is accepted there may be difficulty in practice in removing this family, this is unlikely to be the end of the story in this court.[25]MR THOMANN: I have no applications my Lord.[26]THE DEPUTY JUDGE: Thank you.