Alam, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1303 (Admin)

Case No CO/15108/2009[2010] EWHC 1303 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Leeds Combined Court
1 Oxford Row
Venue LeedsDate Thursday, 22 nd April 2010
West Yorkshire
LS1 3BG
Before
THE HONOURABLE MR JUSTICE KEITH
Between
The Queen (on the application of ABU TANVIR MOHAMMED JAHANGIR ALAM)ClaimantSecretary of State for the Home DepartmentDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Nazir Ahmed appeared for ClaimantMr Sam Karim appeared for Defendant
Judgment
[1]The claimant, Abu Tanvir Mohammed Jahangir Alam, comes from Bangladesh. He has been living in this country with his wife and four children since December 2003. In January 2009, Mr Alam sought leave to remain in this country on the basis that his removal from the UK would infringe his right to respect for his family and private life under Article 8 of the European Convention on Human Rights. He subsequently sought asylum here as well. Those claims were refused by the Secretary of State in a letter dated 3 August 2009, and were certified under section 94(2) of the Nationality, Immigration and Asylum Act 2002 as being clearly unfounded. It is common ground that the effect of that certification is that Mr Alam could not appeal to what was then the Asylum and Immigration Tribunal (but is now the First-tier Tribunal (Immigration and Asylum Chamber)) while he remained in this country. If he was to appeal against the refusal of his claims, he had to leave the country first.[2]Mr Alam lodged a claim for judicial review of the Secretary of State's decision to certify his claim under Article 8. The claim form sought rather extravagant forms of relief, but Foskett J gave permission for Mr Alam's claim to proceed to the extent that his Article 8 claim had been certified as being clearly unfounded. This is the court's judgment following the hearing of that claim. It should be noted that Mr Alam's wife and his two young children, two girls now aged 11 and 8 respectively, have been treated as his dependents for the purposes of his claim. His two older children, two boys now aged 24 and 20 respectively, both lodged separate claims for judicial review, but Foskett J refused them permission to proceed with their claims. They have not sought to renew their applications for permission to proceed with their claims.[3]There is one other preliminary matter I should mention. In view of the criticisms made of the Secretary of State's decision of 3 August 2009 and the claim for judicial review of it, the Secretary of State gave further consideration to Mr Alam's Article 8 claim. The Secretary of State concluded that the claim was still clearly unfounded and maintained the certification to that effect. The letter informing Mr Alam's solicitors of that is dated 22 March 2010.[4]The history of Mr Alam and his family is as follows. He and his wife are 43 and 41 years old respectively. They married in Bangladesh in 1985. Mr Alam left Bangladesh in 1988 a few months after the birth of his second son and travelled to Italy. He obtained an Italian work permit which was extended regularly over the years. In 1997, his wife and two sons joined him there, and in 2000, by which time his elder daughter had been born, he was granted indefinite leave to remain in Italy. In 2003, a year or so after his younger daughter had been born, he applied for permission to visit the UK with his family. He was granted leave to enter the UK with his family as a visitor for six months. He and his family left Italy in December 2003 and came to this country. As I have said, they have lived here ever since, and Mr Alam claims, though there is no document confirming this, that his indefinite leave to remain in Italy has been revoked as a result of him living in the UK.[5]Mr Alam and his family have returned to Bangladesh occasionally to see members of their family. Mr Alam claims that because of his time in Europe, local criminals think that he is a rich man. He says that on one occasion before his wife joined him in Italy, they demanded 5,000 rupees from her. He says that when he returned to Bangladesh in 2000, they demanded 100,000 rupees from him, and that after he and his family had returned to Italy from their visit, they attacked his sister and her husband. He says that the family's persecutors got to hear that he and his family had visited Bangladesh again in 2002, and that he and his family had then returned to Italy immediately, after which his father had been threatened by them. Finally, he says that in February 2008 they killed his brother-in-law, and his father died shortly afterwards. Although neither he nor his immediate family have ever been harmed by them, his mother, he says, is still being harassed by them. He acknowledges that none of these incidents were reported to the police, but he says that that was because the police would be bribed not to investigate any complaints properly.[6]The basis of Mr Alam's Article 8 claim was not formulated with any precision. All that the Secretary of State had to go on were the answers Mr Alam gave at his screening interview on 19 June 2009 and his asylum interview on 29 June 2009. In his letter of 3 August 2009, the Secretary of State described Mr Alam's Article 8 claim as based on three things: that some of his family were dependents on his asylum claim; that members of his family had their own asylum claim in the UK, which I take to be a reference to the claims for asylum which his two sons had made by then; and that he suffered from Type II diabetes. The letter then dealt with Mr Alam's Article 8 claim as follows:
“36. … careful consideration has been given to the Home Office's policy on Discretionary leave under [Article 8] of the ECHR to consider if you have established some form of private and/or family life in the United Kingdom and in respect of your medical condition. 37. Article 8 of the ECHR does not guarantee a person or their family the right to choose to live in the United Kingdom. A decision will only lead to interference with family or private life where there are insurmountable obstacles to family or private life being continued elsewhere. 38. It is noted that your spouse and children are in the United Kingdom are dependents on your asylum claim and you would be removed as a family unit. Therefore, it is considered that there would be no breach of Article 8 of the ECHR in view of this aspect of your claim. 39. Furthermore, whilst it is noted you suffer from diabetes and have high cholesterol, you are taking medication for this which can also be obtained in Bangladesh. The case law of N v The United Kingdom – 26565/05 [2008] ECHR 453 (27 May 2008) sets out the high threshold needed to qualify for leave in the United Kingdom on the basis of a pre-existing medical condition. It is not accepted that your medical condition that would equate to your removal to Bangladesh breaching the United Kingdom's obligation under [Article 8] of the ECHR based on the findings of the aforementioned case law. 40. Therefore, you do not qualify for Discretionary Leave.”
[7]The grounds of Mr Alam's claim for judicial review contain a number of unparticularised allegations about the Secretary of State's decision, for example that he took into consideration irrelevant matters, that he failed to take into account relevant ones, and that he acted unlawfully and unreasonably in failing to exercise discretion in favour of Mr Alam given the full background of the case. However, three specific points were taken. First, having lived in this country with his wife and children since December 2003, Mr Alam had established, so it was said, both a private and family life here. Secondly, the Secretary of State had failed to consider the Article 8 rights of his dependents as required by the decision of the House of Lords in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39. Thirdly, although the seven years child concession in policy DP5/96 had been revoked, nevertheless the Secretary of State should have considered the position of Mr Alam's children in the light of the principles underlying DP5/96. The state of Mr Alam's health, though, was no longer being relied upon.[8]When Foskett J gave Mr Alam permission to proceed with his claim, he noted that Mr Alam and his wife had had a precarious immigration status since 2004 when Mr Alam's visa to enter the UK as a visitor had expired. There were misconceived attempts to regularise Mr Alam's status after that. For example, he applied to the Secretary of State for an EEA residence permit on the basis that he was an Italian national, and when that was refused on the basis that he was not an Italian national, he applied for an EEA registration certificate. That was refused on the basis that he was not an EEA national. The precarious nature of his immigration status led Foskett J to note that the Secretary of State was entitled to regard Mr Alam's claim to an established family life with less favour than someone who had sought to regularise his immigration status. However, he added that any enforced removal of Mr Alam's family could impact significantly on Mr Alam's wife and the two girls, one of whom, he said, would probably have known no other country than the UK. He said that he was prepared to grant leave because of "the relatively cursory reference to the impact of a decision to remove the family" on Mr Alam's wife and the two girls.[9]It was, no doubt, to address this concern that further consideration was given to Mr Alam's Article 8 claim. A number of issues were addressed in the Secretary of State's letter of 22 March 2010. First, Mr Alam's reliance on DP5/96 was misconceived. So far as is material to the present case, DP5/96 said that the Immigration and Nationality Directorate (“the IND”), which was the predecessor of the UKBA, would, generally speaking, not remove from the UK children who had come to the UK at an early age and had been here for seven years or more. However, each case was to be judged on its merits, and the IND would look at the family as a unit, including its immigration history, and would reach a decision about removing the parents taking into account, amongst other things, the ages of the children and their length of time in the UK. However, even if the concession had not been withdrawn, Mr Alam's two daughters had not been living in this country for seven years when the Secretary of State considered Mr Alam's case in August 2009. They had been living here for less than six years. In any event, the concession was withdrawn on 9 December 2008. That did not mean, of course, that the interests of children who have spent their formative years in the UK are not to be taken into account, but their cases are considered by reference to Article 8 and the Immigration Rules.[10]Secondly, the Secretary of State's letter dealt with Mr Alam's daughters' education. It accepted that there would be some interference with it if they were returned to Bangladesh, and it acknowledged that it might well be argued that the standard of education in Bangladesh does not match the standard of education which Mr Alam's daughters had been receiving here. But the Secretary of State found that there was an established and improving educational system in Bangladesh even if it was embryonic in nature, and that since they had grown up in a Bangladeshi family, they should be able to adapt to the language and culture of Bangladesh.[11]Thirdly, the Secretary of State's letter made a series of miscellaneous points. The two of significance are that this was not a case in which the family would be split. They would continue to be able to enjoy family life together. And apart from his daughters’ education, no wider social ties affecting Mr Alam and his family had been drawn to the Secretary of State's attention.[12]Whether a claim can be said to be clearly unfounded was considered by the House of Lords in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6 in the context of whether the words “clearly unfounded” have the same meaning as the words “[no] realistic prospect of success” in paragraph 353 of the Immigration Rules. In R (on the application of AK (Sri Lanka)) v Secretary of State for the Home Department [2009] EWCA (Civ) 447, Laws LJ (with whom the other members of the court agreed) expressed the view at [33] that two distinct approaches could be discerned in ZT:
“The first (Lord Phillips and Lord Brown) is that the tests are interchangeable. The second (Lord Hope, Lord Carswell and Lord Neuberger) is that a case which is clearly unfounded can have no realistic prospect of success, but the converse is not true: there may be a case which has no realistic prospect of success which, however, is not clearly unfounded. I venture to suggest that that represents the limit of the difference between their Lordships. Both of these two approaches are I apprehend consistent with the further proposition, expressed by Lord Neuberger at paragraph 83, that a case which is not clearly unfounded will be one which has a realistic prospect of success.”
In [34] Laws LJ concluded:
“… I should have thought that there is a difference, but a very narrow one, between the two tests: so narrow that its practical significance is invisible. A case which is clearly unfounded is one with no prospect of success. A case which has no realistic prospect of success is not quite in that category; it is a case with no more than a fanciful prospect of success. ‘Realistic prospect of success’ means only more than a fanciful such prospect.”
I therefore approach the present case on the basis that the question for the court is whether it was reasonably open to the Secretary of State to conclude that an appeal against his decision to refuse Mr Alam's Article 8 claim to what would then have been the Asylum and Immigration Tribunal had no prospect of success.[13]There is no doubt that Mr Alam and his family have established family life in the UK. That will be interfered with if the family is removed because the family will no longer be able to exercise their family life here. It is true that because the family is not being split up they can continue to enjoy family life together, and I know that it has been held that there is no right to enjoy family life in one particular country over another. But it is possible that an immigration judge on an appeal could conclude that even then their inability to enjoy family life here amounts to an interference with their right to respect for their family life of such gravity as potentially to engage the operation of Article 8. It is not suggested, of course, that this interference would not be in accordance with the law or that it is not intended to achieve a legitimate objective. The critical question is therefore the final stage of the analysis identified by Lord Bingham in R v Secretary of State for the Home Department ex p Razgar [2004] UKHL 27 at [17], namely whether the interference with Mr Alam's family life in the UK would be proportionate to the legitimate public end sought to be achieved, namely the maintenance of a firm and effective system of immigration control. But as Lord Bingham went on to say at [20], “decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis”.[14]As is well known to practitioners in the field of immigration law, this comment was explained in Huang v Secretary of State for the Home Department [2007] UKHL 11 at [20]. The Appellate Committee said:
“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. The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test.”
[15]I acknowledge, of course, that the only family life which Mr Alam's daughters will in reality have enjoyed is family life in this country. But I do not think that there is any prospect that an immigration judge would conclude that the interference with their family life, as well as that of Mr Alam and his wife, which results in them having to enjoy family life in Bangladesh rather than in this country, would be disproportionate to the need to maintain a fair and effective system of immigration control. In Huang it was said that it is only if family life cannot reasonably be enjoyed in the country to which the would-be immigrant is to be removed that an issue of proportionality normally arises. It would, of course, be different if any of the family had the right to remain in the UK, because then one would have to ask whether it was reasonable to expect that member of the family to leave this country with the other members of the family to avoid the family being split up and to live in a country with which he or she was wholly unfamiliar or because of the conditions in the country of removal. That, however, is not this case.[16]I turn to the family's private life. There is no doubt that Mr Alam and each member of his family have established a private life in the UK. That will be interfered with if the family is removed because none of them will be able to exercise their private life here. I am prepared to assume that they have laid down roots here, even though no specific social ties have been brought to the Secretary of State's attention. They will inevitably have built up a network of friends and acquaintances, as well as having developed their own lifestyle and their own routines. The girls will have become settled at their schools, and I do not underestimate the upheaval in their lives if they were to leave what is in effect the only country they have known. To a lesser extent that goes for Mr Alam and his wife as well. He has not lived in Bangladesh for 21 years, and she has not lived there for 13 years. It will take time for them to settle in when they get back, and the difficulty of finding a place to live, a job to do and a school for the girls to go to should not be underestimated, especially if the family have to relocate to another part of Bangladesh in order to avoid the ill-treatment to which Mr Alam claims his family in Bangladesh has been subjected in the past. For all these reasons, I think it possible that an immigration judge on an appeal could conclude that their inability to continue enjoying private life here amounts to an interference with the right to respect for their private life of such gravity as potentially to engage the operation of Article 8.[17]Again, it is not suggested that this interference would not be in accordance with the law or that it is not intended to achieve a legitimate objective. So we come again to the final stage of the Razgar analysis. It is here important to remember two things. First, it is not as if Mr Alam did nothing to regularise his immigration status. But his applications for an EEA residence permit and an EEA registration certificate were doomed to fail; and although he sought leave to remain here in January 2009, he had taken no steps to regularise his status for almost four years before that, apart from applying for a work permit. In truth there was nothing he could do to regularise his status until he had been here for so long that an Article 8 claim might succeed. The result was, as Foskett J noted, that his immigration status was precarious -- that is the second point that I make -- and Mr Alam would have known that he and his family could be removed from the UK at any time.[18]Mr Alam's immigration history is not, of itself, a reason why an immigration judge would dismiss any appeal, but it is a not insignificant factor, which he would be bound to put into the balance. Looking at the case overall, I have to say that I do not think that there is any prospect of an immigration judge concluding that the interference with Mr Alam's private life and that of his wife and daughters, which their removal to Bangladesh would involve, would be disproportionate to the need to maintain a fair and effective system of immigration control, even with the immigration judge factoring into the equation at the same time the interference with their family life which I have identified. I acknowledge, of course, that Mr Alam's Article 8 claim has never been considered by a tribunal on appeal, but in short I conclude that there is nevertheless no prospect of a successful appeal to an immigration judge. Mr Alam's Article 8 claim was clearly unfounded, and it was open to the Secretary of State to reach that conclusion.[19]For these reasons, this claim for judicial review must be dismissed. MR KARIM: I am grateful my Lord. (Inaudible) order that the claim be dismissed and the claimant pay the Secretary of State's costs of the application, I don’t believe the claimant is legally aided as it were but we would still request the costs to be subject to detailed assessment if not agreed. MR AHMED: My Lord I don’t know if I can resist that application at this juncture but I would for my part seek permission for renewal as a matter of ... MR JUSTICE KEITH: Renewal? You mean permission to appeal? MR AHMED: Yes. MR JUSTICE KEITH: Because this is a substantive claim. MR AHMED: Yes my Lord. MR JUSTICE KEITH: This is not a renewed application for permission to proceed with the claim. MR AHMED: Permission to appeal to the Court of Appeal. MR JUSTICE KEITH: On what ground? MR AHMED: My Lord I do think this case raise issues of some importance given the welfare of the children and the amount of time they have spent here. There is as I say no ... I respect the authority that has been handed out today but the case does involve important matters of or issues of family life and private life for which I seek your permission to appeal. MR JUSTICE KEITH: I do not think there are sufficient grounds here to warrant the grant of permission to appeal. I refuse the application for permission to appeal and it means, Mr Ahmed, you must seek permission to appeal from the Court of Appeal. The order for costs I make is that Mr Alam must pay the Secretary of State's costs of the claim to be the subject of a detailed assessment if not agreed. MR KARIM: I am most grateful. MR JUSTICE KEITH: Thank you both for your help.

Cited in 1 later judgment