Sanyaolu v Secretary of State for the Home Department [2010] EWHC 1466 (Admin)

Case No CO/12781/2009
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate Monday, 17 th May 2010
M3 3FX
Before
MR JUSTICE LANGSTAFF
Between
SANYAOLUClaimantSECRETARY OF STATE FOR THEDefendantHOME 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)
The Claimant appeared in person. for in personMr Karim appeared for Defendant.
Judgment
[1]This application for judicial review comes to the court in unusual circumstances. The application itself was made on 30 October 2009. It sought review of a decision by the Secretary of State to refuse to grant leave to remain. The application was made on 2 February 2009; but the background to it is important.[2]The claimant is a national of Nigeria. He was born in March 1972, and is therefore now 38 years old. In 2001, when he was 29, he came to the UK. He married an EEA national, and in June 2004 made an application for a residence permit as her spouse. That was granted so that he would have a right of residence as a family member of an EEA national. The leave to remain expired on 20 September 2009. The claimant had used a firm of solicitors to pursue his application. So far as he was concerned, as I understand it, once the application had been granted that firm no longer actively represented him. There was no further work that he expected them to do for him.[3]In 2005, the claimant’s marriage came under strain. Unusually, he was the subject, he claims, of domestic violence perpetrated against him by her. They separated, and have lived apart ever since. Later, after they had stopped living together, the spouse had her right of residence removed. It followed that the Secretary of State would wish to notify the claimant that since she no longer had a right to reside, his permit to remain necessarily would be revoked, too. On 24 October 2006 the Secretary of State sent such a notice to the solicitors who had previously acted for the claimant. The claimant says, and no one in this litigation has queried, that the solicitors had ceased to operate as a firm. It is plain that he says the letter never got to him; there is no evidence that it did. I shall deliver this judgment upon the assumption that the letter was never forwarded by the solicitor concerned to the claimant.[4]The Immigration (Notices) Regulations of 2003 (Statutory Instrument 658 of 2003) provide by regulation 4 that a decision maker must give written notice to a person of any immigration decision taken in respect of him which is appealable. Significantly, by regulation 4 paragraph 3, it is provided that if the notice is given to the representative of the person, it is to be taken to have been given to the person. Representative is defined by regulation 2 as meaning a person who:
“… who appears to the decision-maker— (a) to be the representative of a person referred to in regulation 4(1) below …” (a) to be the representative of a person referred to in regulation 4(1) below …”
[5]Thus, so far as the law was concerned, notice revoking the leave to remain was properly given, but so far as fact is concerned, the claimant did not know that this had happened. He did not tell the Home Office, however, that he was no longer living with his wife. That was the basis upon which he had been allowed to stay in the UK; it was no longer appropriate, but he took no steps to tell the Home Office. He did not, however, hide it.[6]The claimant formed a new relationship with a Nigerian woman who, as I understand it, he formerly knew in Nigeria. She had come to the United Kingdom. He calls her Bridget; she is known by more than one name, and for present purposes I shall simply call her Bridget, although her passport name is Maureen Ogbuozobe Olusegun. But she is otherwise known as Bridget Omadime Sanyaolu. They, the Secretary of State accepts, have lived together as husband and wife. Their first child, Chantelle, was born in November 2005, and is now therefore four and a half years old. She has just started school. A son, Desmond, was born in November 2008, and is therefore one and a half.[7]Not knowing that his immigration status was queried before 2009, the claimant worked and lived in England, as he tells me, as part of the community, paying his taxes, involved with the church, and observing the law. He applied in February and March this year to remain in the United Kingdom, seeking in the second of those two applications that Bridget stay as his partner. That application was rejected on 7 September 2009. It was that application and that refusal which gave rise to the application to this court. By the time it came before Foskett J on 2 February, there had been further correspondence. The judge took the application to be an application to review a letter containing a decision of 23 November 2009. That letter gave consideration not just to the question of leave to remain with Maureen/Bridget as a partner, but also to whether or not the claimant had a right of appeal against the decision which had been made.[8]The Secretary of State had said that because, as a matter of law, the claimant had no right to reside in the UK at the time he made the application for leave to remain, a decision refusing such leave to remain was not an appealable decision. It would have been otherwise if he had had leave to remain. The claimant sought to argue that this ignored the history; that he quite reasonably thought at the time that he made the application in February 2009 that he did have leave to remain, because he had never been told that it had been revoked. Secondly, he took the point that to remove him, which would be a consequence of having no leave to remain in due course, would be in breach of this country’s obligations under Article 8 of the European Convention.[9]Foskett J noticed that the letter which had been written by the Secretary of State placed significant weight upon what it regarded as the claimant’s poor immigration history, and his blatant disregard for the immigration regulations. He noted that the letter began by asserting that the claimant had failed to exercise appeal rights in respect of the revocation of his residence permit, and had made no attempt thereafter to regularise his position.[10]In the light of the history as I have set it out, to parts of which Foskett J drew attention, it might be plain that the Secretary of State’s letter was written with a profound misconception: that the claimant was knowingly in breach of the rules, and that it took that misconception significantly into account. The letter said in its penultimate paragraph that in the light of the poor immigration history and blatant disregard for regulations:
“… it is considered that we are also entitled to weigh such factors heavily against you when assessing whether interference with your family life is proportionate.”
It was only after that, that the Secretary of State expressed a conclusion that, on balance, it would be a proportionate exercise of the power to remove if that power were to be exercised in the claimant’s case, notwithstanding the fact that it would affect and interfere with his family life to some extent. 11. The matter came from Foskett J to HHJ Pelling QC, sitting as a judge of the High Court. He ordered that permission should be granted only upon the grounds of adequate consideration of Article 8 in connection with leave to remain. 12. It is therefore in the light of that that today’s arguments have been directed; but I note that that decision was made on 24 March 2010. On 19 April there was a further letter from the defendant. That considered further the question of family life. It made reference to the Borders, Citizenship and Immigration Act 2009, and the need to pay due regard to safeguard and promote the welfare of children in the UK. But significantly, it repeated the same penultimate paragraph as did the letter of 23 November, and therefore perpetuated what (in the light of the facts as I have determined I should consider this application upon) is potentially a significant misunderstanding, and took into account heavily as a factor that the claimant had a poor immigration history and had shown blatant disregard for the immigration regulations. 13. A subsequent letter dated last Friday considered further evidence shown by the claimant that his elder child was now at a mainstream school; indeed, he showed the court a photograph of his daughter smiling in her school uniform.[14]Against this background, the issues which I have to determine seem to me to be these. First, in accordance with the order of HHJ Pelling, I have to ask and ask only whether Article 8 leave to remain has been adequately considered; that is, whether the decision that Article 8 would not operate so as to prevent removal was a decision to which it was proper for the Secretary of State to come. As to that, Article 8 involves necessarily two parts. Everyone has the right to respect for his or her private and family life. But the second part provides that public authorities such as the defendant must not interfere with that right unless to do so is necessary for specified purposes and in accordance with law; that is, the right is one which can be interfered with where it is proportionate to do so, in the light of the public interest.[15]The decision, therefore, involves a balance which has necessarily to be tailored to the individual case, in which the decision maker, whether the Home Secretary, a tribunal or a court, has to weigh on the one side the significance and extent of the interference with the right and its consequences, and on the other those matters which argue that removal from the UK is not disproportionate. Thus, in a case in which a claimant has a family and children, then -- summarising the effect of Chikwamba [2008] UKHL 40, Beoku-Betts [2008] UKHL 39, and EB (Kosovo) [2008] UKHL 41 - where the question is whether refusal of leave to remain or removal from the jurisdiction would be proportionate, the critical question will often be whether it is reasonable in all the circumstances of the case for the partner and children, and for that matter any extended family who may be necessarily involved, to leave this jurisdiction to go with the claimant when he is removed, if he is removed, to the country of which he is a national.[16]It is, secondly, however, the law that in making a decision, a decision maker must not take into account any matter which they should not take into account, or leave out of consideration any matter which they should take into account. If they do so, the decision will be flawed on familiar public law grounds. In this case, it is plain that heavy weight has been placed upon what is described as blatant disregard of the regulations. That seems to me to be based, and based only, upon a view that the claimant got a letter in or about October 2006 revoking his existing leave to remain. It is true that, as Mr Karim points out, he did not, as he should have done, tell the Home Office anyway that he was no longer living with his wife; but if that was the response expected of him, his failure to do so could hardly, in my view, be described as blatant disregard for the regulations, and it would not justify the assumption made elsewhere in the letter that the claimant had deliberately not exercised the right of appeal he was given against that decision at the time.[17]In short, it is plain to me that the decision made by the UK Border Agency, all the worse for it being repeated after it became apparent in this court that the claimant had probably not received notice of the revocation of his leave to remain, is flawed; as a public law decision, it could not therefore stand unless the decision to which the decision maker came was, irrespective of the flaw, otherwise plainly and obviously right. Here, it seems to me, the court has some difficulty; it is not the primary decision maker. It is concerned to resolve any issue as to human rights, but where balancing exercises have to be performed in the light of an appreciation of all the facts, proceedings by way of judicial review such as those before me before me are an uneasy vehicle to achieve that.[18]However, this case, as it seems to me, is one of those cases in which it is plain that the decision would have been no different, even if the Secretary of State had proceeded upon what seems to me to be a correct understanding of the communications between him and the claimant in 2006, and even if he had taken the view that the claimant had acted without blatant disregard of the regulations. That is because the claimant is Nigerian. Ever since 2005 he could have had no certainty that his stay in this country would be regularised. His only basis for having been resident beforehand had gone. Secondly, his Article 8 claim is not a claim based upon marriage to someone who is a British citizen, or who has a right of residence in this country. His wife, or partner, Bridget, is herself Nigerian, and has no right to reside in the United Kingdom. Both he and she are therefore Nigerians in this country, with no present right to remain here. Their children, aged four and one, are at an age in which it is right that the Secretary of State has regarded them as adaptable to new cultures and countries.[19]The reasons that the Secretary of State has given for dismissing the Article 8 claim as persuasive upon him, it seems to me, are reasons which would be persuasive upon any court, even if one removed the error in relation to knowledge of the revocation of leave. The need to maintain a consistent and coherent system of immigration control is such as to operate as a powerful consideration; and the facts, as I understand them, put forward by the claimant in support of his Article 8 claim go nowhere near balancing or outweighing that consideration.[20]Accordingly, as it seems to me, the decision to which the Secretary of State came was one to which he was bound to come, upon the basis which I have set out. I can be satisfied in this case that had the error to which I have referred been removed, nonetheless the decision would undoubtedly have been the same.[21]It finally remains to mention that on 7 June the claimant has a belated appeal against the revocation of his leave to remain, on the basis that notification never reached him in October 2006. At the outset of this hearing, I considered with the help of Mr Karim, who appears for the defendant, whether that had any impact upon these proceedings. I accept his submissions that it does not, for these reasons. First, he submits that there is no doubt that the leave to remain was revoked, subject only to appeal; see my earlier reference to the Notice Regulations. The appeal is only against that revocation. It is difficult to see how, if allowed, it could create any fresh rights to remain beyond 2009, when it was due to expire in any event. If it should fail, the position would be in law no different; but neither position would affect the mistake made by the Secretary of State, which did not depend upon the decision in law, but a view in fact of the character and nature of the claimant, judged by what the decision maker thought was his attitude in the light of information which, as I have indicated, appears to have been wrong; but that information was not as to the true legal position, it was as to a receipt of a letter containing it.[22]Accordingly, it seems to me that that decision, whatever it may be, will have no impact upon this hearing, and therefore no adjournment was necessary of these proceedings.[23]Thus, in conclusion, this claim must be refused. MR KARIM: My Lord, I am instructed, and I put it as high as that, to ask for costs. Mr Justice Langstaff: Mr Sanyaolu, the defendant has asked for the costs for this hearing. What do you say about that? Mr Sanyaolu: I do not really understand that. Mr Justice Langstaff: Well, he has won. I have said you did not know about the letter, so far as I am prepared to accept you did not know, but the decision would still be the same. That is my ruling. Mr Sanyaolu: What decision? Mr Justice Langstaff: The decision to refuse further leave to remain. So I have rejected your Article 8 arguments. Mr Sanyaolu: What about the appeal that we have got on 7 June? Mr Justice Langstaff: Well, this case does not -- Mr Sanyaolu: Involve. Mr Justice Langstaff: -- involve that. Mr Sanyaolu: Okay. Mr Justice Langstaff: That is separate. So that is my decision. Now because the defendant has won, he is entitled to ask that you should pay the costs of the proceedings to the government. Now, how much is involved? Do you have a schedule? MR KARIM: I do not, my Lord, no. Mr Justice Langstaff: Well, it would normally be the case you should have a schedule, would it not? MR KARIM: For summary assessment, my Lord, if the defendant sought it. Mr Justice Langstaff: And if the case is listed for being less than a day, you should have one, should you not? MR KARIM: Absolutely, yes. Mr Justice Langstaff: In the absence of that, I can refuse costs, can I not? MR KARIM: As a matter of conduct, you can my Lord, yes. Mr Justice Langstaff: So Mr Sanyaolu, what I have just been told by Mr Karim means that there is an argument that you may want to make to me, which is that you should not have to pay costs because if Mr Karim wanted the costs, he should have produced a piece of paper saying this is how much, this is how it is made up, that is what I want. Now, you want to take that argument, do you? Mr Sanyaolu: Yes, please. Mr Justice Langstaff: I thought you might. Very well, Mr Karim, in the circumstances of this case, where as it seems to me there could have been a schedule, and where as it seems to me the Secretary of State has not really ever dealt with the points raised by Foskett J as to timing, and for the reasons I have given the decision was potentially flawed, saved only by the fact that there was really no other conclusion he could come to under Article 8 than the one he did, I am not going to make any order as to costs. MR KARIM: My Lord, thank you. Mr Justice Langstaff: It is a benevolent decision as far as you are concerned, Mr Sanyaolu. I am sorry you have lost, and that is it here, but you still have your appeal, so far as it helps you, on 7 June. ----------------------