Ayelabola, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2223 (Admin)

Case No CO/1055/2009[2010] EWHC 2223 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 30 June 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF AYELABOLAClaimantv
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 7404 1424(Official Shorthand Writers to the Court)
Ms H Gore Appeared for ClaimantMr R O'brien Appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: This is a claim for judicial review against the Secretary of State's decision to remove the claimant to Nigeria and cancel his entry clearance visa, which was originally granted as a business visa in 2006, valid for 5 years, to enable him to enter this country for the purpose of doing business.[2]As his passport shows, he did enter the United Kingdom on a considerable number of occasions, some 14 before the one which has given rise to these proceedings, and he asserts that, on each of those occasions, he did come to do business, and in fact did business, and has indeed substantial business connections, in particular it seems with a firm in Northern Ireland, although there are also firms in England with which he has also done business. When he obtained the visa originally he disclosed the existence of a wife in Nigeria. In fact, he comes from a particular culture which permits polygamy and he has another wife, from whom he is estranged, who at present is living in the Republic of Ireland with two children, his children, the older of whom was born in 2001. He has said that he has a number of other "wives" but he has not been married, as I understand it, to any of these other ladies. They are what could be described as concubines with whom he may from time to time have relationships in Nigeria.[3]The wife in the Republic of Ireland was there making a claim for asylum. It seems highly probable that that was not, and was never reckoned to be, a valid claim for asylum. The then Irish law provided that any children who were born in Ireland automatically became Irish citizens and, in those circumstances, their parent would normally be able to remain in Ireland in order to take care of them. There were a number of such people who were granted leave. I think the Irish system, as a result of the large numbers, has, since 2005 or thereabouts, changed, but it is the case that, on 21 September 2005, his wife was given leave to remain in the Republic of Ireland. Clearly, that was to enable her to look after the two children.[4]As I say, it is not suggested by him that he disclosed their existence when he filled out his original application for a visa in 2006. Unfortunately, due on the face of things to the greatest incompetence by the Consulate in Nigeria, the original application form has not been produced so that it can be seen by this court.[5]The decision which is challenged was made on 31 January 2009. This claim was lodged originally in February 2009. It was not until November 2009 that the matter came before the single judge and permission was granted on the papers. The reason that permission was granted, or one of the reasons, was that there was no acknowledgement of service challenging the account given on the face of the claim. In fact, an acknowledgement of service was served, I think, on 19 November. But that was too late, permission had by then been granted. The acknowledgement of service was added to by what were described as grounds of defence in February of this year.[6]The claimant came to this country, arriving at Heathrow on 13 January 2009. He stated that he was coming to do business and he was granted leave to enter for that purpose. Miss Gore, on his behalf, submits that we do not have the interview or notes of the interview with him when he arrived at Heathrow, and while I use the word "interview", it may be that there was not anything more than a short consideration as he was going through the passport queue. We simply do not know. But he does not suggest that he informed the Immigration Officer that he was, in addition, intending to go to Dublin in order to visit his estranged wife, he says, with a view to trying to see whether there could be a reconciliation, and no doubt also to see his children.[7]In fact, he flew to Dublin some hours later on the same day, although we do not have any evidence as to which airport he used to leave for Dublin. He says that he spent a number of days in Dublin, or wherever in Ireland his wife was living. He was seen in Belfast by an Immigration Officer when he arrived at Belfast International Airport. Now, there was, on-going, what is described as "Operation Gull". This was a joint operation by the United Kingdom immigration authorities and those of the Republic of Ireland. It arose because of the pattern of those who wished to obtain a leave to remain in the Republic of Ireland with a view to taking advantage of the ease of access from the Republic of Ireland to the United Kingdom and, no doubt, vice versa, in order to achieve an ability to live outside the country of their nationality, in this case Nigeria; indeed, many such cases involved Nigeria. The pattern has been for a wife and child or children to make claims for asylum in the Republic of Ireland, for there to be a birth -- no doubt the wife might come originally when pregnant -- and once the birth took place then the child would be a citizen of the Republic of Ireland and so there would be an application for leave by the wife to remain, the asylum claim being abandoned. That is what happened in this case. It is not in the least surprising that concern was thus raised that the claimant was involved in this type of deception. It is said that the failure to disclose the existence of his wife and children in the Republic of Ireland was a misrepresentation, deliberately made, in order that, in due course, he would be able to establish that he and his family would have the right to remain in, initially the Republic of Ireland no doubt, but then could come easily to the United Kingdom.[8]In the defence, which was lodged on 10 February, this is said: "On the same day that he arrived in London on his UK visa, the claimant boarded a flight to Dublin. On 31 January 2009 the claimant was encountered by immigration officers on a flight arriving at Belfast International Airport. The claimant was accompanied by the wife who was residing in the Republic of Ireland. He then was interviewed".[9]It is important to note that, in that interview, he did not disclose that he had done any business in the United Kingdom, whether before or after his flight to Dublin, and equally he did not indicate that he was intending to do any business in Northern Ireland. That is clearly of considerable significance. He now says that he did, in fact, do business in England, in Surrey, during 13 January and that he was indeed entering Northern Ireland in order to do business there. There was a company which had an address in Northern Ireland and he has produced a piece of paper which contains an assertion, from someone purporting to speak on behalf of that company, that he had done business with it and was, as far as it was aware, intending so to do. That was not produced to the Immigration Officer at the time. What is said, in those circumstances, is that he not only misrepresented the situation when he obtained the visa by failing to disclose the existence of a wife and child in the Republic of Ireland, but he had come in January not in order to do business but to contact his wife, and indeed she came with him into the United Kingdom.[10]It was then believed that he had no right to enter the Republic of Ireland independently of his wife. That was wrong as it transpires, but the reason that the authorities were unaware of that was because he had two passports. The one which he disclosed contained the visa enabling him to enter the United Kingdom. The other had a visa enabling him to enter the Republic of Ireland which was granted in December 2008. It is of course somewhat unusual for an individual to have two passports and one would expect, generally speaking, that each should be disclosed. One knows that sometimes a passport which has expired may contain a valid visa -- this used to happen I think quite regularly with the United States so one had to have two passports bound together, which was somewhat bulky in the days of the old fashioned passport. However, he did not disclose the passport which indicated his right to enter the Republic of Ireland.[11]Unfortunately, although it was promised, the statement of the officer who interviewed him at Belfast airport was not served until 18 June. That is a matter in respect of which there must be criticism of those responsible, as this claim was listed for 13 June. What, very curiously, the officer, Mr Harrison, says is this:
"on 31 January 2009 I was on duty at Belfast International Airport as a part of operation Dove. On that date I was observing persons disembarking from an Easy Jet flight from London Stanstead. I made a request for identification of the claimant. The claimant presented a Nigerian passport which demonstrated that he was the beneficiary of a 5 year UK visitor's visa issued on 14 December 2006. It transpired that the claimant had arrived in the UK at London Heathrow on 13 January 2009"
And then in paragraph 13: "The claimant was travelling with his wife. She presented a Nigerian passport which demonstrated that she was the beneficiary of residence in the Republic of Ireland until 10 May 2010, on foot of her having two Irish born children from her marriage to the claimant. She had made an application for asylum in the Republic on 1 November 2001, this application had subsequently been withdrawn in favour of an application for residence on foot of her having Irish born children. 14. As she did not posses the requisite UK visa for the purpose of her presence in the UK, she was served with illegal entry papers and removed via the Irish land border".[12]What is exceedingly curious about that is the indication that the claimant and his wife arrived from Stanstead. He has made a statement which was served, I think this morning or yesterday, certainly very recently, in which he states that he did do some business on 13 January. He then went to Dublin in order to see his wife and children with a view to a possible reconciliation and then went to Northern Ireland to do business there. What he does not explain is how it came about that he apparently arrived in Belfast from Stanstead which, as one knows, is an airport that serves London. So there is something of a mystery so far as that is concerned.[13]What I have to decide is whether, on the material that was known and presented to the immigration officers, the decision to treat him as an illegal entrant was lawful. The question is whether there were material misrepresentations. It is said that, first, there was a material misrepresentation in the failure to disclose the existence of the wife in Ireland. Miss Gore submits that that was something which was, on any view, immaterial to a business visa. However, that is not in my judgment the case. If the non-disclosed children were in the United Kingdom, that clearly would be highly material because the question would then arise as to whether the visit for business purposes was indeed for those purposes. It may be that there was business to be done but, clearly, the presence of a wife and children in this country might put a question mark over the true purpose of any particular entry and whether the claimant would leave the United Kingdom when the business was done. Does it make a material difference that the wife was in the Republic of Ireland? In my judgment, the immigration authorities were entitled to take the view that it did not, having regard to the ease of going across the border from Ireland into the United Kingdom, and indeed vice versa. That was clearly something which was material. However, I do take the point that we do not know how the question was framed in the application form. It may be that, if that was the only matter which was relied on, it would be difficult to say that it was justifiable without seeing that form, but it does not of course stop there.[14]He arrived here on the 13th, he left for Dublin on the 13th, he failed to disclose in the course of questioning any business that he had done. Whether or not he had done business in the past was not determinative, and could not be determinative, as to whether, on this occasion, the entry was indeed for the purpose of business. It seems to me, in those circumstances, having regard to the importance of ensuring that the true purpose of a visit is disclosed, that the Immigration Officer was entitled to decide that there had been a material misrepresentation made by the claimant. He says that he now has an explanation, although his statement does not deal clearly with all the relevant issues. It may be that if he produces all necessary information to establish the business that he has done and is doing and intends to continue to do, and gives a proper explanation as to why he failed to disclose the business that he says he did in January of 2009, and what the explanation is -- because this again is curious and does not fit in with the account that he has given -- for his wife accompanying him to Northern Ireland. It is certainly something which is a curiosity in the light of the explanation that he has given.[15]As it is, in my judgment, the decision that he had made material misrepresentations is one which is not unlawful and, in those circumstances, I must dismiss this claim.[16]As I have already said, it is open to the claimant to apply for an entry clearance. That should be considered on its merits and any explanation for the apparent misrepresentations should be considered. The authorities should not make any assumptions against the claimant. They should consider the matter on the basis of whatever he puts forward and, of course, on the basis of any explanations that he gives. They are perfectly entitled to reject those explanations if they are found to be implausible, but if he makes an application and if it is refused he has a right of appeal against such a refusal. It would then be open to the tribunal to reach a conclusion on those matters.[17]As I say, for the reasons I have given, this claim is dismissed.[18]MR O'BRIEN: My Lord, I am grateful. The defendant seeks an order that the claimant pay the defendant's costs of these proceedings.

MR JUSTICE COLLINS: Yes.

[20]MS GORE: Your Lordship, if I may --

MR JUSTICE COLLINS: You can not resist an order for costs can you?

[22]MS GORE: Your Lordship, I will try to do that, because no acknowledgement of service was filed last year.

MR JUSTICE COLLINS: Well, that does not matter.

[24]MS GORE: Your Lordship, I say it matters because it may well have been that, if it had been filed, that the matter would not have come to this stage. There has not been any good reason for why the acknowledgement of service was not served.[25]MR JUSTICE COLLINS: No, I am afraid I do not see any good reason why the normal rules should not follow. You have not served any --[26]MR O'BRIEN: A schedule has been served, my Lord. Unfortunately it has not been handed up. I do have a copy to hand up to you.[27]MR JUSTICE COLLINS: Have you seen the schedule, Miss Gore? Usually, although not invariably, the Treasury Solicitors' costs are rather less than those of the claimant.[28]£3,500. I am afraid I think we may have to reduce counsel's fees a bit, because there is a degree of duplication.[29]MR O'BRIEN: My Lord, if I may just make submissions on that. The duplication has actually been extremely minimal. I can tell you what Mr McGurk has done; he advised and drafted the summary grounds, or the detailed grounds, and he also produced the skeleton. He did not have to orally prepare, but then my preparation was a day's worth.

MR JUSTICE COLLINS: £2,000 for counsel to produce a skeleton is, I think, a little on the high side.

[31]MS GORE: Just, if I may just say, it was for advice throughout the course of the proceedings, for the detailed grounds and for the skeleton argument, and then the preparation for the oral hearing and attendance at the oral hearing. It did also include, my Lord, the preparation of the bundle of authorities which the claimants unfortunately did not do; they did not prepare that bundle. So, if that explains why counsel's fees are slightly higher than you might expect, I think --[32]MR JUSTICE COLLINS: Seven and a half hours for preparing summary grounds, particularly as they were out of time, is also a little on the high side. You want me to make a summary assessment, which I think is the sensible thing to do.[33]MS GORE: Yes please, my Lord.

MR JUSTICE COLLINS: I will award you £2,500.

[35]MS GORE: I am grateful, my Lord.