Da'Costa, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2259 (Admin)

Case No CO/11955/2009[2010] EWHC 2259 (Admin)IN THE HIGH COURT OF JUSTICEADMINISTRATIVE COURTSitting at:Venue Manchester Civil Justice Centre1 Bridge Street WestVenue ManchesterM3 3FXDate Wednesday 11th August 2010
Before
HIS HONOUR JUDGE PELLING QC(Sitting as a Judge of the High Court)
The Queen on the Application of
Between
DA’COSTAClaimantSECRETARY OF STATEDefendantFOR 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 Brown appeared for Claimant.Mr Karim appeared for Defendant.
JudgmentHHJ Pelling QC:
[1]This is the substantive hearing of the claimant's application for judicial review of the decision of the defendant, taken on 16 July 2009, to refuse the claimant leave to remain and the refusal of the defendant to make a decision to remove under section 10 of the Immigration and Asylum Act 1999. The significance of this last point is that it is common ground that such a decision would entitle the claimant to appeal to an immigration judge, whereas the decision to refuse leave to remain in the circumstances of this particular case is not an appealable decision. Permission to apply was given by Blake J on 11 November 2009, when he observed that: 2. "The decision of the 16 July 2009 is arguably perverse insofar that it is based on the lack of satisfaction as to the relationship between the sponsor and her son because she has not produced a birth certificate having regard to the sponsor's declaration of representations made before and after the decision. 3. … 3). The decision in the ALS appears flawed and inconsistent as to the country where the defendant expects the claimant to return and where she will be removed if she were unwilling or unable to return. 4) There appears to be no proper consideration given to the compassionate circumstances of the claim on the predicate that the claimant had been living in a refugee camp in Angola which is simply not addressed and is the mother of the sponsor. 5). It is arguable the assessment of Article 8 rights on a flawed premise is irrational and unlawful. 6). In light of all the above it is arguably irrational for the claimant to refuse ELR without making an appealable decision on removal and thereby avoiding consideration of the problem of where she would be removed to and leaving her in irregular and indefinite limbo."[2]After permission had been granted, the substantive hearing was adjourned and a further decision was issued on 8 April 2010, which confirmed the earlier decision on all grounds save that which had asserted that the claimant had failed to prove his sponsor to be her son, which was no longer relied upon.[3]The issues as they were argued before me are three in number, being: a) whether the defendant acted unlawfully in failing to exercise an alleged discretion to treat the application as made while the claimant was lawfully present in the United Kingdom even though it is common ground that, at the time when a valid application was lodged, the claimant would no longer have leave to remain; b) whether the defendant has acted unlawfully by failing properly to consider or apply her refugee family reunion policy; and c) whether the defendant has acted unlawfully by failing to make a decision to remove so as to accord to the claimant an in-country right of appeal.[4]The facts material to the issues that I have identified are not controversial between the parties. The claimant alleges that she was born in Cape Verde on 24 November 1951 where she remained for two months as a baby before moving to Angola in January 1952. The claimant remained in Angola, so she says, later marrying and living there with her husband and children until the death of her husband in 1992. Thereafter she lived with one of her children in Angola until 2002 when the claimant asserts that she began to reside in a refugee camp in Rwanda. The conditions were poor and personally insecure. The claimant was also diagnosed with HIV following a blood transfusion. Towards the end of 2004 the claimant was reconnected with her son, who by then was resident in the United Kingdom having been granted leave to remain as a refugee. It is this son, called Tito, who is the claimant's sponsor.[5]The claimant arrived in the United Kingdom as a visitor and was given leave to enter and remain down to 20 September 2008. On 17 September 2008 the claimant made an in-time SET (F) application to remain in the UK as the dependent of her son Tito. This was rejected as invalid, as although credit or debit card facilities had been provided for payment of the requisite fee, the card issuer refused payment. The claimant resubmitted her settlement application together with payment of the required fee by letter dated 30 September 2008; that is, after her subsisting leave to enter had expired. On 8 January 2009 the claimant received a request for additional information from the defendant and a reply was sent but by a letter of 16 July 2009, the defendant refused the claimant's application to remain with no right of appeal.[6]As is apparent from the letter of 16 July 2009, the application for leave to remain had been considered both within the Immigration Rules and rejected and also on exceptional grounds outside the Immigration Rules, where the application had been rejected on the grounds that the application was not sufficiently compassionate or compelling to justify the grant of leave to remain outside the Immigration Rules. The claim was also considered under Articles 3 and 8 of the European Convention on Human Rights and rejected.[7]The grounds on which the Immigration Rules claim was rejected were: a) there was insufficient evidence of a familial relationship with the sponsor; b) there was insufficient evidence of financial support from 2004 by the sponsor; and c) if returned, presumably to Angola, the defendant was not satisfied that the claimant would be required there to live alone. The letter noted, as I have said, that the claimant's leave to remain had expired on 20 September 2008 but that the application had been made only on 30 September 2008, so that she did not have leave to remain at the time of the application and thus had no right of appeal.[8]Following the grant of permission by Blake J, DNA evidence was obtained that established to a 99.9% level of probability that the claimant was the mother of her UK-based sponsor, who, as I have said, it is common ground is a refugee who has been permitted to settle here. There then followed a new decision contained in a letter of 8 April 2010 and its attachments. The reasoning was identical to that in the 2009 decision letter save that the defendant no longer suggested that there was insufficient evidence that the claimant was the mother of her sponsor.[9]Section 82 of the Nationality Immigration and Asylum Act 2002 provides, insofar as is relevant,, as follows : "1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator. 2) in this Part 'immigration decision' means – (d)... refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain… (g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c)of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom)”[10]Insofar as is material, section 92 of the 2002 Act provides:
"1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies. (2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j). ... This section also applies to an appeal against an immigration decision if the appellant— (a) has made an asylum claim, or a human rights claim, while in the United Kingdom, ..."
[11]It is common ground that(a) the effect of these provisions is that the claimant is not able to appeal the refusal of leave to remain because she did not have leave to remain at the time her application was made and thus the absence of leave to remain was not the result of the decision; but(b) in any event, if a decision under section 10 was taken, the claimant would have an in-country right of appeal. It is not necessary that I set out the text of section 10 of the 1999 Act because it is common ground that the defendant could have, but has not made a removal decision under that provision.[12]The defendant's policy in relation to family reunion of asylum seekers is set out in the text to be found on the Border Agency website and is as follows: "A person who flees to the United Kingdom to seek asylum can include his/her dependants in his/her application for asylum, if those dependants have travelled with him/her to the United Kingdom. However, the UK Border Agency recognises that families can become fragmented in cases of asylum, depending on the speed and manner in which the person has fled. If the person is a recognised refugee or is benefiting from humanitarian protection in the United Kingdom, our family programme reunion allows him/her to be reunited with his/her family members (that is, those who were part of the family unit before he/she fled). Under the Immigration Rules, only pre-existing families (the spouse, civil partner or unmarried/same-sex partner plus any children under 18 who formed part of the family unit at the time the sponsor fled to seek asylum) can apply to enter the United Kingdom under the family reunion programme. However, we may allow family reunion for other family members if there are compassionate reasons why their case should be considered outside the Immigration Rules.”[13]In relation to the validity of an application of leave to remain the relevant law is contained in paragraph 21 of the Immigration and Nationality Fees Regulations 2007 which provide as follows :
"21 (1) subject to paragraph 2), where an application to which these regulations refer is to be accompanied by a specified fee, the application will not be considered to have been validly made unless it has been accompanied by that fee."
[14]The relevant policy in relation to treating applications as valid when technically they are not is set out most conveniently in the Immigration Directorate Instructions Chapter 1A Section 1. The context of what follows is set out in paragraph 1.1, which is to the following effect :
"On 29 February 2008, immigration rules came into force specifying application forms and procedures for applications or claims in connection with immigration and the consequences of not complying with the specified requirements. The rules, made under section 50(1) of the Immigration, Asylum and Nationality Act 2006, are in paragraphs 34A-34J of the immigration rules. The Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2007, which previously specified application forms and related procedures for applications for leave to remain in the United Kingdom, ceased to have effect on 29 February 2008. Applications made before that date remain subject to these regulations (or the equivalent regulations in force on the date of application).” Paragraph 5.1 of the regulations provides as follows: "
Any specified fee must be paid by one or other of the methods specified in the form and/or guidance notes. If it is paid by any other method, the application is invalid. An application will also be invalid if any specified fee is not paid in full (although the rejection will fall under the relevant Fees Regulations, rather than under the immigration rules). Paragraph 17.4 provides insofar as is material:
"Applications which do not comply with the specified requirements are invalid." and paragraphs 18.1 to 18.4 of the instructions provide as follows: "
Because the requirements for an application to be valid are specified in the immigration rules, there is an element of discretion. The requirements have been limited to things which are relatively simple to check, important to the decision making process and which applicants should normally have no difficulty in complying with. The exercise of any discretion should therefore be confined to exceptional circumstances, and must be authorised by an officer of at least SEO level (Deputy Chief Caseworker or equivalent). Specific examples of where the exercise of discretion should be considered are given within the relevant preceding sections of this instruction. 18.2 However, where there has been an unacceptably long delay (that is, more than 3 months) before the validity of the application is considered, discretion should be exercised and an application not rejected as invalid because it does not satisfy one or more of the mandatory requirements. In these circumstances, requests to the applicant for further information may have to be made. Applications may be refused if this information is not provided within the required timescale. 18.3 There is no discretion to accept an application or claim as valid by waiving a specified fee. This is because the requirements relating to the payment of fees are set down in the relevant Fees Regulations and invalidation will be according to the provisions of those Regulations rather than under the rules. 18.4 Once discretion has been exercised to accept an application as valid, consideration should continue as usual in line with the immigration rules or published policy applicable to the application.[15]As will be apparent from these instructions that I have set out above, a distinction is drawn between the requirements of the Immigration Rules where a failure to comply renders the application invalid but there is a limited discretion to treat the application as valid notwithstanding such non-compliance, and the requirements of the fees regulations where there is no such discretion. It is this distinction which may also explain the distinction drawn in paragraph 1.1 in relation to the provision where the proceeding prescribed forms regulations apply.[16]Against that background I now turn to the three issues that arise on this application.[17]I turn first to the timing issue. It is common ground that the claimant made an in-time application for leave to remain on 17 September 2008 but the application was not valid by operation of paragraph 21 of the fees regulations since the fee was not capable of collection using the card details provided and that on 30 September 2008 the claimant made a further application with the correct fee, which was an out-of-time application. In these circumstances it was submitted on behalf of the claimant that the defendant had a discretion to treat the application as validly made and that the discretion ought to have been exercised in favour of the claimant. Had it been, it was submitted that the claimant would have been entitled to an in-country right of appeal from the refusal to give extended leave to remain. I reject that submission on the basis that the defendant does not have a discretion in circumstances where an application has been submitted that does not comply with paragraph 21 of the fees regulations. Although the claimant sought to rely on paragraph 18.1 of the instructions to which I have referred above, in my judgment that was misplaced. If the whole of the relevant chapter of the instructions is read as a whole, it is readily apparent that it draws a distinction between an application which is invalid because of non-compliance with a requirement imposed by the Immigration Rules and invalidity arising from non-payment which is subject to the regulations and in respect of which no discretion arises. This point is emphasised, in my judgment, by the reference within the relevant paragraphs of the instructions to examples where discretion might be exercised. There is no example of a discretion arising in relation to the non-payment of fees.[18]It was argued under paragraph 18.3 of the instructions is of no application because no question of waiver arises. This argument was based on the fact that, within seven days of the original application having been rejected for non-payment of fees, a new application with the requisite fee was submitted. This submission, in my judgment, involves a misunderstanding of what is said in paragraph 18.3. The only basis on which an in-time application not accompanied by a fee could be treated as valid is that payment of the fee was waived. If the application is rejected (as it was here), then the application is only valid if it is resubmitted with the fee, and the question of whether or not an in-country right of appeal arises depends upon the date of the submission of the resubmitted application. This issue is one which I resolve in favour of the defendant.[19]I turn next to the Claimant’s case kin relation to the family reunion policy. It is common ground that the defendant does not refer in terms to the policy in either decision letter. However, the submission that is made on behalf of the defendant is that the substantive issue which would arise in relation to the application of the policy has in fact been considered in each of the decision letters by reference to the question of whether there were sufficiently compassionate or compelling grounds to grant a period of leave to remain outside the Immigration Rules. It is submitted, therefore, that the defendant has addressed a substantive question, whether the relevant circumstances gave rise to sufficiently compassionate grounds for the claimants to be permitted to remain in the United Kingdom in furtherance of the reunion policy. It was accepted by the claimant that if in fact that had been done, then the point that there was no express reference made to the family reunion policy would have little if any merit.[20]The sole point which it was said had not been addressed concerned the medical condition of the claimant. In summary the claimant's medical condition is set out in a medical report prepared by Dr Margaret Kingston. For present purposes it is necessary to note only paragraphs 15-16 of the report, where Dr Kingston says this:
"15) Florinda has unfortunately developed multi drug resistant HIV due to inadequate availability of viral load and resistance testing and subsequent HIV treatment management in Angola. Her HIV infection was progressing on treatment because of the limited availability of viral load resistance testing and limited spectrum of antiretroviral availability (this is my understanding of the situation in Angola and as reported to me by Florinda and her son). She is just starting to improve on her new antiretrovirals and I am pleased with her progress. However, she has very advanced disease, if she stops her anti retrovirals and her antibiotic prophylaxis her infection will progress and she will develop further AIDS defining illnesses and no doubt die in the near future. This would be true if she was placed on antiretrovirals to which her virus is not susceptible as was the case in Angola earlier this year. 16) With full treatment using antiretrovirals such as those available in the UK, her prognosis is much better and I expect her to continue to improve and she may well live for many more years."
[21]It was and could not be suggested that the availability of medical treatment here would be a relevant consideration for the purpose of considering the applicability of the family reunion policy. Rather the issue that arises is the availability of the family to care for the claimant in the terminal stages of her illness wherever that might occur. This was considered by the defendant, however, in the decision letters. Thus, in the second paragraph of the most recent notice of decision the defendant states as follows :
"…you have stated that you have been financially dependent on your son in the UK since 2004, however you have only provided 4 photocopies of his credit transfer slips which are not acceptable and I am not satisfied from these that you have been financially dependent on him. Furthermore, you have stated on your visa application form that you have six children who you live with in Luanda, therefore the Secretary of State is also satisfied that you would not be living alone in the most exceptional compassionate circumstances "
There is no doubt that in reaching this conclusion the defendant had the medical issue clearly in mind, because first of all that medical issue was addressed at some length in the most recent decision letter where the claimant's case under Article 3 was considered -- see page 4. Furthermore the issue concerning the refugee family union policy must surely have been at the forefront of the Secretary of State's mind, for it was identified in terms in the letter dated 17 September 2008, sent to the UK Border Agency by the claimant's advisers -- see page 68 of the bundle -- where the relevant terms of the policy were set out and the point made that:
"We would submit that there are compelling compassionate circumstances and therefore the applicant qualified for indefinite leave to remain under this policy."
[22]In my judgment the challenge that the defendant has failed to consider all the relevant circumstances by reference to the family reunion policy lacks all reality. Even assuming it could be concluded that he had failed to bear the policy in mind, there is no realistic prospect of any different outcome by reference to the policy given the conclusions reached as set out in the notice and accompanying letter.[23]I now turn to the refusal to make a removal decision. The claimant's case is that it was unlawful for the defendant to refuse the application for leave yet at the same time not to issue removal directions, because the consequence of that is that the claimant was left in an impossible position whereby if she remains in the United Kingdom she does so unlawfully but by the same token is precluded from appealing the refusal to grant her leave to remain for the reasons that I have already identified. In support of that proposition the claimant relied on the decision of the Court of Appeal in TE (Eritrea ) [2009] EWCA Civ 174. This argument has been considered in two recent cases. As Wyn Williams J observed in R (Daley Murdoch) v SSHD [2010] EWHC 1488 (Admin): “56. The final point taken by the Claimant is that it was unreasonable or unfair of the Defendant to fail to make an appealable immigration decision at the same time as the decisions of 21 July 2009 and/or 19 February 2010. The impetus for this argument comes from the decisions of the Court of Appeal in JM v Secretary of State for the Home Department [2006] EWCA Civ 1402 and TE (Eritrea) v Secretary of State for the Home Department [2009] EWCA Civ 174.57. It is to be noted that in both those cases the Defendant had made an immigration decision pursuant to section 82(2)(d) of the 2002 Act but had made no decision relating to removal. That is the context for the views expressed by Laws LJ in JM and Sedley LJ in TE.58. Both decisions recognise that it is permissible for the Defendant to make a decision under section 82(2)(d) and a decision relating to removal at the same time. Both decisions recognise that there may be many cases where such an approach is wholly justified. In neither case, however, is it suggested that it would always be unfair or irrational if the Defendant took those decisions sequentially.”"59. To repeat these remarks were made in the context that the Defendant had made a decision refusing leave to remain in relation to an application made at a time when the applicant was lawfully within the United Kingdom. Sedley LJ was obviously concerned to point out the unsatisfactory state of affairs which may exist if a person lawfully within the United Kingdom until a variation application has been refused has to make a choice about appealing that immigration decision or waiting to appeal the decision about removal thereby becoming an illegal overstayer. ...60. In this case the claimant has remained unlawfully in the United Kingdom since July 30 2002 ... I see no unfairness or irrationality on the part of the Defendant in encouraging the Claimant to leave voluntarily at the stage when he refused her application for leave to remain... " Here, as in Daley-Murdock, the claimant had no leave to remain at the time when the application for leave to remain was refused. In Daley-Murdock the judge concluded that there was no unfairness or irrationality on the part of the defendant in encouraging the claimant to leave voluntarily.[24]There are, however, differences of fact of degree between that case and this, However, in my judgment the default position is that the defendant is entitled to choose whether or not to set removal directions at the same time as refusing leave to remain, at any rate in relation to someone who was an unlawful overstayer at the time when the application for leave to remain was made, unless there is something exceptional in the circumstances to suggest a contrary outcome. This is entirely consistent with the most recent statement of principle on these issues contained in the judgment of Collins J in R (Suphachaikosol) v SSHD [2010] EWHC 1817 (Admin). In relation to the issue now under consideration Collins J said this, having noted once again what Sedley LJ had to say in TE:
"12. I emphasise the point that in that case the initial application was by one who was lawfully here and was made at a time when she remained lawfully here. This case is one of many similar cases, some of which are sought to be brought before this court, where an overstayer or one who has entered unlawfully makes an application to try to regularise his or her position and that application is refused by but the Secretary of State does not at the same time make a decision to remove. In those circumstances there is clearly no statutory in-country right of appeal. 13. Mr Blundell points out that in the case of someone unlawfully here, they are by their own volition, as it were, committing a criminal offence. ... 15. There have been a number of cases in which attempts have been made to seek judicial review in situations such as this. The message must go out that those claims are not going to succeed and are not arguable unless there are special circumstances: an example is TE (Eritrea) … 18. I think it is important that it is known that the court will adopt this approach to any claim such as this, however much one sympathises, as I do, with the position of the claimant in the circumstances of this particular case."
[25]The final authority to which I was referred is Mirza v SSHD [2010] EWHC 2002 (Admin), a decision of Moses LJ sitting in the Administrative Court. At paragraphs 32 to 33 he adopted a similar analysis of the decision in TE. Otherwise the facts of that case do not really assist the issues that I have to decide.[26]It then becomes necessary to identify what exceptional circumstances are relied upon in this case to justify departing from what I have described as the default position. The points that are relied upon are essentially those which I have already mentioned. The fact of ill-health is relied upon. The fact of alleged dependency is relied upon. The absence of a right of appeal as a means of enabling all the issues which now arise to be resolved is also relied upon. It seems to me that none of these issues are sufficiently exceptional to justify the approach that has been adopted.[27]I have considered with some care whether a distinction is to be drawn between cases such as that being considered by Wyn Williams J and Collins J mentioned above, which concern applications for leave to remain made at a time when for some months or years the person concerned has been unlawfully present within the United Kingdom and a case such as this, where the unlawfulness arose only as a result of an earlier in-time application not being technically valid. In my judgment there is no proper basis for drawing such a conclusion. The Secretary of State has a discretion as to how best to proceed and there is nothing in the circumstances of this case, in my judgment, which ought to lead to the conclusion that the Secretary of State should be required to take a decision in relation to an issue she does not at present wish to address.[28]In all the circumstances I dismiss this claim. I have considered above each of the three grounds as they were argued before me and by reference to the points that have been argued. There are other points identified by Blake J in his observations when granting permission to bring these proceedings which in the circumstances have not arisen in the course of argument. In those circumstances the application is dismissed.

Cited in 2 later judgments