Ashrafi, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 2057 (Admin)

Case No C0/1540/2013[2014] EWHC 2057 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 11 June 2014
Strand
London WC2A 2LL
B e f o r e:
CLARE MOULDER
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF ASHRAFIClaimantv
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)
Mr Ashrafi appeared as a litigant in person for in personMr Zane Malik (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N TTHE DEPUTY JUDGE:
[1]This is the hearing of an application for judicial review which was lodged on 12 February 2013 and for which permission was granted by Mr John Howell QC, sitting as a deputy judge by order dated 5 July 2013. By that order permission was granted solely on the ground that it was arguable that the Secretary of State had acted unlawfully in failing to consider the claimant's case under paragraph 353B of the Immigration Rules or unlawfully failed to give any reasons explaining any such consideration, as she had given in her letter dated 6 November 2012. Accordingly, I am not required to consider the other grounds advanced by the claimant in his original claim form, namely that the defendant's failure to consider his application under the legacy scheme is unlawful and that under the legacy scheme the defendant mishandled his case and unlawfully delayed in considering and/or concluding his case.[2]No application was made before me today that I should reconsider the basis upon which permission was granted by Mr John Howell QC and therefore I do not propose to consider those other grounds for which permission was refused. Background[3]The claimant is an Iranian national who entered the UK on 13 September 2000 and claimed asylum on the same day. The Secretary of State refused the asylum claim on 23 October 2000, although the claimant asserts that he did not receive the Secretary of State's decision and therefore challenges whether or not such a refusal was issued. In any event, he became aware that his asylum claim had been rejected following the withdrawal of benefits in 2003 and in June 2005 he made further submissions. Those submissions were rejected and the claimant appealed against that rejection and also the refusal of his asylum claim in September 2008. His appeal was dismissed on 24 April 2009 and he had exhausted his appeal rights on 17 June 2009.[4]On 24 October 2012 the claimant sent a pre-action protocol letter to the Secretary of State asking her to conclude his case under the legacy programme. The Secretary of State responded on 6 November 2012 stating that the claimant “has no outstanding applications or submissions and has no basis of stay in the UK”.[5]On 29 January 2013 the claimant issued his judicial review claim and, as I referred to above, permission was granted on a single ground on 5 July 2013 by the deputy judge without the benefit of an acknowledgment of service.[6]On 8 May 2014 the Secretary of State made a detailed decision under paragraph 353B of the Immigration Rules and concluded that the claimant's removal from the United Kingdom remains appropriate. Claimant’s submissions[7]The claimant submitted in his skeleton and then in his oral submissions before me today that his asylum case has been knowingly and systematically mishandled by the Home Office and he went so far as to say that in his view it had been deliberately sabotaged. He stated that the refusal of his asylum application was not received by him and that Home Office officials were actively preventing the case from being heard. He stated that in 2003 his solicitors received the refusal letter but could not appeal against the decision because they were asked by the Home Office not to appeal. In 2007 his solicitor prepared grounds of appeal but he says he was told that the solicitor became ill and he did not hear of her again. The claimant therefore took the appeal himself in 2008 to the Immigration Tribunal. I note at this point that I have not seen a copy of the judgment of the immigration judge and I am therefore noting the submissions that were made by the claimant to me this morning.[8]The claimant explained that he had been sent to see a gentlemen named Christopher Buller who was said to be a psychiatrist and that his report was before the Immigration Tribunal. The claimant asserts that Mr Buller was in fact a bogus psychiatrist and did not occupy the position at Leeds University which he claimed to occupy. According to the claimant, Mr Buller was part of the same rogue group working within the Home Office and other linked groups who were preventing his case from being dealt with. His asylum claim was dismissed. The claimant feels aggrieved and believes that the immigration judge was biased as, apparently, according to the claimant, the immigration judge's brother worked with the psychiatrist. The claimant appealed against the immigration decision but permission to appeal was refused. The claimant stated in his submissions this morning that there were Home Office documents before the immigration judge which were counterfeit and that he wrote to the Home Office about these documents but did not receive a reply. The claimant related how he had been in NASS accommodation where he said he was constantly disturbed and threatened by residents who stole documents and property. The claimant said that one day after he submitted his skeleton argument in this case his accommodation was terminated and he is now homeless.[9]In relation to his submission that the Home Office counterfeited documents, he gave as an example a failure to comply with the directions of the Immigration Tribunal concerning the filing of a bundle. He concluded his submissions that his asylum case had been deliberately sabotaged and that the immigration judge had been biased. Discussion[10]Whilst noting the submissions made by the claimant before me this morning, the allegations that his asylum case was deliberately sabotaged and mishandled by a rogue a group in the Home Office is not a ground which was included in his original claim form, nor does it seem to me appropriate as a matter of judicial review, depending as it does on matters of evidence, which are not something which the administrative court is ideally placed to deal with, the function of the administrative court is to review errors of law but it is not in a position to examine the sort of claim which the claimant has made before me this morning. Grounds of challenge[11]As far as the letter of 8 May 2014 is concerned, the defendant has by this letter reconsidered the matters under paragraph 353B as to whether removal is appropriate. Mr Malik referred to the decision of the Upper Tribunal in Khanum [2013] UKUT 311 as authority for the proposition that the decision whether or not to carry out a review is entirely a matter of discretion for the Secretary of State and, accordingly, Mr Malik submits that this is an answer to the basis on which permission was granted in this case, in other words that there was no obligation on the Secretary of State when issuing the letter of 6 November 2012 to carry out a review under paragraph 353B or to give any reasons. In my view, the analysis in Khanum is helpful and does support the submission that the Secretary of State is not obliged in the circumstances to carry out a review. However, having decided to carry out a review it seems to me that the Secretary of State is obliged to do so in accordance with the terms of the paragraph. In other words, that the Secretary of State must have regard to the factors as set out in that paragraph.[12]To the extent that this amounts to an amendment of the grounds of claim, I have regard to the fact that the claimant is a litigant in person and therefore whilst no formal amendment was made by the claimant, it seems to me that it is in the interests of justice that I should exercise discretion and review the letter itself on normal judicial review grounds. The defendant anticipated this in his grounds of defence and therefore there is no prejudice, it seems to me, in carrying out such an exercise. Letter of 8 May 2014[13]Turning then to the letter of 8 May. In that letter the defendant sets out her reasons in relation to the various factors:[14]1. Under the subheading: "Character, Conduct and Association" the defendant concludes that the absence of a criminal record is not a significantly compelling reason of itself for the claimant to be provided with a grant of leave in the UK.[15]2. Under the subheading: "Compliance" the defendant records the claimant's immigration history, as referred to earlier in this judgment, and further notes that the claimant was set up to report to immigration controls in August 2008 and, although the claimant reported as required until November 2009, from that date the claimant absconded until 4 January 2012. From that date the claimant's record was described as sporadic until the end of June 2013.[16]According to the letter on 18 April 2012 the claimant contacted the Home Office regarding a legacy application and was informed that he had no outstanding applications and should make arrangements to leave the country as soon as possible. The defendant therefore concludes in her letter that:
"Since your appeal right became exhausted your 4-year period of non-compliance far outweighs the 10 month period in which you did adhere to the terms of temporary release." "
Reporting is a mandatory requirement of temporary admission that enables the UK authorities to maintain immigration control but you have shown an evident disregard for this. Caseworkers must assess all evidence of compliance and non-compliance in the round but repeated non-compliance and/or lengthy periods of absconding will generally mean that an individual cannot benefit from exceptional circumstances unless there are strong countervailing factors in their favour."[17]3. The requirement in relation to length of residence is to have regard to the length of time spent in the United Kingdom for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused. In relation to this factor the defendant states:
"Although it is acknowledged that you may have lived in the UK for 13 years, you have failed to comply with reporting restrictions for a significant period. There has been no considerable delay in processing any of your applications despite the circumstances which you claim to have prevented you being notified of the asylum application for 5 years. Therefore your residence has not been accrued by an unreasonable delay at the fault of the Home Office. It could be said you should have left the UK when you became appeal rights exhausted on 17 June 2009. It has been concluded that your length of stay has been prolonged by non-compliance and evasion."
[18]4. In the letter of May 2014 the defendant also notes that the claimant has raised no compassionate circumstances and concludes that it has not considered that any such compassionate circumstances exist.[19]At the conclusion of his submissions in reply to the defendant’s submissions, the claimant handed up a note of “corrections” to his application for judicial review and in this note he states that the defendant has made incorrect and defamatory remarks about the mental state of the claimant and further down he says that references in paragraphs 42.3 and 66 to the mental state of the claimant are inappropriate and should be dismissed.[20]In the letter of May 2014 the defendant notes that the claimant disagreed with previous findings concerning mental health issues and that therefore it could be said that there was no medical evidence.[21]5. As far as legacy is concerned, the defendant concludes that consideration of the claimant's case by the Case Resolution Directorate did not involve any application or result in an immigration decision being made unless such applications were already outstanding.[22]The overall conclusion of the letter is thus:
"It is not considered that there are any significant compelling reasons for which you should be provided with a grant of leave. you have failed to report to immigration control throughout the length of your stay and this evidence weighs against your case."
Discussion[23]The claimant submits that he arrived in the UK in September 2000 and applied for asylum upon arrival. He states that he holds a mathematics degree from Oklahoma University in the USA; has spent more than a decade in the USA and has done some PhD work in mathematics. He states that he submitted a copy of his degree and transcript to the Home Office shortly after arrival. He applied for a work permit in 2001 but says he did not receive a response from the Home Office. He points out that he has no criminal record and is not related to any group that presents a threat to national security. He says that he is a mathematical application developer and his free application has been downloaded by more than 50,000 worldwide.[24]Mr Malik, for his part, submits that the Secretary of State had regard to all the specified factors and all the relevant circumstances in making her decision in this case. He submitted that her conclusion, that there are no exceptional circumstances, is plainly within the range of reasonable responses open to the Secretary of State and, accordingly, the judicial review claim should be dismissed.[25]I note the claimant's submissions as to his professional background and occupation and it is not disputed that he has no criminal record. However, his professional background and occupation are not such as to amount to exceptional circumstances or to call into question the conclusions of the Secretary of State in her consideration under paragraph 353B of the Rules.[26]As regards the allegations that the asylum claim has been sabotaged by a group of rogue individuals within the Home Office, I understand from the claimant that these issues were raised before the immigration judge and there is no evidence before this court which would enable me to form a view on those matters, even assuming that this court were to be seized of the matter and, as I have already indicated, such allegations go beyond the scope of judicial review and beyond the scope of this particular claim and the claim for which permission was granted. I note that the claimant was dissatisfied by the immigration judge and the findings of the tribunal but again that is not a matter which has been raised before this court and it is not a matter which I am able to decide. Conclusion[27]In conclusion, I accept the submission of Mr Malik that by her letter of 8 May 2014 the Secretary of State elected to carry out a review under rule 353B, even though she had a discretion whether or not she did so and, having elected to carry out such a review, had regard to the specified factors identified in the rule and all the relevant circumstances. Her conclusions are not irrational or Wednesbury unreasonable and she has had regard, it would seem, to all relevant factors. Accordingly, this application for judicial review is dismissed.