OA, R (on the application of) v Secretary of State for the Home Department [2017] EWHC 486 (Admin)

Case No CO/3466/2016[2017] EWHC 486 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/03/2017
Before
KAREN STEYN QC(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
THE QUEEN (on the application of OA)ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
David Jones (instructed by Sutovic & Hartigan) for ClaimantWilliam Hansen (instructed by Government Legal Department) for DefendantHearing Hearing dates: 21 February 2017
JudgmentKAREN STEYN QC:
[1]The primary issue is whether the Secretary of State for the Home Department erred in determining that the Claimant’s further submissions dated 20 November 2015 did not constitute a “fresh claim” as defined in paragraph 353 of the Immigration Rules HC 395. In the context of this first issue, a subsidiary question arises as to whether the Claimant is entitled to rely on evidence submitted (arguably) after the decision was made and whether the Defendant is entitled to rely on a supplementary letter.[2]The second issue is whether the Claimant’s detention from 22 June 2016 to 19 July 2016 was in breach of the Hardial Singh principles and therefore unlawful. The Claimant had also asserted in his grounds that his detention was unlawful because it failed to comply with the requirements of the statutory regime applicable to detention of a person who had previously been granted bail by an Immigration Judge. However, in light of AR (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 807, Counsel for the Claimant indicated at the outset of the hearing that the latter argument was not pursued.[3]Permission was granted by Neil Cameron QC, sitting as a Deputy High Court Judge, at a renewed oral permission hearing on 14 October 2016 (Lang J having refused permission on the papers).[4]On the Claimant’s application, which was unopposed, I granted anonymity with a view to protecting the interests of the children referred to in this judgment. B. The Facts[5]The Claimant is a national of Nigeria. He was born and lived in Nigeria until October 1987 when, at the age of 11, he was brought to the United Kingdom by his stepfather. They entered the United Kingdom illegally (but that is not a matter for which the Claimant can be held responsible, given his age at the time).[6]The Claimant has lived here for nearly 30 years. He attended school in this country for five years, until July 1992. His mother and siblings also live, and work, in the United Kingdom.[7]The Claimant’s partner, PV, is a British citizen. They have lived together since September 2011 (save for the period, detailed below, when the Claimant served a custodial sentence). They had a son, LA, who was, sadly, still-born in April 2013. Their daughter, HA, was born on 20 March 2015. She lives with the Claimant and PV. The Secretary of State acknowledged, in the challenged decision and at the hearing before me, that the Claimant shares parental responsibility for HA with PV, and that he plays a significant and meaningful positive part in HA’s life, and assumes a significant degree of responsibility for her welfare.[8]The relationship between the Claimant and PV began (and LA was conceived) at a time when the Claimant had Indefinite Leave to Remain (“ILR”) in the United Kingdom.[9]The Claimant and PV each also have older children from earlier relationships. The Claimant has two sons, TA and DQA, both of whom are now over 18 years old, and a daughter, DA, who is now 16 years old, none of whom lives with him. PV has a son, SR, who is now over 18 years old, and a daughter, KA, who is 16 years old. KA lives with the Claimant and PV. The Secretary of State has accepted that the Claimant shares parental responsibility for her with PV, and plays an active, significant and meaningful role in KA’s life, involving a significant degree of responsibility for her welfare.[10]All the children are British citizens and they have all lived in this country throughout their lives so far.[11]Having entered the United Kingdom illegally, the Claimant did not seek to regularise his immigration status until the age of 28. On 21 June 2004 he submitted an application for ILR. Nearly four years later, on 16 April 2008, the Secretary of State refused his application. However, the Claimant appealed successfully to the First Tier Tribunal (“FTT”) following which, on 31 October 2008, the Secretary of State granted him ILR.[12]Given the repeated assertion in the decisions and submissions before me that the Claimant has not submitted any evidence to substantiate his claim to have arrived in the United Kingdom on 17 October 1987 with his step-father, I note that Immigration Judge Neuberger observed in a decision promulgated on 3 July 2008 (which was not the subject of appeal), that after coming to this country at the age of 10 or 11 “he had gone to school until 1992 and he produced ample evidence to satisfy me that this indeed was the case”. The independent evidence that he came to the United Kingdom in 1987 includes a letter from his school confirming he began attending school in the autumn term of that year and a letter from his former GP’s practice, indicating he had registered as a patient on 2 November 1987.[13]Prior to obtaining ILR, the Claimant had been convicted on four occasions, and he had been given non-custodial sentences:(1) On 24 June 1996, at the age of 20, he was convicted of handling stolen goods and possessing an offensive weapon in public, and fined £50;(2) A few months later, on 31 October 1996, he was convicted of possessing controlled drugs (Class B) with intent to supply, and fined £150;(3) On 10 September 2002, at the age of 26, the Claimant was convicted of possessing controlled drugs (Class B), for which he was given 12 months’ conditional discharge; and(4) On 16 September 2004, aged 28, the Claimant was convicted of obtaining property by deception, for which he was sentenced to 100 hours’ community punishment and given a 2 year community rehabilitation order.[14]As I have indicated, just over four years after the Claimant’s conviction in respect of the last of these offences he was granted ILR.[15]The offence: On 9 October 2012, the Claimant was convicted of possession of Class A controlled drugs with intent to supply. He pleaded guilty and was sentenced to three years’ imprisonment. For the purposes of sentencing, the judge accepted that the Claimant found a bag containing about 150 grams of cocaine, crack cocaine and heroin in a shopping trolley outside a property to which he had access, having seen somebody else hide or deposit it in suspicious circumstances. By his plea, the Claimant accepted he intended to pass on or sell those drugs for profit.[16]On 19 November 2012, the Secretary of State wrote to the Claimant that he was liable to deportation and asked him to provide any reasons why he considered that he should not be deported. The Claimant and PV provided reasons opposing his deportation on 22 January and 28 May 2013.[17]The Deportation[18]On 21 March 2014, the Claimant lodged an appeal against the decision of 14 March 2014. The Claimant was detained under immigration powers on 9 April 2014, on completion of his custodial sentence, and released on bail, subject to reporting requirements, on 23 April 2014.[19]The FTT Decision: The FTT allowed the Claimant’s appeal on 7 October 2014:(1) FTT Judge Russell first considered the claim to family life with the Claimant’s (then) three natural children and two step-children. He found that “the appellant has not established that it would be unduly harsh for the children to remain in the UK without him” ([29]). The factual foundation on which this finding was based was FTT Judge Russell’s assessment that “the appellant plays a minimal role in the lives of the children” ([29]).(2) Then the Judge addressed paragraph 399(b) and the position of the Claimant’s partner, PV. He took the view that there was an insurmountable obstacle to PV following the Claimant to Nigeria, namely, if she did so, she would have to leave her two children in the United Kingdom. This was so because the Secretary of State accepted that it would be unduly harsh to expect the children to move to Nigeria. He therefore considered it would be unduly harsh for PV to follow the Claimant to Nigeria. The Judge also took the view that for PV to remain in the United Kingdom without the Claimant would have an unduly harsh impact on her because she would have to raise their joint child without him.(3) The Claimant and PV’s youngest child, HA, had not yet been born. PV was pregnant at the time of the FTT hearing, but she was “still in her first trimester” ([32]). Consequently, the question whether it would be unduly harsh to expect HA to move to Nigeria with her father, or to remain in the United Kingdom without him, was not considered. It was only in the context of PV’s rights that he Judge took into account the fact that the Claimant and PV were expecting a child together, whilst making clear that he did “not attach too much weight to the needs of a child yet to be born” ([32]).[20]The UT Decision: The FTT decision was overturned by the Upper Tribunal on 23 May 2015:(1) In respect of paragraph 399(a), the Upper Tribunal held that as there had been no cross-appeal by the Claimant, “the findings of the First-tier Tribunal in respect of the children (§24-29) … must stand”.(2) In respect of paragraph 399(b), the Upper Tribunal held that the FTT’s decision contained “no explanation as to why it would be unduly harsh for his partner to remain in the UK without him” ([15]). Having found an error of law, the Upper Tribunal re-made the decision and rejected the Claimant’s appeal. The Upper Tribunal considered that to be “unduly harsh” the effect of the Claimant’s deportation on PV would have to be “akin to excessive and cruel”: “very serious hardship” did not suffice ([21]). The Upper Tribunal considered that this threshold was not met.(3) The Upper Tribunal was aware that PV was “expecting a further child to the claimant” ([19]) and this was taken into account in the consideration of PV’s rights and the assessment of whether paragraph 399(b) applied.[21]Following the refusal of his application for permission to appeal to the Court of Appeal, the Claimant’s appeal rights were exhausted on 13 November 2015.[22]Further submissions: On 20 November 2015, the Claimant provided the Secretary of State with the further submissions which are the subject of this claim. In particular, the Claimant relied on:(1) His relationship with, and role in caring for, his youngest daughter, HA;(2) Evidence in respect of his own mental health;(3) Evidence in respect of PV’s mental health;(4) The fact that he was working (as permitted) and supporting his family; and(5) A letter from his Offender Manager at the National Probation Service, dated 10 November 2015, stating that he had “engaged extremely well with Probation during supervision” and indicating that he was assessed as posing a low risk of re-offending and a low risk of causing harm to the public.[23]The detention decision: On 22 June 2016, the Secretary of State detained the Claimant with a view to deporting him from the United Kingdom to Nigeria. On 19 July 2016, the Claimant was released from detention.[24]The fresh claim decision letters: The Secretary of State determined that the Claimant’s further submissions did not amount to a fresh claim. The letter notifying the Claimant of this decision is dated 22 June 2016 (“the fresh claim decision”), but the Claimant contends it was not served on him until after he had filed his judicial review claim on 6 July 2016, when it was provided as part of the Secretary of State’s response to the Claimant’s pre-action protocol letter of 29 June 2016. On 10 November 2016, the Secretary of State provided a supplementary decision letter (“the supplementary letter”). C. The legal framework

Liability to deportation

[25]Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the United Kingdom if “the Secretary of State deems his deportation to be conducive to the public good”.[26]Section 32 of the UK Borders Act 2007 provides:
“(4) For the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good. (5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).”
[27]The Claimant is a “foreign criminal” as defined in s.32(1) of the Borders Act 2007 and s.117D(2) of the Nationality, Immigration and Asylum Act 2002 because he is not a British citizen and he has been sentenced to a period of imprisonment of more than 12 months.

Human rights exception

[28]Section 33 of the UK Borders Act 2007 provides an exception to the requirement that the Secretary of State must make a deportation order against a foreign criminal, in circumstances where deportation would breach a person’s rights under the European Convention on Human Rights (“the Convention”): s.33(1) and (2)(a) of the Borders Act 2007.[29]In Ali v Secretary of State for the Home Department [2016] 1 WLR 4799, Lord Reed (giving the leading judgment) observed at [14]:
“Sections 32 and 33 make clear Parliament’s view that there is a strong public interest in the deportation of foreign nationals who have committed serious offences, and that the procedures for their deportation should be expeditious and effective. The strength of that public interest is reflected in Laws LJ’s observation that for a claim under article 8 of the Convention on Human Rights to prevail, it must be “a very strong claim indeed”: SS (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 998, para 54.”
[30]The Convention right at the forefront of the Claimant’s case, as in most foreign criminal deportation cases, is article 8 (the right to family and private life), but he also places some reliance on article 3 (freedom from torture and inhuman and degrading treatment). In considering whether the decision to deport the Claimant breaches a person’s right to respect for private and family life under article 8, the court or tribunal must have regard to the considerations listed in s.117C of the Nationality, Immigration and Asylum Act 2002. Section 117C provides: “(1) The deportation of foreign criminals is in the public interest. (2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. (3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies. (4) Exception 1 applies where –(a) C has been lawfully resident in the United Kingdom for most of C’s life,(b) C is socially and culturally integrated in the United Kingdom, and(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported. (5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.” (a) C has been lawfully resident in the United Kingdom for most of C’s life, (b) C is socially and culturally integrated in the United Kingdom, and (c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

Guidance on the family life and private life exception

[31]Further guidance is provided in the form of the Immigration Rules HC 395. Paragraph 397 makes it clear that a deportation order is not to be made if the person’s removal would be incompatible with the Convention. In a case such as this, where an offender has received a sentence of between 12 months and four years, rules 399 and 399A provide guidance to officials as to the categories of case where it is accepted by the Secretary of State that deportation would be disproportionate: paragraph 398(b) of the Immigration Rules and Ali at [36] and [38].[32]Paragraph 399 of the Immigration Rules is the key provision relied upon by the Claimant. It provides:
“This paragraph applies where paragraph 398(b) or (c) applies if – (a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and (i) the child is a British citizen; or (ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case (a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and (b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or (b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen or settled in the UK, and (i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and (ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2 of Appendix FM; and (iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.” (i) the child is a British citizen; or (ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case (a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and (b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or (i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and (ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2 of Appendix FM; and (iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.”
[33]In MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617 considered the meaning of “unduly harsh” in para 399 of the Immigration Rules and s.117C(5) of the Nationality, Immigration and Asylum Act 2002. Laws LJ (with whom Vos and Hamblen LJJ agreed) explained:
“24. This [s.117C(2)] steers the tribunals and the court towards a proportionate assessment of the criminal’s deportation in any given case. Accordingly the more pressing the public interest in his removal, the harder it will be to show that the effect on his child or partner will be unduly harsh. Any other approach in my judgment dislocates the “unduly harsh” provisions from their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case the term “unduly” is mistaken for “excessive” which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case. In the present context relevant circumstances certainly include the criminal’s immigration and criminal history. … 26. … The expression “unduly harsh” in section 117(5) and Rule 399(a) and (b) requires regard to be had to all the circumstances including the criminal’s immigration and criminal history.”
[34]Rule 399A provides:
“This paragraph applies where paragraph 398(b) or (c) applies if – (a) the person has been lawfully resident in the UK for most of his life; and (b) he is socially and culturally integrated in the UK; and (c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”
[35]The Claimant accepts this paragraph does not apply, as he has not been lawfully resident in the UK for most of his life. But he relies on it as indicative of factors which may render deportation of a foreign offender disproportionate.[36]Rule 390A provides that where paragraph 398 applies, if the family and private life rules in paragraphs 399 and 399A are inapplicable, “it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors”. As Lord Reed explained in Ali at [38], cases not covered by paragraphs 399 or 399A “will be dealt with on the basis that great weight should generally be given to the public interest in the deportation of such offenders, but that it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in the SS (Nigeria) case [2014] 1 WLR 998.”[37]The Claimant contends, in the alternative, that the circumstances are such as to fall within this residual category, but it was put as a back-stop submission, with paragraph 399 very much in the forefront.[38]In Ali Lord Reed observed:
“52. The idea that the new rules comprise a complete code appears to have been mistakenly interpreted in some later cases as meaning that the Rules, and the Rules alone, govern appellate decision-making. … 53. As explained at para 17 above, the Rules are not law (although they are treated as law for the purposes of section 86(3)(a) of the 2002 Act), and therefore do not govern the determination of appeals, other than appeals brought on the ground that the decision is not in accordance with the Rules: see para 7 above. The policies adopted by the Secretary of State, and given effect by the Rules, are nevertheless a relevant and important consideration for tribunals determining appeals brought on Convention grounds, because they reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. In particular, tribunals should accord respect to the Secretary of State’s assessment of the strength of the general public interest in deportation of foreign offenders, and also consider all factors relevant to the specific case before them, as explained at paras 37-38, 46 and 50 above. It remains for them to judge whether, on the facts as they have found them, and giving due weight to the strength of the public interest in deportation in the case before them, the factors brought into account on the other side lead to the conclusion that deportation would be disproportionate.”
[39]The non-exhaustive list of relevant factors that the Strasbourg jurisprudence indicates should be considered when assessing the proportionality of deporting a settled migrant were identified by Lord Reed in Ali at [26] (and see [38] and [53]). These will form part of the circumstances to which (in accordance with MM (Uganda)) regard should be had when assessing whether the “unduly harsh” threshold is met.[40]Some of the factors “relate to the strength of the public interest in deportation: that is to say, the extent to which the deportation of the person concerned will promote the legitimate aim pursued”, in particular:(1) “the nature and seriousness of the offence [or offences] committed by the applicant”;(2) “whether the person committed them as a juvenile or as an adult”;(3) “the time elapsed since the offence was committed”; and(4) “the applicant’s conduct during that period”.[41]Other factors “relate to the strength of the countervailing interests in private and family life”. These include:(1) “the length of the applicant’s stay in the country from which he or she is to be expelled”;(2) “whether the person came to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult”;(3) “the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life”;(4) “whether the spouse knew about the offence at the time when he or she entered into a family relationship”;(5) “the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled”;(6) “whether there are children of the marriage, and if so, their age”;(7) “the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled”;(8) “the solidity of the social, cultural and family ties with the host country and with the country of destination”; and(9) “the nationalities of the various persons concerned”.[42]The second factor identified above is of particular importance. As Sedley LJ observed in Secretary of State for the Home Department v HK (Turkey) [2010] EWCA Civ 583 at [35]:
“The number of years a potential deportee has been here is always likely to be relevant; but what is likely to be more relevant is the age at which those years began to run. Fifteen years spent here as an adult are not the same as fifteen years spent here as a child. The difference between the two may amount to the difference between enforced return and exile. Both are permissible by way of deportation, but the necessary level of compulsion is likely to be very different.”
(emphasis added)[43]Other factors which have been identified in the Strasbourg jurisprudence as relevant in the context of expulsion of those who are not settled migrants, but which may also form part of the circumstances to be taken into account in a case such as this, were referred to by Lord Reed in Ali at [28]:(1) “the extent to which family life would effectively be ruptured”;(2) “whether there were insurmountable obstacles (or as it has been put in some other cases, major impediments…) in the way of the family living in the country of origin of the alien concerned”;(3) “whether there were factors of immigration control (for example a history of breaches of immigration law)”; and(4) “whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious”.

The best interests of the child

[44]Section 55 of the Borders, Citizenship and Immigration Act 2009 is also relevant. This provides that the Secretary of State must make arrangements for ensuring that any function of the Secretary of State in relation to immigration (amongst other matters) is “discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”.[45]As Elias LJ observed in Secretary of State for the Home Department v AJ (Zimbabwe) [2016] EWCA Civ 1012 at [12]:
“It is now firmly established that in any decision affecting children, the best interests of the children must be a primary (but not the paramount) consideration but they can be outweighed by the cumulative effect of other considerations: see ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166, paras 27-28 per Baroness Hale. However, the very strong weight given to the public interest in deporting foreign criminals is not diluted where the right of children are affected.”
[46]The best interests of any children involved cannot, alone, be decisive, but they must be afforded significant weight: Ali, per Lord Reid at [29].

The fresh claim criteria

[47]The Claimant has already exercised his statutory right of appeal, ultimately unsuccessfully, against the deportation order made by the Secretary of State on 14 March 2014. He is not entitled to appeal to the FTT again unless his further submissions amount to a “fresh claim” as defined in paragraph 353 of the Immigration Rules.[48]In accordance with paragraph 353, further submissions will be regarded as significantly different to the material that has previously been considered, and therefore amount to a fresh claim, if the content of the further submissions(a) has not already been considered, and(b) taken together with the previously considered material, creates a realistic prospect of success (notwithstanding the rejection of the appeal based on the previously considered material).[49]In WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 Buxton LJ (with whom Jonathan Parker and Moore-Bick LJJ agreed) observed at [7] that paragraph 353 imposes “a somewhat modest test”. D. The supplementary letter[50]The Claimant submitted that the supplementary letter is an illegitimate attempt to shore up the inadequate reasoning in the original decision. The Secretary of State contends that the supplementary letter dated 10 November 2016 was, at least in part, a response to post-decision evidence and, in any event, insofar as it provided further elaboration of the Secretary of State’s reasons, it should be admitted.[51]The Secretary of State relied on Caroopen v Secretary of State for the Home Department [2016] EWCA Civ 1307. In Caroopen the Court of Appeal distinguished between different types of supplementary letters. Underhill LJ held:
“30 First, a supplementary letter may be sent in order to supply reasons, or fuller reasons, for the original decision in response to a criticism of the adequacy of the reasons given with that decision. The authorities express caution about permitting a decision-taker to cure defects in his original decision in this way. … I will refer to such cases as “further reasons” cases. … In broad terms, … [in Nash v Chelsea College of Art and Design [2001] EWHC (Admin) 538, Stanley Burnton LJ] recognised that even in a case where there was no explicit statutory duty to give reasons the courts should approach attempts to rely on subsequently-provided reasons with caution; and he said that that was particularly so in the case of reasons put forward after the commencement of proceedings and where important human rights are concerned. I would endorse that. 31Secondly, a supplementary letter may be effective not by retrospectively curing the original decision but by prospectively filling the gap which would arise if it should be held to be invalid. There is clear authority in the Upper Tribunal that the fact that there has been a subsequent decision may be relevant to the relief granted: the reasoning is that, whereas the default position is that the decision-maker will be required to re-take an invalid decision, that may be pointless where a fresh decision has since been taken which the court or tribunal is satisfied is lawful. I will refer to cases of this kind as “fresh decision” cases. … 32 Thirdly, further material – whether in the form of evidence or arguments – may have been brought to the Secretary of State's attention which requires her to reconsider her original decision irrespective of whether it was valid when first made: the material may relate to subsequent developments or it may have been available from the start but simply not supplied. One example, though not the only one, is where in the papers lodged with the judicial review claim the claimant relies on material which was not deployed previously. In principle the point could be taken that material that was not before the decision-maker was inadmissible for the purpose of a challenge to that decision (though the position is not so straightforward when Convention rights are in play), but it is common experience that the Secretary of State often chooses to address the new material by way of a supplementary decision. Although this too as a matter of analysis constitutes a fresh decision, it is rendered necessary not because of any defect in the previous decision but as a result of the supply of further material. I will refer to cases of this kind as “new material” cases. How to handle such cases is the subject of some consideration in the well-known decision of this Court in R v Secretary of State for the Home Department, ex p Turgut [2000] EWCA Civ 22, [2001] 1 All ER 719. Neither of the present cases is of this kind. 33 I should, for clarity, identify a fourth type of case, namely where the Secretary of State explicitly acknowledges that her original decision was defective but simultaneously makes a fresh decision to the same effect. I would not describe the letter conveying the fresh decision in such a case as “supplementary”, and so far as I know the Secretary of State does not do so either. However, the situation would not seem to be essentially different from that considered in Turgut: the original decision has been superseded, albeit for a different reason, and the tribunal has to decide whether to allow the validity of the fresh decision to be determined in the context of the existing proceedings.”
[52]If and to the extent that the supplementary letter was a response to material that was not before the Secretary of State when the fresh claim decision was made, and so could not have been taken into account at the time, it would fall into the “new material” category. In other words, it would amount to a fresh decision, but not one rendered necessary by any defect in the original.[53]To the extent that the supplementary letter provides a further response to material that was before the Secretary of State when the fresh claim decision was made, in my judgment, it is a “fresh decision” case.[54]On either basis, I consider it appropriate to admit the supplementary letter and to grant permission to enable its validity to be challenged in these proceedings.[55]Nevertheless, I should record that I do not fully accept that the submissions and evidence highlighted in paragraphs 17 and 18 of the supplementary letter were not before the decision-maker when the fresh claim decision was made.[56]First, the Claimant relied in his 20 November 2015 submissions on the letter from his offender manager dated 10 November 2015, and he submitted that the Secretary of State should take into account the assessment that he presents a low risk of re-offending and a low risk of harm to the public. The Secretary of State’s identification of this submission and evidence as not having been before the decision-maker is an error.[57]Secondly, the MPOWER letter of 28 June 2016 regarding the Claimant’s enrolment on a City and Guilds Level 3 Diploma course in gas installation, utilisation and maintenance post-dated, and so was not provided with, the 20 November 2015 submissions. But this letter was merely an extension of essentially the same point which had been made in the evidence provided with those submissions, in particular, in PV’s letter noting that the Claimant “has been in continuous employment since his release and has achieved first his CSCS [Construction Skills Certification Scheme] card but has now upgraded to the Skills [i.e. Skilled Worker] card which allows him to work his way up in the construction industry”.[58]Thirdly, the other submissions and evidence identified in the supplementary letter as having been provided after the fresh claim decision was made were provided to the Secretary of State on 29 June 2016. If the fresh claim decision is, as indicated in manuscript on it, to be regarded as having been made on 22 June 2016, then these materials were not before the decision-maker.[59]It is apparent from the GCID notes that a decision had been reached, and the letter was ready to serve, in March 2016. It was not served then, or during the next three months, despite a chasing letter from the Claimant’s representative, because the Secretary of State wanted to serve the fresh claim decision on the Claimant when she detained him. The GCID notes show that the plan was to detain the Claimant, for the purpose of securing his attendance at an interview with the Nigerian Immigration Service, once an interview had been arranged. This resulted in his detention on 22 June 2016, but there is no evidence that the letter which had been ready for three months was in fact served on the Claimant when he was detained. On the contrary, the terms of the pre-action protocol letter of 29 June 2016, and the claim form filed on 6 July 2016, clearly indicate that neither the Claimant nor his representatives had received a response to the further submissions until it was provided with the Secretary of State’s response to the pre-action protocol letter, dated 6 July 2016.[60]The Secretary of State contends that a note of “a phone call from someone claiming to [be] the partner questioning the decision to deport being served while detaining him” supports the contention that the refusal of his further submissions and decision that they did not amount to a fresh claim was served on the Claimant on 22 June 2016. However, it is more likely, in my view, that this was a reference to the separate letter of 22 June 2016 which informed him he had been detained to effect his removal from the United Kingdom.[61]The fresh claim decision was only made once it was served on the Claimant. As it was not served until more than a week after 29 June 2016, the evidence and submissions provided to the Secretary of State on that day were available to her before the decision was made. E. The “fresh claim” challenge[62]The test, as identified above, is whether the Secretary of State erred in concluding that the further submissions did not put forward material which(a) had not already been considered and(b) created a realistic prospect of success (when considered together with all the other evidence).[63]Paragraph 353 of the Immigration Rules is addressed in paragraphs 127-132 of the fresh claim decision. The letter records:
“Submissions that have previously been considered 128. Below is a list of points your client has raised that have previously been considered: • Removal would amount to a breach of you client’s and his family’s protected rights under Article 8 of the ECHR. • Removal would be contrary to the best interests of the children under section 55 of the Border, Citizenship and Immigration Act 2009 (BCI 2009) 129. Your client’s family and private life have previously been considered. Your client claimed his removal would breach his right to a family life with his partner, children and step-child. It was also noted that your client’s partner was pregnant with their second child. … 131. All your client’s submissions listed at paragraph 128 above have been considered previously in the decision of 14 March 2014, which was upheld by an Immigration Judge on 23 March 2015. Your client’s submissions are not significantly different from the evidence that has previously been considered. Therefore they do not amount to a fresh claim.”
[64]In a similar vein, the supplementary letter notes at paragraph 23: “Your client’s human rights and his relationship with his partner, children, stepdaughter and his then unborn child, [HA], was given full consideration by the Immigration Judge at the hearing on 23 March 2015, and this is further addressed at paragraphs 24 to 63 and paragraphs 128 to 132 of our letter dated 22 June 2016”.[65]In my judgment, the Secretary of State’s decision that HA’s article 8 rights and HA’s best interests had already been fully considered is manifestly unlawful in that it failed to take into account material considerations and the conclusion is irrational.

Material not previously considered

[66]Both letters rely on the decision of 23 March 2015 (i.e. the Upper Tribunal decision) as having considered HA’s human rights and the Claimant’s relationship with HA. However, the Upper Tribunal did not consider the effect of the Claimant’s removal on any of the children, including HA (who was then unborn): they determined that the findings of the FTT in respect of the children must stand (UT decision at [12]).[67]The FTT did not consider HA’s article 8 rights, her best interests or her relationship with the Claimant. It could not have done so because HA had not been born. Her mother was “still in her first trimester” (FTT decision at [32]). The FTT considered paragraph 399(a) of the Immigration Rules at [24] - [29]. In that context, there is no mention at all of the (then) unborn child, HA.[68]The fact that PV was pregnant was only addressed by the FTT in the context of paragraph 399(b) of the Immigration Rules, when considering the Claimant’s relationship with PV and the impact of his removal on PV. At [32] the FTT Judge recorded “I do not attach too much weight to the needs of a child yet to be born but I recognise that the possibility of a further child intensifies the dilemma for the appellant’s partner”. Equally, the (then still) unborn child, HA, was only mentioned by the Upper Tribunal in the context of their consideration of paragraph 399(b).[69]It is readily apparent that HA’s article 8 rights and best interests have not already been considered. In particular, the applicability of paragraph 399(a) of the Immigration Rules has not been considered in respect of HA, and s.55 of the Borders, Citizenship and Immigration Act 2009 has not been considered with respect to HA.

Realistic prospect of success

[70]The Secretary of State submits that, nevertheless, the decision that the Claimant’s submissions did not amount to a fresh claim should be upheld because, taking all the evidence together, the Claimant’s contention that the deportation order should be set aside on the grounds of its incompatibility with Convention rights has no realistic prospect of success before an Immigration Judge.[71]Can it be said – as Counsel for the Secretary of State urges me to find – that a further appeal would have no realistic prospect of success? In my judgment, the answer to that question is undoubtedly ‘no’.[72]In reaching this conclusion I have taken into account the “great weight” to be accorded to the public interest in deporting the Claimant, having regard to the seriousness of the offence that he committed. However, it is not possible to extrapolate the FTT’s finding that it would not be unduly harsh for his three older children and two step-children to remain in the United Kingdom without the Claimant, and apply it to the situation of HA. The Claimant was not living with his three older children, and the foundation for the FTT’s finding was the conclusion that the Claimant played a “minimal role” in the lives of all five children.[73]The Secretary of State has acknowledged that the same cannot be said of the Claimant’s relationship with HA (and indeed the Secretary of State has also now recognised that the Claimant plays a significant parenting role in the life of KA). In view of the evidence of the Claimant’s role in HA’s life, there is plainly a realistic prospect of an Immigration Judge finding that it would be unduly harsh for HA’s relationship with her father to be ruptured by his removal from the United Kingdom whilst she remains in the United Kingdom.[74]The fresh claim decision relied in part on the possibility that HA may be able to maintain contact with the Claimant “via modern means of communication” (paragraph 52). In doing so, the Secretary of State overlooked Omotunde v Secretary of State for the Home Department [2011] UKUT 00247 (IAC), in which the Upper Tribunal said at [28], we “reject the submission that family life hitherto enjoyed between an active parent and a small child could be appropriately maintained by telephone calls or other ‘modern methods of communication’ from Nigeria”, describing this suggestion as “wholly unrealistic”.[75]The fresh claim decision also suggested that it would not be unduly harsh for HA to move to Nigeria. The Secretary of State recognised the possibility that, as HA’s mother, PV, has two other British children who live in the United Kingdom, PV “may choose not to accompany” the Claimant to Nigeria. In circumstances where the Secretary of State had found that it would be “unreasonable” to expect PV’s daughter, KA, to leave the UK (given her British citizenship, on-going education and relationship with her biological father who is in the United Kingdom), the suggestion that PV could choose to move to Nigeria amounts, in effect, to saying she could choose to stop living with and looking after her daughter. As Counsel for the Secretary of State sensibly acknowledged, this cannot be described as a real choice.[76]If PV cannot realistically move to Nigeria and abandon KA, the question whether it would be unduly harsh to expect HA to move with the Claimant to Nigeria would have to be considered against the backdrop that such a move would involve HA, who is not quite two years old, leaving her mother.[77]I also note that in taking the view that it would not be unduly harsh for HA to move to Nigeria, the Secretary of State did not have regard, and so gave no weight, to the intrinsic importance of HA’s nationality and the fact that if she were to move to Nigeria with the Claimant she would lose the benefit of growing up in her own country: see ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166.[78]When determining whether the “unduly harsh” threshold is met, all the circumstances should be taken into account. In a case such as this, they would include acknowledgment that deportation of the Claimant, who is socially and culturally integrated in the United Kingdom, and who has not returned to Nigeria in the last 30 years, “would in reality amount to exile rather than enforced return” (FTT decision at [37], applying HK (Turkey)). As I have explained above, the Secretary of State’s assertion that the Claimant “has never provided any documentation to confirm” his arrival in the United Kingdom in October 1987 is erroneous. The consequence is that in reaching her assessment that an appeal would have no realistic prospect of success, the Secretary of State has not taken into account the fact that deportation of the Claimant would amount, in reality, to exile.[79]For these reasons, I conclude that the Secretary of State erred in finding that the Claimant’s further submissions did not amount to a fresh claim. Consequently, he has a right of appeal to the First Tier Tribunal. I have focused on the submissions and evidence in respect of HA. This does not mean that other factors relied on by the Claimant - such as mental health issues (including the impact of any deterioration in PV’s mental health on KA), the assessment that he poses a low risk of re-offending/harm, and evidence of his positive conduct since 2012 – are irrelevant or insignificant. But in view of my finding above, it is unnecessary for me to address them. F. Detention[80]The Claimant was detained from 22 June 2016 to 19 July 2016. The letter of 22 June 2016, explaining the reasons for his detention, includes a number of serious flaws.[81]First, the letter states “there are no barriers to your removal”. In fact, the Claimant’s passport had expired many years before and he had no Emergency Travel Documentation (“ETD”).[82]Secondly, I have found that the refusal of the Claimant’s further submissions, and determination that they did not amount to a fresh claim, was not served until it was provided with the response to the pre-action protocol dated 6 July 2016. Paragraph 353A of the Immigration Rules had the effect that the Claimant’s further submissions constituted a further barrier to removal until the decision in respect of them was served.[83]Thirdly, the letter states that the “Secretary of State is not satisfied that your relationships in the United Kingdom are of sufficient proximity to give rise to family life for the purposes of Article 8”. This is wholly inconsistent with the findings in the fresh claim decision that the Claimant had a genuine and subsisting parental relationship with DQA, KA, DA and HA, and a genuine and subsisting relationship with his partner, PV. It is of concern because the nature and extent of his family ties were relevant in assessing the risk that he would abscond.[84]Fourthly, the letter states “any private life you may have has been established whilst you have been in this country unlawfully, in the knowledge that you had no right to remain here and may be removed at any time”. Again, this directly contradicts the fresh claim decision in which the Secretary of State expressly acknowledged that the Claimant’s relationship with PV “was formed when your client was in the UK lawfully as your client had Indefinite Leave to Remain”. The effect was to give a more negative view of the Claimant’s immigration history than is warranted on the facts. This, too, may have had an impact on the assessment of the level of absconding risk he presented.[85]The minute of the decision to detain him did acknowledge that the Claimant’s lack of an ETD was an outstanding barrier to deportation. However, the assessment that his removal was “now imminent”, failed to take into account the following material considerations:(1) In line with a Memorandum of Understanding between Nigeria and the United Kingdom, “before any Nigerian is deported, the High Commission always insists that: i) Their citizenship has been proved beyond reasonable doubt; ii) They are medically fit; iii) They are allowed to exhaust all their legal remedies; and iv) For those who have stayed in the UK for more than 15 years, proof of existence of friends and relations as well as capacity to reintegrate.”(2) Even if (i), (ii) and (iii) were met (and the Claimant suggests there is a question as to whether (ii) was met given the evidence with respect to his mental health), the Claimant has lived in the UK for nearly 30 years and the Secretary has not referred to any evidence that he has any friends or relatives in Nigeria.(3) The Secretary of State had been seeking an ETD for the Claimant from the Nigerian High Commission since March 2014 and, to that end, the Claimant had undertaken a telephone interview with the Nigerian High Commission on 6 May 2015.(4) Against this background, the fact that the Nigerian Immigration Service were prepared to interview the Claimant provided a weak basis for assessing that his removal was reasonably imminent.[86]In reality, it is apparent from the GCID notes that the purpose of detaining the Claimant was to secure his attendance at an interview with the Nigerian Immigration Service. The aim was to try to “progress his case”. It was cannily acknowledged in the GCID notes, on the day the Claimant was detained, that “we are at significant risk of detaining unlawfully as things stand”, but in view of the “need to have this individual interviewed” his detention was authorised.[87]The Claimant had fully complied with his licence when on probation, and with his reporting conditions, and had strong ties to his home. He had also undertaken the telephone interview with the Nigerian authorities whilst at liberty. The conclusion that he presented a “high risk of absconding” was based solely on the contention that his removal was reasonably imminent. In my judgment, the belief that the Claimant’s removal was reasonably imminent - or that his deportation would be possible within a reasonable period - failed to take into account the obviously relevant considerations referred to above.[88]For the reasons given above, I have concluded that the Claimant was unlawfully detained from 22 June 2016 until his release on 19 July 2016. G. Conclusion[89]For the reasons I have given, this claim for judicial review is allowed.

Order

On 14 March 2014, the Secretary of State served a deportation notice on the Claimant. The Secretary of State considered the Claimant’s claim that paragraph 399(a) of the Immigration Rules applied by reason of his family life with TA, DQA, DA, SR and KA; and paragraph 399(b) by reference to his relationship with PV. She concluded that he did not meet the criteria under either paragraph and there were no exceptional circumstances raised which would outweigh the public interest in the Claimant being deported.

Cited in 1 later judgment