Case No: CO/14779/2009  
Neutral Citation Number: [2010] EWHC 2471 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX

Date: Wednesday 8th September 2010

Before:

HIS HONOUR JUDGE PELLING QC
(Sitting as a Judge of the High Court)

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Between:

	Regina
(On the Application of B)
	
Claimant	
	- and -		
	
Secretary of State for the Home Department 	

Defendant	

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(DAR Transcript of 
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Mr Nicholson appeared on behalf of the Claimant.

Mr Hunter appeared on behalf of the Defendant.

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Judgment

His Honour Judge Pelling QC:

1.	This is the substantive hearing of the claimant's application for judicial review of the decision by the defendant to certify his human rights claim as clearly unfounded, permission having been granted by Nichol J on 28 June 2010.  

Background
2.	The claimant is a national of Malawi.  He arrived in the United Kingdom in November 2004.  His wife, and his then only child who had been born on 10 June 2003, had arrived in the UK in May 2004.  A second child was born on 5 March 2009.  The claimant claimed asylum on 12 June 2009 which was refused by the defendant on 20 August 2009 when the claim was certified as clearly unfounded pursuant to Section 94(2) of the Nationality Immigration and Asylum Act 2002, hereafter referred to as the 2002 Act.  The human rights claim was subsequently certified as well.  The effect of certification was that the refusal could not be appealed to the AIT or, as it now is, the immigration chamber of the lower tribunal.  On 30 November 2009 the claimant and his wife and children were detained pending removal, which had been set for 5 December 2009.  Further representations were submitted on behalf of the claimant and his family which focussed on the Article 8 rights of the family as a whole, and the children in particular, on 1 December 2009.  These were rejected by the defendant on 3 December 2009.  The claimant applied for an injunction to restrain removal which I granted on 4 December 2009.  

3.	Although permission was subsequently refused on the papers, it was granted, as I have said, by Nichol J following an oral renewal hearing.  Both the claimant and his wife are HIV positive.  The children are aged respectively about seven and about 18 months old, and the oldest child has spent the last six years of her life in the United Kingdom where she and her family have lived openly with the eldest child attending locally-based schools.

4.	The issue which arises is whether, in certifying the claimant's claim, the defendant failed to consider, or consider adequately, in the context of an Article 8 claim, the rights of the children, having regard to the obligations imposed on the defendant by Section 55 of the Borders Citizenship and Immigration Act 2009 (hereafter “the 2009 Act”) to discharge her functions in relation to immigration and asylum matters having regard to the need to safeguard and promote the welfare of children in the United Kingdom and / or the obligation imposed by Article 3.1 of the United Nations Convention of the Rights of the Child which is now no longer derogated from by the UK which requires that the best interests of the child should be a (not the) primary (that is, not the paramount) consideration in all actions concerning children whether undertaken by courts or administrative authorities.  The substance of the claimant's case is summarised by Mr Nicholson, who appears on behalf of the claimant, at paragraph 44 of his skeleton in these terms: 

"C’s children in respect over 6 of their 7 years of life, and all of their (1 year of) life, here in the UK. Yet D renewed their refusal of C's application (3rd December 2009) on the basis that removal did not give rise to any interference with family life and that the children are of an age when they should have no difficulty in adapting to life in Malawi. This refusal did not address article 8 private life at all.  The notion that [the eldest child] can adapt to life in Malawi -- where she can watch her parents die -- is not the same as safeguarding or promoting her welfare in the UK. D has not shown that it is proportionate to interfere with her private life by removing her in this way."

5.	It is no part of the function of this court to arrive at a conclusion as to the merits of the claim; rather, the sole question which the court has to decide is whether the defendant was irrationally wrong to conclude that the claimant's case was clearly unfounded.  If that is so, then it will be for an immigration judge sitting in the immigration chamber of the lower tribunal to reach a conclusion as to the underlying merits of the claimant's case and the case of his children, having regard to all the evidence then before that Judge.  

6.	Before turning to the underlying merits of the claimant's claim I should mention that after permission had been granted some further representations were made to the defendant, which were rejected on the basis that these representations did not contain anything which was significantly different.  It is agreed between all parties that, notwithstanding that this further decision letter was issued and delivered after permission had been granted in this case, the issue which remains to be decided in this case is whether the Secretary of State was wrong -- that is to say, irrational in the public law sense -- to conclude that this case was one where the human rights claim of the claimant and his family should be certified.  

Statutory and legal framework
7.	Certification of a claim as unfounded is a procedure which is contained in Section 94 of the 2002 Act which, insofar as is material, provides as follows: 

“(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).
(1A) A person may not bring an appeal against an immigration decision of a kind specified in section 82(2)(c), (d) or (e) in reliance on section 92(2) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) above is or are clearly unfounded ...
(2)
(2) A person may not bring an appeal to which this section applies [in reliance on section 92(4)(a)] if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.

(3) If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded.”

8.	The test for what constitutes "clearly unfounded" is not contentious between the parties.  The question, in summary, is whether the claim is one which cannot, on any legitimate view, succeed (see R (ZL and VL) v SSHD [2003] EWCA 25) or, in other words, so lacks substance that an appeal is bound to fail (see R (Bagdanavicius) v SSHD [2003] EWCA 1605).  Article 3.1 of the United Nations Convention of the Rights of the Child provides as follows: 

"1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

Insofar as it is material, Section 55 of the 2009 Act provides: 

“the Secretary of State to make arrangements for ensuring that immigration, asylum, nationality and customs functions are discharged having regard to the need to safeguard and promote the welfare of children in the UK.”

The parties’ respective cases
9.	The claimant's submission, in essence, is that the defendant has failed properly to address the rights of the children and in particular the rights of the eldest child, having regard to the impact of either the UN Convention and/or Section 55 of the 2009 Act.  It is submitted that the claimant's case, when looked at from this standpoint, cannot properly be regarded as one which is bound to fail.  No sufficient regard, it is submitted, has been given to the interests of the children and, in particular, the risk, if they are returned to Malawi, that the health of the claimant and his wife will deteriorate with the risk that each will either die or become incapacitated from looking after the children before they reach maturity.  Apart from that point, it is alleged that the defendant has failed to apply her own policy as set out in her Operation Enforcement Manual (chapter 53) which says, at paragraph 53.2.1: 

"When considering cases involving children regard must be given to the duty imposed by section 55 [of the 2009 Act] with respect to safeguarding and promoting the welfare of children. 

In general, the longer a person has lived in the UK, the stronger their ties will be with the UK.  However, more weight should be attached to the length of time a child has spent in the UK compared to an adult."

10.	It is also submitted that the defendant has asked herself the wrong question. The question is not whether the claimant will succeed before an Immigration Judge, but rather a significantly lower threshold question; that is to say, whether an Immigration Judge might conclude it ought to succeed; and further anxious scrutiny had to be but has not been applied to the material that was available, with the result that a wrong conclusion has been arrived at.

11.	All this leads the claimant to submit, as is set out in paragraphs 50 to 51 of Mr Nicholson's original written submissions, that: 

"If the best interests of the children are to be a primary consideration, as they must be, in law, then it will become a matter of fact what these interests are. In the case of C's oldest child, it must be right that D should consider properly the reasonableness of relocation to Malawi -- and the bald assertion that the child was of an age when she should have no difficulty in adapting to life there totally undermines the principles of the former DP5/96, the assurance of the Minister that these principles continued to be important, and any realistic view of the best interests of the child -- in the UK. Evidence from [the eldest daughter’s] current and previous schools only serves to re-emphasise the importance of her private life, and the best interests in remaining, in this country. 

Unless all of [the claimant's] claim was without merit at all, it must be right that even its rejection should be capable of appeal. The claim is simply too strong to be certified as clearly unfounded. Article 8 is engaged.  The claim is not without substance. D should have given [the claimant] a right of appeal and at least and at least the opportunity for a hearing by an independent judge."

12.	The defendant's submissions, in essence, are these: a) family life will not be disrupted because the family will be removed as a unit and the contrary is not arguable, as to which in fact no contrary argument has been run on behalf of the claimant, at any rate in relation to these proceedings and before me, so I need say no more about that point other than to note that it was conceded, and rightly conceded, by Mr Nicholson in the course of his opening submissions; b) as to the position of the children, there is no evidence that the inevitable result of the decision to remove will be the imminent death of either the claimant or his wife -- a formulation which, in my judgment, puts the question too high in any event; c) the objective evidence establishes that Malawi is a state that is committed to the provision of HIV and AIDs treatment; d) the claimant's mother is available to provide care for the children if they are orphaned or if the parents become incapacitated as a result of the deterioration in their medical condition and/or there is an orphan's policy in Malawi which ensures that they will receive care in the event of the death of their parents; and that, in summary, for these essential reasons, the defendant was, as is put in paragraph 5.12 of the defendant's opening written submissions: 

" …  patently entitled to conclude that there is no realistic prospect on the evidence so far presented that removal would have such serious consequences for the Claimant's children that it would breach Article 8 (or Article 3)."

None of this addresses the private life of the eldest child established here, aside from the health issue that arises in relation to the claimant and his wife. That issue was addressed in the most recent decision letter from the defendant, dated the 31 August 2010 essentially on the basis that the position of the claimant's eldest child was no different to any other child of her age and that such a child could be expected to adapt readily on her return to Malawi. No attempt was made to explore these issues with the child concerned or by reference to any fact-sensitive issues in relation to that child, or to explore with her parents whether that generalised view could be justified in the particular circumstances of this case. The issue was thus one which the Secretary of State resolved at a high level of generality.  

Discussion
13.	I turn first to the issue which arises in relation to the claimant's health.  In my judgment, it was not open to the Secretary of State to conclude that, in the event that the children were orphaned or became incapacitated, the children would be looked after by their grandmother or, in default of such care being provided, by the state of Malawi.  The only evidence available to the Secretary of State in relation to the ability of the children's grandmother to provide such care is that referred to in the earlier decision letter of 20 August 2009, as counsel for the Secretary of State was constrained to accept.  In summary, that material, which is all based on answers contained in the claimant’s asylum interview record, comes to this, as set out in the decision letter to which I have just referred: 

"You were born and grew up in Mzimba village in Malawi. You have no brothers or sisters and your father has died.  The only family that you have in Malawi is your mother, and your wife has no family in Malawi [...] 

In December 2002 your wife discovered she was pregnant. In January or February 2003 your business went bankrupt and you could not find another job in the City.  Consequently, you and your wife had to move back to Mzimba village to live with your mother. While living in the village you supported yourself by completing some farming [...] 

Since returning to the UK in December 2005 you have contacted your mother in Malawi, who is aware of all the problems you have had."

14.	No attempt, never mind any serious attempt, has been made to investigate whether the availability of the children's grandmother represented a realistic alternative for child care for the children in the event that the children were orphaned or the children's parents became incapacitated from looking after them properly.  Such an investigation would involve at least an inquiry as to the age, income, physical and mental health and housing circumstances of the grandmother, with a view to asking whether the availability of the children's grandmother represented a tenable alternative childcare option, not merely immediately following return but in the following years of the children's minority.  None of this, as I say, was undertaken.  

15.	Whilst it is just about possible to accept that the Secretary of State would be entitled to refuse leave to remain by reference to the material that I have referred to, that is only so to the extent that it could be investigated further at an appeal hearing before an Immigration Judge.  As a basis for concluding that certification was appropriate, it was, in my judgment, irrational in the public law sense.  Indeed, it was, I regret to say, both cavalier and glib in the way it was expressed and formulated.  Thus at paragraph 17 of the most recent decision letter the Secretary of State's official says merely this: 

"... with regard to your client, he has his mother to support the family in the event that either one or both parents’ health deteriorates due to HIV/AIDS (which event has not been established as being reasonably likely). Similarly it can be considered that in terms of familiar support, living in Malawi would be better for the children because of the presence of at least one close relative, i.e. your client's mother, to look after them if necessary."

16.	Exactly similar considerations apply, in my judgment, to the reference to a national plan for orphans also contained in paragraph 17 of the most recent decision, where the Secretary of State's official says merely this: 

"Furthermore, according to the Country of Origin information on Malawi (2007) 'in 2005 the government launched a National Plan of Action for Orphans and Vulnerable Children to mitigate the impact of poverty and HIV/AIDs on the country's estimated one million orphans’."

17.	However, none of this matters, it is submitted on behalf of the Secretary of State, because the evidence does not establish that there is any realistic prospect of either parent, never mind both parents, dying before the children reach majority if the family is returned to Malawi, because the evidence that is available establishes that their condition can and will be treated as well there as here.  I am not able to agree with that submission.  The undisputed evidence is that both parents suffer from AIDS, which is a life-threatening condition which can be controlled but not treated with antiviral medication. The evidence also establishes that, in relation to the claimant's wife at least, there is a current difficulty in relation to her medication which is yet to be resolved.  This evidence is, I accept, limited, and certainly would not be satisfactory for a full blown appeal hearing before an Immigration Judge, as Mr Nicholson fully accepts.  However, is not the nature of these present proceedings.  The issue to be determined at this hearing is whether the point is so lacking in substance as to justify certification.  The defendant was content to certify on the basis of what is set out in paragraphs 12-13 of the most recent decision letter, which was to the following effect: 

"Nevertheless, the Secretary of State is conscious of the gravity of the issues involved and has therefore considered what would be the situation if she had developed such resistance. Independent reports indicate that the Malawian government is committed to an HIV/AIDs treatment programme for its people 'according to WHO, the [Malawi] government is committed to addressing Malawi's HIV/AIDS crisis. Malawi managed to keep its ambitious anti-AIDs treatment plan on target: as of end-September 2006, 70,000 Malawians were accessing anti-viral (ARV) treatment, about 62,000 at public health services. According to the five year plan, an additional 40,000 patients will begin receiving treatment in 2007 and another 45,000 in each of the following three years' (IRIN Country Profile report, 2007 ...)  

13. It is the view of the Secretary of State that ARV medicines are available in Malawi so that in the event of developing resistance to one combination of drugs, those affected can be put onto another combination.  UKBA research shows that 'ARV medication is available in Malawi, even if this requires shipment from South Africa' [...] Some of the medicines already available to HIV sufferers are: Kaletra, Truvada, Raltegravir, Cotrimoxazole, Lamivudine (found locally as well as in research institutions).  Liposomal dauriorubicin and Abacavir’ (information provided by the British High Commission in Lilongwe, 5 August 2010).  A report in Aldsmap dated 6 August 2008 noted that there are a range of ARVs available in Malawi [...] It is further reported that the Malawian government is planning to double the number of people receiving ARV drugs by the end of 2010. 

14. In the light of such evidence, even if Mrs B had established that she had become resistant to some of the drugs in her current regimen, it is far from established that there are substantial grounds for believing that she will be at real risk of being unable to access suitable alternative drugs in Malawi."

18.	This may be a sufficient basis for rejecting a claim for leave where it is open to the claimant to appeal, but in my judgment it is not a sufficient basis for deciding that the claimant had no more than a fanciful prospect of success at an appeal from a decision refusing leave in the circumstances, at any rate, of a case such as this.  Nothing in that paragraph focuses on whether medication is available without charge, or whether the claimant and/or his wife would be eligible to receive such medication or whether they are capable of earning sufficient to provide for themselves, their children and also the purchase of such drugs as were necessary.

19.	Given the limited numbers of people apparently being treated, the age of the objective evidence that was relied upon, other than that most recent evidence in relation to the availability of drugs, and the even more limited number of people who would be treated apparently without the need for payment, the questions which I have referred to needed to be asked and answered if the material was to form a basis of certification.  In addition, on the information provided, at least one of the drugs identified by the claimant's wife’s medical practitioner, as being one which she may require, is not available.  

20.	It was submitted on behalf of the defendant that the claimant had not advanced any submissions concerning availability or costs of medication in Malawi.  So he had not; but that was because the first time that the availability of treatment in Malawi was raised was by the defendant in the decision letter of 31 August 2010.  I consider it to be irrational, in the public law sense, to certify a human rights claim by young children advanced by reference to the health issues of these parents without attempting to investigate these issues. It does not suggest tha5t the relevant anxious scrutiny has been applied to the issues that arise.  It may be that at an appeal hearing the issues will ultimately be resolved against the claimant and his family; however, the facts that are not in dispute are such that it cannot rationally be thought that an Immigration Judge applying Section 55 of the 2009 Act and/or Article 3.1 of the United Nations Convention could not come to a contrary conclusion.

21.	The other, and perhaps more perplexing, issue concerns the private life in particular of the eldest child of the claimant.  As I have already indicated, she was resident in the UK for the last six of her seven years.  There used to be a practice that residents of less than seven years would not qualify for leave to remain but those who have remained longer would qualify.  That practice ended with the enactment of Section 55 of the 2009 Act.  The most recent decision letter suggests that the decision-makers continue to approach these cases at a high level of generality.  That was the approach here.  This element of the claimant's case was addressed at paragraph 18 of the most recent decision letter in the following terms: 

"The family have been in the UK for 6 years and claim they had established a private life during that time. The older child in particular at seven years of age has been attending primary school for almost three years. The school letters confirm that the [eldest child] is happy and progressing well at school; it is said that she may have special needs and she has grommets. It is noted that the claim that [the eldest child] has special needs is not supported by a formal assessment and the nature and extent of any such needs have not been explained. A document published by the Malawian Government on Special Needs in Education, undated (which appears to have been published around 2005/2006), noted that the Ministry of Education provided services to children with a number of special needs, including vision impairments, hearing impairment and learning difficulties. [ ...] 

There appears to be no reason why any educational needs [the eldest child] may have could not be met in Malawi.  According to the United States Department of State, Report on Human Rights Practices in Malawi, 'The government provided free primary education for all children, although education is not compulsory. Families were responsible for paying book fees and purchasing uniforms. Students from poor families had access to a public book fund."

22.	The basis of the decision is set out in paragraph 24 of the letter in these terms in relation to the eldest child: 

"It is common for children to change schools during the course of their childhood, and if they are doing well at one school it is reasonable to think that, after time to adjust, they will do well at another."

In my judgment, this is not a sufficient basis for concluding that the claimant had no arguable case to advance by reference to the effect on the private life of the claimant's eldest child of their collective removal to Malawi.  It was at one stage suggested that the claimant had changed schools here without difficulty.  I regard that as a wholly specious reason for thinking that a change from the English state education system to that which apparently operates in Malawi could be achieved with the same ease as was apparently suggested. 

23.	My attention was drawn to an asylum policy instruction that related to Article 8.  This requires an Article 8 claim to be approached as a three-stage process before certification can be adopted.  Stage 1 involved inquiry whether there was a relevant private life established at all. That issue is not in dispute in the circumstances of this case.  Stage 2 then requires that there be an inquiry as to whether removal or refusal would amount to an interference  with private life, and there is a requirement then to this effect: 

"Caseworkers should ensure that claimants are asked why it would not be possible for the claimant and/or the claimant’s family to pursue their family life elsewhere. Factors that should be considered in assessing the extent to which removal would interfere with the right to family life include the following..."

24.	This requirement emphasises the essentially fact-sensitive nature of the inquiry that has to be undertaken.  No attempt had been made to carry out such an inquiry, as the decision letter discloses.  Whilst that might be a satisfactory basis for refusing an application for leave, subject to a right of appeal to an Immigration Judge, it is not, in my judgment, a public law rational sense basis for arriving at a positive certification decision.   

25.	In paragraph 27 of the most recent decision letter, it is stated that: 

"…there is nothing in the children's situation on which an immigration judge could legitimately allow an appeal."

I do not accept that such a conclusion can rationally be arrived by reference to the material considered by the Secretary of State and set out in the most recent decision letter.  The assertion in paragraph 23, that the Secretary of State had already fully considered the HR claim, is wrong.  The aspect being considered in the most recent letter was being considered for the first time.  Errors of that sort, in combination with the other criticisms to which I refer above, all lead me to the conclusion that the question that should have been considered -- the impact of removal on the children's private life rights -- had not received anxious scrutiny and confirmed my view as to the irrationality of the decision to certify in the particular circumstances of this case.

26.	In my judgment, where both parents suffer from AIDS, where one child has spent six of the last seven years in this country, and leaving to one side as irrelevant for the moment the fact that the other child was born in the United Kingdom, I consider that those facts give rise of themselves to a sufficiently strong prima facie claim in relation to the children to make certification irrational at any rate, where, as here, there has been no fact-specific investigation into the effect on the eldest child of repatriation and where there is no satisfactory evidence as to the practical availability of treatment and alternative sources of care for the children in the event that the parents should become disabled from looking after them or die.  The decision to certify must be quashed, and I will hear counsel as to any other orders sought with a view to achieving what, in my view, is a pressing necessity, namely the early reference of this case to an Immigration Judge sitting in the immigration chamber of the lower tribunal.
COSTS:
HIS HONOUR JUDGE PELLING:  Right, so the only question which remains is costs, do you oppose that?
MR HUNTER:  No.
HIS HONOUR JUDGE PELLING:  Costs order:  Costs to be assessed on the standard basis if not agreed.  Right, any other business?
MR NICHOLSON:  No my Lord.
HIS HONOUR JUDGE PELLING:  Thank you very much
MR NICHOLSON:  Thank you very much