Case No: CO/4697/2010
Neutral Citation Number: [2010] EWHC 2742 (Admin)
IN THE HIGH COURT OF JUSTICE
LEEDS ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG

Date: Monday, 27th September 2010
Before:

HIS HONOUR JUDGE LANGAN QC 
(Sitting as a High Court Judge)

- - - - - - - - - - - - - - - - - - - - -
Between:

	The Queen on the application of 
Margaret Kondowe Muringi
	
Claimant	
	- and -		
	
The Secretary Of State For The 
Home Department 	

Defendant	
- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7404 1424
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -
Ms Miriam Rasoul (instructed by Messrs Halliday Reeves) appeared on behalf of the Claimant.
Mr Richard Kimblin (instructed by the Treasury Solicitor) appeared on behalf of the Defendant.
- - - - - - - - - - - - - - - - - - - - -
Judgment

JUDGE LANGAN:

Introduction

1.	In this case the claimant, who is a national of Malawi and has been in the United Kingdom since 2002, challenges the decision of the Secretary of State for the Home Department to certify under section 94(2) of the Nationality, Immigration and Asylum Act 2002 as clearly unfounded her claim to remain in this country.  The effect of the section 94(2) certificate is to deprive the claimant of the right to appeal to an immigration judge against the adverse decision of the Secretary of State in relation to claims which she has made under articles 3 and 8 of the European Convention on Human Rights. 
2.	Permission to apply for judicial review was granted on the papers by His Honour Judge Behrens on the 3 June 2010.  
Narrative
3.	The claimant's immigration history is conveniently set out in the Secretary of State's reasons for refusal dated 7 December 2009. 
4.    The claimant is a woman who was born in Malawi on 28 September 1972.  She moved to Zimbabwe when she was aged two because her father had obtained a job in that country.  She retained her Malawian passport and nationality.  In 1990 she went to a secretarial college in Harare and during her time at college she met her husband and they started to date each other.  In 1992 she joined the police force in Harare.  In 1999  she left the police force.  She says that she did so for two reasons: she was pregnant, but she had also been facing hostility caused by her husband's activities in the Movement for Democratic Change.  In 2001 her husband decided that it was better for him to leave Zimbabwe and he did so.  She herself left Zimbabwe in 2002.  

5.	The claimant arrived in the United Kingdom on 24 April 2002 and she was granted leave to enter as a visitor for four months.  She obtained on various dates leave to remain as a student.  On 27 October 2005 she was granted leave to remain as a student until 30 November 2008, but her leave was curtailed in November 2007 because the Secretary of State was not satisfied with information which she had previously given. Her husband has absconded and she has remained on support.  
6.	The claimant has four children.  The eldest child is of full age and his position is not material to these proceedings.  The three younger children are all daughters, to whom I shall refer by initial letters..  P is aged 17.  She arrived in the United Kingdom in 2002 when she was aged 9.  C is aged 10.  She also has been in the United Kingdom since 2002.  The youngest, K is aged  4, was born in this country and has been here since her birth.  
7.	 The claimant has an AIDS diagnosis.  She was, according to a letter from Dr Lindsay Short of the Calderdale and Huddersfield NHS Foundation Trust, diagnosed as HIV-positive in 2002.  She had an AIDS diagnosis in November 2007 when she had pulmonary tuberculosis.  She is on anti-retroviral therapy.
8.	On 12 February 2009 the claimant sought asylum in the United Kingdom.  Her claim was refused on 2 December 2009 and a section 94(2) certificate was issued on the following day.   It is clear from the reasons for refusal that the claim was then very much focussed on the alleged liability of the claimant to being tortured and killed if she were to be returned to Zimbabwe.  The focus of the case has since altered in two ways.  First, it is now clear that if the claimant has to leave the United Kingdom it is to Malawi, not Zimbabwe, that she will be sent or will go.  Second, as a result of a letter written by her solicitors on 15 December 2009, the case is now concentrated on questions of health and family life, to which I will come in a few moments.  That letter of 15 December 2009 was treated by the Secretary of State as a dispute with the decision to certify the claim as clearly unfounded.  The matter was further considered and the claimant's submissions were rejected in a letter of 1 February 2010.  
9.	The proceedings were issued on 16 April 2010.
Discussion
10.	It is said on behalf of the Secretary of State, although not with any great force,  that the claim has not been made promptly.  I do not accede to that submission.  I am prepared to treat the effective decision to which a challenge is made as having been contained in the letter of 1 February 2010, which was a matter of weeks before the issue of the proceedings.  
11.	I turn therefore to the substance of the claim.  The approach which the court should adopt on judicial review in certification cases has been helpfully clarified in the judgment of Carnwath LJ in The Queen (on the application of YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 (see in particular paragraphs 17 to 21).  The effect of what is there said is that the court must ask itself whether, on the material available to the Secretary of State, he was right or wrong in saying that the claim was clearly unfounded.  A clearly unfounded claim is one that would have no realistic prospect of success before an immigration judge.  
12.	Ms Rasoul's submission is that the decision to certify was wrong in respect both of article 3 and article 8.  The claimant, it is said, had a realistic prospect of establishing before an immigration judge that her Convention rights and those of the three younger children would be infringed if she were to be removed from the United Kingdom.
13.	The article 3 claim is, in my judgment, hopeless.
14.	Article 3 protects a person against inhuman treatment.  The application of article 3 to persons who are both seriously ill and at risk of removal from the United Kingdom was considered by the House of Lords in the case of  N v Secretary of State for the Home Department [2005] 2 AC 296.  The House of Lords decided that article 3 did not impose an obligation on a contracting state to provide non citizens indefinitely with medical treatment which was unavailable in their home country, even if the absence of such treatment would significantly shorten their lives.  It was held that article 3 could be successfully invoked only in very exceptional circumstances where the present state of health of the individual was such that, on compelling humanitarian grounds, he ought not to be expelled unless it could be shown that the facilities that he would need to prevent acute suffering while he was dying were available to him in the receiving state.  The position of the claimant in M was dire.  The immigration  adjudicator had found on the facts that, if she were returned to her home country, Uganda, she would die within a matter of months since the treatment which she needed would not be available to her there; whereas if she were to stay in the United Kingdom she could live for decades. Nonetheless her claim for humanitarian protection failed.  Her case proceeded to the European Court of Human Rights where the same decision was arrived at: the European reference is N v The United Kingdom, 26565/05, judgment of 27 May 2008 (see, in, particular paragraphs 42 to 45).
15.	Anyone would have the utmost sympathy for a person in the position of the claimant. She is receiving adequate medical treatment in this country.  The material before the Secretary of State and before the court shows that while valiant efforts are made in Malawi to maintain a system of medical treatment for persons who are HIV-positive, it is patchy.  It cannot be denied that what may be available to the claimant in Malawi may be significantly less satisfactory than what is available here.  That is, however, a situation which no tribunal could properly characterise as very exceptional.  It is unfortunately all too common.  Applying the stringent test established by M,  the article 3 claim is one without hope for success.
16.	I turn then to the claim under article 8 of the Convention.  It is said that removal of the claimant from the United Kingdom will be an interference with the right to respect for a family life to which she, and more particularly  the children, are entitled.  The material before the Secretary of State was limited.  There was in truth nothing more than the names and ages of the children and the length of time that they had been in this country, facts which I have set out earlier in this judgment.
17.	The position of the children was only briefly dealt with in the decision of 7 December 2009.  The reason was, as I have already mentioned, that the focus then was on the alleged liability of the claimant to torture on return to Zimbabwe, and the position of the children was in fact considered on the Secretary of State's own initiative rather than on the basis of anything which had been advanced on behalf of the claimant.
18.	When, however, one comes to the further decision of 1 February 2010 one finds that detailed consideration was given to the position of the children.  After setting out the essential facts which I have mentioned earlier, the Secretary of State dealt with the following matters.  The children would gain Malawian citizenship on return to Malawi through their mother's parentage.  Malawi has a good human rights record.  On return the children would be able to continue with their education and would have access to healthcare.  Whilst it was accepted that the children had been in the United Kingdom for a number of years and must have established a family life here, consideration also had to be given to the claimant's immigration history.  It appeared that she had on several occasions deceived the authorities in relation to her immigration status.  Particulars of that were given.  The claimant and the children all spoke English, which is the official language of Malaw.  It was considered that the claimant, who is an educated woman, would be able to find work in Malawi to support the children.  Balancing the various factors which had to be taken into consideration, it was not considered that it would be disproportionate to remove the claimant and the children to Malawi.  Reference was made to the general public interest in maintaining an effective system of immigration control.
19.	I have to say that I do not see how the Secretary of State could on the material available have come to any other decision.  There was apparently put to the Secretary of State in the case of each child the single factor of length of residence in the United Kingdom. There was not, as one sometimes finds in cases of this kind, a plea that a child suffered from a serious medical condition which would only be adequately treated in this country.  There was not any suggestion that a child had some special educational need which could only be remedied in this country.  There was not even any reference to a child having reached a particular stage in her education at which point it would be wrong to disrupt her educational progress.  Further, there was not, as again one often finds, any specific material about contact with other relatives in the United Kingdom or any assertion that any specific attachments, whether to individuals or to a community, had been made here.
20.	There is of course the factor, naturally relied upon by Ms Rasoul, of the claimant's own illness.  There does not, however, appear to be any evidence of a prospect of a very early decline in her health.  This is not a case (and in fairness to Ms Rasoul, it should be said that she does not present it as one) in which the imminent demise of a parent can be advanced in support of a child's human rights claim.
21.	Two other points were relied by Ms Rasoul both in her written argument and in oral submissions.  One was the former seven year concession, which was a non-statutory policy under which parents without leave to remain in this country but whose children had resided here for more than seven years might, for the sake of their children, be allowed to remain here rather than be removed.  That policy was withdrawn on 9 December 2008, which was a date prior to the launching of the claim with which the Secretary of State was concerned.  Secondly, reference was made to the duty of the Secretary of State under section 55 of the Borders, Citizenship and Immigration Act 2009 to make arrangements for ensuring that his functions in relation to immigration, asylum or nationality are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.  The scope of that section is at present doubtful.  I do not, however, see that it can be employed in a way which would enhance the rights which the children have independently under the European Convention.
Conclusion
22.	For all those reasons, and approaching the matter in the manner prescribed by Carnwath LJ in YH,  I have come to the conclusion that the claim fails.

MR KIMBLIN:  Concerning the question of costs I apply for the Secretary of State's costs in this matter, such costs order not to be enforced without further application.

JUDGE LANGAN:  Yes.  Well, I don't think there is much one can say about that. 

MS RASOUL: No, my Lord.  Thank you.

JUDGE LANGAN:  Thank you both.