Case No: CO/15668/2009
Neutral Citation Number: [2010] EWHC 3935 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham 
B4 6DS

Date: Thursday, 25th March 2010
Before:

MR JUSTICE BEATSON

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Between:

	BAH	
 Claimant	
	- and -		
	
SECRETARY OF STATE FOR THE
HOME DEPARTMENT

Defendant	

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(DAR Transcript of 
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Mr Eaton (instructed by Refugee and Migrant Justice) appeared on behalf of the Claimant.

Mr Hogan (instructed by the Treasury Solicitor) appeared on behalf of the Defendant.

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Judgment
Mr Justice Beatson:

1.	This is a renewed application for permission to apply for judicial review.  Proceedings were lodged on 22 December 2009.  The claimant, a national of Sierra Leone, seeks permission to challenge the decision of the defendant in letters dated 9 and 10 December 2009 refusing to treat representations that he made on 3 and 10 November 2009 as a fresh claim for asylum, and the confirmation of that decision by the Secretary of State on 20 December.  

2.	The background to this is that the claimant arrived in the United Kingdom in May 2003 and claimed asylum.  His application was refused in September, and an appeal against that was refused in September 2003.  An attempt to appeal from the decision of the tribunal was unsuccessful.  The tribunal found that the claimant was not credible.

3.	In July 2004 the claimant met and formed a relationship with a Miss Aitchison.  They have a daughter, who was born on 24 August 2006.  They stopped living together as a couple in November 2007, although the most recent witness statement served only this week contains a contradiction because there is a reference to them being together until November 2008.  At any rate, Miss Aitchison’s earlier statements referred to splitting up in November 2007.

4.	In September 2008 Miss Aitchison reported an incident to the police and the claimant was detained.  Removal directions were set.  The claimant was released on bail on 12 November 2008, having launched judicial review proceedings on 4 November.  He absconded from that bail and on 10 February 2009 his application was dismissed by Silber J because he had not pursued it.  That application was made on human rights, ie family life, grounds.  Mr Eaton, who today appears on behalf of the claimant, notes that the application for judicial review was one framed and filed by the applicant himself without legal assistance.

5.	Having absconded from bail at some time after 12 November 2008, the claimant presented himself at Peckham Police Station almost a year later on 1 October 2009.  He was then detained by the police until 19 October.  The further representations on 3 and 10 November were made following this.  

6.	The basis of the further representations is the family life the claimant enjoys with his daughter.  

7.	The Secretary of State’s decisions on the 9th and 10th December are reasoned decisions.  The first of them noted a number of problems with the evidence submitted, in particular inconsistencies in what Miss Aitchison said, and in relation to the circumstances in which the claimant absconded from bail and was asked to leave the bailed premises occupied by Miss Aitchison’s mother.  The Secretary of State stated at paragraph 8 of the first of these letters that the points raised in the submissions, “although they have not previously been considered”, when taken together with the material that was considered in 2003 and at the time of the refusal and the appeal determination, do not create a realistic prospect of success.  

8.	The letter addressed the Article 8 ground and concluded that the material before the Secretary of State, ie an undated letter from Miss Aitchison, did not enable the Secretary of State to conclude that the claimant established he had regular contact with the child.  It was in this respect that the Secretary of State referred to contradictions between what Miss Aitchison said in the letter and what she had said when making her complaint.  The conclusion in paragraph 18 is that little evidence was produced to show that the claimant enjoyed family and private life in the UK.  The letter then went on, on the assumption that there was a family life, to consider whether it would be disproportionate to remove the claimant.  The letter stated that the decisions in Huang [2007] UKHL 11 and Beoku-Betts [2008] UKHL 39 had been considered.  In paragraph 23 it set out the consideration given to the position of third-party family members.  

9.	The letter of 10 December is also a fully considered letter.  The application for interim relief in the judicial review proceedings was unsuccessful.  HHJ McKenna refused permission, stating that the decisions under challenge were comprehensive and well reasoned, and gave the claimant’s further submissions the necessary degree of anxious scrutiny.  The judge stated that, for the reasons in paragraph 37-52 of the Acknowledgment of Service, he considered that the claim was wholly devoid of merit and bordering on the abusive.  Those paragraphs concerned the defendant’s assessment of the claimant’s credibility and of the evidence in the round.  They reflect the recent decision in AS (Sri Lanka) [2008] EWCA Civ 717, as well as the older cases on fresh claims, and the decision in VW (Uganda) [2009] EWCA Civ 5.

10.	Hickinbottom J considered an application for an injunction to restrain removal on 28 January and refused it.  He stated: 

“The claimant seeks an injunction to prevent removal tomorrow pending reconsideration of the refusal of permission on the papers.  That refusal was made on 14 January 2010.  On 21 January removal directions were set for 29 January.  A letter before application was sent yesterday (27 January) giving the defendant only hours to respond.  The application for an injunction was issued this morning.  That timetable reflects the general manner in which the claimant has approached immigration issues.  The claimant has cynically abused the immigration process and sought to use its processes merely to avoid his lawful removal.

“His claim for judicial review is meritless.  With regard to the Article 8 rights of himself and his family, these have not materially changed since February 2009 when his application for judicial review on human rights grounds was dismissed, the claimant having not pursued it.  In any event the defendant has properly considered his recent representations, and his conclusion that the evidence upon which the claimant relies is unreliable is not arguably unlawful.  In any event, even on the basis of that evidence (including the evidence the claimant sent to the defendant yesterday) any independent tribunal performing the human rights balancing exercise required by Huang [2007] UKHL 11 would be bound to conclude that the breach of human rights of the claimant and his family would be proportionate if he were removed.

“The new application appears to be a mere device to avoid imminent removal.  In the circumstances I refuse an injunction and have directed that further applications should not be a bar to removal.”
 
The claimant was subsequently removed on 29 January 2010.

11.	After the claimant was removed there was an application for expedition and apparently an application for a rolled-up hearing.  That came before Hickinbottom J on 11 February.  He refused the application saying that in the light of the claimant’s removal there was no good reason why a renewed application should be prioritised over other cases or why a rolled-up hearing should be ordered.  

12.	Mr Eaton today renews that application on the ground that, first, it is arguable on the basis of the evidence, both considered at the time of the original application and the additional statement by Miss Aitchison which was dated 19 March, that there is a family life.  In view of that and what was said EB (Kosovo) about the proportionality of removal pursuant to the needs of immigration control where there is a family, and the rarity of separation being proportionate, he submitted that it is arguable that removal here was disproportionate.  Accordingly, he maintained, the Secretary of State erred in his consideration of the matter on 9 and 10 December and in his renewal decision on 20 December, and permission should therefore be given.

13.	Mr Eaton also submitted that the claimant’s immigration history was not as bad as made out by the defendant.  Although he absconded in 2009 and did not pursue his judicial review proceedings at that time, he did not abscond in 2004 following his earlier appeal.

14.	I have concluded that, although Mr Eaton has said everything that it is possible to say on behalf of the claimant, this claim is not arguable.  I am willing to consider this case on the assumption that there was some family life between the claimant and his young daughter.  That was before the court in the earlier proceedings, CO/10555/2008, and for whatever reason those proceedings were not pursued and abandoned.  But even if that is the case, the decision to remove the claimant in my judgment is not arguably disproportionate.  The evidence in support of the intensity and nature of family life was fragile because of the weaknesses in Miss Aitchison’s evidence.  The defendant was entitled to take into account that mail sent to her mother’s address was not apparently passed on and that almost a year after the claimant absconded he turned up at Peckham, not in Nottingham.  

15.	But more to the point, the defendant was entitled to take account of the fact that the family life was created during a period when the claimant was here on a precarious basis.  It is true that it is not possible to say of his daughter that she knew he was here precariously, but for these reasons and the reasons given by Hickinbottom J, with which I agree, this application is refused.  

16.	The defendant considered the impact of the decision on the daughter.  The most recent evidence to which I have referred does not assist; but Mr Hogan is right to say that I should not in strict law have regard to it, because as Carnwath LJ said in YH [2010] EWCA Civ 116, this jurisdiction is a process of judicial review, not a de novo hearing, and the issue must be judged on the basis of the material before the Secretary of State.

17.	I accept Mr Eaton’s submissions that the claimant’s path in applying for admission from Sierra Leone may well not be straightforward.  That in part, however, is a product of the way that he has conducted himself since he first arrived in the country.

Order:   Application refused.

MR HOGAN:  I am obliged.  There is an application for costs in the sum of ₤760.

Mr Justice Beatson:  Mr Eaton, you cannot resist that, can you?

Mr Eaton:  There is nothing more to say subject to a detailed assessment.

Mr Justice Beatson:  Yes, you are entitled to a detailed assessment.  So costs for the defendant summarily assessed in the sum of ₤760.  Do we still do the same order now that we do not have a Legal Services Commission?  I will just make the same order because if it is wrong somebody will correct it.

Mr Eaton:  Just one further matter.  Just to protect my position, I would seek permission to appeal. 

Mr Justice Beatson:  I have got into trouble with the Court of Appeal before, 
Mr Eaton.  I think that I am functus and you have to ask them.  If I had given you permission you could have asked me.  But I once gave somebody permission to appeal in this position and was told that it was none of my business.

Mr Eaton:  I thought as a matter of technicality I had to ask you.

Mr Justice Beatson:  Well, you now have on the record me saying that I do not have power to give you right to appeal.

Mr Eaton:  Thank you.

Mr Justice Beatson:  You have to go to the Court of Appeal.

Mr Eaton:  Thank you.