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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kola, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 1434 (Admin) (06 June 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/1434.html Cite as: [2013] EWHC 1434 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/06/2013

Maura McGowan QC:

Summary of Issues

1. The Claimant sought leave to challenge the decision by the Secretary of State to refuse to review her case as part of the general review of "legacy cases" being carried out by the Casework Resolution Directorate.
2. The original claim was based on delay on the part of the Secretary of State in deciding her further representations under the Casework Resolution Directorate's review of legacy cases. It was on the ground of that delay that permission was granted by Mitting J on 18 September 2012. The delay in "responding constructively" was inexplicable, further the failure to deal with the underlying claim was "arguably unlawful".
3. Following the decision of 18 September 2012 the Secretary of State decided to reject the Claimant's submissions and refused to treat them as a fresh claim for the purposes of paragraph 353 of the Immigration Rules.
4. Leave to challenge that rejection is now sought. Leave to amend is granted by consent.
5. The First Issue: Whether the Secretary of State's failure to consider the Claimant's case under Paragraph 395C of the Immigration Rules and to grant her indefinite leave to remain in the United Kingdom is "conspicuously unfair" and frustrates her legitimate expectation? The Claimant submits that it was "conspicuously unfair" that her submissions should be considered under 353B rather than the more generous terms of 395C. It is submitted that her case was not considered under 395C because of excessive and therefore unlawful delay.
6. The Second Issue: Whether the Secretary of State's decision under Paragraph 353B of the Immigration Rules is irrational and unlawful? It is submitted that the decision under 353B was unlawful. It is said to have been based on mistakes of fact.
7. The Third Issue: Whether the Secretary of State's conclusion that the Claimant's submissions based on Article 8 do not amount to a fresh claim is irrational and unlawful? It is also, it is said, based on a failure to take relevant factors into account.
8. The Claimant seeks the following relief:

a) Declarations that the Defendant's decision of 18 September 2012 is unlawful, and that the Claimant is entitled to Indefinite Leave to Remain, or in the alternative, an in-country right of appeal;

b) A quashing order in relation to the decision of 18 September 2012;

c) A mandatory order that the Defendant grant the Claimant Indefinite Leave to Remain or in the alternative, an in-country right of appeal;

d) Costs;

e) Any other relief the Court considers appropriate.

9. There is a detailed chronology of events provided by the Defendant, which is reproduced below.

Chronology

10. The Claimant is a citizen of Albania and was born on 27 May 1976.

Dates	Events
08.02.03:	The Claimant and her husband, Gafur Kola were apprehended hidden in a lorry by the police.
09.02.03:	The Secretary of State issued direction for the couple's removal from the United Kingdom, as illegal entrants, on 11.02.03 (these were deferred and reset for 14.02.03).
12.02.03:	The couple claimed asylum (and therefore removal directions were deferred).
30.05.03:	The Claimant's asylum application was refused (her husband's asylum application was refused on 03.06.03).
06.10.03:	The couple's appeal was heard by the Immigration Appellate Authority.
29.10.03:	The couple's appeal was dismissed.
12.11.03:	Appeal rights were exhausted.
16.01.04:	The couple were listed as absconders.
10.01.08:	The Claimant's husband was encountered by an arrest team and was detained pending removal.
29.01.08:	The couple applied for leave to remain in the United Kingdom relying on Articles 2, 3 and 8 of the ECHR.
01.02.08:	The Secretary of State refused the application and also refused to treat it as a fresh claim.
13.02.08:	The Secretary of State issued directions for the couple's removal from the United Kingdom on 21.02.08.
15.02.08:	The couple made further written submissions.
20.02.08:	The Secretary of State refused the submissions.
20.02.08:	The Claimant's husband issued Judicial Review proceeding challenging the removal directions (CO/1772/2008) (removal directions were deferred).
21.02.08:	The Claimant failed to turn up for the scheduled flight for departure.
07.03.08:	Simon J refused permission to apply for Judicial Review stating that the "claim entirely lacks substance".
20.03.08:	The Claimant's husband, who was in detention, was removed from the United Kingdom but she, who was not in detention, absconded.
07.01.09:	The Claimant sent a completed CRD questionnaire to the Secretary of State with some further papers.
23.02.11:	The Claimant sent a pre-action protocol letter.
01.03.11:	The Secretary of State acknowledged the pre-action protocol letter.
22.08.11:	The Claimant sent another pre-action protocol letter.
15.09.11:	The Secretary of State issued a letter saying that the Claimant has no basis to stay in the United Kingdom.
07.10.11:	The Claimant responded to the Secretary of State's letter in writing.
17.02.12:	The Claimant issued these Judicial Review proceedings.
01.08.12:	The Secretary of State issued a further decision rejecting the further submissions of 15 February 2008 and refusing to treat them as a fresh claim.
04.09.12:	Mitting J granted permission to apply for Judicial Review.
18.09.12:	The Secretary of State issued a decision rejecting the further submission of 7 January 2009 and refusing to treat them as a fresh claim.

The Legal Framework

11. Section 1(4) of the Immigration Act 1971 ("the 1971 Act"):

"The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."

12. The Immigration Rules are made by the Secretary of State and approved by Parliament under section 3(2) of the 1971 Act:

"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).

If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid)."

13. Paragraph 395C of the Immigration Rules, which was deleted with effect from 13 February 2012, by HC 1733:

"395C. Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State including:

(i) age; (ii) length of residence in the United Kingdom; (iii) strength of connections with the United Kingdom; (iv) personal history, including character, conduct and employment record; (v) domestic circumstances; (vi) previous criminal record and the nature of any offence of which the person has been convicted; (vii) compassionate circumstances; (viii) any representations received on the person's behalf.

In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account."

14. Paragraph 353B of the Immigration Rules provides as follows:

"353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant's:

(i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;

(ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;

(iii) length of time spent in the United Kingdom spent for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused; in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate."

15. Paragraph 353 of the Immigration Rules concerns fresh claims and provides as follows:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

First Submission- The decision to refuse C's legacy case is unlawful as conspicuously unfair

16. The Claimant submits that it was "conspicuously unfair" that her submissions should be considered under 353B rather than the more generous terms of 395C. It is submitted that her case was not considered under 395C because of excessive and therefore unlawful delay. It is argued that her "legitimate expectation" was defeated.
17. It is conceded that the Claimant's case has been considered and rejected twice before. She submits that the principles set out in R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744 and R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546 apply. It is stated that her case was not considered under the more favourable policy. It is contended that if it had been argued under 395C then it would have been granted.
18. Further it is said that the delay in deciding this case was unlawful as there was no decision on the submissions for over 3 years. It is submitted that the principles laid down in Rashid apply. The allegation that the Claimant avoided removal on two occasions by absconding is also not accepted. The principal submission rests on the assertion that, had the decision been made under 395C, it would have been granted.
19. The Secretary of State answers those submissions by pointing out that there cannot be a duty to consult those whose presence in the country is irregular or obtained by deception, as she contends is the case here. In R (Munir, Rahman and Abbasi) v Secretary of State for the Home Department [2011] EWCA Civ 813, Stanley Burnton LJ held that "it would be wholly unreasonable to impose a duty on the Secretary of State to consult those whose presence in this country is at best irregular, and at worst has been secured by deception, or those representing such persons". He further stated, at paragraph 42, that "the concept of legitimate expectation is normally otiose in cases where there has been no representation, by words or conduct, by the public authority in question to the claimant seeking to rely on it". The real question, he noted at paragraph 45, was whether "the Secretary of State act[ed] lawfully in withdrawing the policy and in determining the transitional provisions that she would apply". He answered this question in the affirmative and noted that "a minister is entitled to review, to change and to revoke his policy whenever he considers it to be in the public interest to do so" and therefore rejected the "suggestion that the Secretary of State's decision to withdraw the policy was irrational".
20. Stanley Burnton LJ proceeded to consider, in the alternative, at paragraph 46, as to whether the expectation, even if there was one, was legitimate. He held "that there was no unfairness and that any reliance on the expectation would not have been legitimate in the sense of giving rise to any right in public law". He explained that this was because the Claimant there "entered this country under a leave he obtained by deception" and "this is sufficient to disentitle him". He further explained that the Claimant had remained in the United Kingdom unlawfully and "his evasion or avoidance of immigration rules disqualifies him from establishing any legitimate expectation". He accordingly reversed the decision of the Administrative Court and, at paragraph 45, noted that that the Claimant's "misrepresentation that led to his being given leave to enter this country, or the interests of this country in maintaining a rational and effective system of immigration control" are crucial factors in assessing arguments concerning conspicuous unfairness and legitimate expectation.
21. It is submitted by the Defendant that the Claimant entered the UK by clandestine means and remained here unlawfully. Further that such evasion or avoidance disqualifies her from establishing any legitimate expectation or conspicuous unfairness. It is also submitted that the case has been considered on more than the two previous occasions conceded by the Claimant, as it was looked at alongside her husband's case when that was reviewed. It is of course right that the Secretary of State is entitled to change the policy relating to matters of immigration control. There is nothing irrational or unlawful in that.
22. On the facts of this case the Claimant cannot be said to have had any legitimate expectation and there is no conspicuous unfairness in the manner in which her case has been dealt with on each and every occasion upon which it has been reviewed.
23. The delay in this case cannot be said to be so excessive as to be unlawful. It arises from the Claimant's absconding in order to avoid removal on two occasions.

Second Submission-The unlawfulness of the decision under paragraph 353B

24. It is submitted that the decision under 353B was in any event unlawful. It is said to have been based on mistakes of fact. It is said that it was wrong to take into consideration the suggestion that the Claimant had failed to attend for an interview. Further that it was wrong not to take into consideration the fact that the Claimant had co-operated with some of some of her conditions. That appears to lack coherence as a submission.
25. The Defendant responds by pointing out that there can be different decisions lawfully and rationally reached on the same facts. It is argued, rightly, that Paragraph 353B requires the secretary of State to "have regard" to the specified factors "in deciding whether there are exceptional circumstances which means that removal from the UK is no longer appropriate". Further that the true measure of the length of time of residence should be based upon time spent here for reasons "beyond the migrant's control". The Secretary of State argues that she did have regard to the relevant facts and that in considering those facts there was nothing or nothing sufficient to give rise to exceptional circumstances to support the proposition that removal from the UK would no longer be the appropriate course.
26. Proper regard was given to the relevant factors and accordingly there was nothing unlawful in the decision reached.

Third Submission-Fresh Claim arising from Article 8 submissions

27. Article 8 is expressed in the following terms:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

28. The basic principle that every state has the right to control access to its borders is well-established and was re-stated by Lord Brown of Eaton under Heywood in Odelela v Secretary of State for the Home Department [2009] 1 WLR 1230. The principle is governed by statute in s. 3(1) Immigration Act 1971 and from time to time the practice to be followed is laid down in rules by the Secretary of State to be followed in the exercise by the State of pursuing that immigration control.
29. The Secretary of State has a duty under paragraph 353 of the Immigration Rules to apply anxious scrutiny to her consideration. The Court in reviewing her decision must consider whether she has approached her task by asking herself the right questions in order to reach her determination. That question was expressed in WM (Democratic Republic of Congo) v Secretary of State [2006] EWCA Civ 1495 by Buxton LJ in the following terms,

"the question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return."

30. It is obvious that the removal of the Claimant will interfere with her right to a private life but that alone is not the test, the test is whether that interference is in accordance with the law or is out of proportion with what is necessary to uphold proper and legitimate control of immigration. The Claimant's interest must give way to that of the State provided, always, that the action taken on the part of the State is proportionate and in accordance with the law.
31. It is clear in this case that the decision on this application was made by reference to both the Immigration Rules and the terms of Article 8.
32. On a matter of wider principle, it is argued on behalf of the Secretary of State that in drafting the rules, which have the approval of Parliament she has incorporated all the principles as enunciated in Article 8. It is contended that it should follow from that point, that in future cases proper consideration of the Immigration Rules would be sufficient and further regard need not be had to the terms of Article 8. The Defendant places reliance upon the Scottish case of MS v Secretary of State for the Home Department [2013] CSOH 1, where Lord Brodie said as follows:

"[30] There can be no real doubt but that the respondent, by securing that the changes to the Rules have been debated in both Houses of Parliament without any formal expression of disapproval, must be taken to have the support of the legislature for her approach to the question as to whether it will be proportionate to remove persons from the United Kingdom who have no right to remain other than that which may be conferred by article 8 of the Convention. Had that been the case in relation to the relevant rules when Huang was before the House of Lords, the judicial committee would have had to recognise that fact and give it considerable weight for the reasons articulated by Laws LJ when Huang when was in the Court of Appeal. While it is indeed true that constitutionally the protection of individual fundamental rights is the within the particular territory of the courts (see Huang v Home Secretary [2006] QB 1 at para 55), the judiciary has no special expertise in determining what is or is not proportionate. It is because it is part of the function of an administrative decision-maker to make proportionate decisions that such decisions may be considered unlawful if they interfere with article 8 rights (for example) and are not proportionate. However, the different status that may be accorded to those provisions of the Immigration Rules which were changed as from 9 July 2012, in contrast to the Rules under consideration in Huang does not, in my opinion, justify the conclusion that the unanimous opinion of the judicial committee in that case no longer represents the law because it has lost its underlying rationale. In Huang the focus was on interference with family life. The judicial committee concluded that in determining an appeal the decision on the proportionality of such interference was an autonomous one for the adjudicator. Its opinion is succinctly stated at para 20 of [2007] 2 AC 167:"

"20 In an article 8 case where this question [scilicet the question as to whether a decision was proportionate] is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide."

 I take that still to be the law. However, in giving the opinion of the judicial committee, Lord Bingham continued:

"It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test."

 If those who did not qualify for leave to remain under the Rules as they were at the time of the decision of the House of Lords in Huang but would be entitled to succeed under article 8 was "a very small minority", it must follow that now the respondent has specifically addressed the impact of article 8 in drafting changes to the Rules and has obtained the endorsement of Parliament as to the proportionality of the way in which she has done so, those who now might be expected "to succeed under article 8" will be a very small minority indeed. As long as the Rules have not been enacted as either primary or secondary legislation their application in a particular case may amount to a breach of Convention rights: Pankina v Secretary of State for the Home Department supra Sedley LJ at para 44, but where the Rules have been redrafted with a view to avoiding contravention of article 8 and where that redraft has been approved by Parliament in the manner described above, a case which succeeds on article 8 having failed in terms of the Rules would have to be described as exceptional. The respondent's argument in the present case goes no further than that.

[31] At this point I must emphasise a feature of the argument before me. It was conducted on both sides without any examination of the detail of the new rules and, in particular, the provisions applicable to the petitioner's case. Copies of rules 276ADE to 276DH and appendix FM were lodged in process and one can see from the decision letters that it was rule 276ADE and certain provisions of appendix FM that were applied in response to the petitioner's claim but, beyond that, the debate before me was conducted on the basis, consistent with how the changes to the Rules were presented in Parliament, that the rules relevant to the petitioner's case had been drafted with an eye to representing the respondent's view of what was required to satisfy the need for proportionality. Thus, although the expression was not used, the argument was conducted on either side of the bar on the basis that the rules by reference to which the petitioner failed to qualify for leave to remain were "article 8-specific" in the sense that they had been framed with the object of accommodating the criteria relevant to the assessment of an article 8 claim. That this was an appropriate basis would seem to be confirmed by the head-note to rule 276ADE which is "Requirements to be met by an applicant for leave to remain on the grounds of private life".

[32] Mr Forrest particularly relied on the decision of the Upper Tribunal in MF v Secretary of State for the Home Department supra in support of his contention that in a case such as the present, notwithstanding the new rules, it remained necessary to apply a "two-stage test" or a "two-stage approach" in determining whether refusal of leave to remain was lawful. On such an approach, the first stage is a consideration of whether it was correctly decided that the applicant did not qualify under the Immigration Rules. The second stage is a consideration of whether removal from the United Kingdom would result in a contravention of the applicant's article 8 rights. Mr Pirie urged me not to follow MF which, he reminded me, was not binding on this court. While that is so, the decision demonstrates much learning on the part of a specialised tribunal. It succinctly sums up what it considers to be the effect of the new rules at para 41 of its determination:

"Our conclusion is that the need for a two-stage approach in most article 8 cases remains imperative because the new rules do not fully reflect Strasbourg jurisprudence as interpreted by our higher courts and in particular they do not encapsulate the Maslov criteria."

 The appellant in MF was a foreign criminal as defined by section 32 (1) of the UK Borders Act 2007, hence the reference to the Maslov criteria. The facts in the case were therefore somewhat removed from those in the present petition. There is no issue as to the application of the Maslov criteria in the case before me or indeed (at least on the argument I heard) any issue as to other Strasbourg jurisprudence not being reflected in the relevant Immigration Rules. MF can therefore be distinguished on these grounds. However, in what is clearly a careful and well-informed attempt to grapple with the problem of according a proper status to the new rules, MF offers the important insight that the status of the new rules may not be uniform. In particular, not all of the new rules are article 8-specific which is part of the reason why, in the opinion of the Tribunal, a second stage, taking into account the Strasbourg jurisprudence, may be necessary before an immigration judge can be satisfied that a particular refusal of leave to remain is article 8 compliant."

33. Notwithstanding the above it appears clear in the judgment that the view of the Outer House of the Court of Session is that there may still remain a "very small minority indeed" of cases which might be entitled to succeed under Article 8, notwithstanding the re-drafting of and subsequent Parliamentary approval for the Immigration Rules. That there is a recognizable, even if small, category of cases to which this may apply should prevent this Court from removing the potential protection afforded.
34. On the facts of this case the two stage test was applied. There is no basis upon which an Immigration Judge properly directing himself would have found that the Claimant was entitled to leave to remain under the Immigration Rules, further, in the absence of such an entitlement her removal from the UK could not be said to have such a disproportionate effect upon her Article 8 rights as to be unlawful.
35. There is no tenable argument that the decision reached is unreasonable in accordance with the Wednesbury principle.
36. Accordingly permission is refused on amended grounds and Judicial Review is refused on the existing grounds.