Abimbola Mercy Onos (plus 3 dependants) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMrs Justice Elisabeth Laing DBE
Judgment Date26 January 2016
Neutral Citation[2016] EWHC 59 (Admin)
Docket NumberCase No: CO/249/2015
CourtQueen's Bench Division (Administrative Court)
Date26 January 2016

[2016] EWHC 59 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mrs Justice Elisabeth Laing DBE

Case No: CO/249/2015

Between:
Abimbola Mercy Onos (plus 3 dependants)
Claimant
and
The Secretary of State for the Home Department
Defendant

Ms B. Jones (instructed by Duncan Lewis) for the Claimant

Mr N. Westaway (instructed by Government Legal Department) for the Defendant

Hearing dates: 25 November 2015

Mrs Justice Elisabeth Laing DBE

Intro

1

This is a challenge to two decisions

i) to remove the Claimant and her three children to Nigeria under section 10 of the Immigration and Asylum Act 1999 ('the 1999 Act') and

ii) to detain the Claimant and her three children pending their removal.

2

The first decision is said to be unlawful because

i) the Claimant had an in-country right of appeal which was a barrier to removal,

ii) the Defendant did not pay sufficient regard to the welfare of the Claimant's children, contrary to section 55 of the Borders, Citizenship and Immigration Act 2009 ('the 2009 Act'), and

iii) the Claimant is entitled to indefinite leave to remain ('ILR') because she has lived in the United Kingdom for more than 20 years.

3

The challenge to the second decision is on two grounds:

i) the Claimant had an in-country right of appeal at the time she was detained, and

ii) the decision involved a breach of the Defendant's policy in relation to the detention of families.

4

Permission to apply for judicial review was granted by Patterson J on the papers on 18 August 2015. At the hearing, the Claimant was represented by Miss Jones, and the Defendant by Mr Westaway. I am grateful to both for their helpful oral and written submissions.

The facts

5

The Claimant is a citizen of Nigeria. She was born on 20 December 1978. She claims to have entered the United Kingdom in 1993, but there is no record of her entry. That allegation was not accepted by the Immigration Judge who heard her appeal in June 2010. She found that 'taken at best', the Claimant had shown that she had been in the United Kingdom for 'no more than 8 years' (determination, paragraph 21(v)); '8 years at most' (determination, paragraph 39). That would mean that the Claimant has been in the United Kingdom since about June 2002. That determination was not appealed and is binding as between the Claimant and the Defendant.

6

In 2007, the Claimant formed a relationship with Bolu Oni. She does not know what his citizenship is. She has three children: Elisha Oni, who was born on 25 February 2009, Jemima, born on 7 May 2010, and Zachariah, born on 26 October 2011. She is no longer in contact with Bolu Oni.

7

On 6 April 2010 she claimed asylum. The Defendant refused that claim on 5 May 2010. On 12 May 2010, the Defendant served on the Claimant notice of an immigration decision (to remove an illegal entrant under section 10 of the 1999 Act). That notice also notified the Claimant that she had an in-country right of appeal. It said that a notice of appeal had been served with it. The notice also said that the Claimant did not have to leave the United Kingdom while the appeal was in progress.

8

The Claimant exercised that right of appeal. In the determination to which I have referred, the Immigration Judge dismissed the appeal. She considered and rejected the Claimant's assertion that she had been in the United Kingdom since 1993. The Claimant had relied, in part, on material from Carol Babalola to support her claim that she had been in the United Kingdom since 1993.

9

The Immigration Judge said that the Claimant had only brought with her two documents to support this assertion. She had been advised in her asylum interview to bring a signed and dated letter from Carol Babalola. In the event she had brought an unsigned typed letter and a business card. Carol Babalola did not attend the hearing or give evidence. The Immigration Judge said that she would have expected someone so apparently close to the Claimant to have attended; and given the lack of attendance and the nature of the letter, she could give no weight to it. The second document was a letter from a Pastor Ayeni. He did not attend the hearing, either, and the Immigration Judge thought the letter was inconsistent with the case being made by the Claimant.

10

As well as considering the Claimant's claims under the Refugee Convention and under article 3 of the European Convention on Human Rights ('the ECHR'), the Immigration Judge considered the Claimant's rights protected by article 8 of the ECHR. Although only one of the Claimant's children was an appellant, the Claimant by that stage had two children. The Immigration Judge found that the children's father played 'no part whatsoever' in their lives. The Claimant had spent her formative years in Nigeria, she would be very familiar with its traditions and customs, and her children were young enough to adapt. The Claimant would be returning with the benefit of her education and work experience as a mature adult; 'if she could adapt and survive in a foreign land, she [could] certainly do the same as an experienced adult in her homeland.' She found that the Claimant's two children were 'of an age where they can establish their lives in Nigeria with their mother'.

11

The Claimant entered the Defendant's Family Returns Process ('FRP') on 14 August 2012. On 16 August 2012, she made further submissions on her refused asylum claim. Those submissions included a manuscript letter apparently signed by Carol Babalola. Carol Babalola gave no dates in that letter, but said that she had known the Claimant for 17 years. There was a Family Returns Conference ('FRC') with a Family Engagement Manager ('FEM') on 21 August 2012.

12

On 12 September 2012, the Defendant decided that the further representations did not amount to a 'fresh claim' for the purposes of paragraph 353 of the Immigration Rules HC 395 as amended ('the Rules'). In that decision the Defendant considered the letter from Carol Babalola. She referred to the reasoning of the Immigration Judge, which I have described. She said that there was no explanation for the Claimant's failure to provide a signed and dated statement at the hearing, or for Carol Babalola's failure to attend the hearing. 'It must also be questioned why this letter has come forward now'.

13

The Defendant expressly considered the Claimant's family life as a parent, and, under a separate heading, section 55 of the 2009 Act. The Claimant and her children did not meet the requirements of the relevant provisions of the Rules and 'it [was] considered that it would be in your children's best interests to return with you to your country of origin where you can enjoy family life as a complete unit'.

14

That decision was not challenged at the time, and, in my judgment, it is far too late for the Claimant to challenge it now, or to attack its reasoning. The Family Returns Referral report dated 6 January 2015 records that this decision was accompanied by notification of an in-country right of appeal, which the Claimant did not exercise; but that is not apparent from the decision letter or accompanying reasons.

15

On 18 September 2012, the Claimant's case was referred to the appropriate authority on the basis that she was a potential victim of trafficking. On 23 October 2012, it was decided that the Claimant was not a victim of trafficking. She re-entered the FRP on 24 January 2014. There was a second FRC with a FEM on 30 January 2014. On 13 February 2014, there was family departure meeting ('FDP'). The Claimant was given documents to check herself in for a flight on 10 March 2014. She and her children failed to report for that flight. Her accommodation was visited on 14 March 2014, with view to arresting her, but she had absconded. She and her family were known to be homeless in April and May of 2014. I say more about the Claimant's account of what happened after she absconded in paragraph 17, below. The local social services department was involved, and in due course she was given accommodation by the Defendant in Stoke upon Trent.

16

On 27 May 2014 the Claimant made an application for leave to remain as a stateless person. That application was not determined until after the decisions which are challenged in this claim, but it is common ground that the fact that it had not been determined was not a bar to removal. It is also common ground that it was a hopeless application as, on any view, the Claimant was not stateless.

17

On 29 October 2014 there was a case management meeting with Jen Shaw at the Claimant's home address. On 1 December 2014, there was a third FRC with a FEM, and, on 30 December 2014, a second case management meeting with a FEM. On 6 January 2015, the Family Returns Panel ('FRP') decided that the family should be removed to Nigeria. The FRP produced a thorough and careful report. One conclusion was that the Claimant should not be given the opportunity to check in herself again, as she had absconded when given that opportunity before, had then been living on the streets with her children for three months, and, on her own account, had supported herself and her children by prostitution (report, page 25). Miss Jones, rightly in my judgment, did not challenge that conclusion. It is apparent from that report that the Claimant's situation had been explained to her, with some care and sensitivity, on more than one occasion; so removal would have come as no surprise to her.

18

At 17.57 on Wednesday 14 January 2015 immigration officers arrested the Claimant and her children. At 18.06 she was served with directions...

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