Desmond Osariemen Omoruyi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Leigh-Ann Mulcahy |
| Judgment Date | 07 July 2017 |
| Neutral Citation | [2017] EWHC 2029 (Admin) |
| Docket Number | CO/3793/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 July 2017 |
[2017] EWHC 2029 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Leigh-Ann Mulcahy QC
(Sitting as a Deputy High Court Judge)
CO/3793/2016
Mr Adrian Berry (instructed by Springfield Solicitors) appeared on behalf of the Appellant
Mr Eric Metcalfe (instructed by Government Legal Department) appeared on behalf of the Respondent
DEPUTY JUDGE:
Introduction
The issue for determination is whether the claimant is entitled to succeed in his challenge to a decision of the Secretary of State for the Home Department dated 14 April 2016 to refuse his application for naturalisation as a British citizen.
The substantive judicial review hearing came before me on 4 July 2017. Both parties are represented by counsel: Mr Adrian Berry for the claimant and Mr Eric Metcalfe for the defendant.
Factual Background
The factual background to this claim is fairly complex but it is important and relevant to the determination of the claim, so I will set it out in some detail.
The claimant is a Nigerian national who arrived in the United Kingdom on 14 May 1996 having first travelled to New York via London and been returned to the United Kingdom on the basis that this was the first safe country through which he had passed. It is common ground that he used a false British passport to travel to the United States via the United Kingdom. The claimant's evidence is that he had applied unsuccessfully in Nigeria for a visa to flee the country before turning to an agent for assistance. He was not prosecuted for using a false instrument.
The claimant made a claim for asylum in the United Kingdom which was dismissed by the Special Adjudicator, and on appeal by the Immigration Appeal Tribunal and the Court of Appeal on the basis that the threat of prosecution by the Ogboni (a Nigerian cult to which the claimant's father had belonged) was not covered by the Refugee Convention.
Adverse comments were made in the decision of the Special Adjudicator regarding the credibility of the claimant's account. She stated:
"I heard oral evidence from the appellant but I do not consider him to be credible ….. It is difficult to know whether the appellant is telling me the truth but the story seems so incredible."
The Immigration Appeal Tribunal stated "the cult as described by the appellant is not credible". The adverse finding on credibility was noted by the Court of Appeal in its judgment, reported [2001] INLR 33, page 36, although it is right to say that the appeal proceeded on the basis of an assumption that the claimant was right both in the description of the cult's violent reprisals and his assertion that the police and other state authorities were unwilling to act against them.
Following the coming into force of the Human Rights Act 1998, the claimant then sought leave to remain on Article 3 and Article 8 of the European Convention on Human Rights ("ECHR") grounds.
In February 2003, the claimant applied for leave to enter and remain as a student in order to complete his master's degree. The application was not determined until February 2006, three years later, a delay that was commented upon adversely by Sir Michael Harrison in a subsequent judicial review.
On 9 April 2004, by an IS96 letter to report, the claimant was asked to report to Becket House Immigration Office on 23 April 2004.
On 17 April 2004, a conversation took place, the contents and effect of which are in dispute, between the claimant and one of the defendant's immigration officers, Mr Graham Baker. The claimant's evidence is that he was told in unequivocal terms that he had been granted exceptional leave to remain in the United Kingdom and to ignore the IS96 letter to report dated 9 April 2004. The Secretary of State disputes that the claimant would have been told to ignore the letter to report and continues to rely on the IS96 dated 9 April 2004 as imposing a reporting requirement with which the claimant did not comply.
Mr Baker gave a statement dated 12 April 2007 confirming that he was the person who had the conversation on 17 April 2004 and whilst he could not remember it, he relied on the notes he made on the Home Office computer system called CID as accurately reflecting the contents of the conversation.
The CID record states as follows:
"Received phone call in the duty office from the subject who had obtained the number of Becket House from directory enquiries. He wishes to know whether to report. There seems to be large discrepancies with this case. The system shows that the subject was refused asylum and granted ELR [exceptional leave to remain]. There is no date on file or system for the expiry of this leave. Furthermore according to the system the subject currently has an outstanding HRA [Human Rights Act] and two outstanding LTR [leave to remain] applications. The subject was instructed to report to Becket House. This restriction was then ended by RCU several weeks later. Further to this there is a diary action/note instructing that his TA [temporary admission] be extended when he reports. The subject states that he received a letter instructing him to report. Further to this he contradictorily received another letter giving confirmation that the HO [Home Office] has received his latest application for LTR. Confused as to whether he was required to report, the subject contacted the national enquiries number, they then advised Mr Omoruyi to ignore the letter instructing him to report. I advised the subject to contact the HO through his solicitor to establish exactly what status, if any, he has. Neither the subject or his reps have any knowledge or confirmation of his grant of ELR. If the subject has extant ELR then why are we accepting and processing applications for leave as a student?"
On 19 April 2004, the claimant wrote to the Immigration and Nationality Directorate in Croydon for a copy of the exceptional leave to remain in the United Kingdom notified to him on 17 April 2004. The letter, which is headed "Re Exceptional Leave to Remain", stated as follows (in relevant part):
"I am writing to ask you to confirm my immigration status.
I received a letter recently to report at Becket House Enforcement Office ….. At about 18.10 hrs on Saturday the 17th instant I called Becket House and spoke with an Immigration Officer, a Mr G Baker. Having checked computer records Mr Baker said I did not need to report at Becket House as I had been granted exceptional leave to remain earlier (prior to my last application). As he was not sure why I got a letter to report, he double-checked with a Chief Immigration Officer and said to ignore the letter received. It was speculated that the ELR decision letter might have gone astray in the post as neither myself nor my last legal representatives (Refugee Legal Centre) received it. He advised me to contact yourselves for a copy as I had definitely been granted ELR.
At about 15.55 hrs today, I called the national help line and a Mr Alex confirmed that there was a 'Progress decision' on my file but for policy reasons could not give me any further details over the phone. He advised me to write in for a copy of the decision and gave me a fax number.
I would appreciate it if you could please send (or fax) a copy of the said letter to my home address.
Thank you for your urgent assistance."
(I am told there is no record of any conversation with Mr Alex in Croydon on the Home Office records.)
The defendant did not reply to this letter.
It is recorded in the judgment of Sir Michael Harrison (which I will shortly come to) at paragraph 13 that the claimant chased a response thereafter by means of telephone calls and letters, although I have not seen evidence of this in the current proceedings.
It would seem apparent from the Home Office records that no further communication regarding reporting or any breach of reporting requirements was sent to the claimant at that time.
The claimant places reliance on the fact that the CID record refers to the grant of exceptional leave to remain, as does another undated Home Office document (at page 171 of the bundle) which stated "CID states ELR granted", and the CID case record sheets which record an ELR on file as at 13 March 2004.
On 10 February 2006, nearly two years later, the defendant sent a decision to the claimant rejecting his application for leave to enter the United Kingdom as a student and on the basis of his circumstances including length of residence. That letter included the following statement:
"It is also noted in one of your letters that you claim to have been granted exceptional leave to remain in the United Kingdom. You have never been granted leave to enter and so had never been granted exceptional leave to remain."
At the end of the letter it is stated:
"I must remind you that you have no basis of stay in the United Kingdom and should make arrangements to leave without delay. If you decide not to depart voluntarily, directions for your removal would be made."
The letter made clear that the claimant did not have exceptional leave to remain. However it did not refer to the IS96 dated 9 April 2004 and did not ask the claimant to report for signing. Rather, it asked him to leave the country.
The claimant challenged the letter dated 10 February 2006 by a claim for judicial review issued on 19 April 2006 under claim number CO/3370/2006 on the ground that there was a disproportionate interference with his right...
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