Guttierez v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMichael Fordham
Judgment Date17 January 2014
Neutral Citation[2014] EWHC 315 (Admin)
Docket NumberCO/10719/2009
CourtQueen's Bench Division (Administrative Court)
Date17 January 2014

[2014] EWHC 315 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Michael Fordham QC

(Sitting as a Deputy High Court Judge)

CO/10719/2009

Between:
Guttierez
Claimant
and
The Secretary of State for the Home Department
Defendant

Mr A Jafar (instructed by Thoree and Co Solicitors) appeared on behalf of the Claimant

Ms J Anderson (instructed by the Treasury Solicitors) appeared on behalf of the Defendant

THE DEPUTY JUDGE:

Introduction

1

This is a claim for judicial review which was commenced more than four years ago, on 18 September 2009. Permission for judicial review was granted on 15 August 2011 by His Honour Judge Birtles, and included a direction for the service of an amended claim form. An amended claim form, accompanied by amended grounds for judicial review, was filed on 19 September 2011. Detailed grounds of defence were filed on 21 November 2011. On 29 May 2012 the parties jointly asked the court to stay the proceedings, which it did, pending what was considered to be a relevant case in the Supreme Court called Munir [2012] UKSC 32. After further twists and turns, the substantive hearing eventually came before me yesterday, 16 January 2014.

2

The claimant is national of Bolivia who arrived in the United Kingdom on 19 July 2001 with her youngest son Manfred, who was then aged 5. His 13-year-old brother Eddy did not accompany them in July 2011 but, as I understand it, arrived in the United Kingdom to join them on 1 August 2002.

3

There have been various stages in the claimant's presence in the United Kingdom since July 2001. At first she was present as a visitor with six months' leave to remain, expiring in January 2002. Then she pursued an unsuccessful "asylum" claim and appeal (which I infer also included "human rights" grounds), the avenues in relation to the pursuit of which had been exhausted by 8 July 2004. Next, at an enforcement visit on 12 February 2005, she and her sons were found to have left her notified last known address without having notified the authorities of any move. They could not be located and she was recorded as having gone to ground. Next, she resurfaced in 2008 when, on 5 November 2008, solicitors acting on her behalf wrote a letter to the IND. That letter relied on the more than seven years' presence in the United Kingdom and invoked article 8 of the European Convention of Human Rights and the terms of the Secretary of State's policy concession DP5/96. The solicitors' request for favourable consideration of the claimant's case was unsuccessful and what happened next was that on 15 September 2009 she was personally served with a decision letter dated nearly 8 months earlier, 21 January 2009, which had not in the interim period been sent to or received by her or her solicitors. At the same time she was served with removal directions and a notice of detention. The family were removed in accordance with those directions on the evening of 18 September 2009.

4

A claim for judicial review had been lodged with the court and a Crown Office number obtained. The claim form had been served, but not the attached grounds for judicial review. The Secretary of State decided in those circumstances to proceed. The removal was effected; there being no court order to prevent it, and the claim for judicial review has been pursued from Bolivia to where the family was returned.

5

The decision letter dated 21 January 2009 dealt with a number of topics. First, whether to recognise the claimant's submissions, supported as they were by a considerable volume of material according to the letter written by the solicitors, as a fresh human rights claim pursuant to immigration rule 353. The second topic was whether to allow the claimant and her sons to benefit under the policy concession relating to children with long residence. That is a reference to policy DP5/96 which the claimant had invoked. Thirdly, whether removal would violate article 8 of the ECHR. Fourthly, whether removal was appropriate in the light of the provisions in immigration rule 395C. And, finally, the topic of asylum. The decision later reached adverse conclusions on each of those topics.

The Three Grounds

6

There are three grounds on which judicial review is sought by Mr Jafar who appears on behalf of the claimant. He submits that the Secretary of State acted unlawfully in the following three ways. First, in holding back the January 2009 decision letter until 15 September 2009. Secondly, in the approach to DP5/96 in the decision letter. Thirdly, in the approach to the fresh human rights claim issue and article 8 in the decision letter.

7

Ms Anderson who appears on behalf of the Secretary of State submits that there is, in this case, no unlawfulness in any of those respects; that any error of law if one were found is not, she submits, of any materiality; and, in any event, she submits that it would not be appropriate in this case to grant relief as a matter of the court's discretion.

8

It is common ground between Mr Jafar and Ms Anderson that aspects of the court's discretion in relation to relief, if they arise, would involve further submissions and materials and potentially a further ruling and are better addressed once the three grounds and their materiality have been addressed. I have heard full argument in relation to the grounds and their materiality. I have not heard full argument in relation to any question of relief. If it arises, there would therefore need to be further submissions today.

Ground 1, withholding the decision letter

9

Mr Jafar did not dispute that the Secretary of State has the power, that is to say the vires, to withhold and then serve a decision letter of this kind at the same time as detaining and serving removal directions. He accepted in his submissions that that course may be appropriate in some circumstances. I have been shown no authority on the issues of whether there is any vires problem in relation to such a course. Mr Jafar also accepted, and does not challenge, the action of detaining the claimant with a view to removal. Nor does he challenge in these proceedings the 72-hour period which the Secretary of State's actions and, I am told, practice, permitted between the service of notice and the removal itself.

10

On this first ground, Mr Jafar's submission is that in the circumstances of this case, it was unreasonable and unfair and therefore unlawful to hold back the decision letter dated 21 January 2009. He submits that the Secretary of State had the solicitors' details, and had the details the claimant's home address. The Secretary of State knew that she was a mother of two boys. They were at local schools. The claimant had remained in touch at previous times, in particular in relation to the asylum matter and its pursuit. There was, he submits, no good reason to delay straightforwardly sending the decision letter at the time that it was written. If it had been sent, says Mr Jafar, the claimant would have been able to consider the position and make arrangements to challenge the decision.

11

Mr Jafar further submits that it was positively misleading of the Secretary of State in this case to respond as she did to a letter received from the claimant's Member of Parliament. That is a reference to the UKBA's letter of 5 May 2009 to the Right Honourable Harriet Harman QC MP which thanks her for her letter of 27 March 2009 with enclosures, relating to the claimant and her sons. UKBA's letter includes the following:

"On 10 November 2008 [the claimant] submitted further representations for leave to remain, citing article 8 of the European Convention on Human Rights (ECHR) which are currently being considered by a case worker. [The claimant] will be notified of the decision shortly."

The letter goes on to refer to the position of the oldest son and refers again to representations dated 10 November 2008, citing article 8 of the ECHR. It then states:

"This application is currently with a case worker for consideration. [The older son] will be notified of the decision shortly."

12

Mr Jafar submits that it was a breach of the Secretary of State's duty of fair dealing and transparency, applying standards of good administration, to write a letter which was positively misleading in circumstances where the Secretary of State knew that the January letter had been written and that a decision had been taken to withhold service of it until arrangements were ready to be implemented for the claimant's removal. He submits that that lack of transparent straightforwardness itself constitutes unreasonable and unfair action on the part of the Secretary of State.

13

In my judgment, the answer to this first ground for judicial review does not lie in the suggestion that no decision had yet been reached or that the decision that had been reached could be reconsidered and might be revised up to the time that it was served. Nor does it lie in the contention that, until served, the adverse decision could have no legal consequences for the claimant. Nor, in my judgment, can the answer to this ground lie in the desire to avoid prolonged detention. Commendable though it is that the Secretary of State would wish only to detain for a minimum period, in conjunction with imminent arrangements for removal, that in my judgment cannot provide the answer to the question of what was the justification, if any, for withholding the letter. It cannot do so because what would, no doubt, in the ordinary way have happened is for the decision letter be served on the solicitors and the claimant once it had been written....

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