Hamad (Rebwar Baker) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 2010 |
| Neutral Citation | [2010] EWHC 3436 (Admin) |
| Year | 2010 |
| Docket Number | CO/11684/2010,Case No: CO/5131/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 2010 |
[2010] EWHC 3436 (Admin)
IN THE HIGH COURT OF JUSTICE
BIRMINGHAM ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
B4 6DS
Before: His Honour Judge Robert Owen QC
Case No: CO/5131/2010
This is a renewed application on behalf of the claimant, Mr Rebwar Baker Hamad, who seeks permission to bring judicial review proceedings against the defendant, the Secretary of State for the Home Department, in respect of a decision dated 29 January 2010. By that decision the defendant rejected the claimant's application, dated 9 July 2007, for indefinite leave to remain, which was based on the case ofBakhtiar Rashid v SSHD EWCA Civ [2005] 744. The defendant's letter explained in detail the reasons why that application had been refused.
In response, the claimant's representatives pointed out that the decision was not accepted as there was clearly a difference in opinion, as the letter said, between them in respect of the ambit and effect of theRashid decision. The defendant in turn responded point by point in their letter, dated 9 March 2010.
The claim form issued on 27 April 2010 contained with it the summary grounds relied on, in particular paragraph 3. Mr Mahmood, who has appeared on behalf of the claimant, indicated that he wished, whilst not to abandon any of the grounds set out in that document, to confine his oral submissions on renewal to two points contained within, in general terms, the grounds. That is, first, that the claimant had a compelling case in relation toBakhtiar Rashid principles, and, secondly, in respect of article 15(c) of the Qualification Directive. These points were helpfully and fully set out in writing in a skeleton argument presented to the court by Mr Mahmood in opening the application.
So far as the first point was concerned, Mr Mahmood accepted that the actual point, on which the claimant relies to establish the arguable case necessary to justify permission, has not been hitherto set out, other than in his skeleton argument which was lodged this morning. In short, he submitted that, having regard to the facts and on the true construction and the meaning of paragraph 4.5 of that policy, the claimant had in fact established the qualifying criteria to bring him within that policy and thus to render the present decision flawed. The essential submission there was that it appears from the decision letter that the defendant had accepted that the claimant had come from the government-controlled area of Iraq. He therefore met the initial criteria under paragraph 4.5.1, which reads:
“the claimant would need to:
1. have been refused asylum but to have beenaccepted to be an Iraqi national from the government controlled area of Iraq (GCI) by the Secretary of State between April 1991 and 20 February 2003 (when the practice was to grant four years’ ELR to all claimants who had established themselves to be Iraqi nationals from GCI but who had been unable to establish a valid claim under the refugee convention), or to have been refused asylum but accepted to have been an Iraqi national from GCI following an appeal hearing held between those dates”
The facts show that the claimant had, in 2001, applied for asylum on the basis of fear of persecution on being returned to Iraq. His application and appeal was dismissed for the reasons set out in the judgment of 3 October 2003. I have had my attention drawn to the decision letter of 7 November 2002 in which full reasons were given for the refusal of the claimant's application at that time. As the evidence at that time shows, and as Mr Mandalia on behalf of the defendant points out, as a fact it is correct that there is no evidence that the defendant had accepted the claimant to be an Iraqi national from the government-controlled area of Iraq and, what is more, that the qualifying period had to be between April 1991 and February 2003, and on the facts of this case the material date, the disposal of the appeal, did not take place until October 2003. Accordingly, it was submitted on behalf of the defendant that, on the facts, the freshly developed point by Mr Mahmood was not arguable.
As for the second point advanced by Mr Mahmood in oral submissions, that was on the basis that the defendant had failed properly to have regard to the humanitarian protection provisions which applied to the claimant, and it was submitted the claimant had a very strong basis on which to seek to challenge the decision in question under those provisions. In short, Mr Mahmood submitted, having regard to the Court of Appeal decision inQD and AH (Iraq) v SSHD [2009] EWCA Civ 620 and the manner by which that decision was put into effect, that there needs to be conducted a careful scrutiny of the facts to determine whether or not the Iraqi national in question would or would to be subject to the risk of harm upon his return. That submission begs the question as to whether the claimant has established on the facts relied on the necessary factual basis arguably to require such a scrutiny. The defendant gave full reasons to demonstrate the absence of any such factual basis in this case.
It was in those circumstances that Mr Mandalia challenged Mr Mahmood's submissions, on behalf of the defendant. He submits this question was specifically and carefully considered by the defendant, as is evident from the decision letter complained of in 29 January 2010, and the letter by way of explanation of that decision in response to queries raised on behalf of the claimant in a letter dated 9 March 2010. In that correspondence it is clearly demonstrated, Mr Mandalia submitted, that first of all this question had been carefully considered and, secondly, all material factors were taken into account, and the conclusion, in short, that the objective evidence failed to identify any such risk to this claimant was a conclusion which could reasonably have been arrived at on the evidence. In those circumstances, Mr Mandalia submitted, whatever may have been the basis for the decision in other cases (upon which Mr Mahmood relied) or what might be contained in the awaited country guidance case referred to by Mr Mahmood, so far as the facts of this case are concerned, the evidence before the defendant was such as to permit, within the bounds of reasonableness, the conclusion now complained of.
I am satisfied that for the reasons given by the defendants in their summary grounds and developed by Mr Mandalia that that conclusion was one to which the defendant could properly arrive at and that it is not shown to have been unlawful or unreasonable for the reasons submitted by Mr Mahmood or otherwise.
In those circumstances, I refuse permission to bring proceedings.
(discussion as to costs and form of order)
[2010] EWHC 3436 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Sullivan
Mr Justice Burton
CO/11684/2010
To continue reading
Request your trial