Jude Okilo Onykwere v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | SIMON BRYAN QC |
| Judgment Date | 13 April 2016 |
| Neutral Citation | [2016] EWHC 758 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 April 2016 |
| Docket Number | Case No: CO/17333/2013 |
[2016] EWHC 758 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Simon Bryan QC
(Sitting as a Deputy High Court Judge)
Case No: CO/17333/2013
Mr David Jones (instructed by Sutovic and Hartigan) for the Claimant
Mr Gwion Lewis (instructed by Government Legal Department) for the Defendant
Hearing dates: 8 and 9 March 2016
SIMON BRYAN QC:
The Issues
In this amended claim for judicial review the Claimant, who is an adult male national of Cameroon born on 7 November 1975, challenges two decisions of the Secretary of State for the Home Department ( "SSHD"):
i) The decision of the SSHD on 29 November 2013, in a letter of that date, to refuse the Claimant's application to have his Deportation Order ( "DO") revoked and to certify that application as clearly unfounded (the "Certification Decision").
ii) The decision of the SSHD on 3 June 2014 that the Claimant's further submissions did not amount to a fresh asylum and/or human rights claim and that her previous decision to certify the Claimant's human rights claim should be maintained (the "Fresh Claim and Certification Decision").
Following a contested oral renewal hearing on 30 June 2015, in a reserved written judgment delivered on 3 July 2015 ( [2015] EWHC 2501 (Admin)) Mr Justice Hamblin (as he then was) granted the Claimant permission for judicial review,
"limited to the [SSHD's] assessment, in her letters of 29 November 2013 and 3 June 2014, of the best interests of the Claimant's child, [J], and step-child, Jessica, undertaken by reference to paragraph 399(a) of the Immigration Rules."
The issues that arise may be summarised as being:
i) Whether, in that context, the SSHD's certification of the Claimant's asylum and human rights application as clearly unfounded under section 94(2) of the Nationality Immigration and Asylum Act 2002, as recorded on 29 November 2013 and maintained in her decision of 3 June 2014 was lawful (the "Certification Issue").
ii) Whether, in that context, the SSHD's decision that the Claimant's representations made on 17 February 2014 and 10 April 2014 were incapable of being a fresh claim by reference to paragraph 353 HC395 was lawful (the "Fresh Claim Issue").
The Factual Background
The Claimant claims to have entered the United Kingdom in December 2003 using a false French document.
On 12 January 2005 the Claimant came to the attention of the Home Office, having been convicted of "theft by an employee" under the name of Masantu Sumbu Moto. This conviction resulted in a sentence of 40 hours of community service.
On 24 March 2005 the Claimant was arrested for attempted fraud under the name Mosantu Sumbu Moto. His fingerprints were taken the next day and he was found to have the alias Kuechtche Moubme. The SSHD notified the Claimant that he was a person liable to be removed from the UK.
On 11 May 2005 the Claimant was convicted of three counts of forging a document other than a prescription for a scheduled drug and was sentenced to seventeen months imprisonment.
The Claimant was subsequently convicted on 20 May 2005 in the name of Mosantu Sumbu Moto of possession of an insurance document with intent to deceive for which he received a £70 fine and one day in a detention centre.
The SSHD then issued directions for the Claimant's removal on 1 December 2005 in the name of Alain Meboe.
The Claimant made an application for asylum under the name of Alain Antoine Kuechtche Moumbe on 6 December 2005. This application was subsequently refused by the SSHD and the Claimant commenced the appeal process against the decision. The SSHD cancelled the removal directions. On 4 January 2006 the Defendant refused the Claimant's asylum claim.
On 15 February 2006 the Claimant's representatives submitted a birth certificate which showed the Claimant's true identity to be that of Jude Okilo Onykwere, a male national of Cameroon, with a date of birth of 7 November 1975.
On 4 May 2006 the Claimant was notified of the refusal of his asylum claim, and on 12 June 2006 the Claimant appealed against the refusal of his asylum claim.
On 14 June 2006 an Immigration Judge found neither the Claimant nor his representative had been served with the asylum decision letter of the 4 January 2006.
In the same year the Claimant met Ms Restituta Kalemera, a British citizen, who subsequently became his wife ( "Restituta" or "the Claimant's wife").
On 20 February 2007 the SSHD made a decision to reconsider the Claimant's asylum application.
On 19 April 2007, during the consideration of the claim by the SSHD, the Claimant was convicted of driving offences under the name of Mosantu Sumbu Moto, driving without insurance and otherwise than in accordance with a licence.
On 3 January 2008 the SSHD carried out a fingerprint check which confirmed that the Claimant was the same person as Mosantu Sumbu Moto and Alain Antoine Meboe.
Restituta gave birth to their son Child J, a British citizen; on the 2 November 2008 (J was accordingly 5 at the time of the subsequent decision letters). I have used "J" to represent the son's name throughout this judgment, as the parties did before me, for though no anonymity order has been made I, like the parties, consider this appropriate given his young age.
Since the Claimant's asylum application was outstanding for a lengthy period the Defendant granted him a right to work.
On 15 September 2009 the Claimant accepted a caution for "disorderly behaviour or threatening/abusive/insulting words likely to cause harassment alarm or distress".
On 26 November 2010 a notice of liability to deport was served on the Claimant and on 22 December 2010 the Claimant completed the questionnaire with supporting evidence to challenge his proposed deportation
A further asylum interview took place on 23 December 2011.
On 8 March 2012 the SSHD made a decision to deport the Claimant. The Claimant lodged an appeal on 14 March 2012.
In April 2012 the Claimant and Restituta were married and began co-habiting. In consequence the Claimant has two step-daughters, Jessica (16 in 2013) and Margaret (20 in 2013), both British citizens.
The Claimant's appeal against his deportation was dismissed on 23 October 2012. The Claimant had appealed on the basis that the deportation decision breached his rights under Articles 2, 3 and 8 ECHR. The First Tier Tribunal (Immigration Judge Emerton), concluded amongst other matters that the Claimant lacked credibility: his asylum claim had immediately followed the decision to deport him, he had used a false name and his actions were at odds with those of a genuine asylum-seeker. The evidence before the Judge was notably sparse in terms of his relationship with his wife, and in relation to any ties with his son J and his step-daughters Jessica and Margaret. In this regard the Judge stated, amongst other matters:
"As for family and private life in the UK … the appellant is still not a credible witness, and the Tribunal has difficulty placing any weight upon his assertions. However he does at least have the benefit of the supporting witness evidence of Ms Restituta Kalemera, albeit that her evidence does not go very far, and he is named on his son [J's] birth certificate. In the circumstances, the Tribunal is not prepared to draw inferences as to the appellant's life in the UK without direct evidence to support vague and generalised assertions – indeed this would apply in most cases, the more so when an appellant has shown himself to be unworthy of belief" [49];
"However the Tribunal accepts that the appellant has had some sort of a relationship with Ms Kalemera, since an unspecified time after May 2006 (described only as "almost six years"). However, there is very little evidence concerning the strength of their relationship. Quite plainly, whatever relationship they have, would have been established and consolidated when the appellant's own status was decidedly precarious, and there is no suggestion that Ms Kalemera was not fully unaware this. Thus, they were both aware that the appellant was liable for deportation, or at least removal, they had a child, and latterly married, knowing that at any moment the appellant might be deported or removed. There is no direct evidence suggesting that the birth of Ms Kalemera's son did anything to strengthen their relationship." [50]
"…Ms Kalemera's statement is largely silent on any aspects of their life together, or indeed the appellant's involvement with their son. On the latter point, other than two instances of his helping her around the home when she was incapacitated and could not look after herself (or look after [J], on the second occasion) there is no information, other than a generalised and un-explained suggestion that she would not know what to do without him. She added nothing in oral evidence, and has provided no evidence of any particular bond between the appellant and her son. There is no evidence of any bonds at all between the appellant and Ms Kalemera's daughters. The appellant himself said nothing in oral evidence about married life or fatherhood, other than to state that whilst he retains his old (NAAS) address, he now spent most of his time at his wife's address…His interview and witness statement provide remarkably little information, other than indicating some recent involvement with childcare when his wife is working, and taking his son to and from nursery."...
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