Mohammed Iqbal Khan v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Tomlinson,Lord Justice Moore-Bick |
| Judgment Date | 11 February 2014 |
| Neutral Citation | [2014] EWCA Civ 88 |
| Docket Number | Case No: C4/2013/0574 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 February 2014 |
[2014] EWCA Civ 88
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM High Court QBD Administrative Court
Mr Justice Turner
CO/1600/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-bick
Lord Justice Tomlinson
and
Lord Justice McCombe
Case No: C4/2013/0574
Mr Raza Husain QC, Mr Abdurahman Jafar, andMr Chris Buttler (instructed by Duncan Lewis) for the Appellant.
Mr David Blundell (instructed by Treasury Solicitor) for the Respondent.
Hearing date: 24th January 2014
Approved Judgment
(A) Introduction
This is an appeal from the order of Turner J of 21 February 2013 dismissing a claim for judicial review brought by Mr Mohammed Iqbal Khan ("the Appellant") in respect of a decision of the Secretary of State for the Home Department ("the Respondent") of 15 March 2012 refusing to revoke a deportation order made against him on 6 February 2012 1. In accordance with section 96(1) of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act"), the Respondent also certified that a) the Appellant was notified of a right of appeal against another immigration decision; b) that the claim or application to which the Respondent's decision related relied upon a matter that could have been raised in an appeal against the other decision; and c) that in the Respondent's opinion, there was no satisfactory reason for that matter not having been raised in an appeal against the other decision.
The result of that certificate was that the Appellant had no right to appeal to the First-tier Tribunal under section 82 of the 2002 Act. In the judicial review the Appellant challenges the Respondent's entitlement so to certify.
Section 96(1) and (2) of the 2002 Act provide as follows:
"(1) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies-
(a) that the person was notified of a right of appeal under that section against another immigration decision ("the old decision") (whether or not an appeal was brought and whether or not any appeal brought has been determined).
(b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and
(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.
(2) an appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies-
(a) that the person received a notice under section 120 by virtue of an application other than that to which the new
decision relates or by virtue of a decision other than the new decision,(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and
(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice. "
It is section 96(1) that is relevant to the present case, but it is convenient to set out section 96(2) also, in view of an important argument for the Appellant to be addressed below.
The appeal raises once again a question as to the proper construction of the labyrinthine provisions of Part 5 of the 2002 Act relating to immigration and asylum appeals. The short question for this court, in the end, is whether new material advanced by the Appellant in resistance to his deportation, and rejected by the Respondent in her decision in March 2012, was or was not truly "a matter" that could have been raised in his earlier unsuccessful appeal to the Tribunal against the Respondent's decision to make the deportation order against him, within the meaning of section 96(1). If it was, the Respondent was entitled to certify; if it was not, she was not.
It is necessary first to say a little about the background facts.
(B) Background Facts and Procedural History
The Appellant is a national of Pakistan who entered the UK as the spouse of a British citizen on 3 October 2004. His initial entry clearance expired on 9 September 2006 and he did not make further application to regularise his presence in the UK until 25 January 2008. However, he was thereafter granted indefinite leave to remain in the country, on 3 November 2009, as the spouse of his British wife. He applied for citizenship on 8 October 2010 but this was refused in view of his presence in the country without the appropriate leave during the 3 year qualifying period.
As appeared before the First-tier Tribunal in due course, the subsistence of his relationship with his wife became somewhat doubtful. He was separated from her when, on 27 May 2011, he was sentenced in the Crown Court at Stafford by the Recorder of Stafford (His Honour Judge Tonking), on pleas of guilty, to a total term of 14 months imprisonment for dangerous driving and doing an act tending to and intended to pervert the course of public justice, committed respectively on 16 and 20 February 2011.
It appears that on 16 February 2011 he had driven his van into someone with whom he had had an altercation and that he had subsequently attempted to bribe the victim with a view to getting the complaint about the incident withdrawn.
On 28 June 2011, in the light of the conviction and sentence, a notice of liability to deportation was served. Representations in resistance to the making of a deportation decision were made by his legal representatives. However, these were rejected. The Appellant appealed to the First-tier Tribunal on 22 September 2011.
He was detained by the Border Agency on the following day on expiry of the custodial element of his sentence.
The appeal against the decision to make a deportation order was heard by the First-tier Tribunal on 9 November 2011. The ground of appeal was that the removal of the Respondent would breach his rights, and those of his wife and three children (then aged 6, 4 and 2), under Article 8 of the European Convention on Human Rights. It was submitted that any removal would be a disproportionate interference with those rights.
Oral evidence was given by the Appellant and his wife, and one other witness, as to the state of their relationship and the circumstances of their children. For the Respondent, it was submitted that the evidence given by the Appellant and his wife was internally inconsistent and at variance with known social services concerns about physical and emotional abuse of his wife, the children's school attendance and the doubts as to the contacts maintained with them by the Appellant. The Appellant was maintaining that he and his wife had become reconciled and that his relationship with the children was a loving and caring one.
The Tribunal did not accept that the Appellant or his wife were credible witnesses. The judges were of the view that the family relationships were not as either had maintained in his/her evidence. It considered the issue of proportionality of the decision to deport on the facts as found, in the context of Article 8, under a number of headings. The decided cases were recited (including ZH (Tanzania) v SSHD [2011] UKSC 4). It was held that the removal of the Appellant would not be disproportionate and the appeal was dismissed. The decision was promulgated on 21 November 2011.
An application for permission to appeal to the Upper Tribunal was refused by the First-tier Tribunal on 7 December 2011 and by the Upper Tribunal on 25 January 2012. The deportation order was signed and served on 6 February 2012 and the Appellant's deportation to Pakistan was fixed for 9.30 a.m. on 15 February. On 12 February further submissions on the Appellant's behalf were sent to the Respondent, this time accompanied by a report of the same date from a Mr J. Abdullah-Zadeh, an independent social worker. The report spoke of the importance to the children of contact with their father and expressed views as to the likelihood of re-offending by the Appellant. It was argued that if this report had been available to the Tribunal its decision would have been different.
In response to the submissions, in the letters of 14 February and 15 March 2012, the Respondent, through the Border Agency, wrote as follows (quoting from the second letter):
"With regards to the report from Mr Abdullah-Zadeh, you have not explained why this or a similar report could not have been presented at your client's appeal hearing for consideration given that the Secretary of State had already expressed doubts as to whether family life was subsisting between your client and his children. In addition the report from Mr Abdullah-Zadeh does not mention the previous concerns of the Social Services as highlighted by the Immigration Judge in his determination of 17 November 2011 and therefore there is no indication of whether Mr Abdullah-Zadeh would have been aware of these concerns when he made his assessment. It is also noted that Mr Abdullah-Zadeh is an independent Social Worker and was instructed by yourselves to conduct his assessment. You have also not explained why your client did not simply seek to obtain the views of Social Services given that they were already involved with the...
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