Mthokozisi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice OWEN |
| Judgment Date | 20 December 2004 |
| Neutral Citation | [2004] EWHC 2964 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2201/2004 |
| Date | 20 December 2004 |
[2004] EWHC 2964 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Owen
Case No: CO/2201/2004
Mr Patrick Lewis (instructed by Dare Emmanuel) for the Claimant
Miss Philippa Whipple (instructed by the Treasury Solicitor) for the Defendant
The claimant is a Ugandan national who was born on 10 October 1982. On 14 January 1996 he arrived unaccompanied in the United Kingdom. He was then 13 years of age. On arrival he claimed asylum; but his claim was not determined by the Secretary of State until 19 May 2000 when his application for asylum was refused.
The claimant then appealed under Section 69 (1) of the Immigration and Asylum Act 1999. By a decision promulgated on 9 April 2002, the Adjudicator dismissed the appeal, holding that the claimant had failed to establish a well founded fear of persecution and that his deportation would not amount to inhuman or degrading treatment under Article 3 of the ECHR. The Adjudicator declined an invitation to recommend that the claimant be granted exceptional leave to remain, observing that that was a matter that the Secretary of State might wish to consider.
Leave to appeal to the Immigration Appeal Tribunal was refused on 10 May 2002, the Tribunal observing that:
"It is certainly arguable that the Adjudicator has perhaps not given sufficient weight to the age of the applicant and the history of the case. Nevertheless accepting the applicant's case at its best, it is the view of the Tribunal that the conclusions of the Adjudicator were correct and reasonable."
On 21 March 2003 the Refugee Legal Centre, acting on behalf of the claimant, wrote to the Home Office seeking leave for the claimant to remain in the UK on the basis that to return him to Uganda would amount to a breach of Article 8 of the ECHR. It took over a year for the Home Office to reply. By letter dated 22 April 2004 the claimant was informed that the letter of 21 March 2003 " …. does not raise any new factors which would cause us to reverse our earlier decision of 2001, and that accordingly the decision to proceed with the claimant's removal from the UK would not breach Article 8."
On 26 April 2004 the Refugee Legal Centre wrote again requesting that the Home Office withdraw the refusal of leave to remain in the UK on Human Rights grounds, making express reference to the decision of the Court of Appeal in Arben Shala v Secretary of State for the Home Department [2003] EWCA Civ 233 in support of the request. On 27 April 2004 directions were issued for the removal of the claimant to Kenya. On 6 May 2004 the Home Office replied stating that the further representations had been considered on behalf of the Secretary of State, but were rejected. On 22 October 2004 there was a further letter from the Home Office to the Refugee Legal Centre stating that further consideration had been given to the claimant's Article 8 rights, but that it was still considered appropriate to remove him.
The claimant now seeks to challenge the decision to remove him from the UK on the ground that to do so would be a breach of Article 8.
THE BACKGROUND TO THE APPLICATION
Before considering the grounds upon which the challenge to the decision to remove the claimant is mounted, it is necessary shortly to summarise the factual background. The claimant is an orphan. He told the Adjudicator that his family moved from Kenya to Uganda in 1982 shortly after he was born. His father was a soldier in the Ugandan National Liberation Army who was killed because he supported the Ugandan Government. His mother died of natural causes in 198After her death he was cared for by his grandparents who lived in the Soroti region of the Ateso district in Eastern Uganda. He told the Adjudicator that his grandparents were killed by soldiers in late 1995. He said that after the death of his grandparents he went to Kenya to an uncle called Michael. After about two weeks his uncle took him by plane to Paris where he put him on a flight to London; saying that he would follow on another flight. His uncle never appeared in London, and the claimant was spotted at Heathrow airport by an Immigration Officer to whom he told his story, and who advised him to apply for asylum. It is important to note at this point that the Adjudicator did not find the claimant's account of his experiences in Uganda to be readily credible.
In any event after his arrival in the UK he was initially placed in a children's home in Hayes where he stayed for three months. He began attending school in June 1996, and in December 1996 went to live with a foster mother, Mrs Joyce Croll, who sadly died in January 2000. His relationship with Mrs Croll and other members of her family including another foster son was described in the letter from the Refugee Legal Centre to the Immigration and Nationality Directorate dated 21 March 2003:
"Martin was extremely close to Mrs Croll and regarded her as his mother. He lived with Mrs Croll, Nigel Keeble (her nephew) and Emmanuel Niyitegeka (another foster son) from December 1996 until January 2000. The length of time spent together and their mutual love and respect has meant that the three boys regarded themselves as brothers …. Anita Keeble (Nigel's elder sister) visited the family frequently and also regards Martin as her brother … Anita's son and Nigel's daughter regard Martin as their uncle. Mrs E. Gravestock, Mrs Croll's daughter, also thinks of Martin as family and indeed regards him as a 'last link to my mother' … All of these people constitute Martin's immediate family regardless of the lack of blood ties."
When Mrs Croll died the claimant moved to live with another set of foster parents, Margaret and Allan Wainwright, with whom he stayed until July 2000 when he completed his A-levels and with whom he has remained in regular contact.
The Refugee Legal Centre's letter of 21 March 2003 was supported by no less than 33 letters from those whom he regards as his family, in particular Margaret Wainwright and Nigel Keeble, and from teachers and friends all of whom speak of the claimant in the most glowing terms. He is plainly a most impressive young man whose progress since arriving alone in this country as a 13 year old is greatly to his credit. His achievements were succinctly summarised in a letter from a social worker employed by the London Borough of Hillingdon who wrote in the following terms:
"Martin arrived in the United Kingdom as an Unaccompanied Minor in January 1996 from Uganda. Shortly after his arrival he was accommodated by London Borough of Hillingdon Social Services under Section 20 of the Children's Act 1989. Martin was initially placed with foster carers and moved to semi-independent living in summer 2001. Martin is close to his foster carers and does still keep in touch with them.
Martin attended Uxbridge High School for 5 years. All of his school reports describe him as a very dedicated student who related well to his peers. Teachers described him as a model student, who was polite and well mannered. Martin achieved 11 GCSE's all at the C and above as well as being voted Sports Personality of the year. Martin remained at Uxbridge High School to study for 3 A levels. He was predicted good grades and a career in medicine. Martin's performance deteriorated in the last six months prior to his exam due to anxiety and worry regarding his asylum application. Furthermore the uncertainty of his asylum status has resulted in Martin not being able to plan his future, as partaking in higher education is dependent on immigration status. Martin achieved 3 A levels; chemistry D, biology E, and maths E.
Although not being Martin's first choice he is currently doing a course in IT.
Martin has lived in the United Kingdom for 7 years and is fully integrated into British society and lifestyles. Considering that Martin was only 13 years old when arriving in the United Kingdom, he has spent most of his teenage years here and identifies with British Culture and the British way of life.
Martin used the International Red Cross tracing service to try to find relatives in Uganda, without any success. The prospect of moving back to a country, which is almost unknown to him, has caused Martin a great deal of distress.
Martin is a very pleasant and intelligent young person who has a lot to offer to British Society."
As the social worker pointed out the claimant has no family in Uganda. He has no family or social life outside the UK.
The claimant seeks to challenge the decision of the Secretary of State to remove him from the United Kingdom on the basis that he has established both a private and a family life in the United Kingdom, such as to engage Article 8 of the ECHR, and that he has established both a private and family life as a direct consequence of the failure of the Secretary of State to determine his application for asylum for a period of 4 1/2 years. Mr Lewis, who appeared for the claimant, further submitted on his behalf that had his application been determined whilst he was still a minor, the Secretary of State would have followed his policy of granting exceptional leave to remain to minors, and that having been granted exceptional leave to remain, he would then have been entitled to apply for indefinite leave to remain, with the likelihood that it would have been granted. Accordingly it is submitted that he has been very seriously disadvantaged by the failure on the part of the Secretary of State to determine his application for asylum within a...
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