Olanrewaju Yesafu v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holroyde |
| Judgment Date | 14 November 2016 |
| Neutral Citation | [2016] EWHC 2883 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 November 2016 |
| Docket Number | Case No: CO/2612/2016 |
[2016] EWHC 2883 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Holroyde
Case No: CO/2612/2016
The Queen on the application of
David Ball (instructed by JCWI) for the Claimant
Zane Malik (instructed by Government Legal Department) for the Defendant
Hearing dates: 12 October 2016
Approved Judgment
On 6 th May 2016 the Secretary of State refused an asylum claim made by the claimant Mr Yesafu. She certified, pursuant to section 96 of the Nationality, Immigration and Asylum Act 2002 ("NIAA"), that he may not bring an appeal under section 82 of the same Act. The claimant seeks judicial review of the decision to certify.
The claimant also alleges that he has been unlawfully detained for much if not all of the period of well over two years during which he has been in immigration detention within the prison estate. In this regard, Mr Ball relies on behalf of the claimant on the principles stated in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, and submits that each of the four main principles has been breached. It has however been agreed between the parties that the unlawful detention aspect of his claim should be adjourned. This judgment, accordingly, relates only to the claim for judicial review.
The statutory framework:
One of the purposes of NIAA was to discourage a multiplicity of applications and appeals, and to avoid the delays inherent in a system which allows repeated appeals, by promoting a "one-stop" scheme. The statutory framework relevant to this claim is as follows.
Section 82 of NIAA provides a right of appeal to the First Tier Tribunal:
"(1) A person ("P") may appeal to the Tribunal where—
(a) the Secretary of State has decided to refuse a protection claim made by P,
(b) the Secretary of State has decided to refuse a human rights claim made by P, or
(c) the Secretary of State has decided to revoke P's protection status.
(2) For the purposes of this Part—
(a) a "protection claim" is a claim made by a person ("P") that removal of P from the United Kingdom—
(i) would breach the United Kingdom's obligations under the Refugee Convention, or
(ii) would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(b) P's protection claim is refused if the Secretary of State makes one or more of the following decisions—
(i) that removal of P from the United Kingdom would not breach the United Kingdom's obligations under the Refugee Convention;
(ii) that removal of P from the United Kingdom would not breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(c) a person has "protection status" if the person has been granted leave to enter or remain in the United Kingdom as a refugee or as a person eligible for a grant of humanitarian protection;
(d) "humanitarian protection" is to be construed in accordance with the immigration rules;
(e) "refugee" has the same meaning as in the Refugee Convention.
(3) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part."
Although it has subsequently been amended, section 120 of NIAA was at the material time in the following terms:
" 120 Requirement to state additional grounds for application
(1) This section applies to a person if—
(a) he has made an application to enter or remain in the United Kingdom, or
(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.
(2) The Secretary of State or an immigration officer may by notice in writing require the person to state—
(a) his reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom.
(3) A statement under subsection (2) need not repeat reasons or grounds set out in—
(a) the application mentioned in subsection (1)(a), or
(b) an application to which the immigration decision mentioned in subsection (1)(b) relates."
In these proceedings, a notice under section 120(2) has been referred to as a "one stop warning notice".
So far as is relevant for present purposes, section 96 was at the material time in the following terms:
" 96 Earlier right of appeal
(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."
In R (on the application of J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) (hereafter, "J") Stadlen J considered the effect of section 96 and concluded at paragraph 106 of his judgment:
"Under Section 96 (1) and (2) before the Secretary of State can lawfully decide to certify, she has to go through a four stage process. First she must be satisfied that the person was notified of a right of appeal under Section 82 against another immigration decision (Section 96(1)) or 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 (Section 96(2)). Second she must conclude 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 (Section 96(1)(b)) or 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 (Section 96(2)(b)). Third she must form the opinion that there is no satisfactory reason for that matter not having been raised in an appeal against the old decision (Section 96 (1) (c)) or that there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice (Section 96 (2)(c)). Fourth she must address her mind to whether, having regard to all relevant factors, she should exercise her discretion to certify and conclude that it is appropriate to exercise the discretion in favour of certification."
It is relevant also to note that Mr Ball relies on guidance published by the Secretary of State, in an asylum policy instruction on sexual orientation in asylum claims, which includes the following –
"Lesbian and gay claimants may feel a strong sense of shame and stigma about their sexual orientation. They may also come from cultures where they have never openly discussed their sexual orientation. Generally speaking, self-identification as lesbian, gay or bisexual will be the normal starting point as an indication of a person's sexual orientation. However, the claimant may not always feel able to disclose this straight away, and it will need to be explored at greater length in interview."
Mr Malik, for the Secretary of State, relies on the following passage in the published guidance –
"Consideration must be given to any possible reasons for not disclosing the issue of sexuality at the first available opportunity during screening. Feelings of shame, cultural implications, or painful memories, particularly those of a sexual nature, may have led some claimants to feel reluctant about speaking openly about such issues and may therefore not be uncommon. … Each claim must be considered on its individual merits and all factors considered in the round. Any late disclosure must be fully investigated and the overall credibility of a claim considered in the round."
Chronology of relevant matters:
The claimant, a Nigerian national of Muslim religion, is now 31 years old. He entered the UK in April 2011. He held a student visa valid until July 2013. Between May 2012 and January 2014 he was convicted of four criminal offences: indecency; assaulting a police officer; sexual assault on a female; and a further sexual assault on a female. He received non-custodial sentences on the first three occasions, but on 5 th March 2014 he was sentenced to 14 months' imprisonment for his second offence of sexual assault. He has been subject to immigration detention, and has remained in prison, since completing that sentence on 1 st August 2014.
Because the sentence imposed in March 2014...
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