R Ahmed v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Judge Bird |
| Judgment Date | 18 November 2013 |
| Neutral Citation | [2013] EWHC 4453 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 November 2013 |
| Docket Number | CO/13851/2012 |
[2013] EWHC 4453 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M3 3FX
His Honour Judge Bird
CO/13851/2012
Mr Nicholson (instructed by information not supplied) appeared on behalf of the Claimant
Mr Karim (instructed by information not supplied) appeared on behalf of the Defendant
This is an application for judicial review. It is the final hearing, permission having been initially refused on paper but then granted on 29 July 2013 by HHJ Raynor QC.
The decision in respect of which judicial review is sought is one which has developed over time. Mr Nicholson, who appears on behalf of the claimant, reminds me that in the circumstances it is open to the court to take a pragmatic view and appreciate that the Secretary of State in cases like this will take into account factors as they arise.
Such an approach leads, it seems to me, to a certain informality in the way in which the application for judicial review must proceed; not least of all because the grounds first set out in the claim form necessarily require to be considered in a much broader manner. This application has proceeded in a relatively informal way but I am satisfied that both sides have had every opportunity to put their points.
The factual background against which the matter comes to court is set out in the skeleton arguments and amended grounds that I have seen. In short, the claimant made an application for asylum based upon a real fear of the consequences of his returning to Bangladesh, after having lived in this country for more than 18 years. That application was commenced by claim form on 21 December 2012, following the Secretary of State's refusal and certification of the claim as being totally without merit, or clearly unfounded, on 3 October 2012.
Following the filing of an acknowledgment of service, on 26 March 2013, the parties entered into a consent agreement. The terms were approved by the court. The recital to the form of consent agreement provides as follows:
"Upon the Secretary of State having agreed to reconsider her decision of 3 October 2012, in the light of NF (Article New Rules Nigeria) 2012 UKUT 00393 (IAC) and to issue her reconsidered decision within 31 days from the date of this consent order, the following is ordered by consent."
The proceedings were stayed.
The Secretary of State's decision, hot on the heels of that consent order, was published on 27 March. There was a supplementary decision letter of 10 September 2013, it seems to me that all of those letters must be read together.
Whilst it is right to say that the last of the decision letters does not of itself contain a certification that the claimant's human rights argument is one which is clearly unfounded, nonetheless it is clear from the earlier letters that the claim was certified.
In brief terms the claimant's Article 8 argument is that in removing him to Bangladesh the Secretary of State would be unreasonably interfering with his Article 8 rights. He rightly draws attention also to the need to consider under Section 55 of the relevant Act the rights of his daughter, who was just under 7 years old; and who is, I am told, established in this country having been born here and being presently educated in primary school here.
The claimant and his wife are, I understand, separated. I was told that the claimant, as a responsible and I have no doubt caring and loving father, has regular contact with his daughter.
His wife made a separate application for asylum. That application was determined by the Secretary of State and the decision communicated to her in a letter dated 16 August 2009. That letter refuses the claimant's wife claim for asylum and I am told that no appeal or other process making complaint as to the decision or its process has been lodged.
The claimant's wife's appeal rights are therefore properly considered to be exhausted. That does not mean of course that there is no possibility of complaint. It is possible at the very least to make an application to the relevant court or tribunal for permission to appeal out of time.
Nonetheless in my judgment, as was submitted by the Secretary of State, it is of vital importance that I deal with the application in front of me on the facts as they presently stand.
I am told that the claimant's wife has made no move to make any application for permission to appeal out of time and no further steps have been taken by her.
She may have decided to refrain from taking such steps for one of a number of reasons. It would be wrong in principle in my judgment for me to proceed with this application on any basis other than that the claimant's wife's rights having been exhausted; although to make it clear, I accept that there are circumstances in which that may not be the case.
That assumption has had an important part to play in these proceedings. That is because as the Secretary of State put it: the child's rights which are central to the claimant's Section 55 and Article 8 elements are tied with those of the claimant's wife. The claimant's wife, I was told, included the daughter as a dependant within her claim.
It therefore follows that as the wife's rights of appeal have been exhausted and as she stands liable, subject to issues of timing to be removed from this country, so her daughter will be removed with her.
It is important, therefore, that when I take into account the Secretary of State's dealing with the claimant's application for asylum that I bear that factor in mind....
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