R (Ajoh) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice May |
| Judgment Date | 04 July 2007 |
| Neutral Citation | [2007] EWCA Civ 655 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 July 2007 |
| Docket Number | Case No: C5/2006/1256 |
[2007] EWCA Civ 655
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
MR JUSTICE COLLINS
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Igor Judge, President of the Queen's Bench Division
Lord Justice May and
Lord Justice Moore-Bick
Case No: C5/2006/1256
Ashitey Ollennu (instructed by Korkor Dravie) for the Claimant/Respondent
Jonathan Swift, Parishil Patel (instructed by Treasury Solicitors) for the Respondent/Applicant
Hearing dates: 15 May 2007
It is well known that publicly accepted understaffing in the Home Office Immigration and Nationality Directorate (IND) has in the recent past resulted in delays in dealing with asylum and immigration cases. This is a delay case. It is mainly an immigration case in which Mrs Ajoh, the claimant respondent, a Jamaican national, entered the United Kingdom in February 1999 on a temporary visitor's visa; was later granted temporary leave to remain as a student; had that leave extended; but at the end of the extension remained in the United Kingdom unlawfully. Mrs Ajoh had with her at the time three children, a daughter and two sons, who had arrived in the United Kingdom on dates in 2000 and applied for student visas which were refused. In April 2002, she and her three children had been served with notice that they were liable to administrative removal because they were in the United Kingdom unlawfully.
On 20 th February 2002, Mrs Ajoh had made a now admittedly fraudulent application for asylum which was refused. She eventually withdrew an appeal against that refusal.
In April 1999, she had met her future husband, Mr Ajoh, a British Citizen, whom she married on 11 th April 2003. She had been living with him since about December 2002. At the time of her marriage, her presence in the United Kingdom was, as I have said, unlawful. Less than a fortnight later, on 23 rd April 2003, she applied to be allowed to stay in the United Kingdom as the wife of a settled resident British Citizen.
At the time of this application, it had no proper basis and, if it had been dealt with promptly, was bound to fail. Mrs Ajoh and her children were in the United Kingdom unlawfully and she did not satisfy the guidelines for marriage applications for over-stayers in a document referred to as DP3/96.
The Secretary of State did not however determine Mrs Ajoh's application until 22 nd March 2005, 23 months after it was made. On the basis of this delay and what had occurred in the meantime, Mrs Ajoh successfully contended in judicial review proceedings before Collins J on 16 th May 2006 that it would be a disproportionate and unnecessary insistence on adherence to the relevant immigration rules to remove Mrs Ajoh and her children to Jamaica and a breach of their rights under Article 8 of the European Convention on Human Rights. Collins J quashed the Secretary of State's decision of 22 nd March 2005 and subsequent removal directions and ordered the Secretary of State to reach a decision in accordance with the judgment. This is the Secretary of State's appeal against that decision and order with permission given by Keene LJ and Sir Peter Gibson upon an oral hearing.
At the time of her marriage to Mr Ajoh on 11 th April 2003, Mrs Ajoh was thirteen weeks' pregnant. She gave birth to twins on 19 th August 2003. Meanwhile on 14 th May 2003 the IND wrote to her acknowledging her marriage application, saying that it would be screened by a caseworker within five weeks at which stage a decision would be made or a progress report given. It was stated with underlined emphasis that Mrs Ajoh should make no assumption about how long it might take for the IND to take a decision on her application. Once the application had been initially considered and if there was no immediate decision, the Secretary of State would be able to give an estimated decision date.
On 21 st May 2003, the IND wrote to Mrs Ajoh as promised to inform her of the progress of her application. It had been accepted as valid but could not be decided on initial consideration. The letter stated that such cases were subject to considerable delay because of the number of applications and backlog of work. It was said that the IND was working hard to reduce decision times. On current performance, it was estimated that Mrs Ajoh's application would be decided by February 2004. It would be helpful if she did not make other than urgent enquiries about the progress of her application before that date.
In a letter bearing the date 21 st October 2003, but probably in fact sent shortly before 17 th February 2004 when the IND received it, Mrs Ajoh wrote referring to her application of 23 rd April 2003 and “my subsequent letter dated 21 October 2003”, and saying that it was now almost ten months since she put forward her application. She had telephoned “this week” to chase up progress and had been told that her application had still not been processed and that she could not be given any indication when it would be finalised. She asked to be told exactly when she was likely to hear.
Mr Ajoh wrote a chasing letter on behalf of his wife in April 2004 saying that his wife had received no reply to her February 2004 letter. He wrote again in understandably more emphatic terms on 27 th January 2005 sending a copy of this letter to his MP, Stephen Pound, who himself wrote on 4 th February 2005. The IND replied to Stephen Pound in 11 th March 2005, saying that Mrs Ajoh's application had been carefully considered but refused.
The correspondence between 21 st May 2003 and 11 th March 2005 inclusive to which I have referred, of some significance to the issues in these proceedings, was not before Collins J. This court admitted it as fresh evidence upon the Secretary of State's application. Mr Ollennu on behalf of Mrs Ajoh upon consideration did not oppose the application. Mr Swift on behalf of the Secretary of State referred in support of his application to R v Secretary of State for the Home Department ex parte Momin Ali [1994] 1 WLR 663, an appeal to this court in an immigration judicial review case, in which Fox LJ, agreeing with Sir John Donaldson MR, referred at page 673G to “the existence of a wider discretion in the court to admit fresh evidence on this appeal than exists in ordinary civil litigation”. Since the application to admit the fresh evidence was not opposed, it was unnecessary to consider in detail the application to this case of Rule 52.11(2) of the Civil Procedure Rules and authorities summarised in paragraph 52.11.2 of the 2007 edition of the White Book. I simply record the provisional view, which I had reached before Mr Ollennu made his sensible concession, that the application should be allowed in the interests of a just result when the fact that the evidence was not before Collins J appeared to be the responsibility of each of the parties.
The Secretary of State's decision refusing Mrs Ajoh's application, reported to Stephen Pound in the letter of 11 th March 2005 was not given to Mrs Ajoh until the decision letter of 22 nd March 2005. Mrs Ajoh did not satisfy the requirements of paragraph 284 of the Immigration Rules because she was not living lawfully in the United Kingdom. She did not come within the policy guidelines (DP3/96) for dealing with marriage applications for over-stayers. Her marriage, although it was genuine and subsisting, did not pre-date by two years the service of a notice of liability to removal. It was reasonable to expect that both she and her husband would be aware of her precarious immigration status. Her husband, although a British citizen, was free to accompany her and could reasonably be expected to live in Jamaica. Her two infant children who were British citizens were young enough to adapt to life abroad with their parents. The three older children had grown up in Jamaica and could re-adapt to life there. The position of her family did not constitute a sufficiently compelling reason for making an exception to the normal practice of removing those who had remained illegally. There would be no breach of Article 8 of the European Convention on Human Rights. Mrs Ajoh's circumstances were not sufficiently compelling to warrant leave outside the rules. Because Mrs Ajoh could have put forward the reasons set out in her marriage application in her appeal against the Secretary of State's refusal of her asylum and human rights claim, which she withdrew, the Secretary of State certified the claim under section 96 of the Nationality Immigration and Asylum Act 2002, thereby depriving her of a right of appeal against the decision to refuse the marriage application. Hence the present claim for judicial review.
On the same day as writing the decision letter, the Secretary of State served Mrs Ajoh and her three older children with notices of decisions to remove them as being unlawfully in the United Kingdom. On 3 rd June 2005, Mrs Ajoh applied for judicial review of these decisions contending that it would be wholly disproportionate with the proper running of immigration control to send her and her children to Jamaica and a breach of Article 8 of the European Convention on Human Rights. The application stressed that Mr Ajoh is a British citizen working as a senior lawyer for the London Borough of Tower Hamlets and that it would be unreasonable to expect him to resign and go to Jamaica with his wife; and contended that the Secretary of State had failed sufficiently to take into account the detrimental effect...
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