R (AK (Sri Lanka)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Thomas,Mr Justice Mann |
| Judgment Date | 17 June 2009 |
| Neutral Citation | [2009] EWCA Civ 447 |
| Docket Number | Case No: C4/2008/2314 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 June 2009 |
[2009] EWCA Civ 447
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
THE HON MR JUSTICE CRANSTON
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Thomas and
Mr Justice Mann
Case No: C4/2008/2314
Mr Simon Cox (instructed by Fisher Meredith) for the Appellant
Ms Lisa Giovanetti (instructed by The Treasury Solicitor) for the Respondent
Hearing date : 14 May 2009
Lord Justice Laws:
INTRODUCTION
This is an appeal, with permission granted by Elias LJ on a renewed application on 17 March 2009, against the judgment of Cranston J given in the Administrative Court on 10 September 2008 by which he dismissed the appellant's application for judicial review of the Secretary of State's decision on 18 February 2008 to proceed with her removal from the United Kingdom. She was removed on the same day to Sri Lanka, where at present she remains. The case has a convoluted procedural history, as I shall show. The principal issue concerns the proper interpretation of paragraph 353 of the Immigration Rules (HC 395) dealing with “fresh claim[s]” to enter or remain in the United Kingdom on asylum or human rights grounds. It is headed “Fresh Claims” and provides:
“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas.”
Then 353A:
“Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.
This paragraph does not apply to submissions made overseas.”
The importance of Rule 353 is that where the Secretary of State determines that the further submissions do amount to a fresh claim, the subject enjoys a statutory right of appeal to the Asylum and Immigration Tribunal (AIT) against the Secretary of State's substantive adverse conclusion on the merits. If she determines otherwise, there is no such right of appeal.
THE FACTS
The appellant is a Sri Lankan Tamil born on 28 September 1969. She is a single woman. She entered the United Kingdom unlawfully on 17 December 1992 and claimed asylum on 23 December 199That application was not determined until 29 June 1995 when it was refused by the Secretary of State. Her appeal was dismissed on 14 November 1996. On 6 December 1996 she was refused leave to bring a further appeal to the Immigration Appeal Tribunal (IAT).
At that time, of course, the Human Rights Act 1998, giving effect in domestic law to rights guaranteed by the European Convention on Human Rights (ECHR) still lay in the future; it was to come into force on 2 October 2000. On 16 May 2002 a human rights claim to remain in the United Kingdom was put forward on the appellant's behalf. It was something of a scattergun application: ECHR Articles 2, 3, 5, 6, 8 and 14 were relied on. The application was refused by the Secretary of State on 23 September 200The appellant appealed. Her appeal was heard by Mr Adjudicator Boardman on 11 December 200At the hearing only Article 8 (which guarantees respect for private and family life) was relied on, and accordingly the Adjudicator's determination was confined to Article 8 considerations. The determination was promulgated on 23 December 200In it the Adjudicator recorded the evidence about the work the appellant had been doing in the United Kingdom (which included a BSc in business information technology and a one-year placement with General Technology Ltd), and described her domestic circumstances thus:
“15. The Appellant has lived with her siblings ever since she arrived in the UK. Initially she lived with her brother. He went to live in Canada in 1999. The Appellant has lived with her sister since then. She also has several first cousins and an uncle in the UK. They frequently meet at family functions and social activities.
16. The Appellant has made several friends in the UK, through work and university education, and associates with them very frequently.
17. The Appellant is a Hindu, and practises her religion fully. She worships each week at the Tooting Hindu Temple. She has made several friends there. She also helps there in several ways, including youth educational and cultural activities.
…
20. The Appellant says that she has no close relatives in Sri Lanka. All her 8 siblings are living abroad. Her parents and 2 siblings are in Canada; one brother is in Australia; another is in Switzerland; one is in Germany; 2 are in India; and of course the sister she is living with is in the UK.”
The Adjudicator's conclusions are important, because a principal question in the case is whether material put forward on behalf of the appellant since his determination constitutes, or is capable of constituting, a fresh claim within paragraph 353 of the Immigration Rules. One needs therefore to understand what was the scope of the Adjudicator's decision on the original claim (that is, the “scattergun” application of 16 May 2002). Mr Adjudicator Boardman found that the appellant had not established family life in the United Kingdom for the purposes of Article 8. He held (paragraph 28) that the appellant's association with her brother, and particularly her sister with whom she was currently living, amounted “at most to the normal emotional ties of members of a family”; but these were insufficient for Article 8. He accepted (paragraph 29) that the appellant had established a private life in the United Kingdom, and her removal to Sri Lanka would interfere with it. However (paragraph 30) he also found that the Secretary of State's decision of 23 September 2003, rejecting her application to remain, was proportionate to the legitimate aim of immigration control. He set out no less than fourteen factors which he had taken into consideration. Nine of them militated in her favour (they included the duration of her residence here and her domestic circumstances) and five against. It is to be noted, in light of what was to come, that there is no reference in the determination to any mental health difficulties suffered by the appellant.
And so the appellant's appeal was dismissed. Her application for leave to appeal to the IAT was refused on 29 March 2004. However she was not removed from the United Kingdom, and on 12 April 2005 an application was put forward on her behalf by the Legal Advisory Service seeking indefinite leave to remain. Reference was made to the appellant's long residence in the United Kingdom (over twelve years). The application letter stated among other things that “[s]he is now supported by her relatives. She has no one to go back in Sri Lanka and well settled in mind to live here with her relatives.” The application was rejected because the prescribed form had not been used. The proper form was then completed, signed by the appellant, and submitted on 29 April 200In the body of the form the appellant stated:
“I have no one in Sri Lanka now. Since arrival living with my sister in this country and established a well settled private and family life for me in the UK. [sic]”
There is also among the papers a letter from the sister with whom the appellant is living, addressed “To whom it may concern”. It bears an earlier date, 14 March 2005. The sister stated:
“I confirm that I have been supporting [the appellant] by providing accommodation which includes meals and pay her a weekly allowance for her miscellaneous expenditure.”
As I understand it, this letter was submitted to the Secretary of State at some stage in the course of this correspondence, which continued with a further letter from the Legal Advisory Service dated 19 November 2005. That stated:
“During her thirteen years stay in this country, she obtained a degree in information technology and leading a peaceful life [sic]. She has her sister and other relatives here and well settled as a family with all of them. She has no one in Sri Lanka…”
There seems to have been no response from the Home Office. The next document is a letter dated 18 December 2006 from a newly instructed firm of solicitors, Jeya & Co. It was expressed to be in support of the appellant's “application to remain in the UK on the basis of long residence”. The solicitors relied on the length of her residence here –“over 14 years”. They said “she has not drawn on public funds, having the support of her sister and cousin”. They referred to the Adjudicator's decision, and claimed that it would not be proportionate to remove the appellant now, given the further passage of time. Of particular importance is a letter, enclosed by Jeya & Co, from the appellant's general practitioner, Dr Nicholas-Pillai. It was dated much earlier: 11 November 2004. It described a history of post-traumatic stress disorder, loss of...
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